EXHIBIT 10.(j)
OFFICE LEASE SUMMARY
XXXXXX PARK AT XXXXXXX
THIS LEASE AGREEMENT (hereinafter referred to as the "Lease"), made and entered
into on the 4th day of December, 2001, between SOUTHEAST OFFICE
PARTNERS, L.L.C., 26 (hereinafter called "Landlord") and CRYOMEDICAL SCIENCES,
INC., a Delaware Corporation, (hereinafter called "Tenant");
W I T N E S S E T H:
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Summary of Lease:
The following is a summary of certain portions of the Lease
Landlord: Southeast Office Partners
Landlord's Address: c/o The Xxxxxxx Company
0000 Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Tenant: Cryomedical Sciences, Inc., a Delaware Corporation
Tenant's Address:
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Suite Number: Xxxxxxxx 000, Xxxxx 000
Lease Term: 1 year and 0 month
Commencement Date: December 5, 2001
Expiration Date: December 4, 2002
Rental Rate: $8.00 per square foot - months 1-6
$10.75 per square foot - months 7-12
Base Rental: $27,840 per annum: $2,320 per month - months 1-6
$37,410 per annum: $3,117.50 per month - months 7-12
Area of Promises: 3,480 square feet.
Tenants Percentage of Phase: 1.753 percent.
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Security Deposit: $3,117.50
Broker: Resource Real Estate Partners, L.L.C.
Co-Broker: CTR Partners, L.L.P.
It is understood that the foregoing is intended as a summary of the Lease for
convenience only and if there is a conflict between the above summary and any
provisions of this Lease hereinafter set forth, the latter shall control.
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LEASE AGREEMENT
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Xxxxxx Park At Xxxxxxx
STATE OF GEORGIA
COUNTY OF XXXX
THIS LEASE, made this 4th day December, 2001, by and between SOUTHEAST OFFICE
PARTNERS, L.L.C., 26 (hereinafter called "Landlord") and CRYOMEDICAL SCIENCES,
INC., a Delaware Corporation having its principal office located at
_______________________________________________ (hereinafter called "Tenant");
W I T N E S S E T H:
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1. PREMISES
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In consideration of the rents, covenants, agreements, and stipulations
set forth below, Landlord hereby leases to Tenant and Tenant hereby
rents and leases from Landlord the following described space
(hereinafter called "Premises"):
Approximately 3,480 square feet located in Xxxxx 000, 000 Xxxxxxxx
(hereinafter called "Building"), Xxxxxx Park At Xxxxxxx, Xxxxxxxx 000,
Xxxxx 000, 0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000, the
Premises being more particularly shown and outlined on the plan
attached hereto as Exhibit "A" and made a part hereof.
2. TERM
----
To have and to hold said Premises for a term of 1 years and 0 months
commencing on the 1st day of December, 2001 (hereinafter called
"Commencement Date") and ending at 6:00 p.m. on the 30th day of
November, 2002 (hereinafter called "Term").
3. RENTAL
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(a) Tenant shall pay to Southeast Office Partners, L.L.C., 26, 0000
Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 or at such
other place as Landlord may designate in writing, without
notice, demand, deduction, or setoff, annual rental of ($32,625)
(hereinafter called "Base Rental"), payable in monthly
installments of $2,320 for months 1-6 and $3,117.50 for months
7-12 in advance on the first day of each calendar month during
the Term, together with any rental adjustments as hereinafter
provided. A pro rata monthly installment shall be due for the
first and last month of the Term should the Term begin or end on
other than the first or last day of the calendar month. The
first installment of Base Rental shall be paid contemporaneously
with the execution of this Lease.
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(b) If the Base Rental and any additional rental as hereinafter
provided is not received by Landlord on or before the fifth
(5th) day of the month for which such Base Rental and additional
rental is due, Tenant shall pay a service charge equal to ten
percent (10%) of the amount due for each thirty- (30-) day
period that such amount remains unpaid (but in no event shall
the amount of such service charge exceed the highest legally
permissible rate chargeable at any time by Landlord under the
circumstances). Should Tenant make a partial payment of past due
amounts, the amount of such partial payment shall be applied
first to reduce all accrued and unpaid service charges, in
inverse order of their maturity, and then to reduce all other
past due amounts, in inverse order of their maturity.
Application and payment of said service charge shall be in
addition to all other available remedies as hereinafter provided
for the nonpayment of Base Rental and additional rental owed,
and Landlord shall have available to it all such remedies.
4. SECURITY DEPOSIT
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Upon execution of this Lease by Landlord and Tenant, Tenant shall
deposit with Landlord the sum of Three Thousand One Hundred Seventeen
and 50/100ths ($3,117.50) Dollars as a security deposit (hereinafter
called the "Security Deposit"). Landlord shall hold the Security
Deposit without liability for interest and as security for the
performance by Tenant of Tenant's covenants and obligations under this
Lease, it being expressly understood that the Security Deposit shall
not be considered an advance payment of Base Rental, an advance payment
of any rental adjustment as provided herein, or a measure of the
damages which would be suffered by Landlord in the case of a default by
Tenant. Landlord may commingle the Security Deposit with Landlord's
other funds. Landlord may, from time to time, without prejudice to any
other remedy, use the Security Deposit to the extent necessary to make
good any arrearages or nonpayment of Base Rental, any rental adjustment
as provided herein, any other sum provided herein to be paid by Tenant,
or to satisfy any other covenant or obligation of Tenant hereunder.
Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand the amount so applied in order to restore the
Security Deposit to its original amount. If Tenant is not in default at
the termination of this Lease, the balance of the Security Deposit
remaining after any such application shall be returned by Landlord to
Tenant within thirty (30) days after such termination. If Landlord
transfers its interest in the Premises during the Term, Landlord may
assign the Security Deposit to the transferee and thereafter shall have
no further liability for the return of such Security Deposit.
5. RENTAL ADJUSTMENT
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(a) Intentionally Deleted.
(b) Intentionally Deleted.
6. COMPLETION, DELIVERY, AND ACCEPTANCE OF PREMISES
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(a) Intentionally Deleted.
(b) Intentionally Deleted.
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(c) Intentionally Deleted.
7. USE OF PREMISES
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Tenant shall use and occupy the Premises for office purposes and for
light assembly and testing of medical equipment and for no other
purpose without Landlord's prior-written consent. Tenant's use of the
Premises shall not violate any ordinance, law, order, or regulation of
any government body, or the "Rules and Regulations" of Landlord, made a
part hereof as Exhibit "D." Nor shall Tenant use the Premises in any
manner that may vitiate the insurance, increase the rate of insurance
on the Premises or Building, injure the Premises or Building, commit
waste, or create a nuisance, trespass, menace, or disturbance of the
quiet enjoyment of occupants of adjacent premises or buildings.
8. QUIET ENJOYMENT
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Provided the Tenant pays the Base Rental, all rental adjustments and
all other sums herein provided to be paid by Tenant, and performs all
of Tenant's covenants and agreements herein contained, Tenant shall at
all times during the Term peaceably and quietly enjoy the Premises
without any disturbance from Landlord or from any other person, subject
to the terms, provisions, covenants, agreements, and conditions of this
Lease and to the Deeds to Secure Debt, Security Deeds, and other
matters to which this Lease is subordinate and subject. This covenant
and any and all covenants of Landlord shall be binding upon Landlord
and its successors only with respect to breaches occurring during its
or their respective periods of ownership of the Landlord's interest
hereunder.
9. COMMON AREA
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(a) The term "Common Area" is defined for all purposes of this Lease
as those areas and parts of Xxxxxx Park At Xxxxxxx intended for
the common use and/or benefit of all occupants of Xxxxxx Park At
Xxxxxxx, including among other facilities, parking areas,
sidewalks, driveways, service areas, trash dumpsters, common
loading areas, and landscaped areas. Tenant shall have access
with all other tenants to these areas, and agrees not to
interfere with the use and access of the Common Area by other
occupants of the Building or other Xxxxxx Park At Xxxxxxx
facility.
(b) Landlord shall maintain and keep clean the Common Area, and
shall be responsible for the operation, management, and
maintenance of the Common Area, the manner and expenditures
thereof to be in the sole discretion of Landlord. Tenant agrees
to pay its proportionate share of the costs of Common Area
Maintenance and operation (hereinafter called "CAM"), including,
but not limited to, those expenses incurred for water, sewer,
landscape maintenance, general maintenance and services,
lighting, painting, cleaning, policing, inspecting, repair and
replacement, management fees, together with a reasonable
allowance for overhead and depreciation of necessary equipment.
(c) Tenant's proportionate share of the CAM costs shall be computed
by the ratio that the square footage of the Premises, indicated
in Paragraph 1 hereof, bears to 197,987 square feet, the total
square footage of the office-service facilities of Xxxxxx Park
At Xxxxxxx. Tenant shall pay to Landlord as additional rental
each year an "Estimated CAM Charge,"
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payable in advance in equal monthly installments, beginning on
the first day of the Term. The Estimated CAM Charge each year
shall be based upon Landlord's reasonable estimate of the CAM
costs for such year. The Estimated CAM Charge for the first
calendar year in which the Term begins shall be $1.10 per square
foot. Within ninety (90) days following the close of each
calendar year during the Term, or any renewal or extension
thereof, or as soon thereafter as practicable, Landlord shall
furnish to Tenant a "CAM Statement," detailing the actual CAM
costs for the preceding year, Tenant's proportionate share
thereof, and the Estimated CAM Charge for which Tenant shall be
responsible during the then-current calendar year. At such time,
a lump-sum payment shall be made by one party to the other, as
appropriate, consisting of any difference between Tenant's
proportionate share of the actual CAM costs for the preceding
year and the Estimated CAM Charge paid by Tenant for such year,
plus any appropriate adjustment for the period of time between
the close of the preceding calendar year and the date of said
CAM Statement.
10. SERVICES AND UTILITIES
----------------------
(a) Tenant shall be solely responsible and shall pay for all
janitorial services, gas, electricity, fuel, light, heat, power,
and other utility services for the Premises, or used by Tenant
in connection therewith. If Tenant does not pay the utility
charges in a timely manner, Landlord may pay the same, and the
costs for such payment shall be added to the rental of the
Premises. Tenant shall not conduct any operation nor install any
equipment which may exceed or overburden the capacity of any
utility facilities serving the Premises. Should any of Tenant's
operations or equipment require additional utility facilities,
the same shall be installed by Tenant at Tenant's expense in
accordance with plans and specifications approved in advance and
in writing by Landlord.
(b) Landlord shall contract for or otherwise provide water and sewer
services to the Premises. If, in the sole judgment of Landlord,
Tenant's use of the water and sewer overburdens the facilities
of the same or is disproportionate to the use of said services
by other occupants of the Building, Landlord may require that
Tenant, at its sole expense, provide additional
Landlord-approved service facilities and/or adjust Tenant's
proportionate share of the CAM costs accordingly.
(c) Landlord reserves the right to stop the supply of water, sewer,
electrical current, gas, and other services without incurring
any liability to Tenant, where necessary by reason of accident,
breakdown, defect, or emergency, or for repairs, alterations,
replacements, or improvements which in the judgment of Landlord
are desirable or necessary, or when prevented from supplying
such services by strikes, lockouts, difficulty of obtaining
materials, accidents, or bylaws, orders, or inability by
exercise of reasonable diligence to obtain said services. No
diminution or abatement of rent, damages for failure to furnish
such services, or other compensation shall be claimed by Tenant
as a result of, nor shall this Lease or any of the obligations
of Tenant be affected or reduced by reason of, any such
interruption, curtailment, cessation, or suspension.
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11. HVAC EQUIPMENT MAINTENANCE
--------------------------
Tenant shall obtain upon occupancy and keep current and in force during
the Term, or any extension, or renewal thereof a contract, in a form
and with a dealer-authorized contractor acceptable to Landlord,
providing for the service and maintenance of the heating, ventilating,
and air-conditioning ("HVAC") equipment serving the Premises. The
contract shall at a minimum provide for an inspection, necessary
repairs, filter, and lubrication service each calendar quarter and
tune-up service each spring and fall season. Said contract shall
provide that it shall not be canceled by either Tenant or contractor
except upon thirty (30) days' prior-written notice to Landlord. A copy
of the contract shall be delivered to Landlord upon the commencement of
the Term, as shall any modification, extension, renewal, cancellation,
or replacement within ten (10) days thereof. Landlord warrants that all
HVAC equipment is in good working order at lease commencement.
12. REPAIR, MAINTENANCE, AND ALTERATION OF PREMISES
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(a) Landlord shall keep the foundation, roof, and exterior walls of
the Premises (except windows, doors, door closure devices,
window and door frames, molding, locks, and hardware) in good
repair, except that Landlord shall not be required to make any
repairs occasioned by the act or negligence of Tenant, its
agents, employees, sublessees, invitees, and/or licensees. In
the event the Premises should become in need of repairs which
are required to be made by Landlord hereunder, Tenant shall give
immediate written notice of such to Landlord, and Landlord shall
have a reasonable time after the delivery of said notice to make
such repair.
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(b) Tenant agrees throughout the Term, any extension, or renewal
thereof, to keep and maintain, at Tenant's sole cost and
expense, the Premises and all fixtures and equipment therein,
including all plumbing, heating, air conditioning, electrical,
gas, water, sewer and like fixtures and equipment, and also
including the Premises' window glass, service doors, entrance
and personnel doors, door frames, locks, and hardware, interior
ceilings, walls, floors, and all authorized signs visible from
outside the Premises in good repair, order, and condition,
making all repairs and replacements thereto as may be desired or
required; all repairs and replacements to be of the same or
better quality, design, and class as the original work and
equipment. If any repairs required to be made by Tenant
hereunder are not made within ten (10) days after written notice
is delivered to Tenant by Landlord, Landlord may at its option
make such repairs without liability to Tenant for loss or damage
which may result to Tenant's equipment, fixtures, inventory, or
business by reason of such repairs, and Tenant shall pay to
Landlord upon demand as additional rental hereunder the cost of
such repairs, plus interest at the rate of one and one-half
(1-1/2%) percent per month from the date of payment by Landlord
until repaid by Tenant.
(c) Tenant shall not make any alterations, additions, repairs,
improvements, or installations to the Premises without the
prior-written consent of Landlord. All alterations, additions,
repairs, improvements, installations, equipment, and fixtures,
by whomever installed or erected, except such business trade
fixtures belonging to Tenant as can be removed without damage to
or leaving incomplete the Premises or Building, shall remain
upon and be surrendered with the Premises and become the
property of Landlord, at its option, at the termination of this
Lease. Any floor tile, carpeting, or other floor covering shall,
at Landlord's option, become its property without credit or
compensation to Tenant. Landlord, however, reserves the right to
require Tenant to remove any improvements or additions made to
the Premises by Tenant, who further agrees to do so prior to the
expiration of the Term or within thirty (30) days after notice
from Landlord, whichever shall be later, provided Landlord gives
such notice no later than thirty (30) days after the expiration
of Tenant's occupancy of the Premises.
(d) No later than the last day of the Term, Tenant will remove all
Tenant's personal property and repair all injury done by or in
connection with the installation or removal of said property and
surrender Premises, together with all keys to Premises, in as
good condition as existed at the beginning of the Term,
reasonable wear alone excepted. All property of Tenant remaining
on Premises after the expiration of the Term shall be deemed
conclusively abandoned and may be removed by Landlord, and
Tenant shall reimburse Landlord for the cost of removing the
same, subject however, to Landlord's right to require Tenant to
remove any improvements or additions made to Premises by Tenant
pursuant to preceding Subparagraph (c).
(e) All construction work done by Tenant within the Premises shall
be performed in good and workmanlike manner, performed only by
contractors or workmen approved by Landlord, in compliance with
all governmental requirements, and in such a manner as to cause
a minimum of interference with other construction in progress in
the Building or with any other occupants in the Building or
other Xxxxxx Park At Xxxxxxx facility. Tenant agrees to
indemnify and hold harmless Landlord against any loss,
liability, or damage resulting from such work, and Tenant shall,
if requested by Landlord, furnish a bond or
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other security satisfactory to Landlord against any such loss,
liability, or damage. Tenant shall notify Landlord in writing
five (5) days prior to employing any contractor or xxxxxxx to
perform work resulting in any alteration or addition to the
Premises, and Landlord must first approve in writing all plans
and specifications prepared in connection with such work.
(f) Tenant shall not suffer or permit any materialmen's, mechanics',
artisans', or other liens to be filed or placed or exist against
the land or Building of which the Premises are a part, or
Tenant's interest in Premises by reason of work, services, or
materials supplied or claimed to have been supplied to Tenant,
or anyone holding the Premises or any part thereof through or
under the Tenant, and nothing contained in this Lease shall be
deemed or construed in any way as constituting the consent or
request of Landlord, expressed or implied, to any contractor,
subcontractor, laborer, or materialman for the performance of
any labor or the furnishing of any materials for any
improvements, alterations, or repairs of or to the Premises or
any part thereof, nor as giving Tenant any right, power, or
authority to contract for or permit the rendering of any
services or the furnishings of any materials that would give
rise to the filing of a materialmen's, mechanics', or other lien
against the Premises. If any such lien should at any time be
filed, Tenant shall cause the same to be discharged of record
within fifteen (15) days after the date of filing the same. If
Tenant fails to so discharge such lien, then, in addition to any
other right or remedy available to Landlord, Landlord may, but
shall not be obligated to, discharge the same either by paying
the amount claimed, or by procuring the discharge of such lien
by a deposit in court, or by posting a bond. Any amount paid by
Landlord for any of the aforesaid purposes, or for the
satisfaction of any other lien not caused by Landlord, and all
reasonable expenses of Landlord in defending any such action or
in procuring the discharge of such lien, shall be deemed
additional rental hereunder, and shall be repaid by Tenant to
Landlord on demand.
13. REAL ESTATE TAX AND INSURANCE INCREASE
--------------------------------------
(a) If Tenant occupies the Premises beyond the original Lease Term
Tenant agrees to pay to Landlord Tenant's proportionate share of
the amount, if any, by which the total of all real estate taxes
and costs of insurance attributable to Xxxxxx Park At Barret's
office-service buildings and property for each calendar year
exceeds the "Base Amount," (herein defined as being the 2001
actual amount per square foot contained in Xxxxxx Park At
Xxxxxxx'x office-service facilities). Tenant's proportionate
share of any such real estate tax and insurance increase shall
be computed by the ratio that the square footage of the
Premises, indicated in Paragraph 1 hereof, bears to 197,987, the
total square footage of all completed office-service facilities
in Xxxxxx Park At Xxxxxxx.
(b) As used in this Paragraph "real estate taxes" shall mean all
real estate taxes and assessments levied against, in respect to,
or attributable to Xxxxxx Park At Xxxxxxx office-service
buildings and property, or any other tax levied against Landlord
as a substitution for, or in lieu of, any tax which would
otherwise constitute a real estate tax or a specific tax on
rentals from the buildings, plus the cost, including attorneys'
and appraisers' fees, of any negotiation, contest, or appeal
pursued by Landlord in an effort to reduce the tax or assessment
on which any tax provided for in this Paragraph is based.
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(c) As used in this Paragraph, "insurance" shall mean all hazard,
public liability, and property damage insurance attributable to
Xxxxxx Park At Xxxxxxx procured by Landlord in its sole and
reasonable discretion.
(d) Tenant shall pay to Landlord as additional rental each year
following the first calendar year in which the Term begins an
"Estimated Tax and Insurance Increase," payable in equal monthly
installments in advance. The Estimated Tax and Insurance
Increase each year shall be based upon Landlord's reasonable
estimate of any increases in real estate taxes and insurance
costs for such year over the Base Amount. As soon as practicable
following the close of each calendar year during the Term, or
any renewal, or extension thereof beginning after the first
calendar year during the Term, Landlord shall furnish to Tenant
a "Tax and Insurance Statement," detailing actual real estate
taxes and insurance costs for the preceding year, Tenant's
proportionate share of any increases over the Base Amount, and
the Estimated Tax and Insurance Increase for which Tenant shall
be responsible during the then-current calendar year. At such
time, a lump-sum payment shall be made by one party to the
other, as appropriate, to consist of any difference between
Tenant's proportionate share of actual real estate tax and
insurance costs in excess of the Base Amount and the Estimated
Tax and Insurance Increase paid for the preceding calendar year,
plus any appropriate adjustment for the period of time between
the close of the preceding calendar year and the date of the Tax
and Insurance Statement. For the purpose of the first Tax and
Insurance Statement issued following the close of the first
calendar year during the Term, the Base Amount shall be treated
as the "Estimated Tax and Insurance Increase paid for the
preceding calendar year."
14. OTHER TAXES
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Tenant shall be liable for and shall pay before delinquency any and all
taxes, assessments, fees, or public charges assessed against, imposed,
or levied upon the trade fixtures, furnishings, equipment, and all
other personal property contained in the Premises. If any such taxes or
charges are levied against Landlord or Landlord's property, and if
Landlord elects to pay the same, or if the assessed value of Landlord's
property is increased by the inclusion of personal property contained
in the Premises and Landlord elects to pay the taxes or charges based
on such increase, Tenant shall pay to Landlord upon demand that part of
such taxes or charges for which Tenant is responsible hereunder.
15. INSURANCE, WAIVER OF SUBROGATION, INDEMNITY AND MUTUAL RELEASE
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(a) Landlord shall maintain during the Term, any extension, or
renewal thereof fire and extended coverage insurance on the
Building in an amount sufficient to repair or replace the
Building in case of damage or destruction from perils normally
covered by standard insurance.
(b) Tenant shall carry and maintain at all times during the Term,
any extension or renewal thereof, fire and extended coverage
insurance with a carrier satisfactory to Landlord insuring
Tenant's interest in Tenant's improvements, fixtures, and
equipment in the Premises to the extent of at least eighty (80%)
percent of their insurable value. The proceeds from such
insurance policy or policies shall first be used for the repair
or replacement of the above insured items, and Landlord shall
sign all documents necessary
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or proper in connection with the settlement of any claim or loss
by Tenant. Tenant shall carry and maintain at all times during
the Term, or any extension or renewal thereof, comprehensive
public liability insurance for the benefit of Tenant and
Landlord jointly against liability from bodily injury and
property damage with a carrier satisfactory to Landlord in an
amount of not less than $ 1,000,000.00 combined single limit per
occurrence for bodily injury, death, or property damage. Prior
to occupancy of the Premises, Tenant shall deliver to Landlord
the policy or policies of such insurance, or a certificate, or
certificates thereof, as well as any modification, extension,
renewal, cancellation, or replacement at least ten (10) days
prior to such modification, extension, renewal, cancellation, or
replacement. The instruments shall evidence that such insurance
is in force, that said insurance will not be canceled without
thirty (30) days' prior notice to Landlord by the carrier, and
that the carrier waives all rights to recovery by way of
subrogation against Landlord.
(c) If Landlord's property insurance premiums on the Building are
increased due to Tenant's use of the Premises, Tenant shall pay
such increase as additional rental.
(d) Tenant hereby agrees to indemnify, defend, and hold Landlord
harmless against all claims for damages to persons or property
by reason of the use or occupancy of the Premises.
(e) Landlord and Tenant mutually release the other from all
liability or responsibility for any loss, injury, or damage
covered or normally covered by insurance, unless caused by
proven affirmative acts of negligence by the other party, or by
one for whom such party may be responsible.
16. DESTRUCTION OR DAMAGE TO PREMISES
---------------------------------
If during the Term, or any extension or renewal thereof, the Premises
or Building suffer a "Major Casualty" (as that term is hereinafter
defined) by storm, fire, earthquake, or other casualty, the Lease, at
the option of either party exercised by giving written notice to the
other within thirty (30) days of such destruction or damage, shall
terminate as of the date of such Major Casualty, and rental shall be
accounted for as between Landlord and Tenant as of that date. As used
herein, "Major Casualty" shall mean destruction or damage to the
Premises or Building which, in Landlord's reasonable estimation, cannot
be restored within one hundred twenty (120) days of such destruction or
damage. If the Premises or Building suffer a Major Casualty, and
neither party elects to terminate this Lease, Landlord shall use its
best efforts to restore the Premises or Building as promptly as
practicable, subject to delays due to circumstances beyond Landlord's
reasonable control. If the Premises or Building suffer a "Minor
Casualty" (defined herein as destruction or damage by storm, fire,
earthquake, or other casualty which, in Landlord's reasonable
estimation, can be restored within one hundred twenty [120] days of
such destruction or damage), Landlord shall use its best efforts to
restore the Premises or Building as promptly as practicable, subject to
delays due to circumstances beyond Landlord's reasonable control. All
rentals shall xxxxx from the date upon which said Major or Minor
Casualty occurred until the Premises or Building are substantially
restored, and the Term shall be extended by the extent of such
abatement. If the Premises or Building are damaged by any such
casualty, whether Major or Minor, when there are twelve (12) months or
less remaining in the Term, Landlord may, at its option, terminate this
Lease upon written notice to Tenant given within thirty (30) days after
such
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destruction or damage, and rental shall be accounted for as between
Landlord and Tenant as of the date of such destruction or damage. In no
event shall rental xxxxx if damage or destruction to the Premises or
Building is the result of negligence of Tenant, its agents, or
employees.
17. EMINENT DOMAIN
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If the Premises, any substantial part thereof, the land on which the
Building stands, or any estate therein shall be taken by any competent
authority under the power of eminent domain, or is conveyed or leased
in lieu of such taking, or is acquired for any public or quasi-public
use or purpose, the Term of this Lease shall terminate upon the date
when the possession of said Premises or the part thereof so taken, is
taken, conveyed, or leased, without apportionment of the award, and
Tenant shall have no claim against Landlord for the value of any
unexpired Term. If any condemnation proceedings shall be instituted in
which it is sought to take or damage any part of the Building or the
land under it or contiguous thereto, or if the grade of any street or
alley adjacent to the Building is changed by any competent authority,
and such change of grade makes it necessary or desirable to remodel the
Building to conform to the changed grade, Landlord shall have the right
to cancel this Lease after having given written notice of cancellation
to Tenant not less than ninety (90) days prior to the date of
condemnation designated in the notice. In either of said events, rent
at the then-current rate shall be apportioned as of the date of the
termination. No money or other consideration shall be payable by
Landlord to Tenant for the right of cancellation, and the Tenant shall
have no right to share in the condemnation award or in any judgment for
damages caused by the taking or the change of grade. Nothing in this
Paragraph shall preclude an award being made to Tenant by the
condemning authority for loss of business, or depreciation to, and cost
of removal of, equipment or fixtures.
18. SUBORDINATION
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This Lease and all rights of Tenant hereunder shall be subject and
subordinate to: (a) any Deeds to Secure Debt, Security Deeds, or
similar security instruments (hereinafter collectively called the
"Security Instrument") which do now or may hereafter affect the
Premises or the Building or both (and which may also affect other
property); and (b) any and all increases, renewals, modifications,
consolidations, replacements, and extensions of any Security
Instrument. This provision is hereby declared by Landlord and Tenant to
be self-operative and no other instrument shall be required to effect
such subordination of this Lease. Tenant shall, however, upon demand at
any time or times execute, acknowledge, and deliver to Landlord any and
all instruments and certificates that may be necessary or proper to
more effectively subordinate this Lease and all rights of Tenant
hereunder to any Security Instrument or to confirm or evidence such
subordination. In the event Tenant shall fail or neglect to execute,
acknowledge, and deliver any such subordination agreement or
certificate, Landlord, in addition to any other remedies it may have,
may, as the agent and attorney-in-fact of Tenant, execute, acknowledge,
and deliver the same. Tenant hereby irrevocably nominates, constitutes,
and appoints Landlord as Tenant's proper and legal agent and
attorney-in-fact for such purposes. Such power of attorney is coupled
with an interest and shall not terminate on disability of the
principal. Tenant covenants and agrees, in the event any proceedings
are brought for the foreclosure of any Security Instrument or if either
the Premises or the Building or both are sold pursuant to any Security
Instrument, to attorn to the purchaser upon any such sale if so
requested by such purchaser and to recognize such purchaser as the
Landlord under this Lease. Tenant agrees to execute and deliver at any
time and from time to time upon the request of Landlord or any holder
or holders of any of the
12
indebtedness or other obligations secured by any Security Instrument,
any certificate or instrument which, in the sole judgment of Landlord
or of such holder or holders, may be necessary or appropriate to
evidence such attornment. Tenant hereby irrevocably appoints Landlord
and the holder or holders of the indebtedness or other obligations
secured by any Security Instrument, jointly and severally, as the agent
and attorney-in-fact of Tenant, to execute and deliver for and on
behalf of Tenant any such instrument or certificate. Such power of
attorney is coupled with an interest and shall not terminate on
disability of the principal. This Lease and all rights of Tenant
hereunder are further subject and subordinate, to the extent that the
same relate to the Building or the Premises, to: (a) all ground or
underlying leases in existence as of the date hereof or which may
relate to the Building or the Premises in the future, and to any and
all supplements, modifications, and extensions thereof, (b) all
applicable ordinances of Xxxx County, Georgia, relating to easements,
franchises, and other interests or rights upon, across, or appurtenant
to the Premises or the Building; and (c) all utility easements and
agreements.
13
19. ESTOPPEL CERTIFICATES
---------------------
Tenant shall, at any time and from time to time, within ten (10) days
after receipt of a written request from Landlord, execute,
acknowledge, and deliver to Landlord or such other persons or entities
as Landlord may request, a statement in a form reasonably satisfactory
to Landlord, executed by Tenant, certifying: (a) that this Lease is
unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect as modified
and setting forth such modifications); (b) the date or dates to which
the Base Rental has been paid; (c) the Commencement Date; (d) the
anticipated termination date of this Lease; (e) that no default exists
under this Lease (or the existence of any known defaults, the
particulars of such defaults and the action or actions required to
remedy such defaults); (f) the existence of any setoffs against or
defenses to the enforcement of the terms and conditions of this Lease,
and the particulars of any such setoffs or defenses; and (g) any other
information which Landlord may reasonably request. It is intended that
any such statement by Tenant may be relied upon by any prospective
purchaser or mortgagee of the Premises or the Building or both, or any
assignee, sublessee, governmental authority, or public agency.
20. ABANDONMENT
------------
(a) Tenant agrees not to abandon the Premises during the Term.
(b) Tenant agrees to remove from the Premises all equipment,
merchandise, and personal property owned, used, or possessed by
Tenant or any other person or entity (hereinafter collectively
called the "Personal Property") upon vacating the Premises. If
any Personal Property remains on the Premises after Tenant
vacates the Premises, Landlord may provide Tenant with written
notice stating that such Personal Property remains on the
Premises (but Landlord shall be under no obligation to itemize
such Personal Property). If Tenant has not removed such Personal
Property within three (3) days after such notice, such Personal
Property shall be conclusively deemed abandoned, notwithstanding
that title to or a Security Interest in such Personal Property,
may be held by an individual or entity other than Tenant, and
Landlord may dispose of such Personal Property in any manner it
deems proper, in its sole discretion. Tenant hereby waives and
releases any claim against Landlord arising out of the removal
and disposition of such Personal Property and waives and
releases any claim to the Personal Property. Tenant shall
indemnify, defend, and hold Landlord harmless for any costs,
expenses, or fees incurred by Landlord in connection with the
removal and disposition of such Personal Property.
21. ASSIGNMENT AND SUBLETTING
-------------------------
(a) Tenant shall not, without Landlord's prior-written consent,
assign this Lease or any interest hereunder, or sublet the
Premises or any part thereof, or permit the use of the Premises
by any party other than Tenant. In the case of a requested
sublease Landlord's consent shall not be unreasonably withheld,
conditioned or delayed. If Tenant desires to assign or sublet
all or a part of the Premises, Landlord shall have the option to
reacquire all or that portion of the Premises which Tenant
desires to assign or sublet, or to lease all or that part of
Premises which Tenant desires to assign or sublet directly to
Tenants proposed assignee or subtenant. If Tenant desires to
assign or sublet all or a part of the Premises, Tenant must give
Landlord a minimum of fifteen (15) days prior-written notice
14
of such desire, which notice must set forth all relevant details
concerning any proposed assignment or sublease, during which
time Landlord shall have the right to determine whether it
wishes to reacquire all or that part of the Premises which
Tenant desires to assign or sublet, or to lease directly to
Tenant's proposed assignee or subtenant, or consent to such
assignment or sublet.
(b) Assignees or subtenants shall become directly liable to Landlord
for all obligations of Tenant hereunder, without relieving
Tenants liability. If Landlord exercises either of its options
to reacquire all or that portion of the Premises which Tenant
desires to assign or sublet, or to lease directly to Tenant's
proposed assignee or subtenant, Tenant shall be released from
all liability with respect to the portion of the Premises so
reacquired or leased by Landlord. If consent is once given by
Landlord to any assignment or sublease, such consent shall not
operate to destroy or waive the necessity of Landlord's consent
to any subsequent assignment or sublease, or of Landlord's right
to reacquire all or part of the Premises, or to lease directly
to Tenant's proposed assignee or subtenant in conjunction
therewith.
(c) Any person or entity to which this Lease is assigned pursuant to
the provisions of the United States Bankruptcy Code shall be
deemed to have assumed all of the obligations of Tenant arising
under this Lease on and after the date of such assignment. Any
such assignee shall upon demand execute and deliver to Landlord
an instrument confirming such assumption.
(d) If this Lease is assigned to any person or entity pursuant to
the provisions hereof or the provisions of the United States
Bankruptcy Code, any and all monies or other consideration
payable or otherwise to be delivered in connection with any such
assignment shall be paid or delivered to Landlord, shall be and
remain the exclusive property of Landlord, and shall not
constitute property of Tenant or of the estate of Tenant within
the meaning of the United States Bankruptcy Code. Any and all
sums or other consideration constituting Landlord's property
under this Paragraph, but which are not paid or delivered to
Landlord, shall be held in trust for the benefit of Landlord and
be promptly paid or delivered to Landlord.
22. LANDLORD'S ENTRY
----------------
Landlord or Landlord's agent may enter the Premises at reasonable
hours to show the Premises to mortgages, prospective purchasers or
tenants, or to inspect Premises, or to make repairs required of
Landlord under the terms hereof, or repairs to adjoining space within
the Building. During the last sixty (60) days of this Lease, Landlord
may display a "For Rent" sign on the Premises.
23. HOLDING OVER
------------
Should Tenant or any of its successors in interest continue to hold the
Premises after termination of this Lease, whether such termination
occurs by lapse of time or otherwise, such holding over shall
constitute and be construed as a tenancy from month-to-month only, at a
monthly rental equal to twice the monthly rent (including Base Rental
and adjusted rental) provided herein at the time of such termination.
During such time as Tenant shall continue to hold the Premises after
the termination hereof, Tenant shall be regarded as a Tenant from
month-to-month; subject,
15
however, to all the terms, provisions, covenants, and agreements on the
part of the Tenant hereunder. No payments of money by Tenant to
Landlord after the termination of this Lease shall reinstate, continue,
or extend the Term and no extension of this Lease after the termination
hereof shall be valid unless and until the same shall be reduced to
writing and signed by both Landlord and Tenant. Tenant shall be liable
to Landlord for all damage which Landlord shall suffer by reason of
Tenant's holding over and Tenant shall indemnify Landlord against all
claims made by any other tenant or prospective tenant against Landlord
resulting from delay by Landlord in delivering possession of the
Premises to such other tenant or prospective tenant.
24. EARLY TERMINATION
-----------------
No termination of this Lease or the prosecution of a civil action by
Landlord to obtain a writ of possession to dispossess Tenant prior to
the normal ending thereof by the lapse of time or otherwise shall
affect Landlord's right to collect rent and other charges due, by
acceleration, or otherwise as provided hereunder.
25. DEFAULT
-------
(a) If Tenant defaults by failing to pay rental or other charges
within five (5) days after the date due hereunder, or if Tenant
defaults in performing any other of Tenant's obligations
hereunder, and fails to cure such default within thirty (30)
days after written notice from Landlord; or if Tenant files for
or is adjudicated a bankrupt; or if a permanent receiver is
appointed for Tenant's property, including Tenant's interest in
the Premises, and such receiver is not removed within sixty (60)
days after written notice from Landlord to Tenant to obtain such
removal; or if, whether voluntarily or involuntarily, Tenant
takes advantage of any debtor relief proceedings under any
present or future law, whereby the rent of any part thereof is
or is proposed to be reduced, or payment thereof deferred; or if
Tenant makes an assignment for the benefit of its creditors; or
if the Premises or Tenant's effects or interest therein should
be levied upon or attached under process against Tenant, and is
not satisfied or dissolved within thirty (30) days after written
notice from Landlord to Tenant to obtain satisfaction thereof-,
then, and in any of said events, all rental and other charges
then due or reserved herein shall immediately be due and payable
by Tenant.
(b) Upon the occurrence of any of the events described in Paragraph
25(a) above, Landlord shall have the right at its election, then
or at any time thereafter, to pursue any one or more of the
following remedies: (i) terminate this Lease by giving written
notice thereof to Tenant, in which event Tenant shall
immediately surrender the Premises to Landlord and, if Tenant
fails so to do, Landlord may, without prejudice to any other
remedy which it may have for possession or arrearages in rental
or other charges, enter upon and take possession of the Premises
and expel or remove Tenant and any other person who may be
occupying said Premises, or any part thereof, by force, if
necessary, without being liable for prosecution or any claim of
damages therefor, and Tenant hereby agrees to pay to Landlord on
demand the amount of all loss and damage which Landlord may
suffer by reason of such termination, whether through inability
to relet the Premises on satisfactory terms or otherwise; (ii)
enter upon and take possession of the Premises and expel or
remove Tenant or any other person who may be occupying said
Premises, or any part thereof, by force, if necessary, without
having any civil or criminal liability therefor and, without
terminating this Lease; and (iii) Landlord may (but shall be
under no obligation to) relet the Premises or any part thereof
for the account of Tenant, in the name of Tenant or Landlord or
otherwise, without notice to Tenant, for such term or terms
(which may be
16
greater or less than the period which would otherwise have
constituted the balance of the term of this Lease) and on such
conditions and for such uses as Landlord in its absolute
discretion may determine and Landlord may collect and receive
any rents payable by reason of such reletting, and Tenant agrees
to pay Landlord on demand all reasonable expenses necessary to
relet the Premises. After Landlord elects to pursue any of its
remedies under this Paragraph 25, Tenant shall have no right to
cure its default hereunder by tendering payment of rental.
(c) The reentry or taking possession of the Premises by Landlord or
the prosecution of a civil action by Landlord to obtain a writ
of possession to dispossess Tenant shall not be construed as an
election on Landlord's part to terminate this Lease unless a
written notice of such termination is given to Tenant, and in
all such events Tenant shall remain liable to Landlord for all
rental and other charges reserved hereunder. Upon any reletting
of the Premises by Landlord, Tenant shall be liable to Landlord
for the deficiency, if any, between all rent reserved hereunder
and the total rental applicable to the term obtained by Landlord
in reletting the Premises, and for Landlord's expenses in
restoring the Premises, and all costs incident to reletting.
(d) Should any dispute arising under or out of the terms of this
Lease result in litigation, Tenant hereby waives any and all
rights to a jury trial in connection with such litigation.
Tenant further waives any and all right to remain in possession
of the Premises during such litigation and/or any appeals
resulting therefrom. Tenant hereby agrees that this Lease or a
copy thereof may be made part of the record in any such
litigation.
26. BANKRUPTCY
----------
Neither this Lease, nor any interest herein, nor any estate hereby
created shall pass to any trustee or receiver in bankruptcy or to any
other receiver or assignee for the benefit of creditors by operation of
law during the Term, or any renewal, or extension thereof.
27. LATE PAYMENT, ATTORNEYS' FEES, AND HOMESTEAD
--------------------------------------------
Any amounts payable hereunder by Tenant to Landlord which are not paid
on or before the date due shall bear interest at the rate of one and
one-half (1-1/2%) percent per month from said due date. If any rent
owing under this Lease is collected by or through an attorney-at-law,
Tenant agrees to pay and amount equal to fifteen (15%) percent thereof
as attorneys' fees. Tenant waives all homestead rights and exemptions
which he may have under any law as against any obligation owing under
this Lease, and hereby assigns to Landlord his homestead rights and
exemptions.
28. NO ESTATE IN LAND
-----------------
It is understood and agreed that Tenant has only a usufruct under this
Lease, not subject to levy and sale, and that no estate shall pass out
of Landlord to Tenant hereunder, Tenant's rights to the use of the
Premises being solely contractual.
29. REMEDIES CUMULATIVE
-------------------
The rights given herein are in addition to any rights that may be given
by any statute or otherwise.
17
30. LANDLORD'S LIABILITY
--------------------
Landlord shall have no liability or obligation to Tenant with respect
to this Lease except insofar as Landlord may have any right, title, or
interest in and to the real property or Premises which are the subject
matter hereof
31. NOTICE
------
(a) Any notice by either party to the other shall be valid only if
in writing, and shall be deemed to be duly given only if
delivered personally or sent by registered or certified mail,
return receipt requested, addressed: (i) if to Tenant, at the
Building; and (ii) if to Landlord, at Landlord's address set
forth in Paragraph 3 hereof, or at such other address for either
party as that party may designate by written notice to the
other. Any notice sent as hereinabove provided shall be deemed
given or delivered: (i) upon receipt if personally delivered
(provided that such delivery is confirmed by the courier
delivery service); or (ii) if sent by United States Mail on the
date appearing on the return receipt therefor, or if there is no
date on such return receipt, the receipt date shall be presumed
to be the postmark date appearing on such return receipt.
(b) Tenant hereby appoints as its agent to receive service of all
dispossessory, distraint, or other proceedings, any person
employed by Tenant or acting as Tenant's agent and occupying
the Premises; and if there is no such person occupying same,
then such service may be made by attachment thereof on the main
entrance of the Premises.
32. PARAGRAPH CAPTIONS
------------------
The paragraph captions in this Lease are included for convenience only,
and shall not be taken into consideration in any construction or
interpretation of this Lease or any of its provisions.
33. GENDER
------
The parties "Landlord," "Tenant," and "Agent" and pronouns relating
thereto, as used herein, shall include male, female, singular and
plural, corporation, partnership, or individual, as may fit the
particular parties.
34. TENANT CORPORATION, PARTNERSHIP, OR INDIVIDUAL
----------------------------------------------
If Tenant executes this Lease as a corporation, each of the persons
executing this Lease on behalf of Tenant does hereby covenant, warrant,
and represent that Tenant is a duly authorized and existing
corporation, that Tenant has and is qualified to do business in
Georgia, that the corporation has full right and authority to enter
into this Lease, and that each and all persons signing on behalf of the
corporation were authorized to do so. Upon Landlord's request, Tenant
shall provide Landlord with evidence reasonably satisfactory to
Landlord confirming the foregoing covenants and warranties. If Tenant
executes this Lease as a partnership, Tenant does hereby covenant,
warrant, and represent that all the persons who are general or managing
partners in said partnership have executed this Lease on behalf of
Tenant, or that this Lease has been executed and delivered pursuant to
and in conformity with a valid and effective authorization therefor, by
all of the general or managing partners of such partnership, and is and
constitutes the valid and binding agreement of the partnership and each
and every partner therein in accordance
18
with its terms. Also, it is agreed that each and every present and
future partner of Tenant shall be and shall remain at all times jointly
and severally liable hereunder, and that the death, resignation, or
withdrawal of any partner shall not release the liability of such
partner under the terms of this Lease unless and until Landlord
consents in writing to such release. If Tenant executes this Lease as
an individual, Tenant does hereby covenant, warrant and represent that
his legal residence address is set forth below his signature on this
Lease.
35. HEIRS AND ASSIGNS
-----------------
The provisions of this Lease shall bind and inure to the benefit of
Landlord, Tenant, Agent, and their respective successors, heirs, legal
representatives, and, where permitted, assigns; it being understood
that the term "Landlord," as used in this Lease, means only the owner
of the land and Building of which Premises are a part, so that in the
event of any sale or sales of said property or of any lease thereof,
the Landlord named herein shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder
accruing thereafter; and it shall be deemed without further agreement
that the purchaser or the lessee, as the case may be, has assumed and
agreed to carry out any and all covenants and obligations of Landlord
hereunder during the period such party has ownership or leasehold
rights of die land and Building. Should the land and the entire
Building be severed as to ownership by sale and/or lease, then the
owner of the entire Building or tenant of the entire Building who has
the right to lease space in the Building to others shall be deemed the
"Landlord." Tenant shall be bound to any succeeding party Landlord for
all the terms, covenants, and conditions hereof, and shall execute any
attornment agreement not in conflict herewith at the request of any
such succeeding party Landlord.
36. TIME OF ESSENCE
----------------
Time is of the essence of this Agreement.
37. NO IMPLIED WAIVER
-----------------
The failure of Landlord to insist at any time upon the strict
performance of any covenant or agreement herein, or to exercise any
option, right power, or remedy contained in this Lease, shall not be
construed as a waiver of or a relinquishment thereof for the future. No
payment by Tenant or receipt by Landlord of a lesser amount than the
monthly installment of Base Rental, additional rental, or any other sum
herein provided to be paid by Tenant shall be deemed to be other than
on account of the earliest such payment due hereunder, nor shall any
endorsement or statement on any check or any letter accompanying any
check or payment as Base Rental, additional rental, or any other sum
herein provided to be paid by Tenant be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlords right to recover the balance of such Base
Rental, additional rental, or any other sum herein provided to be paid
by Tenant, or pursue any other remedy provided for in this Lease.
38. RULES AND REGULATIONS
---------------------
Tenant and Tenant's agents, employees, and invitees shall fully comply
with all requirements of the Rules and Regulations (as changed from
time to time as hereinafter provided) which are
19
attached hereto as Exhibit "D" and made a part hereof. Landlord shall
at all times have the right to change such Rules and Regulations or to
promulgate other Rules and Regulations in such reasonable manner as
Landlord, in its sole discretion, may deem advisable; provided,
however, that such changes shall not become effective and a part of
this Lease until a copy thereof shall have been delivered to Tenant.
Tenant shall further be responsible for compliance with such Rules and
Regulations by the employees, servants, agents, visitors, and invitees
of Tenant.
39. COMMISSION
----------
(a) Landlord agrees to pay Resource Real Estate Partners, LLC, as
compensation for services rendered in procuring this Lease, as
further provided in that certain Exclusive Leasing Listing
Agreement, dated November 1, 2001, by and between Southeast
Office Partners, LLC, 26 and Resource Real Estate Partners, LLC.
Resource Real Estate Partners agrees to pay CTR Partners as
compensation for services rendered in procuring this Lease, as
set forth in the Co-Brokerage Agreement between them.
40. RELOCATION
----------
(a) In order to facilitate Landlord's leasing program for the
Project, Landlord shall be entitled at any time prior to
Tenant's occupancy of the Premises to cause Tenant to relocate
from the Premises to comparable space within Xxxxxx Park At
Xxxxxxx (hereinafter called "Center"). Any such relocation shall
be entirely at the expense of Landlord or the third-party tenant
replacing Tenant in the Premises. Such a relocation shall not
terminate or otherwise affect or modify this Lease, except that
from and after the date of such relocation, "Premises" shall
refer to the relocation space into which Tenant has been moved,
rather than the original Premises as herein defined.
(b) At any time after Tenant's occupancy of the Premises, Landlord
reserves the right to relocate Tenant in substitute premises of
equivalent square footage and approximate configuration within
the Center upon sixty (60) days written notice to the Tenant. If
this right is exercised, Landlord shall, at its own expense,
provide Tenant with paint, wallcovering, and carpeting at the
new location, comparable to those in the original location, and
shall at Landlord's expense, move Tenant' s office furnishings
to the new location. If the then-current base rental rate at the
new location is less than at the original location, Tenant's
Base Rental shall be reduced accordingly, but if the
then-current base rental rate at the new location is higher than
at the original location, Tenant's Base Rental shall not be
increased for the remainder of the Lease Term. If Landlord
requests relocation of Tenant in accordance with the provisions
of this Subparagraph 40(b) and Tenant gives written notice to
Landlord of its objection thereto within twenty (20) days after
receipt of the notice from Landlord, Landlord may, by written
notice to Tenant within twenty (20) days after notice of
Tenant's objection, withdraw the request for relocation. If the
request is not withdrawn within said twenty (20) day period,
Tenant shall have the option of terminating this Lease by
written notice to Landlord within thirty (30) days after
expiration of said twenty (20) day period.
20
41. JOINT AND SEVERAL LIABILITY
---------------------------
If there is more than one Tenant, the obligations imposed upon Tenant
under this Lease shall be joint and several.
42. EFFECT OF DELIVERY OF THIS LEASE
--------------------------------
Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery hereof does not constitute an offer to
Tenant or option to lease to Tenant. This Lease shall not be effective
until a copy executed by both Landlord and Tenant is delivered to and
accepted by Landlord.
43. RECORDATION
-----------
Tenant agrees not to record this Lease, or any memorandum hereof. In
the event Landlord's mortgagee may so require, Tenant agrees to execute
a short form of this Lease for recording.
44. ENTIRE AGREEMENT
----------------
This Lease contains the entire agreement of the parties hereto, and no
representations, inducements, promises, or agreements, oral or
otherwise, between the parties not embodied herein, shall be of any
force or effect. If any term or provision of this Lease shall be
invalid or unenforceable, the remaining terms and provisions hereof
shall not be affected thereby. If the application of any term or
provision of this Lease to any person or circumstance shall to any
extent be invalid or unenforceable, such term or provision shall remain
applicable as to those persons or circumstances to which it shall be
valid and enforceable. Each term and provision of this Lease shall be
valid and enforceable to the fullest extent permitted by law.
45. DISCLOSURES REGARDING AGENCY
----------------------------
Tenant represents and warrants to Landlord that, except with respect to
CTR Partners (hereinafter referred to as "Co-Broker"), no agent,
broker, or other person or entity has represented Tenant in the
negotiations for procurement of this Lease and that no commissions or
compensation of any kind are due and payable in connection herewith to
any other agent, broker, or other person or entity. Tenant agrees to
indemnity, defend, and hold Landlord harmless from any and all claims,
suits, or judgments (including, but not limited to, reasonable
attorneys' fees and court costs incurred in the enforcement of this
indemnity or otherwise) for any commissions or compensation of any kind
which arise out of or are in any way connected with any claimed agency
relationship with Tenant (except for any agent or broker identified
herein). Agent is the agent of Landlord in connection with this
transaction and will be paid its commission by Landlord. Agent is not
the agent of Tenant. If a Co-Broker is named above, Landlord and Tenant
acknowledge, consent, and agree as follows: (i) although Co-Broker is
the agent of Tenant in connection with this transaction, Co-Broker will
be paid its commission by Landlord's Agent pursuant to a separate
agreement between Landlord's Agent and the Co-Broker; (ii) Co-Broker is
not the agent of Landlord; and (iii) the fact that Landlord's Agent is
paying such commission to Co-Broker does not constitute Co-Broker as an
agent of Landlord, nor does such fact constitute Co-Broker as a dual
agent for both Landlord and Tenant.
21
46. HAZARDOUS SUBSTANCES
--------------------
(a) Tenant hereby covenants that Tenant shall not cause or permit
any "Hazardous Substances" (as hereinafter defined) to be
placed, held, located, or disposed of in, on, or at the Premises
or any part thereof, and neither the Premises nor any part
thereof shall ever be used as a dump site or storage site
(whether permanent or temporary) for any Hazardous Substances
during the term of this Lease.
(b) Tenant hereby agrees to indemnify and defend Landlord and hold
Landlord harmless from and against any and all losses,
liabilities (including strict liability), damages, injuries,
expenses (including reasonable attorneys' fees), costs of any
settlement or judgment, and claims of any and every kind
whatsoever paid, incurred, suffered by, or asserted against
Landlord by any person, entity, or governmental agency for, with
respect to, or as a direct or indirect result of, the presence
on or under, or the escape, seepage, leakage, spillage,
discharge, emission, discharging, or release from the Premises
of any Hazardous Substances (including, without limitation, any
losses, liabilities, including strict liability, damages,
injuries, expenses, including reasonable attorneys' fees, costs
of any settlement or judgment or claims asserted or arising
under the Comprehensive Environmental Response, Compensation,
and Liability Act, any so-called federal, state, or local
"Superfund" or "Superlien" laws, or other statute, ordinance,
code, rule, regulation, order, or decree regulating, relating
to, or imposing liability, including strict liability, or
standards of conduct concerning any Hazardous Substances);
provided, however, that the foregoing indemnity is limited to
matters arising directly or indirectly from Tenant's violation
of the covenant contained in Subparagraph a. above.
(c) For purposes of this Lease, "Hazardous Substances" shall mean
and include those elements or compounds which are contained in
the list of hazardous substances adopted by the United States
Environmental Protection Agency (EPA) or the list of toxic
pollutants designated by Congress or the EPA or which are
defined as hazardous, toxic, pollutant, infectious, or
radioactive by any other federal, state, or local statute, law,
ordinance, code, rule, regulation, order, or decree regulating,
relating to, or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance,
or material, as now or at any time hereafter in effect.
(d) Landlord shall have the right but not the obligation, and
without limitation of Landlord's rights under this Lease, to
enter onto the Premises or to take such other actions as it
deems necessary or advisable to cleanup, remove, resolve, or
minimize the impact of, or otherwise deal with, any Hazardous
Substances following receipt of any notice from any person or
entity (including, without limitation, the EPA) asserting the
existence of any Hazardous Substances in, or at the Premises, or
any part thereof which, if true, could result in an order, suit
or other action against Tenant and/or Landlord. All reasonable
costs and expenses incurred by Landlord in the exercise of any
such rights, which costs and expenses result from Tenant's
violation of the covenant contained in Subparagraph a. above,
shall be deemed additional rental under this Lease and shall be
payable by Tenant upon demand.
(e) The provisions of this Paragraph shall survive the expiration of
this Lease and any termination or other enforcement of
Landlord's remedies under this Lease.
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47. SPECIAL STIPULATIONS
--------------------
The Special Stipulations, if any, shall hereby be incorporated herein
and made a part hereof as Exhibit "E", and in the event they conflict
with any of the foregoing provisions, the Special Stipulations shall
control.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and seals,
in triplicate, the day and year first above written.
Signed, sealed, and delivered *TENANT: Cryomedical Sciences, Inc., a Delaware
in the presence of: Corporation
By: /s/ X. X. Grueling (SEAL)
Witness -------------------------------
Name: X. X. Grueling
[illegible] -----------------------------------
Title: President and CEO
----------------------------------
Signed, sealed, and delivered BROKER: Resource Real Estate Partners, L.L.C.
in the presence of:
By: /s/ Xxxxx Xxxxxx (SEAL)
[illegible] -------------------------------
Witness
Name: Xxxxx Xxxxxx
-----------------------------------
Authorized Agent
Signed, sealed, and delivered LANDLORD: Southeast Office Partners, L.L.C., 26
in the presence of:
By: Xxxxxx Office Partners, L.L.C.,
Xxxxxxxx Xxxxxx Its Manager
By: /s/ [illegible] (SEAL)
Witness -------------------------------
Its: Manager
------------------------------------
23
* NOTE:
1. If Tenant is a corporation, an authorized corporate officer of
Tenant must execute this Lease in his or her appropriate capacity,
and another authorized Corporate officer must attest in the space
marked "Witness" and affix the corporate seal.
2. If Tenant is a limited partnership, this Lease must be executed by
all general partners. If the general partner is a corporation,
please follow the instruction in No. 1 above.
3. If Tenant is a general partnership, all general partners of Tenant
must execute this Lease.
4. If Tenant is a sole proprietorship or individual, this Lease must
be executed by such sole proprietor or individual, and two (2)
witnesses must also sign.
5. When executed, please return four (4) executed originals of this
Lease to the Landlord for execution. The Landlord will then return
one (1) fully-executed original to the Tenant.
24
EXHIBIT "A"
(OUTLINE OF PREMISES)
XXXXXX PARK AT XXXXXXX
XXXXXXXX 000
XXXXX 000
3,480 S.F.
25
Exhibit "B"
-----------
Intentionally Blank
26
EXMBIT "C"
TENANT ACCEPTANCE AGREEMENT
---------------------------
Agreement made this __ day of _______________20__, between SOUTHEAST OFFICE
PARTNERS, L.L.C., 26 (hereinafter referred to as "Landlord") and CRYOMEDICAL
SCIENCES, INC., a Delaware Corporation (hereinafter referred to as "Tenant").
WHEREAS, Landlord and Tenant entered into a lease dated November __, 2001
(hereinafter referred to as the "Lease") for Suite 270 containing approximately
340 square feet in the Project known as Xxxxxx Park At Xxxxxxx, Xxxxxxxx 000,
Xxxxx 000, 0000 Xxxx Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000 (hereinafter
referred to as the "Premises").
NOW THEREFORE, pursuant to the provisions of Paragraph 6(e) of the Lease,
Landlord and Tenant mutually agree as follows:
1. The Commencement Date of the Lease Term is December 1, 2001. The
Lease Term shall end on November 30,2001.
2. Tenant is in possession of, and has accepted, the Premises demised
by the Lease, and acknowledges that all the work to be performed by
the Landlord in the Premises as required by the terms of the Lease
has been satisfactorily completed except for any punch list items
described in Schedule "A" attached hereto. Tenant further certifies
that all conditions of the Lease required of Landlord as of this
date have been fulfilled and there are no defenses or setoffs;
against the enforcement of the Lease by Landlord.
IN WITNESS WHEREOF, the Parties hereto have signed and sealed this Agreement,
the ___ of ___________________, 20__.
Signed, sealed, and delivered TENANT: CRYOMEDICAL SCIENCES, INC., a
in the presence of: Delaware Corporation.
By: (SEAL)
---------------------------
Witness
Name:
-------------------------------
Title:
------------------------------
By: (SEAL)
---------------------------
Witness
Name:
-------------------------------
Title:
------------------------------
27
Signed, sealed, and delivered LANDLORD: SOUTHEAST OFFICE PARTNERS,
in the presence of: L.L.C., 26
By: Xxxxxx Office Partners, L.L.C.,
Its Manager
Witness By:
---------------------------------
Its:
---------------------------------
28
EXHIBIT "D"
RULES AND REGULATIONS
---------------------
1. Tenant shall have the nonexclusive right to park in common with Landlord,
other occupants of the Building, their guests, and invitees in areas
designated by Landlord. Tenant shall not overburden the parking facilities,
and agrees to cooperate with Landlord and others in the use of the same.
Landlord reserves the right, in its sole discretion, to allocate parking
spaces among Xxxxxx Park At Xxxxxxx occupants. Only vehicles which
reasonably fit within the lined spaces may use the parking facilities,
which may not be used for the continuous parking of any vehicle or trailer,
regardless of size. No parking is allowed in roadways, driveways, fire
lanes, service areas, walkways, building entrances, or any other area not
designated for parking. Any trucks serving the Premises shall be parked
directly in the rear of the Premises, and shall not interfere with other
occupants' access to other premises, parking, or other common areas.
Landlord shall not be responsible for any illegally-parked vehicle that
Landlord shall have towed.
2. Landlord will provide at Tenant's expense identification signage for the
Premises, such signage to be coordinated throughout Xxxxxx Park At Xxxxxxx
for uniformity and attractiveness. No sign, tag, label, picture,
advertisement, or notice shall be displayed, distributed, inscribed,
painted, or affixed on any part of the Premises visible from outside of the
Building or the Premises without the prior-written consent of Landlord.
3. Landlord will, without charge, furnish Tenant with two keys for each lock
on the entrance doors to the Premises when Tenant assumes possession, with
the understanding that these keys shall be returned at the termination of
the Lease. Landlord will not permit entrance to Tenant's Premises by use of
a pass key to any person at any time without permission of Tenant, except
employees, contractors, or service personnel directly supervised by
Landlord.
4. Tenant will refer all contractors, contractors' representatives, and
installation technicians rendering any service on or to the Premises to
Landlord for approval and supervision before performing any contractual
service. This provision shall apply to all work in the Building, including
installation of telephones, telegraph equipment, security systems,
electrical devices and attachments, and installations of any nature
affecting floors, walls, woodwork, trim, doors, windows, ceilings,
equipment, or other physical portion of the Premises or Building.
5. Tenant shall not place, install, or operate on the Premises or in any part
of the Building any machine, equipment, or stove, or conduct mechanical
operations, or place or use in or about the Premises any explosive,
flammable, caustic, noxious, or hazardous material without the
prior-written consent of Landlord.
6. No Tenant shall do or permit to be done within or about the Premises or
Building anything which would annoy, disturb, or interfere with the rights
of other Xxxxxx Park At Xxxxxxx occupants.
7. There shall be no outside storage of goods, supplies, equipment, or any
other material. All storage must be within the Premises, and, along with
any other non-official use area, be kept at all times from view from
outside of the Premises through doors, service doors, windows, or
otherwise.
29
8. Exterior windows shall at all times be kept whole, clean, and lined with
blinds provided by Landlord.
9. No Tenant shall at any time occupy any part of the Premises or Building as
sleeping or lodging quarters.
10. No bicycles, boats, vehicles of any description (except for automobiles or
small trucks through rear service doors for the purpose of and during
loading or unloading), or animals shall be brought into the Premises or
Building.
11. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed. No person shall
waste water by interfering with the faucets or by other means.
12. Each Tenant agrees to keep the areas immediately in front, behind, and
beside the Premises clean and free of all trash and debris.
13. Tenant shall not canvass or conduct surveys with or among Xxxxxx Park At
Xxxxxxx occupants without the prior-written consent of Landlord, and shall
cooperate to prevent the same.
14. Tenant shall not paint or otherwise change the appearance of Premises'
doors, door frames, windows, window frames, or hardware.
is. Tenant shall not use the name "Xxxxxx Park At Xxxxxxx" in connection with
or in promoting or advertising the business of Tenant except as Tenant's
address.
16. Landlord shall not be responsible to any occupant for the nonobservance or
violation of any of these "Rules and Regulations" by any other occupant.
Landlord shall have the right from time to time to modify, add to, or
delete from the "Rules and Regulations" at Landlord's sole discretion. Any
additional "Rules and Regulations" shall be binding upon the parties hereto
as if they had been present herein at the time of execution of this Lease.
30
EXHIBIT "E"
SPECIAL STIPULATIONS
--------------------
1. Tenant shall have the right to extend the lease term for 12 months by
providing at least 3 months written notice. The renewal base rate shall be
$11.00 psf.
2. Landlord will provide Tenant an improvement allowance of $3,000 upon
execution of the lease.
3. Landlord shall replace the missing base cove in the Premises.
4. Landlord shall be responsible for replacement costs to HVAC compressors
during the first year of the lease.
31
