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EXHIBIT SECTION
EXHIBIT (10.2)
EXHIBIT 10.2
LEASE AGREEMENT
Champion Industries, Inc. dba Upton Printing and AMB Property, L.P.
0000 XXXXXXXXX XXXXXXX XXXXXXX, XXXXXXXXX
Any statement of square footage set forth in this Lease or that may have
been used in calculating Base Rent and/or Operating Expenses is an approximation
which Landlord and Tenant agree is reasonable and the Base Rent and Tenant's
Share based thereon is not subject to revision whether or not the actual square
footage is more or less.
2.2 Common Areas - Definition. "Common Areas" are all areas and
facilities outside the Premises and within the exterior boundary line of the
Industrial Center and interior utility raceways within the Premises that are
provided and designated by the Landlord from time to time for the general
non-exclusive use of Landlord, Tenant and other tenants of the Industrial Center
and their respective employees, suppliers, shippers, tenants, contractors and
invitees.
2.3 Common Areas - Tenant's Rights. Landlord hereby grants to Tenant,
for the benefit of Tenant and its employees, suppliers, shippers, contractors,
customers and invitees, during the term of this Lease, the non-exclusive right
to use, in common with others entitled to such use, the Common Areas as they
exist from time to time, subject to any rights, powers, and privileges reserved
by Landlord under the terms hereof or under the terms of any rules and
regulations or covenants, conditions and restrictions governing the use of the
Industrial Center.
2.4 Common Areas - Rules and Regulations. Landlord shall have the
exclusive control and management of the Common Areas and shall have the right,
from time to time, to establish, modify, amend and enforce reasonable Rules and
Regulations with respect thereto in accordance with Paragraph 16.19.
2.5 Common Area Changes. Landlord shall have the right, in Landlord's
sole discretion, from time to time:
(a) To make changes to the Common Areas, including, without
limitation, changes in the locations, size, shape and number of
driveways, entrances, parking spaces, parking areas, loading and
unloading areas, ingress, egress, direction of traffic,
landscaped areas, walkways and utility raceways;
(b) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains
available;
(c) To designate other land outside the boundaries of the Industrial
Center to be a part of the Common Areas
(d) To add additional buildings and improvements to the Common Areas;
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Industrial Center, or
any portion thereof; and
(f) To do and perform such other acts and make such other changes in,
to or with respect to the Common Areas and Industrial Center as
Landlord may, in the exercise of sound business judgment, deem to
be appropriate
3. TERM.
Exhibit (10.2)-p1
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EXHIBIT (10.2)
3.1 Term. The Commencement Date, Expiration Date and Term of this Lease
are as specified in Paragraph 1.3.
3.2 Delay in Possession. If for any reason Landlord cannot deliver
possession of the Premises to Tenant by the Commencement Date,
Landlord shall not be subject to any liability therefor, nor shall
such failure affect the validity of this Lease or the obligations of
Tenant hereunder. In such case, Tenant shall not, except as otherwise
provided herein, be obligated to pay Rent or perform any other
obligation of Tenant under the terms of this Lease until Landlord
delivers possession of the Premises to Tenant. The term of the Lease
shall commence on the earlier of (i) the date Tenant takes possession
of the Premises to Tenant or (ii) 10 days following notice to Tenant
that Landlord is prepared to tender possession of the Premises to
Tenant. If possession of the Premises is not delivered to Tenant
within 60 days after the Commencement Date and such delay is not due
to Tenant's acts, failure to act or omissions Tenant may by notice in
writing to Landlord within 10 days after the end of said 60 day period
cancel this Lease and the parties shall be discharged from all
obligations hereunder. If such written notice of Tenant is not
received by Landlord within said 10 day period, Tenant's right to
cancel this Lease shall terminate.
3.3 Commencement Date Certificate. At the request of Landlord, Tenant
shall execute and deliver to Landlord a completed certificate
("Commencement Date Certificate") in the form attached hereto as
Exhibit B.
4. RENT.
4.1 Base Rent. Tenant shall pay to Landlord Base Rent and other
monetary obligations of Tenant to Landlord under the terms of this Lease
(such other monetary obligations are herein referred to as "Additional
Rent") in lawful money of the United States, without offset or deduction,
in advance on or before the first day of each month. Base Rent and
Additional Rent for any period during the term hereof which is for less
than one full month shall be prorated based upon the actual number of days
of the month involved. Payment of Base Rent and Additional Rent shall be
made to Landlord at its address stated herein or to such other persons or
at such other addresses as Landlord may from time to time designate in
writing to Tenant. Base Rent and Additional Rent are collectively referred
to as "Rent". All monetary obligations of Tenant to Landlord under the
terms of this Lease are deemed to be rent.
4.2 Operating Expenses. Tenant shall pay to Landlord on the first day
of each month during the term hereof, in addition to the Base Rent,
Tenant's Share of all Operating Expenses in accordance with the following
provisions:
(a) "Operating Expenses" are all costs incurred by Landlord
relating to the ownership and operation of the Industrial Center, Building
and Premises including, but not limited to, the following:
(i) The operation, repair, maintenance and replacement in neat,
clean, good order and condition of the Common Areas, including parking areas,
loading and unloading areas, trash areas, roadways, sidewalks, walkways,
parkways, driveways, landscaped areas, striping, bumpers, irrigation systems,
drainage systems, lighting facilities, fences and gates, exterior signs and
tenant directories.
(ii) Water, gas, electricity, telephone and other utilities
servicing the Common Areas.
(iii) Property management services.
Exhibit (10.2)-p2
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EXHIBIT (10.2)
(iv) Reserves set aside for maintenance, repair and replacement
of the Common Areas and Building.
(v) Real Property Taxes.
(vi) Premiums for the insurance policies maintained by Landlord
under Paragraph 8 hereof.
(vii) Environmental monitoring and insurance programs.
(viii) Monthly amortization of capital improvements to the Common
Areas and the Building. The monthly amortization of any given capital
improvement shall be the sum of the (i) quotient obtained by dividing the cost
of the capital improvement by Landlord's estimate of the number of months of
useful life of such improvement plus (ii) an amount equal to the cost of the
capital improvement times 1/12 of the lesser of 12% or the maximum annual
interest rate permitted by law.
(ix) Maintenance of the Building including, but not limited to,
painting, caulking and repair and replacement of Building components, including,
but not limited to, fleet elevators and fire detection and sprinkler systems.
(x) Heating, ventilating and air conditioning systems ("HVAC")
(xi) If Tenant fails to maintain the Premises, any expense
incurred by Landlord for such maintenance.
(b) Tenant's Share of Operating Expenses that are not specifically
attributed to the Premises or Building ("Common Area Operating Expenses") shall
be that percentage shown in Paragraph 1.5(a). Tenant's Share of Operating
Expenses that are attributable to the Building ("Building Operating Expenses")
shall be that percentage shown in Paragraph 1.5(b). Landlord in its sole
discretion shall determine which Operating Expenses are Common Area Operating
Expenses, Building Operating Expenses or expenses to be entirely borne by
Tenant.
(c) The inclusion of the improvements, facilities and services set
forth in Subparagraph 4.2(a) shall not be deemed to impose any obligation upon
Landlord to either have said improvements or facilities or to provide those
services.
(d) Tenant shall pay monthly in advance on the same day as the Base
Rent is due Tenant's Share of estimated Operating Expenses and HVAC maintenance
costs in the amount set forth in Paragraph 1.6. Landlord shall deliver to Tenant
within 90 days after the expiration of each calendar year a reasonably detailed
statement showing Tenant's Share of the actual Operating Expenses incurred
during the preceding year. If Tenant's estimated payments under this Paragraph
4(d) during the preceding year exceed Tenant's Share as indicated on said
statement, Tenant shall be credited the amount of such overpayment against
Tenant's Share of Operating Expenses next becoming due. If Tenant's estimated
payments under this Paragraph 4.2(d) during said preceding year were less than
Tenant's Share as indicated on said statement, Tenant shall pay to Landlord the
amount of the deficiency within 10 days after delivery by Landlord to tenant of
said statement. At any time Landlord may adjust the amount of the estimated
Tenant's Share of Operating Expenses and HVAC maintenance costs to reflect
Landlord's estimate of such expenses for the year.
5. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon Tenant's
execution hereof the Security Deposit set forth in Paragraph 1.7 as security for
Tenant's faithful performance of Tenants obligations under this Lease. If Tenant
fails to pay Base Rent or Additional Rent or otherwise defaults under this Lease
(as defined in Paragraph 13.1), Landlord may use the Security Deposit for the
payment of any amount due Landlord or to reimburse or compensate Landlord for
any liability, cost, expense, loss or damage (including attorney's fees) which
Landlord may suffer or incur by reason thereof. Tenant shall on demand pay
Landlord the amount so used or applied so as to restore
Exhibit (10.2)-p3
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EXHIBIT (10.2)
the Security Deposit to the amount set forth in Paragraph 1.7. Landlord shall
not be required to keep all or any part of the Security Deposit separate from
its general accounts. Landlord shall, at the expiration or earlier termination
of the term hereof and after Tenant has vacated the Premises, return to Tenant
that portion of the Security Deposit not used or applied by Landlord. No part of
the Security Deposit shall be considered to be held in trust, to bear interest,
or to be prepayment for any monies to be paid by Tenant under this Lease.
6. USE.
6.1 Permitted Use. Tenant shall use and occupy the Premises only for the
Permitted Use set forth in Paragraph 1.8. Tenant shall not commit any nuisance,
permit the emission of any objectionable noise or odor, suffer any waste, make
any use of the Premises which is contrary to any law or ordinance or which will
invalidate or increase the premiums for any of Landlord's insurance. Tenant
shall not service, maintain or repair vehicles on the Premises, Building or
Common Areas. Tenant shall not store foods, pallets, drums or any other
materials outside the Premises. All trash shall be kept in painted metal
containers with tops, and their design and location on the Premises must be
approved by Landlord. Should Tenant be in default in the requirements of this
provision, Landlord may, after notice to Tenant, remedy such default at Tenant's
expense, and such expense shall be treated as additional rental due under this
Lease by Tenant.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous Substance" as
used in this Lease shall mean any product, substance, chemical, material or
waste whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Premises, is
either: (i) potentially injurious to the public health, safety or welfare, the
environment, or the Premises; (ii) regulated or monitored by any governmental
authority; or (iii) a basis for potential liability of Landlord to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substance shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, crude oil or any products or by-products thereof. Tenant
shall not engage in any activity in or about the Premises which constitutes a
Reportable Use (as hereinafter defined) of Hazardous Substances without the
express prior written consent of Landlord and compliance in a timely manner (at
Tenant's sole cost and expense) with all Applicable Requirements (as defined in
Paragraph 6.3). "Reportable Use" shall mean (i) the installation or use of any
above or below ground storage tank, (ii) the generation, possession, storage,
use, transportation, or disposal of a Hazardous Substance that requires a permit
from, or with respect to which a report, notice, registration or business plan
is required to be filed with, any governmental authority, and (iii) the presence
in, on or about the Premises of a Hazardous Substance with respect to which any
Applicable Requirements require that a notice be given to persons entering or
occupying the Premises or neighboring properties. Notwithstanding the foregoing,
Tenant may, without Landlord's prior consent, but upon notice to Landlord and in
compliance with all Applicable Requirements, use any ordinary and customary
materials reasonably required to be used by Tenant in the normal course of the
Permitted Use, so long as such use is not a Reportable Use and does not expose
the Premises, or neighboring properties to any meaningful risk of contamination
or damage or expose Landlord to any liability therefor. In addition, Landlord
may (but without any obligation to do so) condition its consent to any
Reportable Use of any Hazardous Substance by Tenant upon Tenant's giving
Landlord such additional assurances as Landlord, in its reasonable discretion,
deems necessary to protect itself, the public, the Premises and the environment
against damage, contamination or injury and/or liability therefor, including but
not limited to the installation (and, at
Exhibit (10.2)-p4
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EXHIBIT (10.2)
Landlord's option, removal on or before Lease expiration or earlier termination)
of reasonably necessary protective modifications to the Premises (such as
concrete encasements) and/or the deposit of an additional Security Deposit.
(b) Duty to Inform Landlord. If Tenant knows, or has reasonable
cause to believe, that a Hazardous Substance is located in, under or about the
Premises or the Building, Tenant shall immediately give Landlord written notice
thereof, together with a copy of any statement, report, notice, registration,
application, permit, business plan, license, claim, action, or proceeding given
to, or received from, any governmental authority or private party concerning
the presence, spill, release, discharge of, or exposure to, such Hazardous
Substance. Tenant shall not cause or permit any Hazardous Substance to be
spilled or released in, on, under or about the Premises (including, without
limitation, through the plumbing or sanitary sewer system).
(c) Indemnification. Tenant shall indemnify, protect, defend and
hold Landlord, Landlord's affiliates, Lenders, and the officers, directors,
shareholders, partners, employees, managers, independent contractors, attorneys
and agents of the foregoing ("Landlord Entities") and the Premises, harmless
from and against any and all damages, liabilities, judgments, costs, claims,
liens, expenses, penalties, loss of permits and attorneys' and consultants' fees
arising out of or involving any Hazardous Substance brought onto the Premises by
or for Tenant or by any of Tenant's employees, agents, contractors or invitees.
Tenant's obligations under this Paragraph 6.2(c) shall include, but not be
limited to, the effects of any contamination or injury to person, property or
the environment created or suffered by Tenant, and the cost of investigation
(including consultants' and attorneys' fees and testing), removal, remediation,
restoration and/or abatement thereof, or of any contamination therein involved.
Tenant's obligations under this Paragraph 6.2(c) shall survive the expiration or
earlier termination of this Lease.
6.3 Tenant's Compliance with Requirements. Tenant shall, at Tenant's sole
cost and expense, fully, diligently and in a timely manner, comply with all
"Applicable Requirements," which term is used in this Lease to mean all laws,
rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Landlord's
engineers and/or consultants, relating in any manner to the Premises (including
but not limited to matters pertaining to (i) industrial hygiene, (ii)
environmental conditions on, in, under or about the Premises, including soil and
groundwater conditions, and (iii) the use, generation, manufacture, production,
installation, maintenance, removal, transportation, storage, spill or release of
any Hazardous Substance), now in effect or which may hereafter come into effect.
Tenant shall, within 5 days after receipt of Landlord's written request, provide
Landlord with copies of all documents and information evidencing Tenant's
compliance with any Applicable Requirements and shall immediately upon receipt,
notify Landlord m writing (with copies of any documents involved) of any
threatened or actual claim, notice, citation, warning, complaint or report
pertaining to or involving failure by Tenant or the Premises to comply with any
Applicable Requirements.
6.4 Inspection; Compliance with Law. In addition to Landlord's
environmental monitoring and insurance program, the cost of which is included in
Operating Expenses, Landlord and the holders of any mortgages, deeds of trust or
ground leases on the Premises ("Lenders") shall have the right to enter the
Premises at any time in the case of an emergency, and otherwise at reasonable
time, for the purpose of inspecting the condition of the Premises and for
verifying compliance by Tenant with this Lease and all Applicable Requirements.
Landlord shall be entitled to employ experts and/or consultants in connection
therewith to advise Landlord with respect to Tenant's installation, operation,
use, monitoring, maintenance, or removal of any Hazardous Substance on or
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EXHIBIT (10.2)
from the Premises. The cost and expenses of any such inspections shall be paid
by the party requesting same unless a violation of Applicable Requirements
exists or is imminent or the inspection is requested or ordered by a
governmental authority. In such case, Tenant shall upon request reimburse
Landlord or Landlord's Lender, as the case may be, for the costs and expenses of
such inspections.
7. MAINTENANCE, REPAIRS, TRADE FIXTURES AND ALTERATIONS.
7.1 Tenant's Obligations. Subject to the provisions of Paragraph 7.2
(Landlord's Obligations), Paragraph 9 (Damage or Destruction) and Paragraph 14
(Condemnation), Tenant shall, at Tenant's sole cost and expense and at all
times, keep the Premises and every part thereof in good order, condition and
repair (whether or not such portion of the Premises requiring repair, or the
means of repairing the same, are reasonable or readily accessible to Tenant and
whether or not the need for such repairs occurs as a result of Tenant's use, any
prior use, the elements or the age of such portion of the Premises) including,
without limiting the generality of the foregoing, all equipment or facilities
specifically serving the Premises, such as plumbing, heating, air conditioning,
ventilating, electrical, lighting facilities, boilers, fired or unfired pressure
vessels, fire hose connectors if within the Premises, fixtures, interior walls,
interior surfaces of exterior walls, ceilings, floors, windows, doors, stairs,
plate glass, and skylights, but excluding any items which are the responsibility
of Landlord pursuant to Paragraph 7.2 below. Tenant's obligations shall include
restorations, replacements or renewals when necessary to keep the Premises and
all improvements thereon or a part thereof in good order, condition and state of
repair.
7.2 Landlord's Obligations. Subject to the provisions of Paragraph 6 (Use),
Paragraph 7.1 (Tenant's Obligations), Paragraph 9 (Damage or Destruction) and
Paragraph 14 (Condemnation), Landlord at its expense and not subject to
reimbursement pursuant to Paragraph 4.2, shall keep in good order, condition and
repair the foundations, roof and exterior walls of the Building and utility
systems outside the Building. Landlord, subject to reimbursement pursuant to
Paragraph 4.2, shall keep in good order, condition and repair the air
conditioning systems servicing the Premises, Building roof and Common Areas.
7.3 Alterations. Tenant shall not make nor cause to be made any
alterations, installations in, on, under or about the Premises.
7.4 Surrender/Restoration. Tenant shall surrender the Premises by the end
of the last day of the Lease term or any earlier termination date, clean and
free of debris and in good operating order, condition and state of repair
ordinary wear and tear excepted. Without limiting the generality of the above,
Tenant shall remove all personal property, trade fixtures and floor bolts, patch
all floors and cause all lights to be in good operating condition.
8. INSURANCE; INDEMNITY.
8.1 Payment of Premiums. The cost of the premiums for the insurance
policies maintained by Landlord under this Paragraph 8 shall be a Common Area
Operating Expense pursuant to Paragraph 4.2 hereof. Premiums for policy periods
commencing prior to, or extending beyond, the term of this Lease shall be
prorated to coincide with the corresponding Commencement Date or Expiration
Date.
8.2 Tenant's Insurance.
(i) At its sole cost and expense, Tenant shall maintain in full force
and EFFECT DURING THE TERM OF THE Lease the following insurance coverages
insuring against claims which may arise from or in connection with the Tenant's
operation and use of the Leased Premises.
(a) Commercial General Liability with minimum limits of
$1,000,000 per
Exhibit (10.2)-p6
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EXHIBIT (10.2)
occurrence; $3,000,000 general aggregate for bodily injury, personal injury and
property damage. If required by Landlord, liquor liability coverage will be
included.
(b) Workers' Compensation insurance with statutory limits and
Employers Liability with a $1,000,000 per accident limit for bodily injury or
disease.
(c) Automobile Liability covering all owned, non-owned and hired
vehicles with a $1,000,000 per accident limit for bodily injury and property
damage.
(d) Property insurance against all risks of loss to any tenant
improvements or betterments and business personal property on a full replacement
cost basis with no coinsurance penalty provision; and Business Interruption
Insurance with a limit of liability representing loss of at least approximately
six months of income.
(ii) Tenant shall deliver to Landlord certificates of all insurance
reflecting evidence of required coverages prior to initial occupancy; and
annually thereafter.
(iii) If, in the opinion of Landlord's insurance advisor, the amount
of scope of such coverage is deemed inadequate at any time during the Term,
Tenant shall increase such coverage to such reasonable amounts or scope as
Landlord's advisor deems adequate.
(iv) All insurance required under Paragraph 8.2 (i) shall be primary
and noncontributory (ii) shall provide for severability of interests, (iii)
shall be issued by insurers, licensed to do business in the state in which the
Premises are located and which are rated A:VII or better by Best's Key Rating
Guide, (iv) shall be endorsed to include Landlord and such other persons or
entities as Landlord may from time to time designate, as additional insureds
(Commercial General Liability only), and (v) shall be endorsed to provide at
least 30-days prior notification of cancellation or material change in coverage
to said additional insureds.
8.3 Landlord's Insurance. Landlord may, but shall not be obligated to,
maintain all risk, including earthquake and flood, insurance covering the
buildings within the Industrial Center, Commercial General Liability and such
other insurance in such amounts and covering such other liability or hazards as
deemed appropriate by Landlord. The amount and scope of coverage of Landlord's
insurance shall be determined by Landlord from time to time in its sole
discretion and shall be subject to such deductible amounts as Landlord may
elect. Landlord shall have the right to reduce or terminate any insurance or
coverage. Premiums for any such insurance shall be a Common Area Operating
Expense.
8.4 Waiver of Subrogation. To the extent permitted by law and without
affecting the coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to recover against the other
on account of any and all claims Landlord or Tenant may have against the other
with respect to property insurance actually carried, or required to be carried
hereunder, to the extent of the proceeds realized from such insurance coverage.
8.5 Indemnity. Tenant shall protect, indemnify and hold the Landlord
Entities harmless from and against any and all loss, claims, liability or costs
(including court costs and attorney's fees) incurred by reason of:
(i) any damage to any property (including but not limited to property
of any Landlord Entity) or death or injury to any person occurring in or about
the Premises, the Building or the Industrial Center to the extent that such
injury or damage shall be caused by or arise from any actual or alleged act,
neglect, fault or omission by or of Tenant, its agents, servants, employees,
invitees, or visitors;
(ii) the conduct or management of any work or anything whatsoever done
by the Tenant on or about the Premises or from transactions of the Tenant
concerning the Premises;
Exhibit (10.2)-p7
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EXHIBIT (10.2)
(iii) Tenant's failure to comply with any and all governmental laws,
ordinances and regulations applicable to the condition or use of the Premises or
its occupancy; or
(iv) any breach or default of the part of Tenant in the performance of
any covenant or agreement on the part of the Tenant to be performed pursuant to
this Lease. The provisions of this Paragraph 8.5 shall survive the termination
of this Lease with respect to any claims or liability accruing prior to such
termination.
8.6 Exemption of Landlord from Liability. Tenant assumes responsibility for
the condition of the Premises, and agrees to save Landlord harmless from any
liability arising from injury to person or damage to property in or about he
Premises, whether occasioned by any act or omission of Tenant's agents,
servants, or visitors. Except to the extent caused by the gross negligence or
willful misconduct of Landlord, Landlord Entities shall not be liable for and
Tenant waives any claims against Landlord Entities for injury or damage to the
person or the property of Tenant, Tenant's employees, contractors, invitees,
customers or any other person in or about the Premises, Building or. Industrial
Center from any cause whatsoever, including, but not limited to, damage or
injury which is caused by or results from (i) fire, steam, electricity, gas,
water or rain, or from the breakage, leakage, obstruction or other defects of
pipes, fire sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures or (ii) from the condition of the Premises, other portions of
the Building or Industrial Center. Landlord shall not be liable for any damages
arising from any act or neglect of any other tenant of Landlord nor from the
failure by Landlord to enforce the provisions of any other lease in the
Industrial Center. Notwithstanding Landlord's negligence or breach of this
Lease, Landlord shall under no circumstances be liable for injury to Tenant's
business, for any loss of income or profit therefrom or any indirect,
consequential or punitive damages.
9. DAMAGE OR DESTRUCTION.
9.1 Termination Right. Tenant shall give Landlord immediate written notice
of any damage to the Premises. Subject to the provisions of Paragraph 9.2, if
the Premises or the Building shall be damaged to such an extent that there is
substantial interference for a period exceeding 90 consecutive days with the
conduct by Tenant of its business at the Premises, Tenant, at any time prior to
commencement of repair of the Premises and following 10 days written notice to
Landlord, may terminate this Lease effective 30 days after delivery of such
notice to Landlord. Such termination shall not excuse the performance by Tenant
of those covenants which under the terms hereof survive termination. Rent shall
be abated in proportion to the degree of interference during the period that
there is such substantial interference with the conduct of Tenant's business at
the Premises. Abatement of rent and Tenant's right of termination pursuant to
this provision shall be Tenant's sole remedy for failure of Landlord to keep in
good order, condition and repair the foundations and exterior walls of the
Building, Building roof, utility systems outside the Building, the Common Areas
and HVAC.
9.2 DAMAGE CAUSED BY TENANT. TENANT'S TERMINATION RIGHTS UNDER PARAGRAPH
9.1 SHALL NOT APPLY IF THE DAMAGE TO THE PREMISES OR BUILDING is the result of
any act or omission of Tenant or of any of Tenant's agents, employees,
customers, invitees or contractors ("Tenant Acts"). Any damage resulting from a
Tenant Act shall be promptly repaired by Tenant. Landlord at its option may at
Tenant's expense repair any damage caused by Tenant Acts. Tenant shall continue
to pay all rent and other sums due hereunder and shall be liable to Landlord for
all damages that Landlord may sustain resulting from a Tenant Act.
10. REAL PROPERTY TAXES.
10.1 Payment of Real Property Taxes. Landlord shall pay the Real Property
Taxes due and payable during the term of this Lease and, except as otherwise
provided in Paragraph 10.3, any such
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EXHIBIT (10.2)
amounts shall be included in the calculation of Operating Expenses in accordance
with the provisions of Paragraph 4.2.
10.2 Real Property Tax Definition. As used herein, the term "Real Property
Taxes" is any form of tax or assessment, general, special, ordinary or
extraordinary, imposed or levied upon (a) the Industrial Center, (b) any
interest of Landlord in the Industrial Center, (c) Landlord's right to rent or
other income from the Industrial Center, and/or (d) Landlord's business of
leasing the Premises. Real Property Taxes include (i) any license fee,
commercial rental tax, excise tax, improvement bond or bonds, levy or tax; (ii)
any tax or charge which replaces or is in addition to any of such
above-described "Real Property Taxes" and (iii) any fees, expenses or costs
(including attorney's fees, expert fees and the like) incurred by Landlord in
protesting or contesting any assessments levied or any tax rate. The term "Real
Property Taxes" shall also include any increase resulting from a change in the
ownership of the Industrial Center or Building, the execution of this Lease or
any modification, amendment or transfer thereof. Real Property Taxes for tax
years commencing prior to, or extending beyond, the term of this Lease shall be
prorated to coincide with the corresponding Commencement Date of Expiration
Date.
10.3 Additional Improvements. Operating Expenses shall not include Real
Property Taxes attributable to improvements placed upon the Industrial Center by
other tenants or by Landlord for the exclusive enjoyment of such other tenants.
Notwithstanding Paragraph 10.1 hereof, Tenant shall, however, pay to Landlord at
the time Operating Expenses are payable under Paragraph 4.2, the entirety of any
increase in Real Property Taxes if assessed by reason of improvements placed
upon the Premises by Tenant or at Tenant's request.
10.4 Joint Assessment. If the Building is not separately assessed, Real
Property Taxes allocated to the Building shall be an equitable proportion of the
Real Property Taxes for all of the land and improvements included within the tax
parcel assessed.
10.5 Tenant's Property Taxes. Tenant shall pay prior to delinquency all
taxes assessed against and levied upon Tenant's improvements, fixtures,
furnishings, equipment and all personal property of Tenant contained in the
Premises or stored within the Industrial Center.
11. UTILITIES. Tenant shall pay directly for all utilities and services
supplied to the Premises, including but not limited to electricity, telephone,
security, gas and cleaning of the Premises, together with any taxes thereon. .
12. ASSIGNMENT AND SUBLETTING. .
12.1 Landlord's Consent Required.
(a) Tenant shall not assign, transfer, mortgage or otherwise transfer
or encumber (collectively, "assign") or sublet all or any part of Tenant's
interest in this Lease or in the Premises without Landlord's prior written
consent which consent shall not be unreasonably withheld. Relevant criteria in
determining reasonability of consent include, but are not limited to, credit
history of a proposed assignee or sublessee, references from prior landlords,
any change or intensification of use of the Premises or the Common Areas and any
limitations imposed by the Internal Revenue Code and the Regulations promulgated
thereunder relating to Real Estate Investment Trusts. Assignment or sublet shall
not release Tenant from its obligations hereunder. Tenant shall not (i) sublet
or assign or enter into other arrangements such that the amounts to be paid by
the sublessee or assignee thereunder would be based, in whole or in part, on the
income or profits derived by the business activities of the sublessee or
assignee; (ii) sublet .the Premises or assign this Lease to any person in which
Landlord owns an interest, directly or indirectly (by applying constructive
ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code (the
"Code"); or (iii) sublet the Premises or assign this Lease in any other manner
which could cause any
Exhibit (10.2)-p9
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EXHIBIT SECTION
EXHIBIT (10.2)
portion of the amounts received by Landlord pursuant to this Lease or any
sublease to fail to qualify as "rents from real property" within the meaning of
Section 856(d) of the Code, or which could cause any other income received by
Landlord to fail to qualify as income described in Section 856(c)(2) of the
Code. The requirements of this Section 12.1 shall apply to any further
subleasing by any subtenant.
(b) A change in the control of Tenant shall constitute an assignment
requiring Landlord's consent. The transfer, on a cumulative basis, of 25% or
more of the voting or management control of Tenant shall constitute a change in
control for this purpose.
12.2 Rent Adjustment. If, as of the effective date of any permitted
assignment or subletting the then remaining term of this Lease is less than
three (3) years, Landlord may, as a condition to its consent: (i) require that
the amount and adjustment schedule of the rent payable under this Lease be
adjusted to what is then the market value and/or adjustment schedule for
property similar to the Premises as then constituted, as determined by Landlord;
or (ii) terminate the Lease as of the date of assignment or subletting subject
to the performance by Tenant of those covenants which under the terms hereof
survive termination.
13. DEFAULT; REMEDIES.
13.1 Default. The occurrence of any one of the following events shall
constitute an event of default on the part of Tenant ("Default"):
(a) The abandonment of the Premises by Tenant;
(b) Failure to pay any installment of Base Rent, Additional Rent or
any other monies due and payable hereunder, said failure continuing for a period
of 3 days after the same is due;
(c) A general assignment by Tenant or any guarantor for the benefit of
creditors;
(d) The filing of a voluntary petition in bankruptcy by Tenant or any
guarantor, the filing of a voluntary petition for an arrangement, the filing of
a petition, voluntary or involuntary, for reorganization, or the filing of an
involuntary petition by Tenant's creditors or guarantors;
(e) Receivership, attachment, of other judicial seizure of the
Premises or all or substantially all of Tenant's assets on the Premises;
(f) Failure of Tenant to maintain insurance as required by Paragraph
8.2;
(g) Any breach by Tenant of its covenants under Paragraph 6.2;
(h) Failure in the performance of any of Tenant's covenants,
agreements or obligations hereunder (except those failures specified as events
of Default in other Paragraphs of this Paragraph 13.1 which shall be governed by
such other Paragraphs), which failure continues for 10 days after written notice
thereof from Landlord to Tenant provided that, if Tenant has exercised
reasonable diligence to cure such failure and such failure cannot be cured
within such 10 day period despite reasonable diligence, Tenant shall not be in
default under this subparagraph unless Tenant fails thereafter diligently and
continuously to prosecute the cure to completion;
(i) Any transfer of a substantial portion of the assets of Tenant, or
any incurrence of a material obligation by Tenant, unless such transfer or
obligation is undertaken or incurred in the ordinary course of Tenants business
or in good faith for equivalent consideration, or with Landlord's consent; and
(j) The default of any guarantors of Tenant's obligations hereunder
under any guaranty of this Lease, or the attempted repudiation or revocation of
any such guaranty.
13.2 Remedies. In the event of any Default by Tenant, Landlord shall have
the remedies set forth in the Addendum attached hereto entitled "Landlord's
Remedies in Event of Tenant Default".
13.3 Late Charges. Tenant hereby acknowledges that late payment by Tenant
to Landlord of rent and other sums due hereunder will cause Landlord to incur
costs not contemplated by this
Exhibit (10.2)-p10
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EXHIBIT SECTION
EXHIBIT (10.2)
Lease, the exact amount of which will be extremely difficult to ascertain. Such
costs include, but are not limited to, processing and accounting charges.
Accordingly, if any installment of rent or other sum due from Tenant shall not
be received by Landlord or Landlord's designee within 10 days after such amount
shall be due, then, without any requirement for notice to Tenant, Tenant shall
pay to Landlord a late charge equal to 5% of such overdue amount. The parties
hereby agree that such late charge represents a fair and reasonable estimate of
the costs Landlord will incur by reason of late payment by Tenant. Acceptance of
such late charge by Landlord shall in no event constitute a waiver of Tenant's
Default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of exercise of said power (all
of which are herein called "condemnation"), this Lease shall terminate as to the
part so taken as of the date the condemning authority takes title or possession,
whichever first occurs. If more than 10% of the floor area of the Premises, or
more than 25% of the portion of the Common Areas designated for Tenant's
parking, is taken by condemnation, Tenant may, at Tenant's option, to be
exercised in writing within 10 days after Landlord shall have given Tenant
written notice of such taking (or in the absence of such notice, within 10 days
after the condemning authority shall have taken possession) terminate this Lease
as of the date the condemning authority takes such possession. If Tenant does
not terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises remaining,
except that the Base Rent shall be reduced in the same proportion as the
rentable floor area of the Premises taken bears to the total rentable floor area
of the Premises. No reduction of Base Rent shall occur if the condemnation does
not apply to any portion of the Premises. Any award for the taking of all or any
part of the Premises under the power of eminent domain or any payment made under
threat of the exercise of such power shall be the property of Landlord,
provided, however, that Tenant shall be entitled to any compensation, separately
awarded to Tenant for Tenant's relocation expenses and/or loss of Tenants trade
fixtures. In the event that this Lease is not terminated by reason of such
condemnation, Landlord shall to the extent of its net severance damages in the
condemnation matter, repair any damage to the Premises caused by such
condemnation authority. Tenant shall be responsible for the payment of any
amount in excess of such net severance damages required to complete such repair.
15. ESTOPPEL CERTIFICATE AND FINANCIAL STATEMENTS.
15.1 Estoppel Certificate. Each party (herein referred to as "Responding
Party") shall within 10 days after written notice from the other Party (the
"Requesting Party") execute, acknowledge and deliver to the Requesting Party, to
the extent it can truthfully do so, an estoppel certificate m the form attached
hereto, plus such additional information, confirmation a/or statements as be
reasonably requested by the Requesting Party.
15.2 Financial Statement. If Landlord desires to finance, refinance, or
sell the Building, Industrial Center or any part thereof, Tenant and all
Guarantors shall deliver to any potential lender or purchaser designated by
Landlord such financial statements of Tenant and such Guarantors as may be
reasonably required by such lender or purchaser, including but not limited to
Tenant's financial statements for the past 3 years. All such financial
statements shall be received by Landlord and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
16. ADDITIONAL COVENANTS AND PROVISIONS.
16.1 Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall not affect the validity
of any other provision hereof.
Exhibit (10.2)-p11
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EXHIBIT SECTION
EXHIBIT (10.2)
16.2 Interest on Past-Due Obligations. Any monetary payment due Landlord
hereunder not received by Landlord within 10 days following the date on which it
was due shall bear interest from the date due at 12% per annum, but not
exceeding the maximum rate allowed by law in addition to the late charge
provided for in Paragraph 13.3.
16.3 Time of Essence. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the Parties under
this Lease.
16.4 Landlord Liability. Tenant, its successors and assigns, shall not
assert nor seek to enforce any claim for breach of this Lease against any of
Landlord's assets other than Landlord's interest in the Industrial Center.
Tenant agrees to look solely to such interest for the satisfaction of any
liability or claim against Landlord under this Lease. In no event whatsoever
shall Landlord (which term shall include, without limitation, any general or
limited partner, trustees, beneficiaries, officers, directors, or stockholders
of Landlord) ever be personally liable for any such liability.
16.5 No Prior or Other Agreements. This Lease contains all agreements
between the Parties with respect to any matter mentioned herein, and supersedes
all oral, written prior or contemporaneous agreements or understandings.
16.6 Notice Requirements: All notices required or permitted by this Lease
shall be in writing and may be delivered in person (by hand or by messenger or
courier service) or may be sent by regular, certified or registered mail or U.S.
Postal Service Express Mail, with postage prepaid, or by facsimile transmission
during normal business hours, and shall be deemed sufficiently given if served
in a manner specified in this Paragraph 16.6. The addresses noted adjacent to a
Party's signature on this Lease shall be that Party's address for delivery or
mailing of notice purposes. Either Party may by written notice to the other
specify a different address for notice purposes, except that upon Tenant's
taking possessing of the Premises, the Premises shall constitute Tenant's
address for the purpose of mailing or delivering notices to Tenant. A copy of
all notices required or permitted to be given to Landlord hereunder shall be
concurrently transmitted to such party or parties at such addresses as Landlord
may from time to time hereafter designate by written notice to Tenant.
16.7 Date of Notice. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or if no delivery date is shown, the postmark thereon. If sent
by regular mail, the notice shall be deemed given 48 hours after the same is
addressed as required herein and mailed with postage prepaid. Notices delivered
by United States Express Mail or overnight courier that guarantees next day
delivery shall be deemed given 24 hours after delivery of the same to the United
States Postal Service or courier. If any notice is transmitted by facsimile
transmission or similar means, the same shall be deemed served or delivered upon
telephone or facsimile confirmation of receipt of the transmission thereof,
provided a copy is also delivered via hand or overnight delivery or certified
mail. If notice is received on a Saturday or a Sunday or a legal holiday, it
shall be deemed received on the next business day.
16.8 Waivers. No waiver by Landlord of a Default by Tenant shall be deemed
a waiver of any other term, covenant or condition hereof, or of any subsequent
Default by Tenant of the same or any other term, covenant or condition hereof.
16.9 Holdover. Tenant has no right to retain possession of the Premises or
any part thereof beyond the expiration or earlier termination of this Lease. If
Tenant holds over with the consent of Landlord: (i) the Base Rent payable shall
be increased to 175% of the Base Rent applicable during the month immediately
preceding such expiration or earlier termination; (ii) Tenant's right to
possession shall terminate on 30 days notice from Landlord and (iii) all other
terms and conditions of this Lease shall continue to apply. Nothing contained
herein shall be construed as a consent by
Exhibit (10.2)-p12
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EXHIBIT SECTION
EXHIBIT (10.2)
Landlord to any holding over by Tenant. Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all claims, demands, actions, losses,
damages, obligations, costs and expenses, including, without limitation,
attorneys' fees incurred or suffered by Landlord by reason of Tenant's failure
to surrender the Premises on the expiration or earlier termination of this Lease
in accordance with the provisions of this Lease.
16.10 Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies in
law or in equity.
16.11 Binding Effect: Choice of Law. This Lease shall be binding upon the
Parties, their personal representatives, successors and assigns and be governed
by the laws of the State in which the Premises are located. Any litigation
between the Parties hereto concerning this Lease shall be initiated in the
parish in which the Premises are located.
16.12 Landlord. The covenants and obligations contained in this Lease on
the part of Landlord are binding on Landlord, its successors and assigns, only
during and in respect of their respective period of ownership of such interest
in the Industrial Center. In the event of any transfer or transfers of such
title to the Industrial Center, Landlord (and in case of any subsequent
transfers or conveyances, the then grantor) shall be concurrently freed and
relieved from and after the date of such transfer or conveyance, without any
further instrument or agreement, of all liability with respect to the
performance of any covenants or obligations on the part of Landlord contained in
this Lease thereafter to be performed.
16.13 Attorneys' Fees and Other Costs. If any Party brings an action or
proceeding to enforce the terms hereof or declare rights hereunder, the
Prevailing Party (as hereafter. defined) in any such proceeding shall be
entitled to reasonable attorneys' fees. The term "Prevailing Party" shall
include, without limitation, a Party who substantially obtains or defeats the
relief sought. Landlord shall be entitled to attorneys' fees, costs and expenses
incurred in preparation and service of notices of Default and consultations in
connection therewith, whether or not a legal action is subsequently commenced in
connection with such Default or resulting breach. Tenant shall reimburse
Landlord on demand for all reasonable legal, engineering and other professional
services expenses incurred by Landlord in connection with all requests by Tenant
for consent or approval hereunder.
16.14 Landlord's Access; ShowinPremises; Repairs. Landlord and Landlord's
agents shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times upon reasonable notice for the
purpose of showing the same to prospective purchasers, lenders, or tenants, and
making such alterations, repairs, improvements or additions to the Premises or
to the Building, as Landlord may reasonably deem necessary. Landlord may at any
time place on or about the Premises or Building any ordinary "For Sale" signs
and Landlord may at any time during the last 180 days of the term hereof place
on or about the Premises any ordinary "For Lease" signs. All such activities of
Landlord shall be without abatement of rent or liability to Tenant.
16.15 Signs. Tenant shall not place any signs at or upon the exterior of
the Premises or the Building, except that Tenant may, with Landlord's prior
written consent, install (but not on the roof) such signs as are reasonably
required to advertise Tenant's own business so long as such signs are in a
location designated by Landlord and comply with sign ordinances and the signage
criteria established for the Industrial Center by Landlord.
16.16 Termination: Merger. Unless specifically stated otherwise in writing
by Landlord, the voluntary or other surrender of this Lease by Tenant, the
mutual termination or cancellation hereof, or a termination hereof by Landlord
for Default by Tenant, shall automatically terminate any sublease or lesser
estate in the Premises; provided, however, Landlord shall, in the event of any
such
Exhibit (10.2)-p13
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EXHIBIT SECTION
EXHIBIT (10.2)
surrender, termination or cancellation, have the option to continue any one or
all of any existing subtenancies. Landlord's failure within 10 days following
any such event to make a written election to the contrary by written notice to
the holder of any such lesser interest, shall constitute Landlord's election to
have such event constitute the termination of such interest.
16.17 Quiet Possession. Upon payment by Tenant of the Base Rent and
Additional Rent for the Premises and the performance of all of the covenants,
conditions and provisions on Tenant's part to be observed and performed under
this Lease, Tenant shall have quiet possession of the Premises for the entire
term hereof subject to all of the provisions of this Lease.
16.18 Subordination; Attornment: Non-Disturbance.
(a) Subordination. This Lease shall be subject and subordinate to any
ground lease, mortgage, deed of trust, or other hypothecation or mortgage
(collectively, "Mortgage") now or hereafter placed by Landlord upon the real
property of which the Premises are a part, to any and all advances made on the
security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Tenant agrees that any person holding any
Mortgage shall have no duty, liability or obligation to perform any of the
obligations of Landlord under this Lease. In the event of Landlord's default
with respect to any such obligation, Tenant will give any Lender, whose name and
address have previously in writing been furnished Tenant, notice of a default by
Landlord. Tenant may not exercise any remedies for default by Landlord unless
and until Landlord and the Lender shall have received written notice of such
default and a reasonable time (not less than 90 days) shall thereafter have
elapsed without the default having been cured. If any Lender shall elect to have
this Lease superior to the lien of its Mortgage and shall give written notice
thereof to Tenant, this Lease shall be deemed prior to such Mortgage. The
provisions of a Mortgage relating to the disposition of condemnation and
insurance proceeds shall prevail over any contrary provisions contained in this
Lease.
(b) Attornment. Subject to the non-disturbance provisions of
subparagraph C of this Paragraph 16.18, Tenant agrees to attorn to a Lender or
any other party who acquires ownership of the Premises by reason of a
foreclosure of a Mortgage. In the event of such foreclosure, such new owner
shall not: (i) be liable for any act or omission of any prior landlord or with
respect to events occurring prior to acquisition of ownership, (ii) be subject
to any offsets or defenses which Tenant might have against any prior Landlord,
or (iii) be liable for security deposits or be bound by prepayment of more than
one month's rent.
(c) Non-Disturbance. With respect to Mortgage entered into by Landlord
after the execution of this Lease, Tenant's subordination of this Lease shall be
subject to receiving assurance (a "non-disturbance agreement") from the Mortgage
holder that Tenant's possession and this Lease will not be disturbed so long as
Tenant is not in default and attorns to the record owner of the Premises.
(d) Self-Executing.
The agreements contained in this Paragraph 16.18 shall be effective without the
execution of any further documents; provided, however, that upon written request
from Landlord or a Lender in connection with a sale, financing or refinancing of
Premises, Tenant and Landlord shall execute such further writings as may be
reasonably required to separately document any such subordination or
non-subordination, attornment and/or non disturbance agreement as is provided
for herein. Landlord is hereby irrevocably vested with full power to subordinate
this Lease to a Mortgage.
16.19 Rules and Regulations. Tenant agrees that it will abide by, and to
cause its employees, suppliers, shippers, customers, tenants, contractors and
invitees to abode by all reasonable rules and regulations ("Rules and
Regulations") which Landlord may make from time to time for the
Exhibit (10.2)-p14
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EXHIBIT SECTION
EXHIBIT (10.2)
management, safety, care, and cleanliness of the Common Areas, the parking and
unloading of vehicles and the preservation of good order, as well as for the
convenience of other occupants or tenants of the Building and the Industrial
Center and their invitees. Landlord shall not be responsible to Tenant for the
non-compliance with said Rules and Regulations by other tenants of the
Industrial Center.
16.20 Security Measures. Tenant acknowledges that the rental payable to
Landlord hereunder does not include the cost of guard service or other security
measures. Landlord has no obligations to provide same. Tenant assumes all
responsibility for the protection of the Premises, Tenant, its agents and
invitees and their property from the acts of third parties.
16.21 Reservations. Landlord reserves the right to grant such easements
that Landlord deems necessary and to cause the recordation of parcel maps, so
long as such easements and maps do not reasonably interfere with the use of the
Premises by Tenant. Tenant agrees to sign any documents reasonable requested by
Landlord to effectuate any such easements or maps.
16.22 Conflict. Any conflict between the printed provisions of this Lease
and the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
16.23 Offer. Preparation of this Lease by either Landlord or Tenant or
Landlord's agent or Tenant's agent and submission of same to Tenant or Landlord
shall not be deemed an offer to lease. This Lease is not intended to be binding
until executed and delivered by all Parties hereto.
16.24 Amendments. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification.
16.25 Multiple Parties. Except as otherwise expressly provided herein, if
more than one person or entity is named herein as Tenant, the obligations of
such persons shall be the joint and several responsibility of all persons or
entities named herein as such Tenant.
16.26 Authority. Each person signing on behalf of Landlord or Tenant
warrants and represents that she or is authorized to execute and deliver this
Lease and to make it a binding obligation of Landlord or Tenant.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Exhibit (10.2)-p15
16
LANDLORD: TENANT:
AMB PROPERTY, L.P. CHAMPION INDUSTRIES, INC. d/b/a
a Delaware limited partnership Upton Printing
By: AMB,a corporation
By. By
XXXX BEL'XXXXX XXXX X. XXXXXX,
Title: Executive V.P. Title: VP.Controller for Champion Ind.'s
Telephone: (000) 000-0000 Contact Telephone: ( )
Facsimile: (000) 000-0000 Contact Facsimile: ( )
Executed at: San Francisco, CA Executed at:
on: , 2000 on: , 2000
LANDLORD'S LEEAL NOTICE ADDRESS: TENANT'S LEGAL NOTICE ADDRESS:
0000 Xxxxxxxxx Xxxxxxx c/o Xxxx X. Xxxxxx, V.P. & Controller,
LANDLORD'S REMEDIES ADDENDUM IN EVENT OF TENANT DEFAULT
(STATE OF LOUISIANA)
(a) TERMINATION. In the event of any Default by Tenant, then in
addition to any other remedies available to Landlord at law or in equity and
under this Lease, Landlord shall have the immediate option to terminate this
Lease and all rights of Tenant hereunder by giving written notice of such
intention to terminate. In the event that Landlord shall elect to so terminate
this Lease then Landlord may recover from Tenant:
(1) the worth at the time of award of any unpaid Rent and any
other sums due and payable which have been earned at the time of such
termination; plus
(2) the worth at the time of award of the amount by which the
unpaid Rent and any other sums due and payable which would have been earned
after termination until the time of award exceeds the amount of such rental loss
Tenant proves could have been reasonably avoided; plus
(3) the worth at the time of award of the amount by which the
unpaid Rent and any other sums due and payable for the balance of the term of
this Lease after the time of award exceeds the amount of such rental loss that
Tenant proves could be reasonably avoided; plus
(4) any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course would be likely to result
therefrom, including, without limitation, any costs or expenses incurred by
Landlord (i) in retaking possession of the Premises; (ii) in maintaining,
repairing, preserving, restoring, replacing, cleaning, altering or
rehabilitating the Premises or any portion thereof, including such acts for
reletting to a new lessee or lessees; (iii) for leasing commissions; or (iv) for
any other costs necessary or appropriate to reiet the Premises; plus
(5) such reasonable attorneys' fees incurred by Landlord as a
result of a Default, and costs in the event suit is filed by Landlord to enforce
such remedy; and plus
(6) at Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by applicable
law.
As used in subparagraphs (1) and (2) above, the "worth at the time of award" is
computed by allowing interest at an annual rate equal to twelve percent (12%)
per annum or the maximum rate permitted by law, whichever is less. As used in
subparagraph (3) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award, plus one percent (1%). Tenant waives redemption
or relief from forfeiture under the Louisiana Code of Civil Procedure, or under
any other present or future law, in
Exhibit (10.2)-p16
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EXHIBIT SECTION
EXHIBIT (10.2)
the event Tenant is evicted or Landlord takes possession of the Premises by
reason of any Default of Tenant hereunder.
(b) CONTINUATION OF LEASE. In the event of any Default by Tenant, then
in addition to any other remedies available to Landlord at law or in equity and
under this Lease, Landlord shall have the remedy described in the applicable
Louisiana Civil Code article (Landlord may continue this Lease in effect after
Tenant's Default and abandonment and recover Rent as it becomes due, provided
tenant has the right to sublet or assign, subject only to reasonable
limitations).
(c) RE-ENTRY. In the event of any Default by Tenant, Landlord shall
also have the right, with or without terminating this Lease, in compliance with
applicable law, to re-enter the Premises and remove all persons and property
from the Premises; such property may be removed and stored in a public warehouse
or elsewhere at the cost of and for the account of Tenant.
(d) RELETTING. In the event of the abandonment of the Premises by
Tenant or in the event that Landlord shall elect to re-enter or shall take
possession of the Premises pursuant to legal proceeding or pursuant to any
notice provided by law, then if Landlord does not elect to terminate this Lease
as provided in Paragraph a, Landlord may from time to time, without terminating
this Lease, relet the Premises or any part thereof for such term or terms and at
such rental or rentals and upon such other terms and conditions as Landlord in
its sole discretion may deem advisable with the right to make alterations and
repairs to the Premises. In the event that Landlord shall elect to so relet,
then rentals received by Landlord from such reletting shall be applied in the
following order: (1) to reasonable attorneys' fees incurred by Landlord as a
result of a Default and costs in the event suit is filed by Landlord to enforce
such remedies; (2) to the payment of any indebtedness other than Rent due
hereunder from Tenant to Landlord; (3) to the payment of any costs of such
reletting; (4) to the payment of the costs of any alterations and repairs to the
Premises; (5) to the payment of Rent due and unpaid hereunder; and (6) the
residue, if any, shall be held by Landlord and applied in payment of future Rent
and other sums payable by Tenant hereunder as the same may become due and
payable hereunder. Should that portion of such rentals received from such
reletting during any month, which is applied to the payment of Rent hereunder,
be less than the Rent payable during the month by Tenant hereunder, then Tenant
shall pay such deficiency to Landlord. Such deficiency shall be calculated and
paid monthly. Tenant shall also pay to Landlord, as soon as ascertained, any
costs and expenses incurred by Landlord in such reletting or in making such
alterations and repairs not covered by the rentals received from such reletting.
(e) TERMINATION. No re-entry or taking of possession of the Premises
by Landlord pursuant to this Addendum shall be construed as an election to
terminate this Lease unless a written notice of such intention is given to
Tenant or unless the termination thereof is decreed by a court of competent
jurisdiction. Notwithstanding any reletting without termination by
Exhibit (10.2)-p17
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EXHIBIT SECTION
EXHIBIT (10.2)
AMB PROPERTY CORPORATION
INDUSTRIAL MULTI-TENANT LEASE
1. BASIC PROVISIONS ("Basic Provisions").
1.1 Parties: This Lease ("Lease") dated October 31, 2000, is made by and
between AMB PROPERTY, L.P., A DELAWARE LIMITED PARTNERSHIP, ("Landlord") and
CHAMPION INDUSTRIES, INC. D/B/A UPTON PRINTING ("Tenant") (collectively the
"Parties," or individually a "Party").
1.2 Premises: A portion, outlined on Exhibit A attached hereto
("Premises"), of the building ("Building") located at 0000 XXXXXXXXX XXXXXXX,
X-0, Suites 278-282 in the City of Elmwood, State of Louisiana. The Building is
located in the industrial center commonly known as ELMWOOD DISTRIBUTION CENTER
(the "Industrial Center"). Tenant shall have non-exclusive rights to the Common
Areas (as defined in Paragraph 2.3 below), but shall not have any rights to the
roof, exterior walls or utility raceways of the Building or to any other
buildings in the Industrial Center. The Premises, the Building, the Common
Areas, the land upon which they are located and all other buildings and
improvements thereon are herein collectively referred to as the "Industrial
Center."
1.3 Term: Three 3 years and 0 months ("Term") commencing NOVEMBER 1. 2000
("Commencement Date") and ending OCTOBER 31, 2003 ("Expiration Date"). Option to
Terminate: Provided Tenant is not in default hereunder and notwithstanding any
other provisions of this Lease to the contrary, Tenant may elect to terminate
this Lease Agreement on April 30, 2001 by giving Landlord prior written notice,
no later than March 31, 2001. In the event such option is exercised, Tenant
agrees to pay Landlord One Thousand Four Hundred and 00/100---- ($1,400.00)
dollars simultaneously with the giving of the termination notice.
1.4 Base Rent: $ 4,220.00 per month ("Base Rent"). $ 5,045.00 payable on
execution of this Lease for period November 1 2000 - November 30, 2000.
1.5 Tenant's Share of Operating Expenses ("Tenant's Share"):
(a) Industrial Center .027326
(b) Building .103448
1.6 Tenant's Estimated Monthly Rent Payment: Following is the estimated
monthly Rent payment to Landlord pursuant to the provisions of this Lease. This
estimate is made at the inception of the Lease and is subject to adjustment
pursuant to the provisions of this Lease:
(a) Base Rent (Paragraph 4.1) $ 4,220.00
(b) Building .103448
1.6 Tenant's Estimated Monthly Rent Payment: Following is the estimated
monthly Rent payment to Landlord pursuant to the provisions of this Lease. This
estimate is made at the inception of the Lease and is subject to adjustment
pursuant to the provisions of this Lease:
(a) Base Rent (Paragraph 4.1) $ 4,220.00
(b) Operating Expenses (Paragraph 4.2;
excluding Real Property Taxes,
Landlord Insurance and HVAC) $ 385.00
(d) Landlord Insurance (Paragraph 8.3) $ 17.00
(e) Real Property Taxes (Paragraph 10) $ 388.00
(f) HVAC maintenance (Paragraph 4.2) $ 35.00
Estimated Monthly Payment $5,045.00
1.7 Security Deposit: $ 4,220.00 ("Security Deposit").
1.8 Permitted Use ("Permitted Use") is STORAGE & WHOLESALE DISTRIBUTION OF
PRINTED FORMS AND RELATED OFFICE USE
Exhibit (10.2)-p18
19
EXHIBIT SECTION
EXHIBIT (10.2)
1.9 Guarantor: N/A.
1.10 Addenda and Exhibits: Attached hereto are the following Addenda and
Exhibits, all of which constitute a part of this Lease:
(a) Addenda: Remedies Addendum
(b) Exhibits: Exhibit A: Diagram of Premises.
Exhibit B: Commencement Date Certificate.
Exhibit C: Tenant Move-In Environmental Questionnaire
Exhibit D: Leasing Commission.
1.11 Address for Rent Pa my Payments: All amounts payable by Tenant to
Landlord shall until further notice from Landlord be paid to AMB/NDP LOCAL, L.P.
at the following address:
X/X XXXXXXXXXXX
XXXXXXXXXX
XXX 000000
Xxxxxx, XX 00000-0000
2. PREMISES, PARKING AND COMMON AREAS.
2.1 Letting. Landlord hereby leases to Tenant and Tenant hereby leases
from LANDLORD the Premises upon all of the terms, covenants and conditions set
forth in this Landlord because of any Default by Tenant, Landlord may at any
time after such reletting elect to terminate this Lease for any such Default.
(f) CUMULATIVE REMEDIES. The remedies herein provided are not
exclusive and Landlord shall have any and all other remedies provided herein or
by law or in equity.
(g) NO SURRENDER. No act or conduct of Landlord, whether consisting
of the acceptance of the keys to the Premises, or otherwise, shall be deemed to
be or constitute an acceptance of the surrender of the Premises by Tenant prior
to the expiration of the Term, and such acceptance by Landlord of surrender by
Tenant shall only flow from and must be evidenced by a written acknowledgment of
acceptance of surrender signed by Landlord. The surrender of this Lease by
Tenant, voluntarily or otherwise, shall not work a merger unless Landlord elects
in writing that such merger take place, but shall operate as an assignment to
Landlord of any and all existing subleases, or Landlord may, at its option,
elect in writing to treat such surrender as a merger terminating Tenant's estate
under this Lease, and thereupon Landlord may terminate any or all such subleases
by notifying the sublessee of its election so to do within five (5) days after
such surrender.
(h) NOTICE PROVISIONS. Tenant agrees that any notice given by
Landlord pursuant to Paragraph 13.1 of the Lease shall satisfy the requirements
for notice under the applicable Louisiana Code of Civil Procedure article, and
Landlord shall not be required to give any additional notice in order to be
entitled to commence an unlawful detainer proceeding.
Exhibit (10.2)-p19
