Exhibit 10.13
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into as of
the 1st day of May, 1997 by and between CRESCENT RESOURCES, INC., a South
Carolina corporation ("Landlord"), and XXXXXX HEALTH PRODUCTS INC., a
Delaware Corporation ("Tenant").
W I T N E S S E T H:
In consideration of the mutual covenants and agreements contained
herein, the parties agree for themselves, their successors and assigns, as
follows:
1. Defined Terms. In addition to any other defined terms set
forth in this Lease, the following terms used in this lease shall have the
meaning set forth in this Paragraph 1 unless otherwise noted.
(a) Land. That certain tract of land within the Park located
at 00000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx (28273) and 000
Xxxxxxxx Xxxxxxxxxx Xxxxx, Xxxx Xxxx, Xxxxx Xxxxxxxx (29715), more
particularly described on Exhibit A hereto.
(b) Building. That certain building located on the Land
consisting of approximately 121,767 gross rentable square feet of space,
and all fixtures, furnishings and equipment made a part thereof and used
in connection therewith.
(c) Park. That certain complex of land and buildings,
including the Land and the Building, and designated by Landlord as
"Lakemont Industrial Park."
(d) Premises. The Land, together with the Building and all
other improvements located thereon, including, without limitation, all
parking areas, driveways, and sidewalks thereon, together with a
non-exclusive right to use all other driveways, roads, parking areas and
other common facilities furnished by the Landlord for the common use of
all other tenants located within the Park. The Premises are designated
on the plat attached hereto as Exhibit B.
(e) Tenant Operations. Pharmaceutical manufacturing,
packaging, storage, distribution and related office and warehousing
facilities.
(f) Commencement Date. May 1, 1997.
Exhibit 10.13
(g) Expiration Date. May 31, 1998, subject, however, to
adjustment pursuant to Paragraphs 3(a) and 3(b) of this Lease.
(h) Advance Rental Payment. $27,803.47 pursuant and subject
to Paragraph 31(j) of this Lease.
Additional Defined Terms:
Additional Rental Paragraph 5(b)
Annual Rental Paragraph 5
Applicable Laws Paragraph 4(a)
Event(s) of Default Paragraph 20
Event of Tenant Misconduct Paragraph 17(a)
Event of Landlord Misconduct Paragraph 17(b)
Force Majeure Matter(s) Paragraph 26
Hazardous Substances Paragraph 17(d)
Landlord's Work Paragraph 4(a)
Lease Extension Term Paragraph 3(b)
Lease Term Paragraph 3
Lease Year Paragraph 3
Minimum Rental Paragraph 5(a)
New Facility Paragraph 3(a)
Ready for Occupancy Paragraph 4(b)
Tenant Delay Factors Paragraph 4(b)
Tenant Upfit Allowance Paragraph 4(c)
2. Description of Premises. Landlord hereby leases to Tenant,
and Tenant hereby accepts and rents from Landlord, the Premises. Tenant
shall have the exclusive right to the use of the Premises on the terms and
conditions set forth herein.
3. Lease Term. The term of this Lease (the "Lease Term") shall
commence on the Commencement Date and shall end at midnight on the Expiration
Date. As used herein, the term "Lease Year" shall mean each year of the
Lease Term commencing on the Commencement Date, or any anniversary thereof,
and ending at the expiration of twelve (12) months thereafter. In the event
the Commencement Date is any day other than the first day of a calendar
month, there will be a partial Lease Year at the end of the Lease Term (which
partial Lease Year shall consist of a partial calendar month).
(a) Landlord and Tenant both agree that the ultimate term of
this Lease is tied to the completion of Tenant's new facility consisting
of approximately 544,950 s.f. (the
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Exhibit 10.13
"New Facility") which is being constructed in the Park and a complete move
of all Tenant's contents from the Premises to the New Facility.
Notwithstanding the foregoing, Tenant agrees that the Lease Expiration Date
will be the earlier of (i) May 31, 1998 or (ii) the date the New Facility
has been completed and Landlord has received a permanent Certificate of
Occupancy for the New Facility; provided, however, Landlord and Tenant
agree that in no event is the Lease Expiration Date to be earlier than
December 31, 1997.
(b) Although the Lease Term expires upon completion of the New
Facility, Landlord agrees that Tenant may continue to occupy the Premises
on the same terms and conditions for an additional sixty (60) days from
the later of the completion of the New Facility or May 31, 1998 in order
to complete Tenant's move to the New Facility. Should Tenant desire to
extend the Lease Term beyond the sixty (60) day period previously
described, Tenant is to inform Landlord in writing within five (5)
business days from the date the New Facility has been completed and a
permanent Certificate of Occupancy has been received. The "Lease Extension
Term" would be for a minimum of three (3) years at the prevailing fair
market rate for comparable facilities in the Park on terms and conditions
substantially as set forth herein, but subject to adjustments in certain
time periods commensurate for a longer term lease.
4. Construction and Acceptance of Premises.
(a) Landlord shall proceed to construct improvements upon the
Premises, at its expense (subject, however, to the provisions of
Paragraph 4(c), in compliance with the plans and specifications approved
in writing by Tenant, with such minor variations as Landlord may deem
advisable ("Landlord's Work"). Landlord shall tender the Premises to
Tenant promptly as provided in Paragraph 4(b). Landlord's Work shall be
constructed in a good and workmanlike manner, using new materials, in
accordance with the plans and specifications approved by Tenant and all
Applicable Laws. As used herein, "Applicable Laws" shall mean all laws,
ordinances (including Fire and Building Codes), regulations, orders,
interpretations and zoning requirements of any governmental authority,
agency or other public or private regulatory authority (including
insurance underwriters or rating bureaus) and including the requirements
of the Americans With Disabilities Act, as amended (the "ADA"), which may
be in effect from time to time and relating to the Premises or Tenant's
business conducted therein.
(b) The Premises shall be deemed to be "Ready for Occupancy"
when Landlord has substantially completed all of Landlord's Work. If the
Premises are not Ready for Occupancy within three (3) months following the
Commencement Date, unless such delays are caused by Tenant and Tenant's
agents or employees (collectively, "Tenant Delay Factors"), including,
without limitation, change orders requested by
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Exhibit 10.13
Tenant relative to the Landlord's Work, Tenant may, at its option,
terminate this Lease by written notice to Landlord delivered within thirty
(30) days following the expiration of such three (3) month period, in which
event neither party shall have any further liabilities or obligations
hereunder, except Landlord shall repay to Tenant any prepaid rent
(including the Advance Rental Payment) and all indemnification obligations
herein shall survive such termination. When the Premises are Ready for
Occupancy, Tenant agrees to accept possession thereof. Tenant further
agrees that, if requested by Landlord, Tenant will sh Landlord with a
written statement that Tenant has accepted the Premises after the Premises
are deemed Ready for Occupancy and that Landlord has fully complied with
Landlord's covenants and obligations hereunder or Tenant shall otherwise
state what, if any, Landlord defaults exist and shall give Landlord time
to cure any such defaults as provided in Paragraph 20(c). Notwithstanding
the requirements for occupancy of the entire Premises set forth above,
Landlord agrees that Tenant may take possession of portions of the Premises
as such portions are completed to the satisfaction of Tenant, provided
Tenant does not unreasonably interfere with the completion of Landlord's
Work with respect to the remainder of the Premises.
(c) Landlord shall be solely responsible for the completion of
the improvements to the Premises as stated above. Landlord shall enter
into a contract for the construction of such improvements with a
guaranteed maximum price of Four Hundred Eighty-one Thousand Four Hundred
Ninety-six ($481,496.00) and shall be responsible for the payment of all
work performed thereunder. Tenant agrees to pay to Landlord, within
fifteen (15) days of the date hereof, a refundable security deposit in the
amount of Three Hundred Thirty-one Thousand Four Hundred Ninety-six
Dollars ($331,496.00) as security for the completion of the improvements
and payment of Landlord's development fee as set forth herein, subject to
adjustment as set forth herein (the "Construction Security Deposit"). Upon
completion of the Landlord's Work, the Construction Security Deposit will
be adjusted based on the actual cost of the items designated on Exhibit C
as Xxxxxx Improvements, less the sum of One Hundred Fifty Thousand Dollars
($150,000.00). Landlord will hold the Construction Security Deposit
subject to this Paragraph 4(c) during the Lease Term. At the end of the
initial Lease Tenn, provided Tenant moves into the New Facility, Landlord
will return the Construction Security Deposit to Tenant. Provided,
however, if the New Facility is not completed and the Lease is terminated,
Landlord may retain the Construction Security Deposit as liquidated
damages. In the event Tenant exercises its option to extend the Lease
Term, Landlord will refund the Construction Security Deposit to Tenant,
and the Annual Rental for the Lease Extension Term shall be increased
by an amount equal to the Construction Security Deposit amortized over
the entire Lease Extension Term. The cost of certain improvements and
work included in Landlord's Work are more particularly set forth in
Exhibit C.
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Exhibit 10.13
(d) Prior to beginning Landlord's Work and during the
construction, Landlord shall provide Tenant with copies of all construction
documents and certificates of insurance from the general contractor,
satisfactory to Tenant. Such insurance shall include General Liability
and Automobile with limits in an amount not less than $1,000,000 combined
single limit including completion operations and shall name Tenant as an
additional insured. Certificates of insurance for workers' compensation
shall also be provided.
5. Annual Rental. During the full Lease Term, Tenant shall pay
to Landlord, without notice, demand, reduction, set-off or any defense, a
total annual rental (the "Annual Rental") consisting of the sum total of the
Minimum Rental and Additional Rental. If the Commencement Date is a date
other than the first day of a calendar month and/or the Expiration Date is a
date other than the last day of a calendar month, the Annual Rental shall be
prorated daily and paid in advance on the Commencement Date and/or the first
day of the calendar month in which the Expiration Date occurs.
(a) Minimum Rental. Tenant shall pay annually a minimum rental
(the "Minimum Rental") of Three Hundred Thirty-three Thousand Six Hundred
Forty-one and 58/100 Dollars ($333,641.58) payable in twelve (12) equal
monthly installments of Twenty-seven Thousand Eight Hundred Three and
47/100 Dollars ($27,803.47) each in advance on or before the Commencement
Date and on or before the first day of each succeeding calendar month
during the Lease Term.
(b) Additional Rental. In addition to the Minimum Rental,
Tenant shall pay to Landlord Tenant's share of Landlord's (i) real estate
taxes related to the Premises, (ii) insurance premiums related to the
Premises, and (iii) common area maintenance costs associated with the
Premises and the Park, as more particularly set forth below.
(1) Tenant's Share of Taxes. Tenant shall pay any ad
valorem taxes (or any tax hereafter imposed in lieu thereof) payable
for the Building relative to the Lease Term in excess of $35,216.00.
Such cost is estimated to be $44,000.00.
(2) Tenant's Share of Insurance Premiums. Tenant shall
pay any amount of premiums charged for fire and extended coverage
and liability insurance, together with all endorsements thereto,
carried by Landlord on the Building relative to the Lease Term in
excess of $3,815.00 (which is estimated to be $0.00).
(3) Tenant's Share of Common Area Maintenance Costs.
Tenant shall pay to the property owners association established for
the maintenance of the common areas of the Park its proportionate
share of the property owners association
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Exhibit 10.13
charges allocated to the Premises. Landlord shall use good faith
efforts to keep the operating and maintenance costs in line with
costs for other similarly situated first-class industrial parks. Such
cost shall not exceed $8,400.00 annually during the initial Lease
Term. Tenant, at its expense, shall provide its own garbage
collection, recycling and disposal.
(c) Payment of Additional Rental. The estimated amounts of
Tenant's Additional Rental for taxes, insurance premiums and common area
maintenance costs for the partial Lease Year ending December 31 of the
calendar year in which the Commencement Date falls are set forth above.
For each succeeding calendar year during the Lease Term, Landlord shall
submit an estimate of Tenant's share for taxes, insurance premiums and
common area maintenance costs on or before April 1 of each such succeeding
calendar year. If an estimate of Tenant's share of expenses for any
calendar year during the Lease Term has not been submitted on or before
the first day of April in such calendar year, Tenant shall pay Tenant's
share for such month(s) at the estimated rate for the previous calendar
year, and such payment(s) shall be adjusted effective as of January 1
of such calendar year at such time as the estimate for such calendar
year is submitted, at which time the deficiency or overage (as the case
may be) in the estimated payments for the preceding months in such
calendar year also shall be collected or credited (as the case may be).
Landlord shall charge, and Tenant shall pay, the estimated Tenant's share
of expenses on a monthly basis or on some other periodic basis
established by Landlord, payable in advance and subject to adjustment after
the end of the respective calendar year on the basis of the actual costs
incurred for such calendar year. Tenant's share of estimated taxes,
insurance premiums and common area maintenance costs shall be paid in a
like manner, with the monthly rental installments being adjusted
accordingly. In the event such costs actually decrease for any such
calendar year, Landlord shall reimburse Tenant for any overage paid and
the monthly rental installments for the next period shall be reduced
accordingly.
(d) Late Charge. If Tenant fails to pay to Landlord when due
any installment of Annual Rental or other sum to be paid hereunder,
Tenant shall pay Landlord on demand a late charge of three percent (3 %)
of the amount due. Failure to pay such late charge upon demand therefor
shall be an Event of Default hereunder. Provision for such late charge
shall be in addition to all other rights and remedies available to
Landlord hereunder or at law or in equity and shall not be construed as
liquidated damages or as limiting Landlord's remedies in any manner.
6. Alterations and Improvements by Tenant. Any structural
changes or other material alterations, additions, or improvements made to the
Premises by Tenant shall be subject to the prior written consent of Landlord
(which consent shall not be unreasonably
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Exhibit 10.13
withheld or delayed) and shall be at the sole cost and expense of Tenant.
All such alterations, additions or improvements shall be constructed in a
good and workmanlike manner, using new materials, in accordance with plans
and specifications approved by Landlord and all Applicable Laws.
Additionally, Tenant covenants and agrees that no improvements, changes,
alterations, additions, maintenance or repairs shall be made by Tenant to the
Premises which might impair the structural soundness of the Building, which
might result in an overload of the weight capacity of floors in the Building,
which might result in an overload of capacity of electric lines serving the
Building, or which might interfere with electric or electronic equipment in
the Building or on any adjacent or nearby property. Upon the expiration or
earlier termination of this Lease, all alterations, additions or
improvements, including, without limitation, all walls, railings, carpeting,
floor and wall coverings and other permanent real estate fixtures (excluding,
however, Tenant's trade fixtures and equipment, as described in Paragraph 12
herein) made by, for, or at the direction of Tenant, and upon the election of
Tenant, shall either: (i) become the property of Landlord and remain upon the
Premises or (ii) be removed from the Premises by Tenant, at Tenant's sole
cost and expense.
7. Use of Premises. Tenant shall use the Premises only for the
Tenant Operations and for no other purpose and shall comply with all
Applicable Laws in connection with the use of the Premises. Additionally,
Tenant covenants and agrees that nothing shall be done or kept in the
Premises which might result in an overload of the weight capacity of floors
in the Building, which might result in an overload of capacity of electric
lines serving the Building, or which might interfere with electric or
electronic equipment in the Building or on any adjacent or nearby property.
Tenant shall not do any act or follow any practice relating to the Premises
which shall constitute a nuisance or detract in any way from the reputation
of the Park as a first-class industrial park. Tenant's duties in this regard
shall include allowing no noxious or offensive odors, fumes, gases, smoke,
dust, steam or vapors, or any loud or disturbing noise or vibrations to
originate in or emit from the Premises.
8. Taxes. Tenant shall pay in a timely manner and prior to
delinquency any taxes or assessments of any nature imposed or assessed upon
its trade fixtures, equipment, machinery, inventory, merchandise or other
personal property located on the Premises and owned by or in the custody of
Tenant. Landlord shall pay in a timely manner and prior to delinquency all
ad valorem property taxes which are now or hereafter assessed upon the Park
and the Premises, except as otherwise expressly provided in this Lease.
9. Hazard and Casualty Insurance. Landlord shall maintain and
pay for general hazard and casualty insurance special form, with extended
coverage, covering the Building equal to ninety percent (90%) of the
insurable value thereof (i.e., the replacement cost, less depreciation),
satisfactory to Tenant. Provided, however, if Tenant uses the Premises for
any
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Exhibit 10.13
purpose or in any manner which causes an increase in Landlord's insurance
rates, Tenant shall pay such additional insurance premium (in addition to all
other payments due under this Lease) to Landlord as additional rent within
(30) days after demand from Landlord. Landlord shall provide to Tenant a
certificate of insurance satisfactory to Tenant evidencing the requirements
of this Paragraph. Tenant shall maintain and pay for all fire and extended
coverage insurance on its contents in the Premises, including trade fixtures,
equipment, machinery, merchandise or other personal property belonging to or
in the custody of Tenant.
10. Landlord's Limited Covenant to Repair and Replace. During the
Lease Term, Landlord shall be responsible for repairs or replacements to the
roof, exterior walls and structural members, including foundation and
sub-flooring of the Premises (except office fronts, plate glass windows,
doors, door closure devices, window and door frames, nailing, locks and
hardware and painting or other treatment of interior walls).
(a) Landlord's efforts to repair and replace pursuant to this
paragraph shall be made within a reasonable time after written notice from
Tenant of the need for such repair or replacement to be made (exclusive of
repairs and replacements necessitated by an Event of Tenant Misconduct).
With respect to latent or patent defects in the Premises or in the
Building, Landlord's liability shall not extend beyond one year from the
date of substantial completion of the construction of the improvements
specified in the Landlord's Work, whether or not such defects are
discovered within such one-year period.
(b) If Landlord cannot, using due diligence, complete its
repairs and replacements within sixty (60) days after written notice from
Tenant and if the resulting condition renders a material portion of the
Premises untenantable for the Tenant Operations, then, following the
expiration of such sixty (60) day period and continuing until such time
as the repair or replacement is completed (or is completed sufficiently
so as to not render a material portion of the Premises untenantable for
the Tenant Operations), either party may terminate this Lease effective
upon (30) days prior written notice, without prejudice to Landlord's
rights to receive payment from Tenant for uninsured damages caused
directly or indirectly by Tenant as stated below. If the cause of such
repairs or replacements is the result of an Event of Tenant Misconduct,
then Tenant shall not be entitled to terminate this Lease pursuant to
this paragraph, and Tenant shall pay Landlord the full amount of such
cost, damage, and expense (except as otherwise provided in Paragraph 15
herein). Furthermore, in the event Landlord diligently pursues the
completion of the required repairs and replacements during the sixty (60)
day period provided above but is unable to complete such repairs and
replacements prior to the expiration of such period, such sixty (60) day
period shall be extended for all purposes under this paragraph (including
Tenant's termination right) for
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Exhibit 10.13
such additional, reasonable period of time as is necessary to allow
Landlord to complete such repair or replacement (provided Landlord must
continue to pursue the completion of such repair or replacement in a
diligent manner), provided Tenant consents and does not elect to
terminate this Lease.
(c) Landlord's duty to repair or replace as prescribed in this
paragraph shall be Tenant's sole remedy and shall be in lieu of all other
warranties or guaranties of Landlord, express or implied; provided,
however, Landlord has an obligation and duly to faithfully perform its
obligations hereunder in a reasonable and diligent manner in an effort to
mitigate any damages suffered by Tenant as a result thereof. Furthermore,
the terms of this paragraph shall have no application to casualty events
and exercises of the power of eminent domain that affect the Premises,
which shall be governed by the terms and provisions in Paragraph 14
herein and Paragraph 19 herein, respectively.
(d) If any repairs required to be made by Landlord hereunder
are not made within sixty (60) days after written notice delivered to
Landlord by Tenant (provided no advance written notice shall be required
in cases of emergency), Tenant may, at its option, make such repairs, and
Landlord shall pay to Tenant immediately upon demand, the cost of such
repairs plus five percent (5%) of the amount thereof, and failure to do
so shall constitute a Landlord default hereunder.
11. Tenant's Covenant to Repair. Tenant shall be responsible for
the repair, replacement and maintenance in good order and condition of all
parts and components of the Premises, other than those specified for
maintenance by Landlord herein, including, without limitation, the plumbing,
wiring, electrical system, heating system, air conditioning system, glass and
plate glass, equipment and machinery constituting fixtures located within the
Premises and shall keep all plumbing units, pipes and connections free from
obstruction and protected against ice and freeing.
(a) Landlord represents and warrants to Tenant that all such
plumbing, wiring, electrical system, heating system, air conditioning
system, glass, equipment and machinery constituting fixtures located
within the Premises shall be in good working order and repair upon
delivery of the Premises to Tenant. At the end of the Lease Term, Tenant
shall return the Premises to Landlord in as good of a condition as
existed at the time all of the Landlord's Work was completed pursuant
to Paragraph 4 herein, excepting only normal wear and tear, acts of God
and repairs required to be made by Landlord hereunder.
(b) Tenant's duty to maintain the heating and air conditioning
system serving the Premises shall specifically include the duty to
inspect the system, to replace filters
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Exhibit 10.13
as recommended and to perform other recommended periodic servicing.
During the Lease Term, Tenant shall obtain and maintain a service contract
with an independent maintenance contractor reasonably satisfactory to
Landlord to provide such service for the heating and air conditioning
system. The service contract must include all services suggested by the
applicable equipment manufacturer(s) in the operation and maintenance
manual(s) and must become effective on the Commencement Date.
(c) If any repairs required to be made by Tenant hereunder are
not made within sixty (60) days after written notice delivered to Tenant
by Landlord (provided no advance written notice shall be required in cases
of emergency), Landlord may, at its option, make such repairs without
liability to Tenant for any loss or damage which may result to Tenant's
stock or business by reason of such repairs, and Tenant shall pay to
Landlord immediately upon demand, as additional rent hereunder, the cost
of such repairs plus five percent (5%) of the amount thereof, and failure
to do so shall constitute an Event of Default of Tenant hereunder.
(d) If Tenant makes any repair required hereunder the cost of
which is $5,000 or more to any system, equipment or machinery which
existed on the Premises as of the Commencement Date (i.e., not installed
as part of Landlord's Work) and such repair is not required due to an
Event of Tenant Misconduct, Tenant may amortize such expense over the
useful life of such equipment (estimated to be 7 years) and pay only
the portion of such expense allocated to the remainder of the Lease Term,
and Landlord shall reimburse Tenant for the remainder of the cost of such
repair at the end of the Lease Term.
12. Trade Fixtures and Equipment; Non-Liability for Certain Damages.
(a) So long as Tenant is not in default under this Lease, any
trade fixtures and equipment installed in the Premises at Tenant's
expense shall remain Tenant's personal Property, and Tenant shall have
the right at any time during the Lease Term to remove such fixtures and
equipment. Upon removal of any fixtures or equipment, Tenant shall
immediately restore the Premises to substantially the same condition
as existed at the time all of the Landlord's Work was completed pursuant
to Paragraph 4 herein, ordinary wear and tear and acts of God alone
excepted. Any trade fixtures and equipment not removed by Tenant at
the expiration or an earlier termination of this Lease shall either
(i) become the property of Landlord or (ii) be removed by Tenant, at
Tenant's expense.
(b) Landlord and Landlord's agents and employees shall not be
liable to Tenant or any other person or entity whomsoever for any injury
to person or damage to Property caused by the Premises becoming out of
repair or by defect in or failure of equipment,
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Exhibit 10.13
pipes or wiring, or broken glass, or by the backing up of drains, or by
gas, water, steam, electricity or oil leaking, escaping or flowing into
the Premises unless caused by or arising out of an Event of Landlord
Misconduct. Landlord shall not be liable to Tenant for any compensation,
damages or reduction of rent by reason of inconvenience or annoyance or
loss of business arising from power losses or shortages or from the
necessity of Landlord's entering the Premises for any of the purposes
authorized in this Lease or for repairing the Premises. Landlord's
liability with respect to any defects, repairs or maintenance for which
Landlord is responsible under any provision of this Lease shall be limited
to the cost of such repairs or maintenance or the curing of such defect,
unless due to an Event of Landlord Misconduct. Tenant shall indemnify and
hold Landlord harmless from and against any loss, cost, expense or claims
arising out of such injury or damage referred to in this paragraph.
13. Utilities. Tenant shall pay in a timely manner and prior to
delinquency for all utilities or services related to its use of the Premises,
including electricity, gas, heat, sewer, water, telephone and janitorial
services. Landlord shall not be responsible for the stoppage or interruption
of utilities services, other than as required by its limited covenant to
repair and replace set forth herein.
14. Damage or Destruction of Premises. If the Building is so
damaged by fire or other casualty that (i) substantial alteration or
reconstruction of the Building shall be required or (ii) any mortgagee of
Landlord requires that all or any portion of the insurance proceeds payable
as a result of such casualty be applied to the payment of the underlying
mortgage debt, then Landlord may, at its option, terminate this by notifying
Tenant in writing of such termination within sixty (60) days after the date
the casualty event occurs. If the Premises are damaged by fire or other
casualty but are not rendered untenantable for Tenant's business, either in
whole or in part, and if Landlord does not terminate this Lease pursuant to
the immediately preceding sentence, Landlord shall cause such damage to be
repaired without unreasonable delay. In such event, all insurance proceeds
shall be made payable to Landlord and shall be used to repair or rebuild the
Premises in accordance with the standards set forth herein and not for any
other purposes, without Tenant's prior written consent. Landlord shall be
responsible for the payment in full of any deductible. If by reason of such
casualty, the Premises are rendered untenantable for Tenant's business,
either in whole or in part, and Landlord does not terminate this Lease as
provided in the first sentence above in this Xxxxxxxxx 00, Xxxxxxxx shall
cause the damage to be repaired or replaced without unreasonable delay, and
in the interim, the Annual Rental shall be equitably reduced as to such
portion of the Premises as is rendered untenantable. Any such abatement of
rent shall not, however, create an extension of the Lease Term. Provided,
however, if by reason of such casualty, the Premises are rendered
substantially untenantable, and Landlord fails to give Tenant reasonable
assurances that the amount of time required to repair the
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Exhibit 10.13
damage, using due diligence, shall not exceed the earlier of (i) the expected
completion date of the New Facility or (ii) sixty (60) days from the date the
casualty event occurs, then either party shall have the right to terminate
this Lease by giving written notice of termination within sixty (60) days
after the date the casualty event occurs. Notwithstanding the other
provisions of this Paragraph 14, in the event there is a casualty loss to the
Premises to the extent of fifty percent (50%) or more of the replacement
value during the last Lease Year of the Lease Term, including any Lease
Extension Term that has then been exercised by Tenant, either party may, at
its option, terminate this Lease by giving written notice within sixty (60)
days after the date the casualty event occurs; and, in such case, Annual
Rental shall xxxxx as of the date of such notice. Except as provided herein,
there shall be no obligation of Landlord to rebuild or repair in case of fire
or other casualty, and no termination under this Paragraph 14 shall affect
any rights of Landlord or Tenant hereunder because of prior defaults of the
other party. Tenant shall give Landlord prompt notice of any fire or other
casualty in the Premises.
15. Mutual Waiver; Waiver of Subrogation. The parties mutually
release and waive unto the other, all rights to claim damages, costs or
expenses for any injury to persons (including death) or property caused by a
casualty of any type whatsoever in, on or about the Premises, the Building or
the Park if the amount of such damages, costs or expenses has been paid to
such damaged party under the terms of any policy of insurance. All insurance
policies carried with respect to this Lease, if permitted under applicable
law, shall contain a provision whereby the insurer waives prior to loss all
rights of subrogation against either Landlord or Tenant (as the case may be).
16. Signs and Advertising. In order to provide architectural
control for the Park, Tenant may install, at Tenant's expense, only such
exterior signs, marquees, billboards, outside lighting fixtures and/or other
decorations on the Premises as shall have been approved in advance and in
writing by Landlord. Notwithstanding the foregoing, given that the Premises
are being used by Tenant only as a temporary facility, Landlord agrees that
Tenant may install signage of the quality and style typical for construction
sites. The care and maintenance of all such approved signs shall be the sole
responsibility of Tenant. Landlord shall have the right to remove any such
sign or other decoration and fully restore the exterior of the Premises at
the cost and expense of Tenant if any such exterior work is done without
Landlord's prior written approval. Upon the expiration or earlier
termination of this Lease, Tenant shall remove any such sign or decoration
and fully restore the exterior of the Premises, at Tenant's sole cost and
expense. Tenant shall not permit, allow or cause to be used in, on or about
the Premises any sound production devices, mechanical or moving display
devices or bright lights for the purposes of advertisement, the effect of
which would be visible or audible from the exterior of the Premises.
12
Exhibit 10.13
17. Indemnification, Liability Insurance and Hazardous Substances.
(a) Indemnification by Tenant. Tenant shall indemnify and save
Landlord harmless against any and all claims, suits, demands, actions,
fines, damages and liabilities and all costs and expenses thereof
(including, without limitation, reasonable attorneys' fees) arising out
of injury to persons (including death) or property occurring in, on or
about, or arising out of, the Premises or other areas in the Park if
caused by or occasioned wholly or in part by any willful or negligent act
or omission of Tenant, its agents, subtenants, licensees, invitees,
contractors, subcontractors or employees (collectively, an 'Event of
Tenant Misconduct"). Tenant shall give Landlord prompt written notice
of any such happening causing injury to persons or property.
(b) Indemnification by Landlord. Landlord shall indemnify and
save Tenant harmless against any and all claims, suits, demands, actions,
fines, damages and liabilities and all costs and expenses thereof
(including, without limitation, reasonable attorneys' fees) arising out of
injury to persons (including death) or property occurring in, on or
about, or arising out of, the Premises or other areas in the Park if such
damage or injury is caused by or occasioned wholly or in part by any
willful or negligent act or omission of Landlord, its agents, licensees,
invitees, contractors, subcontractors, employees or other tenants within
the Park (to the extent that Landlord is indemnified by such other tenant)
(an "Event of Landlord Misconduct"). Landlord shall give Tenant prompt
written notice of any such happening causing injury to persons or
property.
(c) Liability Insurance. At all times during the Lease Term,
Tenant shall, at its own expense, keep in force comprehensive public
liability insurance, on a claims made basis, with such companies holding
an A. M. Best's Rating of A- VIII or better, as shall, from time to time,
be acceptable to Landlord (and to any mortgagee having a mortgage interest
in the Premises) and naming Landlord as an additional insured. The
amounts of such coverage, until changed at Landlord's request, shall be
$1,000,000.00 with respect to bodily injury or death of one person as a
result of any one accident and $500,000.00 with respect to damage to
property. Tenant shall first furnish to Landlord a copy of the required
policy or certificate of insurance, evidencing the required coverage and
naming Landlord as an additional insured under such policy, prior to the
Commencement Date and thereafter prior to each policy renewal date. Such
policy also shall include contractual liability coverage for the
performance by Tenant of the indemnity obligations of Tenant under this
Lease, and such policy shall contain a provision whereby the insurer will
provide sixty (60) days notice of cancellation or nonrenewal, except for
twenty (20) days for non-payment.
13
Exhibit 10.13
At all times during the Lease Term, Landlord shall, at its own
expense, keep in force comprehensive public liability insurance, on a
claims made basis, with such companies rated A. M. Best's Rating
of A- VIII or better, as shall, from time to time, be acceptable to Tenant
(and to any mortgagee having a mortgage interest in the Park) and naming
Tenant as an additional insured. The amounts of such coverage, until
changed at Tenant's request, shall be $1,000,000.00 with respect to
bodily injury or death of one person as a result of any one accident
and $500,000.00 with respect to damage to property. Landlord shall first
furnish to Tenant a copy of the required policy or certificate of
insurance, evidencing the required coverage and naming Tenant as an
additional insured under such policy, prior to the Commencement Date and
thereafter prior to each policy renewal date. Such policy also shall
include contractual liability coverage for the performance by Landlord
of the indemnity obligations of Landlord under this Lease, and such
policy shall contain a provision whereby the insurer will provide
sixty (60) days notice of cancellation or non-renewal, except for
twenty (20) days for non-payment.
(d) Presence and Use of Hazardous Substances. Tenant shall not,
without Landlord's prior written consent, keep on or around the Premises,
the common areas or facilities in or relating to the Premises for use,
disposal, treatment, generation, storage or sale, any substances
designated as, or containing components designated as, hazardous,
dangerous, toxic or harmful, and/or any substance that is subject to
regulation by any then-current federal, state or local law, statute or
ordinance and the rules and regulations implementing them, including, but
not limited to, the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.); the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601 et seq.); the
Clean Water Act (33 U.S.C. Section 1251 et seq.); the Clean Air Act
(42 U.S.C. Section 7401 et seq.); and the Toxic Substances Control Act
(15 U.S.C. Section 2601 et seq.) (such substances being herein
collectively referred to as "Hazardous Substances"). With respect
to any such Hazardous Substance, Tenant shall:
(1) Allow Landlord or Landlord's agent or representative,
upon prior notice to Tenant, to enter the Premises during reasonable
business hours to check Tenant's compliance with all applicable
governmental laws, statutes, ordinances, rules, regulations and
requirements regarding Hazardous Substances;
(2) Comply with minimum levels, standards or other
performance standards or requirements which may be set forth or
established for certain Hazardous Substances; and if minimum
standards or levels are applicable to Hazardous Substances present
on the Premises, such standards or levels shall be
14
Exhibit 10.13
established and documented by an on-site inspection by the
appropriate governmental authorities and shall be set forth in an
addendum to this Lease;
(3) Comply with all applicable governmental laws, statutes,
ordinances, rules, regulations and requirements regarding the proper
and lawful use, sale, transportation, generation, treatment and
disposal of such Hazardous Substances; and
(4) Pay to Landlord upon demand as additional rent any and
all costs incurred by Landlord as a result of any violation or breach
of the provisions of this Paragraph 17(d), including Landlord's
reasonable attorneys' fees and costs.
The terms and provisions in this Paragraph 17(d) shall survive the expiration
of the Lease Term or the earlier termination of this Lease.
(e) Unauthorized Releases of Hazardous Substances; Cleanup
Costs; Default and Indemnification.
(1) Tenant shall give immediate written notice to Landlord
of any release, spill, discharge or threatened discharge of any
Hazardous Substance on or at the Premises, the common areas or
facilities in or relating to the Building, the Land, the Park, or
the surrounding environment, which release, spill, discharge or
threatened discharge was not made pursuant to or in conformance with
the terms of any permit or license issued to Tenant by the
appropriate governmental authority. Such notice shall include a
description of measures taken or proposed to be taken by Tenant to
contain and/or remedy the release, spill, discharge or threatened
discharge and any resultant damage to property, persons, the
Premises, the common areas or facilities in or relating to the
Building, the Land, the Park, and/or the surrounding environment.
Tenant or Landlord, as the case may be, shall give prompt written
notice to the other party of any private or governmental
investigation relating to Hazardous Substances on or about the
Premises or the Park.
(2) At Tenant's own expense, Tenant shall promptly take
all steps necessary to contain and remedy any release, spill,
discharge or threatened discharge of Hazardous Substances on or at
the Premises, facilities in or relating to the Building and the Land,
and all resultant damage or injury to property, persons, and the
environment. Landlord shall have the right, but not the obligation,
to participate in and approve any environmental assessment or
remedial cleanup plan for the Premises or facilities in or relating
to the Building and the Land. Tenant, its employees, agents and
contractors shall fully cooperate with any and all federal,
15
Exhibit 10.13
state and local governmental officials having jurisdiction over the
Premises in resolving or addressing any situation involving the
presence of Hazardous Substances on or about the Premises.
(3) At Landlord's own expense, Landlord shall
promptly take all steps necessary to contain and remedy any
release, spill, discharge or threatened discharge of Hazardous
Substances on or at the Park and all resultant damage or injury
to property, persons, and the environment. Landlord, its
employees, agents and contractors shall fully cooperate with any
and all federal, state and local governmental officials having
jurisdiction over the Park in resolving or addressing any
situation involving the presence of Hazardous Substances on or
about the Park.
(4) Tenant shall be fully and completely liable to
Landlord for any and all cleanup costs and any and all other
charges, fees, and penalties (civil and criminal) imposed by
any governmental authority with respect to Tenant's use,
generation, handling, storage, containment, disposal,
transportation, and/or sale of Hazardous Substances.
(5) Landlord shall be fully and completely liable to
Tenant for any and all cleanup costs and any and all other charges,
fees, and penalties (civil and criminal) imposed by any governmental
authority with respect to Landlord's or any other tenant's use (to
the extent Landlord is indemnified by such tenant), generation,
handling, storage, containment, disposal, transportation, and/or
sale of Hazardous Substances.
(6) Tenant shall indemnify, defend and save Landlord
harmless from any and all costs, fees, penalties and charges
assessed against or imposed upon Landlord (as well as Landlord's
reasonable attorneys' fees and costs) as a result of Tenant's use,
generation, handling, storage, containment, disposal, transportation,
and/or sale of Hazardous Substances.
(7) Landlord shall indemnify, defend and save Tenant
harmless from any and all costs, fees, penalties and charges assessed
against or imposed upon Tenant (as well as Tenant's reasonable
attorneys' fees and costs) as a result of Landlord's or any other
tenant's use, generation, handling, storage, containment, disposal,
transportation, and/or sale of Hazardous Substances or incurred by
reason of any other tenant's activities within the Park (to the
extent Landlord is indemnified by such tenant). Notwithstanding
anything to the contrary, Landlord shall be fully responsible for
all pre-existing environmental conditions with respect to the
16
Exhibit 10.13
Premises and shall indemnify, defend and save Tenant harmless from
and against any claim, loss, cost or expense (including reasonable
attorneys' fees) arising out of any injury or damage as a result of
any environmental contamination or the presence of any Hazardous
Substances on the Premises which existed on the Premises prior to the
Commencement Date of this Lease.
(8) Upon a default under Paragraph 17(d) herein or
this Paragraph 17(e) and in addition to the rights and remedies
set forth elsewhere in this Lease, Landlord or Tenant, as the
case may be, shall be entitled to the following rights and
remedies:
(i) To terminate this Lease immediately; and
(ii) To recover any and all damages associated with the
default, including, but not limited to, cleanup
costs and charges, civil and criminal penalties and
fees, any and all damages and claims asserted by
third parties, and reasonable attorneys' fees and
costs.
The terms and provisions in this Paragraph 17(e) shall survive the expiration
of the Lease Term or the earlier termination of this Lease.
18. Landlord's Right of Entry. Landlord and those persons
authorized by Landlord shall have the right to enter the Premises during
reasonable business hours and upon reasonable notice for the purposes of
making repairs, making connections, installing utilities, providing services
to the Premises or for any other tenant, making inspections or showing the
Premises to prospective purchasers and/or lenders. Further, during the last
six (6) months of the Lease Term, including any extended Lease Term that has
then been exercised by Tenant, Landlord and those persons authorized by it
shall have the right during reasonable business hours and upon reasonable
notice to Tenant, to show the Premises to prospective tenants; provided,
however, Landlord agrees that it will not show the Premises to any
prospective tenant which is deemed by Tenant, in its sole discretion, to be a
competitor of Tenant. In addition, any and all visitors to the Premises,
including Landlord and any prospective tenant, shall comply with all rules
and regulations of Tenant applicable to the Premises. Notwithstanding any
term or provision in this Lease to the contrary, including those included in
this Xxxxxxxxx 00, Xxxxxxxx shall be entitled to enter the Premises at all
times and without any advance notice to Tenant if Landlord reasonably
determines or believes that an emergency circumstance or situation exists
that requires such entry.
17
Exhibit 10.13
19. Eminent Domain. If any substantial portion of the Premises is
taken under the power of eminent domain (including any conveyance made in
lieu thereof) or if any such taking shall materially impair the normal
operation of Tenant's business, then either party shall have the right to
terminate this Lease by giving written notice of such termination within (30)
days after such taking. If neither party elects to terminate this Lease
pursuant to the immediately preceding sentence, Landlord shall repair and
restore the Premises to a tenantable condition and the Annual Rental shall be
equitably reduced as to the portion of the Premises that is taken. All
compensation awarded for any taking (or the proceeds of a private sale in
lieu thereof) shall be the property of Landlord, whether such award is for
compensation for damages to Landlord's or Tenant's interest in the Premises,
and Tenant hereby assigns all of its interest in any such award to Landlord;
provided, however, Landlord shall not have any interest in any separate award
made to Tenant for loss of business, moving expenses or the taking of
Tenant's trade fixtures or equipment if a separate award for such items is
made to Tenant.
20. Events of Default and Remedies.
(a) Upon the occurrence of any one or more of the following
events (each, an "Event of Default"; collectively, "Events of Default"),
Landlord shall be entitled to exercise any rights or remedies available
in this Lease, at law or in equity. Events of Default shall be:
(1) Tenant's failure to pay when due any rental or other
sum of money payable hereunder if not remedied within five (5)
business days after written notice thereof is given to Tenant
(provided, however, and notwithstanding the foregoing to the
contrary, Tenant shall not be entitled to such notice and cure
period more than two (2) times during any given Lease Year).
(2) Failure by Tenant to perform any of the other terms,
covenants or conditions contained in this Lease if such failure is not
remedied within thirty (30) days after written notice thereof is
given to Tenant (or within a reasonable period of time for any
default which cannot reasonably be cured within such thirty (30)
day period).
(3) Tenant, or any guarantor of Tenant's obligations
under this Lease (if any), becomes bankrupt or insolvent, files any
debtor proceedings, files pursuant to any statute a petition in
bankruptcy or insolvency or for reorganization, or files a petition
for the appointment of a receiver or trustee for all or substantially
all of such party's assets and such petition or appointment is not
set aside within sixty (60) days
18
Exhibit 10.13
from the date of such petition or appointment or if such party makes
an assignment for the benefit of creditors or petitions for or
enters into such an arrangement.
(4) Tenant vacates, abandons, or fails to operate in the
Premises (or any substantial part thereof) or allows its leasehold
estate under this Lease to be taken under any writ of execution and
such writ is not vacated or set aside within thirty (30) days.
(b) In addition to its other remedies at law or in equity,
Landlord, upon an Event of Default by Tenant, shall have the immediate
right to re-enter and remove all persons and property from the Premises
and dispose of such property as it deems fit provided such actions are
done without a breach of the peace and in accordance with all applicable
laws pertaining to repossession by Landlord of leasehold property. If
Landlord re-enters the Premises, either with or without legal process, it
may either terminate this Lease or, from time to time without terminating
this Lease, make such alterations and repairs as may be necessary or
appropriate to relet the Premises, and relet the Premises upon such terms
and conditions as Landlord deems advisable. Tenant also shall be liable
for and shall pay to Landlord, in addition to any other sum provided to
be paid herein, reasonable brokers' fees incurred by Landlord in
connection with reletting the whole or any part of the Premises; the costs
of removing from the Premises and storing Tenant's property; the costs of
repairing, altering, remodeling or otherwise putting the Premises into
condition acceptable to a new tenant or tenants, and all reasonable
expenses incurred by Landlord in enforcing or defending Landlord's
rights and/or remedies under this Lease, including reasonable attorneys'
fees. No retaking of possession of the Premises by Landlord shall be
deemed as an election to terminate this Lease unless a written notice
of such intention is given by Landlord to Tenant at the time of re-entry;
but, notwithstanding any such re-entry or reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease for such
previous default. In the event of an elected termination of this Lease by
Landlord, whether before or after re-entry, Landlord may recover from
Tenant damages, including the costs of recovering the Premises, and Tenant
shall remain liable to pay Annual Rental (which may, at Landlord's
election, be accelerated to be due and payable in full as of the Event
of Default or at any time thereafter and recoverable as damages in a
lump sum) that would have been payable by Tenant hereunder for the
remainder of the Lease Term, less the rentals actually received by
Landlord from any reletting. (In the event of any such acceleration, in
determining the Annual Rental which would be payable by Tenant
subsequent to default, the Annual Rental for each Lease Year of the
unexpired Lease Term shall be equal to the Annual Rental payable by
Tenant for the last Lease Year prior to the default). If any rent owing
under this Lease is collected by or through an attorney, Tenant agrees
to pay Landlord's reasonable attorneys' fees to the extent allowed by
19
Exhibit 10.13
applicable law. Notwithstanding anything to the contrary contained
herein, Landlord shall have an obligation to mitigate its damages by
promptly and diligently attempting to relet the Premises at
market rental.
(c) Upon the occurrence of any breach or default by Landlord of
any of covenants, agreements or obligations of Landlord herein which are
not cured within the time provided herein (or, if no time is provided,
within (30) days after written notice to Landlord), Tenant shall be
entitled to exercise any rights and remedies available in this Lease,
at law or in equity.
(d) Notwithstanding anything to the contrary contained herein,
in the event any dispute arising under this Lease involves a claim or
controversy in an amount less than Thirty Thousand Dollars ($30,000.00),
the parties agree to submit such dispute to third-party mediation. The
determination of the mediator shall be conclusive and binding on the
parties. For any dispute involving a claim or controversy in the amount
of Thirty Thousand Dollars ($30,000.00) or more, the parties agree to
submit such dispute to binding arbitration. Such dispute shall be
submitted to binding arbitration before three (3) arbitrators (unless the
parties consent in writing to a single arbitrator) in accordance with the
arbitration rules of the American Arbitration Association ("AAA") in
existence at the time such arbitration is commenced. The prevailing party
shall be responsible for the costs of such mediation or arbitration, as
the case may be.
21. Subordination. This Lease is subject and subordinate to any
and all mortgages or deeds of trust now or hereafter placed upon the property
of which the Premises are a part, and this clause shall be self-operative,
without any further instrument necessary to effect such subordination,
provided any such lender may, at its option and without seeking or obtaining
Tenant's consent, subordinate the lien of its mortgage or deed of trust to
this Lease. At the request from time to time of Landlord or any lender that
holds a mortgage or deed of trust on the property of which the Premises are a
part, Tenant shall promptly execute and deliver to Landlord any such
instrument or instruments as Landlord or such lender may reasonably request
evidencing the subordination of this Lease to such mortgage or deed of trust.
Provided, however, as a condition to Tenant's obligation to execute and
deliver any such instrument(s), the applicable lender must agree that
Tenant's rights to quiet enjoyment and possession of the Premises under this
Lease shall not be divested by foreclosure or other default proceedings under
the applicable mortgage or deed of trust so long as Tenant shall not be in
default under this Lease. Tenant shall continue its obligations under
this Lease in full force and effect, notwithstanding any foreclosure or
default proceedings by any such lender.
20
Exhibit 10.13
22. Assigning and Subletting. Tenant shall not assign, sublet,
mortgage, pledge or encumber this Lease, the Premises, or any interest in the
whole or in any portion thereof, without the prior written consent of
Landlord (which consent shall not be unreasonably withheld). If Tenant makes
any such assignment, mortgage, sublease or pledge (whether with or without
Landlord's written consent), Tenant named herein and any guarantor of
Tenant's obligations under this Lease shall nonetheless remain primarily
liable for the performance and observation of all of the terms of this Lease
required to be observed or performed by Tenant hereunder. Any rental or any
fee or charge received by Tenant in connection with any such assignment or
sublease which is in excess of the Annual Rental payable to Landlord
hereunder shall be paid immediately by Tenant to Landlord as additional rent
under this Lease. In addition, Landlord shall have the option, in its sole
discretion, to terminate this Lease effective as of the proposed effective
date of any assignment or sublease, by giving Tenant written notice thereof
within thirty (30) days after Landlord's receipt of said notice from Tenant;
and in the event Tenant shall propose to sublet only a portion of the
Premises, Landlord shall have the additional option to terminate this Lease
as to that portion of the Premises proposed to be sublet. Should Landlord
not elect to so terminate this Lease in connection with any proposed
subletting or assignment, Landlord shall continue to have the right to
disapprove same (subject to the terms above). Upon any subletting or
assignment by Tenant in accordance with the terms hereof, any renewal
options, expansion options, and/or rights of first refusal granted herein
shall become null and void. Consent by Landlord to one or more assignments
or sublettings shall not operate as a waiver of Landlord's rights as to any
subsequent assignments or sublettings.
23. Covenant of Quiet Enjoyment. Landlord represents that it has
full right and authority to lease the Premises and that Tenant shall
peacefully and quietly hold and enjoy the Premises for the full Lease Term so
long as Tenant does not default in the performance of any of the terms hereof.
24. Estoppel Certificates. Within (10) days after receipt of any
written request by Landlord, Tenant shall deliver a written estoppel
certificate addressed to Landlord and/or any other party designated by
Landlord, certifying any facts that are then true with respect to this Lease,
including, without limitation, that this Lease is in full force and effect,
that no default exists on the part of Landlord or Tenant hereunder, that
Tenant is in possession of the Premises, that Tenant has commenced the
payment of rent hereunder, and that there are no defenses or offsets claimed
by Tenant with respect to payment of rentals under this Lease.
25. Protection Against Liens. Tenant shall do all things
necessary to prevent the filing of any mechanic's, materialmen's or other
types of liens whatsoever, against all or any part of the Premises, the
Building,
21
Exhibit 10.13
the Land or the Park by reason of any claims made by, against, through or
under Tenant. If any such lien is filed against the Premises, the Building,
the Land or the Park (or any portion thereof), Tenant shall either cause the
same to be discharged of record within twenty (20) days after filing or, if
Tenant, in its discretion and in good faith, determines that such lien should
be contested, Tenant shall furnish such security as may be necessary to
prevent any foreclosure proceedings against the Premises, the Building, the
Land or the Park (or any portion thereof) during the pendency of such
contest. If Tenant shall fail to discharge such lien within said time period
or fail to furnish such security, then Landlord may, at its election and in
addition to any other right or remedy available to it, discharge the lien by
paying the amount claimed to be due or by procuring the discharge by giving
security or in such other manner as may be allowed by law. If Landlord acts
to discharge or secure any such lien as permitted herein, then Tenant shall
immediately reimburse Landlord (as additional rent) for all sums paid and all
costs and expenses (including reasonable attorneys' fees) incurred by
Landlord relative to such lien, together with interest on the total expenses
and costs at the maximum lawful rate.
26. Force Majeure. Whenever a period of time is herein prescribed
for the taking of any action by Landlord, Landlord shall not be liable or
responsible for, and there shall be excluded from the computation of such
period of time, any delays due to any condition, matter or circumstance
beyond the reasonable control of Landlord (collectively, "Force Majeure
Matters"; each, a "Force Majeure Matter"), including, without limitation, the
following: strikes; lockouts; acts of God; governmental restrictions, war or
enemy action or invasion; civil commotion; insurrection; riot; mob violence;
malicious mischief or sabotage; fire or any other casualty; adverse weather
conditions or unusual inclement weather; condemnation; unavailability of
materials; failure of a governmental instrumentality to act in a timely
fashion; any litigation or other legal proceeding which delays the approval
of plans or the issuance of any grading or building permit for construction,
including, without limitation, the issuance of an injunction enjoining such
approval and/or issuance, as the case may be; any law, order or regulation of
any governmental, quasi-governmental, judicial or military authority; or
other similar cause. Without limiting the generality of the foregoing, in
the event a Force Majeure Matter affects Landlord's construction and delivery
obligation(s) relative to the Premises under this Lease, the period of time
during which Landlord may complete such construction and delivery
obligation(s) shall be extended by the same number of days as the number of
days of delay caused by such Force Majeure Matter on the critical path of
completing such construction and delivery obligation(s).
27. Non-waiver. No course of dealing between Landlord and Tenant
and no delay or omission of Landlord or Tenant in exercising any right
arising from Tenant's or Landlord's default shall impair such right or be
construed to be a waiver of a default.
28. Landlord Liability. All obligations of Landlord hereunder
will be construed as covenants, not conditions, and all such obligations will
be binding upon Landlord only
22
Exhibit 10.13
during the period of its ownership and possession of the Building and not
thereafter. The term "Landlord," under this Lease, shall mean only the owner,
for the time being, of the Building. If Landlord shall sell, assign or
transfer all or any part of its interest in the Premises or in this Lease to
a successor in interest which expressly assumes the obligations of Landlord
hereunder, then the selling, assigning or transferring Landlord shall
thereupon be released and discharged from all covenants and obligations
hereunder, and Tenant shall look solely to such successor in interest for the
performance of all of Landlord's obligations hereunder. Tenant's obligations
under this Lease shall in no manner be affected by Landlord's assignment or
transfer hereunder, and Tenant shall thereafter attorn and look solely to
such successor in interest as the landlord hereunder, provided Landlord gives
Tenant prompt written notice of any change in ownership by assignment,
transfer or otherwise during the Lease Term. Notwithstanding any other
provision hereof, Landlord shall not have any personal liability hereunder.
In the event of any breach or default by Landlord in any term or provision of
this Lease, Tenant agrees to look solely to Landlord's interest in the Land
and the Building; however, in no event shall any deficiency judgment or any
money judgment of any kind be sought or obtained against Landlord.
29. Holding Over. Except as provided in Paragraph 3, if Tenant
remains in possession of the Premises or any part thereof after the
expiration of the Lease Term without Landlord's acquiescence, Tenant shall be
deemed only a tenant at will and there shall be no renewal of this Lease
without a written agreement signed by both parties specifying such renewal;
in addition, the monthly Minimum Rental required to be paid under this Lease
relative to any holdover period shall automatically become one hundred fifty
percent (150%) of the monthly Minimum Rental payable immediately prior to the
expiration of the Lease Term. Tenant also shall be liable for any and all
damages, direct and consequential, suffered by Landlord as a result of any
holdover without Landlord's unequivocal written acquiescence.
30. Notices. Any notice allowed or required by this Lease shall
be deemed to have been sufficiently served if the same shall be in writing
and placed in the United States Mail, via certified mail or registered mail,
return receipt requested, with proper postage prepaid and addressed:
AS TO LANDLORD: Crescent Resources, Inc.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000 (28202)
X.X. Xxx 0000 (00000-0000)
Xxxxxxxxx, Xxxxx Xxxxxxxx
Attention: Director of Property Management
23
Exhibit 10.13
AS TO TENANT: Xxxxxx Health Products Inc.
000 Xxxxxxxx Xxxxxxxxxx Xxxxx
Xxxx Xxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx Xxxxxxxxxx
with a copy to:
Xxxxxx Health Products Inc.
000 Xxxx 000xx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Senior Vice President of
Operations
The addresses of Landlord and Tenant to which notices shall be directed may
be changed or added from time to time by either party giving notice to the
other in the prescribed manner.
31. Miscellaneous.
(a) Rules and Regulations. Attached hereto as Exhibit D are the rules
and regulations currently in effect with respect to the Building. Landlord
shall have the right from time to time to reasonably amend these rules and
regulations for Tenant's use of the Premises. Tenant shall abide by and
actively enforce such rules and regulations, including, without limitation,
rules and regulations governing parking of vehicles on designated portions of
the Land as to its employees, agents, invitees and licensees.
(b) Evidence of Authority. If requested by Landlord, Tenant shall
furnish appropriate legal documentation evidencing the valid existence and good
standing of Tenant and the authority of any parties signing this Lease on
behalf of Tenant to act for Tenant.
(c) Nature and Extent of Agreement. This Lease, together with all
exhibits hereto, contains the complete agreement of the parties concerning the
subject matter hereof, and there are no oral or written understandings,
representations, or agreements pertaining thereto which have not been
incorporated herein. This Lease creates only the relationship of landlord and
tenant between the parties, and nothing herein shall impose upon
either party any powers, obligations or restrictions not expressed herein.
This Lease shall be construed and governed by the laws of the state in which
the Premises are located.
24
Exhibit 10.13
(d) Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other those as to which it
is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law, notwithstanding the invalidity of any other term or
provision hereof.
(e) Binding Effect. This Lease shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
successors and assigns. This Lease shall not be binding on Landlord until
executed by an officer of Landlord having a title of Vice President or higher
and delivered to Tenant. No amendment or modification of this Lease shall be
binding upon Landlord unless same is in writing and executed by an officer of
Landlord having a title of Vice President or higher.
(f) Captions and Headings. The captions and headings in this Lease
are for convenience and reference only, and they shall in no way be held to
explain, modify, or construe the meaning of the terms of this Lease.
(g) Lease Review. The submission of this Lease to Tenant for review
does not constitute a reservation for or option for the Premises, and this
Lease shall become effective as a contract only upon execution and delivery
by Landlord and Tenant.
(h) Brokerage. Each party warrants and represents to the other no
brokerage fees or commissions are due as a result of this transaction. Tenant
and Landlord shall each be responsible for the payment of their respective
consulting fees, finder's fee, commission, or like compensation (if any),
including reasonable attorneys' fees incurred in connection with entering
into this Lease.
(i) Memorandum of Lease. Upon the request of either party, the
other party shall join in the execution of a memorandum of this Lease (a
""Memorandum'') in recordable form. Either party may record the Memorandum in
the appropriate land record office, at its own expense. However, neither
party shall record this Lease (or any portion thereof) without the written
consent of the other party.
(j) Advance Rental Payment. Tenant either has paid to Landlord on
or prior to the date of this Lease or will pay to Landlord within fifteen
(15) days after the date of this Lease a sum equal to one full month's
installment of Annual Rental (the ""Advance Rental Payment'') as security for
Tenant's performance of its obligations under this Lease. If Tenant is not
then in default under this Lease, Landlord shall apply the
25
Exhibit 10.13
Advance Rental Payment to the payment of the monthly installment of Annual
Rental due relative to the first full calendar month during the Lease Term.
If Tenant is then in default under this Lease, Landlord may, at its option,
apply all or any part of the Advance Rental Payment to cure the default. With
regard to any partial calendar month (if any) preceding the first full
calendar month during the Lease Term, Tenant shall pay the pro rata portion
of the monthly installment of Annual Rental in a timely manner pursuant to
Paragraph 5 herein.
(k) Landlord's Consent. Whenever this Lease requires Landlord's
consent to or approval of any item or matter, Landlord may condition such
consent or approval on payment or reimbursement by Tenant of all costs and
expenses incurred by Landlord in connection with reviewing and responding to
such item or matter.
(l) Survival of Obligations. Notwithstanding any term or provision
in this Lease to the contrary, any liability or obligation of Landlord or
Tenant arising during or accruing with respect to the Lease Term shall
survive the expiration or earlier termination of this Lease, including,
without limitation, obligations and liabilities relating to (i) rental
payments, (ii) the condition of the Premises and the removal of Tenant's
property, and (iii) indemnity and hold harmless provisions in this Lease.
(m) Confidentiality. Neither Landlord nor Tenant shall disclose the
terms of this Lease to any third party except (i) legal counsel or other
consultants to Landlord and Tenant, (ii) any assignee of Landlord's or
Tenant's interest in this Lease or any sublessee of Tenant relative to the
Premises (or any portion thereof), (iii) as required by applicable law or
by subpoena or other similar legal process, or (iv) for financial
reporting purposes.
(n) Attorneys' Fees. In the event either party defaults in the
performance of any of the terms of this Lease and the other party employs
attorney(s) in connection therewith, the defaulting party agrees to pay the
prevailing party's reasonable attorneys' fees (calculated at such attorneys'
reasonable and customary hourly rates and without regard to the amount in
controversy) and costs of litigation.
(o) Time of Performance. Except as expressly otherwise herein
provided, with respect to all required acts of Tenant, TIME IS OF THE ESSENCE
of this Lease.
(p) Real Estate Investment Trust. During the Lease Term, should a
real estate investment trust become Landlord hereunder, all provisions of
this Lease shall remain in full force and effect except as modified by this
Paragraph 31(p). If Landlord in good faith determines that its status as a
real estate investment trust under the provisions of the
26
Exhibit 10.13
Internal Revenue Code of 1986, as heretofore or hereafter amended, will be
jeopardized because of any provision of this Lease, Landlord may request
reasonable amendments to this Lease and Tenant will not unreasonably
withhold, delay or defer its consent thereto, provided that such amendments
do not (i) increase the monetary obligations of Tenant pursuant to this Lease
or (ii) in any other manner adversely affect Tenant's interest in the
Premises.
27
Exhibit 10.13
IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed
under seal as of the date first set forth above pursuant to authority duly
given.
WITNESSES: LANDLORD:
CRESCENT RESOURCES, INC.
----------------------------- By:---------------------------
----------------------------- Its:-----------------------
TENANT:
XXXXXX HEALTH PRODUCTS INC.
----------------------------- By:---------------------------
----------------------------- Its:-----------------------
28
Exhibit 10.13
EXHIBIT A
to
Lease Agreement
Legal Description
TRACT 1
LYING AND BEING in Pineville Township, Mecklenburg County, North Carolina and
being those certain 2.248 acre, 1.195 acre, 2.020 acre tracts and that
certain 1.373 acre tract of Common Property shown on that certain plat
entitled ""Plat of Survey for Crescent Resources, Inc. Lakemont Industrial
Park Property, Phase 1, Map 1'' prepared by Cardan Systems Corp. dated May 3,
1991 and recorded in Map Book 24, Page 366, Mecklenburg County, North
Carolina, Public Registry.
TRACT 2
LYING AND BEING in Fort Mill Township, York County, South Carolina and being
that certain 28.649 acre tract shown as ""Tap Map 722, Parcel 4 and 6'' on
that certain plat entitled ""Plat of Survey for Crescent Resources, Inc.
Lakemont Industrial Park Property'' prepared by Cardan Systems Corp. dated
March 7, 1991 and recorded in Plat Book 107, Page 118 in the Office of the
Clerk of Court for York County, South Carolina.
A-1
Exhibit 10.13
EXHIBIT B
to
Lease Agreement
Designation of Premises
[map]
B-1
Exhibit 10.13
EXHIBIT C
Sheets
Cost Breakdown
4/23/97
TOTAL RELOCATE CRESCENT
ITEM COST SAVINGS COST
------------------------------------------------------------------------------ ---------- ---------- ---------
PRO RATA..................... General Conditions $ 16,433 2,500
L........................ Engineering & Architectural drawings $ 9,000
L........................ Building permit $ 2,731
L........................ Demolition $ 9,399
L........................ Exterminator $ 5,500 5,500
L........................ Fence for Quarantine Area $ 5,857 5,857
L........................ Fence for Maintenance Area $ 2,086 2,058
L........................ Concrete $ 534
L........................ Masonry $ 200
L........................ Steel frames at roll up doors $ 1,000
L........................ Relocate X Bracing Allowance $ 1,500
L........................ Shed for air compressor $ 1,000
L........................ Relocated break room cabinet $ 406
L........................ Roof work for new HVAC units $ 1,600
L........................ Overhead doors $ 2,100 2,100
L........................ Regular doors and hardware $ 8,227
L........................ Drywall for new offices and low walls $ 9,673
L........................ New ceiling for Production area $ 18,501
L........................ Rubber base & VCT $ 675 675
L........................ Carpet at designated areas $ 6,324 6,324
L........................ Repaint of existing space on drywall $ 3,738 3,733
L........................ Painting at production area $ 3,875
L........................ Seal production room floor (sim. to Tenant) $ 2,017
L........................ Rescreen louvers $ 700 700
L........................ Lifting platform Allowance $ 11,150 11,150
L........................ Air Compressor (2 stage unit) $ 64,063 64,003
L........................ Distribution piping and known drops $ 9,390
L........................ Refrigerator and two microwaves
L........................ 140 gal electric water heaters with
recirc feature $ 3,000 3,000
L........................ Washdown stations $ 1,100 1,100
L........................ Double bowl kitchen sink $ 2,250 1,560
L........................ Replumb for break sink $ 1,500
L........................ Fire suppression system at production $ 12,750
L........................ HVAC system less maintenance shop $ 42,280 10,500
L........................ New 1200 AMP service $ 33,788 8,000
L........................ Electrical connections for HVAC $ 2,138
L........................ Warehouse equipment connections $ 24,687 5,000
L........................ Electrical upper office $ 2,870
L........................ Electrical connections production Allowance $ 62,500
C-1
Exhibit 10.13
TOTAL RELOCATE CRESCENT
ITEM COST SAVINGS COST
------------------------------------------------------------------------------ ---------- ---------- ---------
L........................ Light fixtures for Production Area $ 17,300
L........................ Rework warehouse lighting for new rack
location $ 11,273
L........................ Contingency $ 16,207
PRO RATA..................... General contractors OH/P $ 66,592 $ 1,842
Total estimated cost...................................................... $882,871 $114,366 $27,375
Adjustment Total after roll forward....................................... $367,140
* RETROFIT COSTS WILL BE FINALIZED AT A LATER DATE.
Not Included Items
Sealer in warehouse
Bug Zappers
Appliances
Card Access system
Exterior work on building
Dock door work
Security system
C-2
Exhibit 10.13
Above price based on drawings listed below as approved by Xxxx Xxxxx
Appendix B................................... A1 3/13/97
Enlarged floor plan.......................... A2 3/13/97
Enlarged floor plan.......................... A3 3/13/97
Reflected ceiling plan....................... A4 3/13/97
Ducati Temporary Facility.................... M1 3/13/97
Ducati Temporary Facility.................... M2 2/18/97
Ducati Temporary Facility.................... M3 2/18/97
Floor plan electrical........................ E1 3/13/97
Enlarged lighting plan....................... E2 3/13/97
Enlarged power plan.......................... E3 3/13/97
Enlarged mezzanine plan...................... E4 3/13/97
Riser schedules.............................. E5 3/13/97
Panel Schedules.............................. E6 3/13/97
Panel Schedules.............................. E7 3/13/97
L=Xxxxxx Improvement
C=Crescent Improvement
C-3
Exhibit 10.13
EXHIBIT D
to
Lease Agreement
Rules and Regulations
1. RESTRICTED USES. The Premises shall not be used by Tenant for any
one or more of the following uses:
(a) Agriculture or any related use, including any roadside stand for
the display and sale of agricultural products and any use which
involves the raising, breeding, or keeping of any animals or
poultry;
(b) Processing or xxxxxxxxx of livestock, swine, poultry or other
animals;
(c) Manufacture of leather goods;
(d) Manufacture of explosives or explosive agents;
(e) Manufacture, sale, rental, repair or storage of heavy equipment,
buses, trucks, trailers, automobiles, recreational vehicles and
mobile or trailer homes;
(f) Unscreened outdoor storage, outdoor fabrication or outdoor
handling of any machinery, parts, material, supplies or
products;
(g) Residential uses;
(h) Overnight parking of campers, mobile homes, boats, trailers or
motor homes;
(i) Erecting and maintaining structures of a temporary nature,
except that during the period of construction of improvements to
the Premises, Tenant's contractors or subcontractors may be
permitted to erect or maintain such temporary structures upon
Landlord's prior written approval;
(j) Jails, prisons, labor camps, penal, detention or correction
facilities or farms;
(k) Cemeteries or mausoleums;
(l) Mining, including the extraction, processing and removal of sand,
gravel, stone, minerals or clay;
(m) Any land fills, any hazardous waste disposal or storage
facilities and any incinerators;
(n) Racetracks, raceways and drag strips; and
(o) Massage parlors, topless night clubs or similar business
operations.
2. NUISANCES. Tenant shall not cause any unclean, unhealthy, unsightly
or unkempt condition to exist in the Premises or in the Park. Tenant
shall not use the Premises or any portion of the Park, in whole or in
part, for the deposit, storage or burial of any property or thing that
will cause the above-mentioned areas to appear to be in an unclean or
untidy condition or that will be obnoxious to the eye; nor shall
Tenant allow any substance, thing, or material to be kept, utilized
or carried out in the Premises or the Park that will emit foul or
obnoxious odors, fumes, smoke or dust or that will cause any
vibration or noise or other condition that will or might disturb
the peace, quiet, safety, comfort, or serenity of the occupants
of the Park. No noxious, offensive or illegal trade or activity
shall be carried out in the Premises or in the Park, nor shall
anything be done tending to cause embarrassment, discomfort,
annoyance, or nuisance to any person using any portion of the Park.
3. RESTRICTED ACTIONS IN THE PARK. Tenant shall not cause or allow
any cutting of vegetation, dumping, digging, filling, destruction
or other waste to be committed on the common areas of the Premises
or the Park. Tenant shall not cause any obstruction of, or allow
or cause anything to be kept or stored on, altered, constructed or
planted in, or removed from the common areas of the Park without
Landlord's prior written consent.
4. SIGN DISPLAY. Except as permitted in Paragraph 16 of the Lease,
all signage will be coordinated by Landlord throughout the Park
for uniformity and attractiveness. The size, shape, design,
lighting, materials and location of all signs shall conform to the
uniform signage plan for the Park. Tenant shall not cause any
sign, tag, label, picture, advertisement or notice to be
displayed, distributed, inscribed, painted or affixed by Tenant on
any part of the Park or the Premises without the prior written
consent of Landlord. Landlord shall have the right, at Tenant's
sole cost and expense, to remove all unapproved signs installed by
or on behalf of Tenant, without notice to Tenant.
5. DRIVES AND PARKING AREAS. All parking shall be within the
boundaries of the Land and within marked parking spaces. There
shall be no on-street parking. Tenant, its employees, agents and
invitees shall comply with reasonable parking rules and
regulations as they may be posed and distributed from time to
time. Tenant is responsible for controlling all of its truck
traffic in accordance with the
C-4
Exhibit 10.13
restrictions and regulations imposed by Landlord.
6. STORAGE AND TRASH DISPOSAL. No materials, supplies or equipment
belonging to Tenant shall be stored except inside the Premises.
Trash disposal is confined to the receptacles provided by Tenant
in a location approved by Landlord and no trash receptacles may be
placed in any other location in the Park.
7. LOCKS. Landlord acknowledges that Tenant may use card readers for
locks. No additional locks shall be placed on the doors of the
Premises by Tenant. If Tenant changes any existing locks, Tenant
shall immediately furnish Landlord with two keys/cards to such new
locks. Landlord will, without charge, furnish Tenant with two
keys/cards for each lock existing upon the entrance door when
Tenant assumes possession of the Premises, with the understanding
that, at the termination of the Lease, the keys/cards shall be
returned.
8. IMPROVEMENTS, CONTRACTORS AND SERVICE MAINTENANCE. Tenant shall
not make any improvements to the exterior of the Building or the
Park and Tenant shall not make any structural changes or other
material alterations, additions or improvements to the Premises
without the prior written consent of Landlord. Tenant will refer
all of Tenant's contractors, contractors' representatives and
installation technicians rendering any service on or to the
Premises to Landlord for Landlord's approval and supervision
before performance of any service. This provision shall apply to
all work performed in the Premises, including installation of
electrical devices and attachments and installations of any nature
affecting floors, walls, woodwork, trim,
C-5
Exhibit 10.13
windows, ceilings, equipment or any other physical portion of the
Premises.
9. REGULATIONS FOR OPERATION AND USE. Tenant shall not place or use
in or about the Premises any explosives, gasoline, kerosene, oil,
acids, caustics or any other flammable, explosive or hazardous
material, without the prior written consent of Landlord.
10. WINDOW COVERINGS. Windows facing the Building exterior shall at
all times be wholly clear and uncovered (except for such blinds or
curtains or other window coverings as Landlord may provide or
approve).
11. NO VIOLATIONS OF FIRE LAWS OR HEALTH CODE. Tenant shall not do or
permit anything to be done in the Premises, or bring or keep
anything therein, which will obstruct or interfere with the rights
of other tenants in the Park or in any other way injure or annoy
them or conflict with any laws relating to fires, or with any
regulations of the Fire Department or with any insurance policy
upon the Building or the Park, or any part thereof, or conflict
with any of the rules and ordinances of the Board of Health.
12. NO VIOLATIONS OF LAWS. Tenant shall promptly and at its expense
execute and comply with all laws, rules, orders, ordinances,
including all applicable zoning ordinances, and regulations of the
City, County, State or Federal Government and of any department or
bureau of any of them and of any other governmental authority
having jurisdiction over the Premises, affecting Tenant's
occupancy of the Premises or Tenant's business conducted therein.
13. NO USE OF ROOF. Neither Tenant, nor Tenant's servants, employees
or agents shall go upon the roof of the Building
C-6
Exhibit 10.13
without the written consent of Landlord, except as may be necessary
to comply with Tenant's repair and maintenance obligations set forth
in this Lease.
14. NO CANVASSING. Canvassing, soliciting and peddling in and about the
Park is prohibited.
15. NO LOUD MUSICAL DEVICES. Tenant shall not operate or permit to be
operated any musical or sound producing instrument or device
inside or outside the Premises which may be heard outside the
Premises or by other tenants in the Park.
16. USE OF WASHROOMS. Tenant shall not use the washrooms, restrooms,
and plumbing fixtures of the Premises and appurtenances thereto,
for any purposes other than the purposes for which they were
constructed, and Tenant shall not deposit any sweepings, rubbish,
rags, or other improper substances therein. If Tenant or Tenant's
servants, employees, agents, contractors, jobbers, licensees,
invitees, guests or visitors cause any damage to such washrooms,
restrooms, plumbing fixtures or appurtenances, such damage shall
be repaired, at Tenant's expense, and Landlord shall not be
responsible therefor.
17. NO UNPLEASANT ODORS. Tenant shall not cause or permit any
unpleasant odors to emanate from the Premises, or otherwise
interfere, injure or annoy in any way other tenants in the Park or
persons conducting business with them.
18. DISPOSAL OF CRATES. When conditions are such that Tenant must
dispose of crates, boxes, etc. on the sidewalk or parking areas on
the Land, it will be the responsibility of Tenant to dispose of
same in an orderly manner.
C-7
Exhibit 10.13
19. NO FOOD DISTRIBUTION. No prepared food and/or beverages shall be
distributed from the Premises, but, notwithstanding the provisions
of this Paragraph 19, Tenant may prepare coffee and similar
beverages and warm typical luncheon items for the consumption of
Tenant's employees and invitees.
20. LOCATION OF IMPROVEMENTS. Tenant will not locate furnishings or
cabinets adjacent to mechanical or electrical access panels or
over air conditioning outlets in the Premises so as to prevent
operating personnel from servicing such units as routine or
emergency access may require. Tenant shall be responsible for any
cost associated with moving such furnishings for Landlord's access
to such mechanical or electrical access panels or air conditioning
outlets.
21. MODIFICATIONS. Landlord shall have the right from time to time to
make any and all such reasonable modifications and additions to
these Rules and Regulations as may be necessary for the safety,
care, quiet enjoyment and cleanliness of the Park. Tenant agrees
to abide by these Rules and Regulations and any reasonable
modifications and additions as are hereafter adopted by Landlord,
including, but not limited to, modifications made by Landlord as a
result of any changes in the city zoning ordinance.
C-8
Exhibit 10.13
THIS AGREEMENT MAY BE SUBJECT TO ARBITRATION PURSUANT TO THE UNIFORM
ARBITRATION ACT, SECTION 15-48-10, ET SEQ., CODE OF LAWS OF SOUTH CAROLINA,
1976, AS AMENDED, AS SET FORTH IN PARAGRAPH 20(D) OF THIS LEASE.
LEASE AGREEMENT
BETWEEN
CRESCENT RESOURCES, INC.,
AS LANDLORD
AND
XXXXXX HEALTH PRODUCTS INC.,
AS TENANT
MAY 1, 1997
Exhibit 10.13
TABLE OF CONTENTS
1. Defined Terms................................................................. 1
(a) Land...................................................................... 1
(b) Building.................................................................. 1
(c) Park...................................................................... 1
(d) Premises.................................................................. 1
(e) Tenant Operations......................................................... 1
(f) Commencement Date......................................................... 1
(g) Expiration Date........................................................... 2
(h) Advance Rental Payment.................................................... 2
2. Description of Premises....................................................... 2
3. Lease Term.................................................................... 2
4. Construction and Acceptance of Premises....................................... 3
5. Annual Rental................................................................. 5
(a) Minimum Rental............................................................ 5
(b) Additional Rental......................................................... 5
(1) Tenant's Share of Taxes............................................... 5
(2) Tenant's Share of Insurance Premiums.................................. 5
(3) Tenant's Share of Common Area Maintenance Costs....................... 5
(c) Payment of Additional Rental.............................................. 6
(d) Late Charge............................................................... 6
6. Alterations and Improvements by Tenant........................................ 6
7. Use of Premises............................................................... 7
8. Taxes......................................................................... 7
9. Hazard and Casualty Insurance................................................. 7
10. Landlord's Limited Covenant to Repair and Replace............................. 8
11. Tenant's Covenant to Repair................................................... 9
12. Trade Fixtures and Equipment; Non-Liability for Certain Damages............... 10
i
Exhibit 10.13
13. Utilities..................................................................... 11
14. Damage or Destruction of Premises............................................. 11
15. Mutual Waiver; Waiver of Subrogation.......................................... 12
16. Signs and Advertising......................................................... 12
17. Indemnification, Liability Insurance and Hazardous Substances................. 12
(a) Indemnification by Tenant................................................. 12
(b) Indemnification by Landlord............................................... 13
(c) Liability Insurance....................................................... 13
(d) Presence and Use of Hazardous Substances.................................. 14
(e) Unauthorized Releases of Hazardous Substances; Cleanup Costs;
Default and Indemnification............................................. 15
18. Landlord's Right of Entry..................................................... 17
19. Eminent Domain................................................................ 17
20. Events of Default and Remedies................................................ 18
21. Subordination................................................................. 20
22. Assigning and Subletting...................................................... 20
23. Covenant of Quiet Enjoyment................................................... 21
24. Estoppel Certificates......................................................... 21
25. Protection Against Liens...................................................... 21
26. Force Majeure................................................................. 21
27. Non-waiver.................................................................... 22
28. Landlord Liability............................................................ 22
29. Holding Over.................................................................. 22
30. Notices....................................................................... 23
ii
Exhibit 10.13
31. Miscellaneous................................................................. 23
(a) Rules and Regulations..................................................... 23
(b) Evidence of Authority..................................................... 24
(c) Nature and Extent of Agreement............................................ 24
(d) Severability.............................................................. 24
(e) Binding Effect............................................................ 24
(f) Captions and Headings..................................................... 24
(g) Lease Review.............................................................. 24
(h) Brokerage................................................................. 25
(i) Memorandum of Lease....................................................... 25
(j) Advance Rental Payment.................................................... 25
(k) Landlord's Consent........................................................ 25
(o) Time of Performance....................................................... 26
(p) Real Estate Investment Trust.............................................. 26
iii
