STATE OF GEORGIA)
COUNTY OF DEKALB )
EXHIBIT 10.6
COMMERCIAL LEASE AGREEMENT
THIS COMMERCIAL LEASE AGREEMENT (this "Lease"), made and entered into
this ___________ day of _____________________, 1997, by and among the
Landlord, the Tenant and the Agent, if any, hereinafter named.
W I T N E S S E T H :
For and in consideration of the rents, covenants and agreements
hereinafter reserved and contained on the part of Tenant to be observed and
performed, Landlord demises and leases to Tenant, and Tenant leases, rents
and accepts from Landlord the Premises, as hereinafter defined.
ARTICLE I
DEFINITIONS AND EXHIBITS
1.1 DEFINITIONS. In addition to other terms which are elsewhere
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defined in this Lease, each of the following terms when used in this Lease
with an initial capital letter shall have the meanings set forth in this
Paragraph 1.1, and only such meanings, unless such meanings are expressly
limited or expanded elsewhere in this Lease:
(A) "Landlord": XXXXX ENTERPRISES, INC., A GEORGIA
CORPORATION
(B) Landlord's Mailing Address: 0000 XXXXXX XXXXXX, XXXXX 000
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XXXXXXX, XXXXXXX 00000
(C) "Tenant": BIO-SHIELD TECHNOLOGIES, INC.,
A GEORGIA CORPORATION
(D) Tenant's Mailing Address: 0000 XXXXXXXXXXXXX XXXXXXXXX
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SUITE D-109
NORCROSS, GEORGIA 30093
(E) "Development": That certain property commonly known as 2565-2579
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PARK CENTRAL BOULEVARD, located within the City of ATLANTA, County
of XXXXXX and State of GEORGIA, which presently contains
approximately 50,000 gross rentable square feet of building area,
which size shall by agreement of the parties hereto be deemed to be
the size of the Development.
(F) "Premises": That certain one (1)-story unit without basement
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commonly known as 0000 XXXX XXXXXXX XXXXXXXXX situated within the
Development and containing approximately 6,000 gross rentable square
feet, which size shall by agreement of the parties hereto be deemed
to be the size of the Premises.
(G) "Lease Term": The term of this Lease shall commence on the
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Commencement Date, and, unless sooner terminated as hereinafter
provided, shall terminate on the last day of SEPTEMBER 30, 2000.
(H) "Commencement Date": The Commencement Date shall be the sooner to
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occur of the following two (2) dates: (i) OCTOBER 1, 1997, or (ii)
the date on which possession of the Premises is delivered to Tenant.
(I) "Minimum Rent": The monthly Minimum Rent shall be:
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Period Monthly Amount
(I) COMMENCEMENT DATE TO SEPTEMBER 30, 1997 $ 0.00;
(II) OCTOBER 1, 1997 TO SEPTEMBER 30, 1998 $1,375.00;
(III) OCTOBER 1, 1998 TO SEPTEMBER 30, 1999 $1,475.00; AND,
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(IV) OCTOBER 1, 1999 TO SEPTEMBER 30, 2000 $1,575.00.
(J) "Initial Payment": A total of $2,995.00, of which (i) $1,420.00
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represents the first month's Minimum Rent and Tenant's Proportionate
Share of Common Area Maintenance, and (ii) $1,575.00 represents the
Security Deposit.
(K) "Tenant's Proportionate Share": A fraction, the numerator of which
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shall be the total gross rentable square footage of the Premises as
defined in Subparagraph 1.1(F), and the denominator of which shall be
the total gross rentable square footage of all buildings in the
Development as defined in Subparagraph 1.1(E), all as determined by
Landlord. Landlord's estimate of Tenant's Proportionate Share of
Common Area Maintenance for the period commencing on the Commencement
Date and expiring on December 31 of the same Calendar Year is:
(i) Common Area Maintenance per month $ 45.00
(ii) plus monthly Minimum Rent $1,375.00
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equals initial monthly payment due $1,420.00
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(L) "Security Deposit":$1,575.00
(M) "Use of Premises":LABORATORY PURPOSES.
(N) "Base Year":1997
(O) "Agent": KING INDUSTRIAL REALTY, INC., A GEORGIA CORPORATION.
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(P) "Aggregate Rent": All Minimum Rent, Common Area Maintenance, Taxes
and Insurance payable under this Lease.
(Q) "Calendar Year": Each annual period from January 1 through December
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31.
(R) "Claims": All liabilities, demands, claims, costs, suits, actions,
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judgments, expenses and obligations, including court costs and
attorney's fees related thereto.
(S) "Commission Agreement": The agreement, if any, between Landlord and
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Agent annexed to this Lease as Exhibit "F".
(T) "Common Area Maintenance": All expenses and costs arising out of or
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related to the operating, managing, policing, equipping, lighting,
painting, cleaning, repairing, administering and maintaining of the
Development, including, without limitation, any replacement which is
incidental or related thereto, specifically including, without
limitation, the landscaping (including, without limitation,
irrigating, planting, replanting and replacing flowers, trees, shrubs
and grass), lighting, traffic control, if any, sanitary assessments
and services, removal of snow, trash, rubbish and garbage and other
refuse, security services, pest control, rental fees for machinery or
other equipment with respect to such maintenance, all costs for or
associated with supplies, material and personnel to implement such
maintenance, all as determined by Landlord, and twelve (12%) percent
of all of the foregoing costs to be applied against administrative
expenses with respect to such Common Area Maintenance.
(U) "Common Areas": The parking areas, driveways, sidewalks, landscaped
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areas and other common areas of the Development as they are or may be
from time to time constituted.
(V) "Compliance Cost": The total cost of the Compliance Work.
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(W) "Compliance Work": All repairs, replacements, alterations or
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additions necessary to comply with all Laws with respect to the
Premises.
(X) "Consumer Price Index": The "Consumer Price Index, All Urban
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Consumers; U.S. City Average, All Items; (1982-84 = 100)" issued by
the United States Department of Labor, Bureau of Labor Statistics. In
the event that the Consumer Price Index published by the United
States Bureau of Labor Statistics is discontinued, then the Consumer
Price Index published by the United States Department of Commerce
shall be used (with proper adjustment); and if the United States
Department of Commerce Index is discontinued, then Landlord and
Tenant shall, in good faith, agree on a suitable substitute.
(Y) "Condemnation": Any taking by eminent domain for any public or
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quasi-public usage or purpose, including, without limitation, any
conveyance in lieu of or under threat of condemnation.
(Z) "Default Termination": The date of termination of this Lease arising
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out of or due to a Tenant Default.
(AA) "First Mortgage": Any Mortgage which now or hereafter has a first
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priority over all other Mortgages encumbering the Premises.
(BB) "Hazardous Substance": Any element, compound, chemical mixture,
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contaminant, pollutant, material, waste or other substance which is
defined, determined or identified as toxic or hazardous under any
Laws, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the Resource
Conservation and Recovery Act of 1976, the Hazardous Materials
Transportation Act, the Toxic Substances Control Act, the Clean Water
Act, the Clean Air Act, the Safe Drinking
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Water Act, the National Environmental Policy Act of 1969, the
Superfund Amendment and Reauthorization Act of 1986, and all Laws
that are similar thereto.
(CC) "Insurance": Liability and rents and fire and extended coverage
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insurance premiums for the Development and Common Areas.
(DD) "Invitees": Employees, agents, servants, assignees, subtenants,
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invitees, licensees, customers, visitors, concessionaires and
contractors.
(EE) "Landlord Group": Landlord and Landlord's agents, servants,
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employees, officers, attorneys, shareholders and directors.
(FF) "Landlord Repairs": Necessary repairs to lines for Utilities which
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serve the Premises and are located outside the perimeter walls of the
Premises, necessary roof repairs and necessary structural repairs to
the exterior walls and foundations of the Premises, specifically
excluding any repair, replacement, rebuilding, painting, cleaning, or
maintenance, whether structural or non-structural, foreseen or
unforeseen, ordinary or extraordinary: (i) to the Premises or any
building or improvement thereon or any portion thereof, except as
expressly defined as a Landlord Repair herein, (ii) to any damage
caused by wood-destroying organisms, (iii) to any exterior or
interior portions of any windows, doors, glass, plate glass, store
fronts, locks, hardware, Signs, or any casing, frames or caulking
which support or surround same, (iv) made necessary by or arising out
of any act or omission or negligence of Tenant or any Invitees of
Tenant, or (v) which is designated in this Lease as a Tenant Repair.
(GG) "Laws": All zoning ordinances, laws, statutes, ordinances, orders,
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regulations, directives, rules or requirements of all federal, state,
city, county or other governmental, public or quasi-public
authorities, bodies, boards or agencies, or all departments or
bureaus thereof, now existing or hereafter created, including,
without limitation, all building, zoning, environmental, health and
fire-safety laws, the Americans With Disabilities Act of 1990, the
Occupational and Safety and Health Act of 1970, and all laws related
to Hazardous Substances, including all amendments thereto and all
regulations promulgated thereunder.
(HH) "Lease Year": Each and every successive twelve (12)-month period
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during the Lease Term, as same may be extended or renewed; provided,
however, the first such twelve (12)-month period shall be deemed to
commence on the first day of the month in which the Commencement Date
falls.
(II) "Mortgage": Any mortgage, deed of trust or security deed
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encumbering the Premises.
(JJ) "Mortgagee": Any holder of a Mortgage.
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(KK) "Obligated Party": The party obligated to perform the Compliance
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Work in accordance with the terms of Paragraph 3.4.
(LL) "Rate": The total of (i) the annual percentage rate announced by
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Wachovia Bank of Georgia, N.A., as its prime rate, plus (ii) two (2%)
percent, but in no event higher than the highest rate enforceable by
Laws.
(MM) "Remaining Term": That portion of the Lease Term commencing with the
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Default Termination and ending on the Termination Date.
(NN) "Rent Inducements": The combined aggregate dollar amount of: (i) all
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improvements, alterations, construction or Work to the Premises
performed by or on behalf of Landlord in conjunction with this Lease
or Tenant's use of the Premises, including, without limitation, such
improvements, alterations, construction or Work as is described in
Exhibit "B"; plus (ii) all real estate brokerage commissions paid or
incurred by Landlord with respect to this Lease; plus (iii) all other
costs and liabilities whatsoever paid or incurred by Landlord in any
way arising out of or related to this Lease; plus (iv) the excess of
(x) the Aggregate Rent payable over the Lease Term, divided by the
number of months in the Lease Term, multiplied by the number of
months elapsed from the Commencement Date to the date of Default
Termination, over (y) the Aggregate Rent paid by Tenant and actually
received by Landlord from the Commencement Date to the date of
Default Termination.
(OO) "Restoration Cost": The total cost to restore damage or destruction
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to the Premises.
(PP) "Signs": All lettering, signs, awnings, advertising matter, or any
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other items of any kind on the roof, door, windows, store front, or
the exterior of the Premises or Common Areas.
(QQ) "Special Stipulations": Those special stipulations, if any, annexed
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to this Lease as Exhibit "A".
(RR) "Taxes": All general and special real estate taxes, ad valorem
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taxes, assessments (including, without limitation, general and
special assessments for public improvements or benefits whether or
not commenced or completed during the Lease Term, as same may be
extended or renewed, and sanitary and trash removal assessments),
water charges, sewer rents and all other taxes and assessments
levied, assessed or imposed at any time by any municipal, county or
state government or any other governmental authority or agency upon
or against the Development or any portion thereof, and also any tax
or assessment levied, assessed or imposed against the Development or
any portion thereof at any time by any governmental authority or
agency in connection with any franchise or the receipt of any income,
rent or profit from the Development to the extent that same shall be
in lieu of all or a portion of any of the aforesaid taxes or
assessments upon or against the Development, and any sales or use tax
imposed by any Laws by reason of or in any way related to the
occupancy or use of the Premises or the payment of rental therefor by
Tenant.
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(SS) "Tenant Default": The occurrence of any one or more of the following
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events or occurrences, each of which shall be deemed to be a material
default and breach of this Lease by Tenant: (i) Landlord does not
actually receive any payment of the full amount of Aggregate Rent or
additional rent or any other payment or reimbursement due hereunder
punctually on the due date thereof; (ii) Tenant fails to fully and
punctually observe or perform any of the terms or covenants of this
Lease; (iii) any representation, statement or warranty made by Tenant
orally, in this Lease, or in any information sheet or document
furnished by Tenant or any guarantor hereof with respect to the net
worth, liabilities, assets or financial condition of Tenant or any
guarantor hereof, or any other matters, shall be or prove to be
untrue or misleading; or (iv) Tenant shall be in default, in the
payment of rent or otherwise, under another lease or leases with
Landlord or any affiliate of Landlord.
(TT) "Tenant Repairs": All repairs, replacements, rebuilding, painting,
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cleaning and maintenance, foreseen or unforeseen, ordinary or
extraordinary, which are not expressly defined as Landlord Repairs,
to the Premises and all portions thereof, including, without
limitation, all trade fixtures and other fixtures and equipment
contained in or on the Premises, all improvements and alterations to
the Premises, the exterior and interior portions of all windows,
doors, glass, plate glass, store fronts, locks, hardware, Signs, or
any casing, frames or caulking which support or surround same, any
damages caused by wood-destroying organisms, all grease traps, and
all plumbing, sewage, drainage, fire protection sprinkler system,
electrical, heating, ventilating and air conditioning equipment and
systems located in the interior, or within or on the walls, of the
Premises, and all interior walls, floors and ceilings.
(UU) "Termination Date": The date of termination of the Lease Term, as
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set forth in Subparagraph 1.1(G).
(VV) "Unamortized Portion": The remaining balance as of the date of
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Default Termination of the portion of the Rent Inducements,
calculated as if the Rent Inducements were paid monthly over the
Lease Term, together with interest compounded monthly thereon at the
rate of ten (10%) percent per annum. By way of example, if the Rent
Inducements equal One Thousand and No/100 ($1,000.00) Dollars and the
Lease Term is for five (5) years, the Unamortized Portion of Rent
Inducements at the end of the third year of the Lease Term equals
Four Hundred Sixty and 44/100 ($460.44) Dollars.
(WW) "Utilities": All water, water pressure, gas, electricity, fuel,
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light, heat, power, telephone, sewage service, trash removal,
sanitary charges and assessments, security protection, or any other
utilities or services attributable to or servicing the Premises or
Development.
(XX) "Work": All work, labor or service done, or materials furnished for
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any work, repair, rebuilding, replacement, painting, cleaning,
maintenance, improvement, alteration, or addition to the Premises or
the Development, including, without limitation, Compliance Work,
Landlord Repairs and Tenant Repairs.
1.2 EXHIBITS. The Exhibits enumerated in this Paragraph 1.2 (if used)
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and annexed to this Lease are incorporated in this Lease by this reference
and are to be construed as part of this Lease:
Intentionally Deleted
(B) Exhibit "B": Description of initial Work to be performed by
Landlord.
ARTICLE II
RENT
2.1 MINIMUM RENT. (A) Tenant shall pay the Minimum Rent to Landlord
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at Landlord's address set forth above, or at such other place as Landlord
may designate from time to time, without notice or demand therefor, and
without any abatement, deduction, diminution or set-off whatsoever,
punctually in advance on the Commencement Date and the first day of each
succeeding calendar month thereafter throughout the Lease Term, as same
may be extended or renewed. If mailed, the Minimum Rent and all other
payments under this Lease shall be mailed in sufficient time and with
adequate postage thereon to be actually received by Landlord not later than
the due date. A pro rata monthly installment of the Minimum Rent shall be
due for the first month of the Lease Term if the Commencement Date is a day
other than the first day of a calendar month, and for the last month of the
Lease Term if the Lease Term for any reason terminates on a day other than
the last day of a calendar month.
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2.2 SECURITY DEPOSIT. Tenant has, simultaneously with the execution of
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this Lease, deposited with Landlord the Initial Payment, which sum consists
of the first month's Minimum Rent and Landlord's estimate of Tenant's
Proportionate Share of Common Area Maintenance, and the Security Deposit.
The Security Deposit represents security for the faithful performance and
observance by Tenant of each and every term and covenant of this Lease. In
the event of any Tenant Default, including, without limitation, the payment
of any rental or other sum payable hereunder, Landlord may, but shall not
be required to, use, apply or retain the whole or any part of the Security
Deposit to the extent required for the payment of any rent, or for any
other sum which Landlord may expend or be required to expend by reason of
or related to such Tenant Default, including, without limitation, any
damages or deficiency in the reletting of the Premises, whether such
damages or deficiency accrue before or after summary proceedings, or other
re-entry by Landlord. In the event that Tenant shall fully and faithfully
comply with all of the terms and covenants of this Lease, the Security
Deposit (or the balance thereof in the event Landlord has utilized any
portions thereof) shall be returned to Tenant within thirty (30) days after
(A) the Termination Date, and (B) physical delivery of possession of the
entire Premises by Tenant to Landlord. Whenever and as often as the amount
of Security Deposit shall be diminished by Landlord's application thereof,
Tenant shall, within five (5) days after Landlord's request therefor,
deposit additional money with Landlord sufficient to restore the Security
Deposit to its original amount. The Security Deposit shall not constitute
liquidated damages. No interest shall be payable to Tenant related to the
Security Deposit. Landlord may commingle the Security Deposit with any of
Landlord's other funds. In the event of sale or transfer of the Premises,
or any cessation of Landlord's interest therein, Landlord shall assign any
unapplied portion of the Security Deposit to the succeeding owner of the
Premises, and from and after such assignment, Landlord shall be relieved of
any liability with respect thereto, and Tenant shall look solely to such
new owner for the return of the Security Deposit.
2.3 RENT INDUCEMENTS. The Rent Inducements are absolutely and
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irrevocably due and payable by Tenant to Landlord at the time of execution
of this Lease as accrued and presently due additional rent, and not as
damages or a penalty, subject only to the potential waiver thereof by
Landlord as expressly set forth in this Paragraph 2.3. Based upon the
covenant of Tenant to perform all obligations of Tenant under this Lease
throughout the entire Lease Term in timely and exact accordance with the
terms of this Lease, Landlord has agreed to defer the right to receive
payment of the Rent Inducements until the earlier to occur of (A) the
Termination Date, or (B) the date of Default Termination, rather than at
the time of execution of this Lease. In the event that no Default
Termination occurs, then on the Termination Date Landlord shall, at such
time and in such event, waive the right to collect the Unamortized Portion
of the Rent Inducements, but in no other event shall there be any such
waiver. Nothing contained in this Lease shall create any Rent Inducements,
except to the extent that Rent Inducements are expressly provided for in
this Lease. The recovery of Rent Inducements is not an exclusive remedy
available to Landlord in the event of Tenant Default, but is an additional
remedy.
ARTICLE III
PREMISES
3.1 PREMISES DEMISED. The Premises are located in the Development.
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The Premises are demised and leased subject to all Laws, and the state of
title of the Development, and any statement of facts which an accurate
survey may disclose, together with all easements, Mortgages, agreements,
encumbrances, and all other liens, charges or other matters of any nature,
recorded or unrecorded, affecting the Premises or the Development.
Notwithstanding the definition or description of the Premises or the method
of calculation of the gross rentable square footage of the Premises, the
Premises demised hereunder do not include the right to any usage whatsoever
of the exterior walls, roof, or the land beneath the Premises, and Tenant
shall not attach or place anything on the roof or exterior walls of the
Premises, and Tenant shall not have access to the roof. No rights,
licenses or easements are given to Tenant hereunder, except as expressly
demised hereunder, and no easement for light or air is leased with or
included in the Premises.
3.2 DELIVERY AND ACCEPTANCE OF POSSESSION. Landlord shall exercise a
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good faith effort with respect to delivering possession of the Premises to
Tenant, but in the event that possession of the Premises is not delivered
to Tenant within ninety (90) days after the date first specified in
Subparagraph 1.1(H), then and in that event either Landlord or Tenant shall
have the right to terminate this Lease by delivering written notice of such
termination to the other, whereupon this Lease shall thereupon become null
and void and of no further force or effect whatsoever in law or equity, and
Landlord shall not be liable to Tenant for any loss or damages related to
such failure to deliver possession. Tenant shall occupy the Premises as
soon as the Commencement Date occurs. Tenant has examined the Premises and
the Development, and has accepted same in their present condition (subject
only to such initial improvements to the Premises, if any, as Landlord is
obligated to perform pursuant to Exhibit "B"), and without any
representation or warranty by Landlord, express or implied, as to the
condition thereof, or as to the use or occupancy which may be made thereof,
or the effect of any Laws thereon.
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3.3 USE OF PREMISES. The Premises shall be used only for the purposes
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described in Subparagraph 1.1(M) and for no other purposes whatsoever. In
no event shall the Premises or any portion thereof be used in any of the
following manners, nor for any of the following purposes: (A) any illegal
usage, (B) any violation of any Laws or certificate of occupancy, (C) any
manner which creates or permits a nuisance or trespass, (D) any manner
which vitiates or increases the rate of Insurance, (E) any manner which
produces, reproduces or transmits sounds which are audible outside the
Premises, or any manner which emits an odor outside the Premises, (F) any
manner which obstructs or encumbers the sidewalks or other Common Areas of
the Development, (H) any hazardous or wasteful manner, (I) any manner which
exceeds the floor load which such floor was designed, or is permitted by
Laws, to carry, or (J) any manner which generates, stores, treats, disposes
of, installs or otherwise causes or permits any Hazardous Substance to be
brought upon, or kept or used in or on the Premises. Tenant shall not
burn any materials or rubbish upon or in the Premises or the Development.
Tenant shall, at Tenant's expense, keep the Premises and the immediately
adjacent Common Areas free of rubbish, and in a clean and orderly
condition. This Lease does not contain any express or implied exclusive
use provisions.
3.4 COMPLIANCE WITH LAWS. (A) Landlord shall, at all times during the
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Lease Term, as same may be extended or renewed, perform all Compliance Work
which is applicable to (i) the Premises in general, and is not in any way
related to Tenant's particular or specific use or occupancy of the
Premises, or (ii) any Hazardous Substance which was placed in, on or upon
the Premises prior to the Commencement Date by any party other than Tenant
or the Invitees of Tenant.
(B) Except with respect to those items of Compliance Work which are the
responsibility of Landlord in accordance with the express terms of
Subparagraph 3.4(A), Tenant shall not violate, nor take any action or fail
to take any action which would result in Landlord or the Premises being in
violation of, any Laws, whether or not the Laws relate to or be for a
period prior to the Commencement Date, or relate to or involve any
extraordinary or ordinary, or structural or non-structural, Compliance Work
of or to any structure upon or adjacent to the Premises, irrespective of
whether the Laws or Compliance Work be of a kind that might be deemed to be
now within the contemplation of Landlord and Tenant, and Tenant shall, at
all times during the Lease Term, as same may be extended or renewed,
promptly comply with (i) all provisions, recommendations and requirements
of any fire, liability or other insurer affecting or covering the Premises
and Development, or any part thereof, and (ii) all Compliance Work arising
out of or related to Tenant's particular or specific use or occupancy of
the Premises. Tenant shall, and does hereby, indemnify and hold harmless
Landlord from and against all Claims arising out of or related to the
obligations of Tenant under this Subparagraph 3.4(B). Tenant shall
promptly procure and thereafter maintain all licenses and permits which are
necessary or desirable to maintain and operate the business of Tenant in
the Premises.
(C) Notwithstanding anything contained in this Paragraph 3.4 to the
contrary, in the event that the Compliance Cost exceeds the aggregate sum
of Minimum Rent for the Lease Year in which the need to perform the
Compliance Work arises, the Obligated Party shall be entitled to elect to
terminate this Lease rather than perform the Compliance Work, by giving
written notice of termination to the other party, which notice must be
given within twenty (20) days after the Obligated Party (i) becomes aware
of the requirement for the Compliance Work, and (ii) ascertains the
approximate or exact Compliance Cost. In the event that the Obligated
Party terminates this Lease pursuant to this Subparagraph 3.4(C), the other
party may, within ten (10) days after such notice of termination, agree to
perform the Compliance Work at such other party's sole expense, in which
event this Lease shall continue in effect unless the other party fails to
perform the Compliance Work within any applicable time limitation imposed
by Laws.
3.5 ACCESS TO PREMISES. Landlord shall be entitled to have free access
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to the Premises at all times for purposes of inspecting, examining, showing
or displaying the Premises, or for making any repairs thereto or to
Landlord's adjoining property, and also during the last ninety (90) days of
the Lease Term (or commencing on such earlier date, if any, as Tenant
advises Landlord that Tenant does not intend to extend or renew the Lease
Term) for purposes of placing any "For Lease" notices on the Premises. No
such notices shall be removed, molested or hidden by Tenant. Any such
entry or action shall not be deemed an actual or constructive eviction or
disturbance of Tenant, nor shall Tenant be allowed any abatement of rent of
any sort, or damages for any injury and inconvenience occasioned thereby.
Nothing contained in this Paragraph 3.5 or elsewhere in this Lease shall
obligate Landlord in any fashion under any circumstances to enter or
inspect the Premises.
3.6 QUIET ENJOYMENT. Tenant, upon paying the Minimum Rent and all
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other sums and charges provided for in this Lease, and in observing and
keeping all covenants of this Lease on the part of Tenant to be observed
and kept, shall quietly have and enjoy the Premises during the Lease Term,
as same may be extended or renewed, without hindrance or molestation by
anyone claiming by, through or under Landlord, subject, however, to the
exceptions, reservations and conditions of this Lease.
ARTICLE IV
COMMON AREAS AND DEVELOPMENT
4.1 COMMON AREAS. Landlord hereby grants to Tenant a non-exclusive
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license to use the Common Areas, such usage to be in common with the usage
of Landlord and the tenants of the Development and any third parties
designated by Landlord, and their respective Invitees. Notwithstanding any
other provision of this Lease, Landlord shall be entitled to designate
specific areas or spaces in the
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parking lot of the Development for the parking of automobiles and other
vehicles of Tenant and Tenant's employees, and upon such designation Tenant
and Tenant's employees shall park their automobiles and other vehicles in
such areas or spaces only.
4.2 COMMON AREA MAINTENANCE. Tenant shall pay to Landlord as
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additional rental on the first day of each month in advance during the
Lease Term, as same may be extended or renewed, Landlord's estimate of
Tenant's Proportionate Share of Common Area Maintenance, as set forth
herein. At any time after the expiration of each Calendar Year, Landlord
shall determine the costs and expenditures of Common Area Maintenance for
such Calendar Year, together with the determination of Tenant's
Proportionate Share thereof. In the event that the amounts for the
preceding Calendar Year paid by Tenant under this Paragraph 4.2 shall be
(A) less than Tenant's Proportionate Share thereof, as so determined by
Landlord, the deficiency shall be paid by Tenant to Landlord within twenty
(20) days after notice of such determination, or (B) more than Tenant's
Proportionate Share thereof, as so determined by Landlord, the excess shall
be retained by Landlord and credited to the next sums due from Tenant under
this Paragraph 4.2. At the time of such determination of the cost of
Common Area Maintenance for each Calendar Year, Landlord shall notify
Tenant of the monthly sum to be paid by Tenant to Landlord during the
remaining months of such Calendar Year, which determination shall be based
in part on the statement of expenses for the preceding Calendar Year as
modified by any known or anticipated increases in the cost of said
services. Tenant shall make such payments in such amounts as are provided
for herein until receipt of notice from Landlord of any change in such
amounts.
4.3 DEVELOPMENT. Landlord shall have the unrestricted right to
-----------
construct additional improvements in the Development or increase, reduce,
eliminate, relocate or change the size, dimensions, design, height, number
of stories or location of any or all Common Areas, buildings or other
improvements in the Development, from time to time in any manner whatsoever
as Landlord shall deem appropriate.
ARTICLE V
UTILITIES AND SERVICES
5.1 UTILITIES AND SERVICES. Tenant shall contract for all Utilities
----------------------
in Tenant's name and pay when due all costs, charges and deposits related
to the hook-up, furnishing, consumption, maintenance and installation of
all Utilities; provided, however, that Landlord shall be entitled, but not
required, to pay any costs or charges for or related to any Utilities,
whereupon such costs or charges, or Tenant's pro rata share of same, or
Landlord's estimate thereof, together with an administrative fee equal to
twelve (12%) percent of such amount, shall be payable by Tenant to Landlord
upon demand, and shall constitute additional rent hereunder. Landlord
shall have no liability to Tenant or any other party for any inadequacy,
cessation or interruption of any Utilities.
ARTICLE VI
REPAIRS AND MAINTENANCE
6.1 TENANT REPAIRS. (A) All Tenant Repairs shall be made promptly as
--------------
and when needed by Tenant. Except for those items which are expressly
defined as Landlord Repairs, Tenant shall keep and maintain the Premises
and all buildings and improvements thereon and all portions thereof,
throughout the Lease Term, as same may be extended or renewed, in first
class order, condition and repair. All Tenant Repairs shall be performed
at Tenant's sole expense with materials and labor of the kind and quality
equal or superior to the original Work. Tenant shall keep in force at all
times during the Lease Term, and all extensions and renewals thereof, a
standard maintenance agreement which requires at least a semi-annual
inspection of all heating, ventilating and air conditioning equipment, and
provide a copy of such agreement to Landlord. Tenant shall permit no
waste, damage or injury to the Premises, or any part or system thereof.
Tenant shall surrender the Premises at the expiration of the Lease Term, as
same may be extended or renewed, broom clean and in as good condition as
when received, or in such better condition as the Premises may be put
during the Lease Term, as same may be extended or renewed, except only that
deterioration caused by normal and ordinary wear and tear, or fire or other
casualty not caused by Tenant.
(B) In the event that (i) Tenant fails to promptly perform the Tenant
Repairs, (ii) Landlord, in the exercise of Landlord's sole discretion,
determines that emergency Tenant Repairs are necessary or desirable, or
(iii) Landlord Repairs or Tenant Repairs are made necessary by any act or
omission or negligence of Tenant or Invitees of Tenant, then in any of such
events, Landlord shall be entitled, but not obligated, to perform or cause
to be performed same without incurring any liability to Tenant for any
damage caused thereby, and Tenant shall pay the cost thereof to Landlord
upon demand, as additional rent.
6.2 LANDLORD REPAIRS. Landlord shall make necessary Landlord Repairs
----------------
only. Landlord has delivered exclusive control of the Premises to Tenant,
and Landlord shall have no obligation to inspect the Premises. Tenant
shall promptly report in writing to the property manager of Landlord any
need for Landlord Repairs, and failure to so report shall make Tenant
liable to Landlord for any liability incurred by Landlord arising out of or
related thereto. Landlord's obligation for Landlord Repairs is expressly
conditioned upon actual receipt by Landlord's property manager of written
notice of the need for such Landlord Repairs, and upon actual receipt of
such notice Landlord shall commence such Landlord Repairs within a
reasonable time. In no event shall Tenant be entitled to withhold or
offset any payment of Minimum Rent or any other sum payable under this
Lease due to any breach by Landlord of this Paragraph
Page 7
6.2 or any other provision of this Lease.
6.3 FIXTURES AND PERSONAL PROPERTY All trade fixtures installed in the
------------------------------
Premises by Tenant may be removed at any time by Tenant provided that
Tenant is not in default in the performance of any obligations of Tenant
hereunder, and further provided that Tenant shall, at Tenant's sole
expense, simultaneously restores any damage to the Premises caused by such
removal. All carpeting, floor covering and other fixtures and equipment
installed in the Premises by Tenant shall, at the option of Landlord, be
promptly removed by Tenant on termination of this Lease, whereupon Tenant
shall promptly restore any damage to the Premises caused by such removal;
provided, however, that in the event that Landlord does not so elect to
cause Tenant to remove any of said carpeting, floor covering, fixtures or
equipment, all of same remaining on the Premises shall become the sole
property of Landlord upon the termination of this Lease, without the
necessity of further documentation.
6.4 ALTERATIONS BY TENANT. Tenant shall not alter the Premises or any
---------------------
part thereof without first: (A) submitting to Landlord written plans and
specifications in reasonable detail of any proposed alterations, and (B)
obtaining Landlord's prior written approval thereof. All repairs to such
alterations shall be Tenant Repairs. Any such alterations shall immediately
upon installation become the property of Landlord and shall remain upon the
Premises upon termination of this Lease unless Landlord at Landlord's
option shall require the restoration of the Premises to the condition
thereof on the Commencement Date, in which event Tenant shall so restore
the Premises prior to the Termination Date.
6.5 LIENS. Tenant shall promptly pay for all Work performed by or on
-----
behalf of Tenant or any party holding the Premises through or under Tenant,
and Tenant shall not permit any mechanic's, materialman's or any other type
of lien or claim of lien to be filed against the Premises by reason of or
related to any Work supplied or claimed to have been supplied to Tenant or
anyone holding the Premises through or under Tenant. In the event that any
such mechanic's, materialman's or other lien or claim of lien shall at any
time be filed against or affecting Landlord, the Premises or the
Development, whether said lien or claim of lien be valid or not, Tenant
shall indemnify and hold Landlord harmless from same and shall, within ten
(10) days after notice of the filing thereof, cause such lien to be
canceled and discharged of record. Nothing in this Lease shall be
construed in any way as: (A) constituting the consent, authorization or
request, express or implied, of Landlord to any contractor, subcontractor,
laborer, mechanic, materialman or any other party for the performance of
any Work to or for the benefit of Landlord, or (B) giving Tenant the right,
power or authority to act as agent of Landlord or on behalf of Landlord in
causing, contracting for, or permitting any Work.
ARTICLE VII
SIGNS
7.1 SIGNS. Tenant shall not place or maintain any Signs on the
-----
Premises or Common Areas, without first obtaining prior written consent
from both Landlord and all governmental bodies having jurisdiction thereof.
Those Signs which both comply with this Paragraph 7.1 and are within the
criteria for Signs set forth in Exhibit "C", if any, are deemed approved by
Landlord. All Signs shall be Tenant Repairs and comply with all Laws. In
the event that Landlord elects to remodel or renovate all or a substantial
portion of the Development, Landlord shall be entitled to require Tenant to
replace any or all of such Signs with such substitute Signs as are
furnished by Landlord, at Landlord's sole expense, provided such Signs so
provided by Landlord are consistent with the overall remodeling or
renovation plan of Landlord.
ARTICLE VIII
INSURANCE, INDEMNITY, DAMAGE AND DESTRUCTION
8.1 INSURANCE. Tenant shall obtain and maintain in full force during
---------
the Lease Term, as same may be extended or renewed, with respect to the
Premises, comprehensive general public liability insurance, with
contractual liability endorsement, with coverage in amounts not less than
One Million and No/100 ($1,000,000.00) Dollars with respect to property
damage, bodily injury, personal injury or death to one or more persons,
which insurance shall insure the interest of Landlord and Tenant and any
designees of Landlord, including without limitation, any Mortgagee.
8.2 INDEMNITY; LIABILITY OF LANDLORD. (A) Tenant shall, and does
--------------------------------
hereby, indemnify, release and save harmless the Landlord Group from and
against all Claims arising out of or related to (i) any loss of life,
personal injury or property damage, (ii) this Lease, or (iii) any
transaction or occurrence in, on, upon or near or involving the Premises,
Common Areas or the Development or the occupancy or use thereof.
(B) Tenant shall store, sell and use Tenant's property, fixtures,
inventory and equipment, and shall use and occupy the Premises and all
other portions of the Common Areas and the Development, at Tenant's sole
risk, and Tenant shall and does hereby release the Landlord Group from and
against all Claims of any nature arising out of or related thereto.
(C) Notwithstanding anything in this Lease to the contrary, neither
Landlord nor the Landlord Group shall have any personal liability hereunder
and Tenant shall look solely to the estate and property of Landlord in the
land and buildings comprising the Development for the collection of any
judgment or other judicial process arising out of any Claims arising out of
or related to any default or breach by Landlord
Page 8
under this Lease, and no other assets of Landlord, or the Landlord Group,
shall be subject to levy, execution or other procedures for the
satisfaction of any remedies of Tenant.
(D) This Paragraph 8.2 shall survive the termination of this Lease.
8.3 INSURANCE REIMBURSEMENT. (A) Tenant shall pay to Landlord upon
-----------------------
demand, as additional rent, without offset or deduction, throughout the
Lease Term, as same may be extended or renewed, the amount by which
Tenant's Proportionate Share of such Insurance as is carried by Landlord
for the then Calendar Year exceeds Tenant's Proportionate Share of such
Insurance as is carried by Landlord for the Base Year.
(B) A pro rata installment of Tenant's Proportionate Share of such
Insurance as is carried by Landlord shall be due for the last Lease Year of
the Lease Term, as same may be extended or renewed, if the Lease Term for
any reason terminates on a day other than the 31st day of December. The
obligation of Tenant with respect to this Paragraph 8.3 shall survive the
expiration of the Lease Term, the recovery of Tenant's Proportionate Share
hereunder being a recovery for the Calendar Year in which payable
hereunder.
(C) Any delay or failure of Landlord in computing or billing under this
Paragraph 8.3 not prejudice the right of Landlord to thereafter render
bills for such period or any subsequent period, nor constitute a waiver of
or in any way impair the continuing obligation of Tenant to pay Tenant's
Proportionate Share of Insurance. Photostatic copies of bills for
Insurance submitted by Landlord to Tenant shall be conclusive evidence of
the actual amount thereof.
8.4 DAMAGE BY FIRE OR OTHER CASUALTY. Tenant shall immediately notify
--------------------------------
Landlord of any damage or destruction to the Premises. In the event that
(A) by reason of any damage or destruction, the Premises are rendered
wholly untenantable, (B) the Premises are damaged as a result of a
casualty, event, or risk which is not adequately covered by Landlord's fire
insurance, (C) the Premises are damaged in whole or in part during the last
twelve (12) months of the Lease Term or any extension or renewal thereof,
(D) the building of which the Premises are a part (whether the Premises are
damaged or not) or the buildings which then comprise the Development should
be damaged to the extent that the Restoration Cost equals or exceeds thirty
(30%) percent of the monetary value of such building, at the time of such
damage, or (E) any buildings or Common Areas are damaged, whether or not
the Premises are damaged, to such an extent that the Development cannot, in
the sole judgment of Landlord, be profitably operated as an integral unit,
then, in any of such events, Landlord may elect either to (i) repair the
damage to the Premises (provided that Landlord's obligations to so repair
shall not exceed in scope or expense the work done by Landlord with respect
to the Premises prior to the Commencement Date), whereupon the Minimum Rent
shall be abated proportionately as to that portion of the Premises
rendered untenantable during the period of such repair and restoration, or
(ii) terminate this Lease by notice of termination delivered to Tenant at
any time after the occurrence of such damage, whereupon this Lease shall
expire upon the date set forth in such notice, and Tenant shall vacate and
surrender the Premises to Landlord on such date. Landlord shall give
notice to Tenant of such election within sixty (60) days after the
occurrence of such damage or destruction. In the event that Landlord does
repair any damage as provided hereunder, any abatement of rent shall end
when the Premises have been substantially repaired. In the event of
abatement of Minimum Rent as expressly provided in this Paragraph 8.4,
there shall be no abatement of additional rent or any other sums payable by
Tenant under this Lease. In the event that the damage or destruction is
caused by any act, omission or negligence of Tenant or any Invitees of
Tenant, there shall be no abatement of Minimum Rent. Notwithstanding
anything contained in this Paragraph 8.4 to the contrary, in the event that
the Restoration Cost exceeds the aggregate sum of Minimum Rent for the
Lease Year in which the damage or destruction occurs, Landlord shall be
entitled to terminate this Lease rather than perform such repairs and
restoration, by giving notice of termination to Tenant, which notice must
be given within twenty (20) days after Landlord (x) becomes aware of such
damage or destruction, and (y) ascertains the approximate or exact
Restoration Cost. Nothing contained in Paragraph 8.1 or in this Paragraph
8.4, or any other provision in this Lease, shall be deemed to obligate
Landlord to obtain or maintain any insurance of any nature.
ARTICLE IX
ASSIGNMENT, SUBLETTING AND SUCCESSORS
9.1 ASSIGNMENT AND SUBLETTING. Without the express prior written
-------------------------
consent of Landlord, neither Tenant, nor Tenant's legal representatives or
successors in interest by operation of Laws or otherwise, shall directly or
indirectly assign this Lease or sublet all or any part of the Premises, or
use or permit the Premises or any part thereof to be used, occupied or
managed by any party or parties other than Tenant. For purposes of this
Paragraph 9.1, an assignment of this Lease, as prohibited hereunder, shall
include, without limitation: (A) any voluntary or involuntary transfer,
including, without limitation, any transfer by operation of Laws, (B) any
merger, consolidation or liquidation involving Tenant or any stock of
Tenant, (C) any entry into or change in any license, concession, management
or operating agreement or arrangement with respect to the management or
operation of the business conducted on the Premises, (D) in the event that
Tenant is a partnership, a transfer of a general partnership interest or a
majority of limited partnership interests, or the right to vote such
interests, or (E) in the event that Tenant is a corporation whose stock is
not listed on a nationally recognized security exchange, one or more sales
or transfers of stock, or of the right to vote such stock, by operation of
Laws or otherwise, or creation of a new stock, by which an aggregate of
fifty (50%) percent or more of Tenant's stock or the right to vote such
stock shall be vested in a party or parties who are non-stockholders as of
the date of execution of this Lease, which stock
Page 9
ownership shall be determined in accordance with the principles set forth
in Section 544 of the Internal Revenue Code of 1986, and the term "right to
vote" shall refer to shares of stock regularly entitled to vote for the
election of directors of the corporation. Consent to any assignment or
sublease shall not vitiate or waive this provision, and all later
assignments and subleases shall likewise be made only upon the prior
written consent of Landlord. In the event that Tenant shall desire to
assign this Lease or sublet the Premises or any portion thereof, then
Tenant shall (i) promptly notify Landlord in writing of such desire,
identifying such assignee or subtenant, and furnishing Landlord with
complete financial and business information about such proposed assignee or
subtenant, and (ii) simultaneously pay to Landlord a non-refundable
processing fee in the amount of Two Hundred Fifty and No/100 ($250.00)
Dollars. Upon receipt of a request to assign or sublet as set forth in the
immediately preceding sentence, Landlord shall be entitled, at Landlord's
sole option, to approve or disapprove such assignment or sublease; any such
disapproved assignment or sublease shall be void ab initio. Tenant shall,
upon any assignment or subletting, furnish Landlord with a true and
complete copy of all assignment or sublease documents, and shall advise
Landlord of the rental amounts pursuant to such assignment or sublease.
Subtenants or assignees shall not prepay any rental to any party other than
Landlord more than one (1) month in advance, and shall become, at
Landlord's option, liable directly to Landlord if Landlord so elects. In
the event that this Lease is assigned or sublet, Landlord may, and is
hereby empowered, at Landlord's option, to collect rent from the assignee
or subtenant; in the event that Landlord does so collect rent from such
assignee or subtenant, Landlord shall apply the net amount received by
Landlord to the rent payable by Tenant, and no such receipt of rent shall
be deemed to be: (x) a waiver of the covenant herein against assignment and
subletting, (y) an acceptance of the assignee or subtenant as Landlord's
tenant, or (z) a release of Tenant from the further performance of the
obligations of Tenant under this Lease. No sublessee or assignee shall be
entitled to further assign any interest under this Lease or such sublease,
or sublet all or any portion of the Premises without the express prior
written consent of Landlord. In the event that this Lease shall be assigned
or the Premises sublet by Tenant at a rental rate that exceeds the Minimum
Rent to be paid to Landlord by Tenant hereunder or Tenant receives any
other consideration, then and in such event one-half of all such excess
Minimum Rent and all such other consideration shall be immediately paid
over to Landlord by Tenant upon receipt by Tenant as additional rent due
from Tenant to Landlord hereunder. Notwithstanding anything contained in
this Lease to the contrary, no subtenant or assignee may exercise, and
Tenant shall have no right to exercise for the benefit of any such assignee
or subtenant, any expansion option, right of first refusal option, renewal
or extension option, or similar option or rights under this Lease. Tenant
shall in all events remain fully liable to Landlord for all obligations of
Tenant under this Lease, regardless of any assignment or subletting or any
consent by Landlord thereto.
9.2 SUCCESSORS AND ASSIGNS. The provisions of this Lease shall bind
----------------------
and inure to the benefit of Landlord and Tenant and their respective
successors, heirs, legal representatives and assigns; provided, however,
that no assignment or subletting by, through or under Tenant in violation
of Paragraph 9.1 shall vest in such assignee or subtenant any right, title
or interest whatsoever. Upon any sale or conveyance of the Premises, the
Landlord named herein shall be, and hereby is, entirely free and relieved
of all covenants and obligations of Landlord hereunder arising or occurring
on or after such sale or conveyance.
ARTICLE X
CONDEMNATION
10.1 CONDEMNATION. In the event of Condemnation of the whole of the
------------
Premises, this Lease shall terminate. In the event of Condemnation of only
a part of the Premises (A) then, effective as of the date of vesting of
title, the Minimum Rent hereunder shall be abated in an amount apportioned
according to the area of the Premises so condemned, and (B) Landlord,
whether or not the Premises be affected, may, at Landlord's option,
terminate this Lease by notifying Tenant of such termination; if Landlord
elects not to so terminate this Lease, this Lease shall be and remain
unaffected by such Condemnation, except that the Minimum Rent hereunder
shall be abated to the extent, if any, hereinbefore provided. In the event
of any Condemnation of all or a portion of the Premises, Tenant shall be
entitled to an award for Tenant's relocation expenses and the leasehold
improvements placed on the Premises by Tenant at Tenant's expense; Landlord
shall be entitled to receive the balance of the award in such Condemnation
proceeding, including, without limitation, any award for the value of the
unexpired portion of the Lease Term and the interest vested by this Lease
in Tenant, and Tenant hereby expressly and irrevocably assigns to Landlord
all right, title and interest of Tenant now or hereafter arising in or to
any such award or any part thereof, and Tenant shall be entitled to receive
no part of such award. Any restoration to the Premises made necessary by
Condemnation shall be performed by Tenant at Tenant's sole expense.
ARTICLE XI
DEFAULT
11.1 DEFAULT. (A) Upon the occurrence of any one or more events of
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Tenant Default, Landlord may, at Landlord's option, without any demand or
notice whatsoever, except as expressly required in this Paragraph 11.1:
(i) Terminate this Lease by giving Tenant notice of termination, which
shall constitute a Default Termination, in which event this Lease shall
expire and terminate on the date specified in such notice of Default
Termination, and Tenant shall remain liable for all obligations of Tenant
under this Lease arising up to the date of Default Termination, and Tenant
shall surrender the Premises to Landlord on the date
Page 10
specified in such notice; or
(ii) Without terminating this Lease, and with or without notice to
Tenant, Landlord may in Landlord's own name but as agent for Tenant enter
into and upon take possession of the Premises or any part thereof, and, at
Landlord's option, remove persons and property therefrom, and such
property, if any, may be removed and stored in a warehouse or elsewhere at
the cost of, and for the account of, Tenant, all without being deemed
guilty of trespass or being liable for any loss or damage which may be
occasioned thereby, and Landlord may rent the Premises or any portion
thereof as the agent of Tenant with or without advertisement, and by
private negotiations and for any term upon such terms and conditions as
Landlord may deem necessary or desirable in order to relet the Premises.
Landlord shall in no way be responsible or liable for any rental
concessions or any failure to rent the Premises or any part thereof, or for
any failure to collect any rent due upon such reletting. Upon each such
reletting, all rentals received by Landlord from such reletting shall be
applied: first, to the payment of any indebtedness (other than any rent
due hereunder) from Tenant to Landlord; second, to the payment of any costs
and expenses of such reletting, including, without limitation, brokerage
fees and attorney's fees and costs of alterations and repairs; third, to
the payment of rent and other charges then due and unpaid hereunder; and
the residue, if any, shall be held by Landlord to the extent of and for
application in payment of future rent as the same may become due and
payable hereunder. In reletting the Premises as aforesaid, Landlord may
grant rent concessions and Tenant shall not receive credit therefor. In
the event that such rentals received from such reletting shall at any time
or from time to time be less than sufficient to pay to Landlord the entire
sums then due from Tenant hereunder, Tenant shall pay any such deficiency
to Landlord. Such deficiency shall, at Landlord's option, be calculated
and paid monthly. No such reletting shall be construed as an election by
Landlord to terminate this Lease unless a written notice of such election
has been given to Tenant by Landlord. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate
this Lease for any such previous Tenant Default, provided such Tenant
Default has not been cured; or
(iii) Terminate this Lease and recover from Tenant all damages which
Landlord may incur by reason of Tenant Default, including, without
limitation, a sum which, at the date of Default Termination represents the
present value (discounted at a rate equal to the then average rate for
Xxxxx'x "AAA" rated corporate bonds with maturities equal to the Remaining
Term) of the excess, if any, of (x) the Aggregate Rent, and all other
charges and sums which would have been payable hereunder by Tenant for the
Remaining Term, over (y) the aggregate reasonable rental value of the
Premises for the same period, all of which present value of such excess sum
shall be immediately due and payable. In determining the aggregate
reasonable rental value pursuant to item (y) above, all relevant factors
shall be considered as of the time of Default Termination, including,
without limitation (aa) the length of time remaining in the Lease Term,
(bb) the then-current market conditions in the general area in which the
Premises are located, (cc) the likelihood of reletting the Premises for a
period of time equal to the Remaining Term, (dd) the net effective rental
rates (taking into account all concessions) then being obtained for space
of similar type and size in similar type buildings in the general area in
which the Premises are located, (ee) the vacancy levels in comparable
quality buildings in the general area in which the Premises are located,
(ff) the anticipated duration of the period that the Premises will be
unoccupied prior to reletting, (gg) the anticipated cost of reletting, and
(hh) the current levels of new construction that will be completed during
the remainder of the Lease Term and the degree to which such new
construction will likely affect vacancy rates and rental rates in
comparable quality buildings in the general area in which the Premises are
located. Such payment shall constitute liquidated damages to Landlord,
Landlord and Tenant acknowledging and agreeing that it is difficult to
determine the actual damages Landlord would suffer by virtue of Tenant
Default and that the agreed-upon liquidated damages are not punitive or a
penalty and are just, fair and reasonable, all in accordance with O.C.G.A.
(S) 13-6-7; or
(iv) Without liability to Tenant or any other party and without
constituting a constructive or actual eviction, suspend or discontinue
furnishing or rendering to Tenant any Work, Utilities or other services, so
long as the Tenant Default continues; or
(v) Allow the Premises to remain unoccupied and collect rent from
Tenant as it comes due; or
(vi) Take possession of and sell any personal property on the Premises,
and apply the net proceeds therefrom as a credit against all Minimum Rent
or other sums due by Tenant to Landlord; or
(vii) Pursue such other remedy or remedies as are available at law or
equity, including, without limitation, an action for specific performance
requiring Tenant to perform Tenant's obligations under this Lease.
(B) The late payment by Tenant to Landlord of Minimum Rent or any other
sums due hereunder shall cause Landlord to incur costs not contemplated by
this Lease, the exact amount of which would be extremely difficult and
impractical to ascertain. Such costs include, without limitation,
processing, clerical and accounting charges, lost interest and late charges
which may be imposed on Landlord by the terms of a Mortgage. Therefore, in
the event that Landlord does not actually receive any installment of
Minimum Rent or any other sum due under this Lease by 5:00 p.m. on the
fourth (4th) day after the due date thereof, Tenant shall pay to Landlord
as additional rent, and not as a penalty, a late charge equal to five (5%)
percent of each such installment of Minimum Rent or other sum, or Fifty and
No/100 ($50.00) Dollars, whichever is greater. In addition, Tenant shall
pay to Landlord Fifty and No/100 ($50.00) Dollars for each check presented
to Landlord in payment of Minimum Rent or other obligations hereunder which
is not paid by the bank upon which such check is drawn.
(C) Landlord's pursuit of any remedy or remedies, including, without
limitation, any one or more of the remedies stated in Subparagraph 11.1(A),
shall not (i) constitute an election of remedies or preclude pursuit of any
other remedy or remedies provided in this Lease or any other legal or
equitable remedy or
Page 11
remedies separately or concurrently or in any combination, or (ii) serve as
the basis for any claim of actual or constructive eviction, or allow Tenant
to withhold any payments under this Lease.
(D) In the event of Default Termination, any funds of Tenant held by
Landlord may be applied by Landlord to any damages payable by Tenant
(whether provided for herein or by Laws) as a result of such Default
Termination.
(E) Neither the commencement of any action or proceeding, nor the
settlement thereof, nor entry of judgment thereon shall bar Landlord from
bringing subsequent actions or proceedings from time to time, nor shall the
failure to include in any action or proceeding any sum or sums then due be
a bar to the maintenance of any subsequent actions or proceedings for the
recovery of such sum or sums so omitted.
(F) No termination of this Lease prior to the normal expiration
thereof, by lapse of time or otherwise, shall affect Landlord's right to
collect rent for the period prior to termination thereof. Tenant shall not
vacate the Premises or exercise any right of termination arising out of any
breach by Landlord of any provision of this Lease or the condition or state
of repair of the Premises. No surrender of the Premises or any part
thereof by delivery of keys or otherwise shall operate to terminate this
Lease unless and until such termination is expressly accepted in writing by
an authorized officer of Landlord.
(G) All Minimum Rent, additional rent, other rent, and any other costs,
expenses, sums or amounts payable or reimbursable hereunder by Tenant to
Landlord shall be deemed to be rental hereunder whether or not designated
as such, which, if not promptly paid on or before the date due, time being
of the essence, shall bear interest at the rate of the greater of (i)
twelve (12%) percent per annum, or (ii) the Rate, from the due date until
paid. In the event that any amounts owing under this Lease by Tenant are
collected by or with any assistance from or consultation with any attorney
at law, whether or not such attorney at law is an employee of Landlord,
Tenant shall pay as Landlord's attorney's fees fifteen (15%) percent of
such amounts. Tenant shall pay all attorney's fees incurred by Landlord
arising out of or related to any litigation, appeal or negotiation in which
Landlord shall become involved in connection with this Lease or the use or
occupancy of the Premises. Tenant waives all homestead rights and
exemptions which Tenant may have under any Laws against any obligations
owing under this Lease, and Tenant hereby assigns to Landlord all of
Tenant's homestead and exemptions.
(H) The foregoing provisions of this Paragraph 11.1 shall apply to any
renewal or extension of this Lease.
ARTICLE XII
MORTGAGES
12.1 MORTGAGES. (A) Upon request by any holder of a First Mortgage,
---------
Tenant shall subordinate Tenant's rights under this Lease to such First
Mortgage, and to any advances to be made thereunder and the interest
thereon, and to all renewals, modifications, replacements and extensions
thereof. Tenant's rights under this Lease shall not be subordinate to the
holder of the First Mortgage unless the holder thereof has requested that
this Lease be subordinate thereto. Any Mortgagee, whether the holder of
the First Mortgage or any other Mortgage affecting the Development, may
elect to have this Lease made prior to such Mortgage, and in the event of
such election and upon notification by any such Mortgagee to Tenant to that
effect, this Lease shall be deemed prior in lien to any such Mortgage,
whether this Lease is dated or filed prior to or subsequent to the date of
such Mortgage.
(B) Tenant shall, in the event of exercise of the power of sale or deed
in lieu of foreclosure under any Mortgage, attorn to and recognize such
purchaser as landlord under this Lease; provided that said purchaser shall
not be liable for any act or omission of any prior landlord or subject to
any offsets or defenses which Tenant may have against any prior landlord or
be bound by any amendment or modification of this Lease made without the
prior written consent of such Mortgagee. Should any Mortgagee or purchaser
require a separate agreement of attornment regarding the matters covered by
this Lease, Tenant shall promptly, upon request, enter into any such
attornment agreement.
(C) At any time and from time to time, Tenant shall, upon request from
Landlord, execute, acknowledge and deliver to Landlord or any potential
purchaser of the Development, or to any Mortgagee or potential Mortgagee,
an estoppel certificate or statement in writing certifying to all or any
part of the following information as Landlord shall request, provided such
facts are true and ascertainable: (i) that this Lease constitutes the
entire agreement between Landlord and Tenant and is unmodified and in full
force and effect (or if there have been modifications, that same is in full
force and effect as modified and stating the modification), (ii) the
amounts of Minimum Rent, additional rent and other charges under this Lease
and the dates to which same have been paid, and that there are no prepaid
rents or other sums hereunder, and the amount of Security Deposit, (iii)
that the Premises have been satisfactorily completed, and that all
conditions precedent to this Lease taking effect have been carried out,
(iv) that Tenant has accepted possession of the Premises, that the Lease
Term has commenced, that Tenant is occupying the Premises and operating
Tenant's business full-time therefrom, and there are no defaults or offsets
which Tenant has against enforcement of this Lease by Landlord, and (v) the
actual Commencement Date and Termination Date. Tenant's certificate or
statement shall also contain such other information as may be reasonably or
customarily required by the present or potential purchaser or Mortgagee.
(D) In the event that, in connection with obtaining financing or
refinancing for the Development, any banking, insurance or other recognized
institutional lender shall request reasonable modifications in this Lease
as a condition to such financing, Tenant shall not unreasonably withhold,
delay or defer Tenant's consent thereto, provided that such modifications
do not materially increase the obligations of Tenant hereunder or
materially adversely affect the interest of Tenant hereby created.
Page 12
ARTICLE XIII
TAXES
13.1 TAX REIMBURSEMENT. (A) Tenant shall pay to Landlord upon demand,
-----------------
as additional rent, without offset or deduction, throughout the Lease
Term, as same may be extended or renewed, the amount by which Tenant's
Proportionate Share of Taxes for the then Calendar Year exceeds Tenant's
Proportionate Share of Taxes for the Base Year.
(B) A pro rata installment of Tenant's Proportionate Share of Taxes
shall be due for the last year of the Lease Term, as same may be extended
or renewed, if the Lease Term, as same may be extended or renewed, for any
reason terminates on a day other than the 31st day of December. The
obligation of Tenant with respect to this Paragraph 13.1 shall survive the
expiration of the Lease Term, as same may be extended or renewed, the
recovery of Tenant's Proportionate Share hereunder being a recovery for the
year in which payable hereunder.
(C) Landlord may, at Landlord's option, contest or seek a reduction of
any Taxes, and the cost for any such contest or protest shall be considered
part of the Taxes.
(D) No delay or failure of Landlord in computing or billing Tenant's
Proportionate Share of Taxes shall prejudice the right of Landlord to
thereafter render bills for such period or any subsequent period, nor
constitute a waiver of nor in any way impair the continuing obligation of
Tenant to pay Tenant's Proportionate Share of Taxes. In the event that the
Development does not comprise exactly one tax parcel, Tenant shall pay
Tenant's Proportionate Share of Taxes based upon the estimate of Landlord
of the amount thereof. Photostatic copies of bills for Taxes submitted by
Landlord to Tenant shall be conclusive evidence of the actual amount
thereof.
13.2 PERSONAL PROPERTY. Tenant shall pay, prior to delinquency, all
-----------------
personal property taxes payable with respect to all property of Tenant
located in the Premises, and shall promptly provide Landlord upon request
therefor with proof of such payment.
ARTICLE XIV
MISCELLANEOUS
14.1 NO ESTATE IN LAND. This contract shall create the relationship of
-----------------
landlord and tenant between the parties hereto, and no estate shall pass
out of Landlord. Tenant has only a usufruct hereunder, not subject to levy
and sale, and not assignable by Tenant except as expressly provided in
Paragraph 9.1.
14.2 HOLDING OVER. In the event that Tenant remains in possession of
------------
the Premises or any part thereof after expiration of the Lease Term with
Landlord's express written consent, and without any express agreement
between the parties as to rent, Tenant shall be a tenant at will and such
tenancy shall be subject to all the provisions hereof except that the
Minimum Rent for the entire hold-over period shall be at the rate of one
hundred fifty (150%) percent of the rate of Minimum Rent in effect
immediately prior to the expiration of the Lease Term, and there shall be
no extension or renewal of this Lease by operation of Laws. In the event
that Landlord does not expressly consent in writing to Tenant's holding
over beyond the expiration of the Lease Term, then Tenant shall be a tenant
at sufferance and shall owe Landlord compensation for the period of
occupancy subsequent to the expiration of the Lease Term at a rate of one
hundred fifty (150%) percent of the Minimum Rent in effect immediately
prior to the expiration of the Lease Term, plus Tenant shall pay all other
additional rents and other sums under this Lease, and there shall be no
extension or renewal of this Lease by operation of Laws. Nothing in this
Paragraph 14.2 or elsewhere in this Lease shall be construed as consent by
Landlord to possession of the Premises by Tenant after the expiration of
the Lease Term.
14.3 RECORDING. Neither this Lease nor any memorandum thereof shall be
---------
recorded in any public record without Landlord's express prior written
consent.
14.4 NON-WAIVER. No failure by Landlord to timely xxxx Tenant for any
----------
payments hereunder, or to insist upon the strict performance, in any of one
or more instances, upon any breach of any term, covenant or condition
herein contained shall be deemed to be a waiver of such term, covenant or
condition, nor of any subsequent breach of the same or any other term,
covenant or condition herein contained. Any subsequent acceptance by
Landlord of any Minimum Rent, additional rent, other rent, or any other
sums due hereunder shall not be deemed to be a waiver of any preceding
Tenant Default, other than the failure of Tenant timely to pay the
particular sum so accepted, regardless of Landlord's knowledge of such
preceding Tenant Default at the time of acceptance of such sum. No
covenant, term or condition of this Lease shall be deemed to have been
waived by Landlord unless such waiver be specifically expressed in writing
by an authorized officer of Landlord.
No payment by Tenant or receipt by Landlord of an amount less than the
Minimum Rent or other rent or other sum herein stipulated shall be deemed a
waiver of Landlord's right to receive the entire amount herein stipulated.
No partial payment or endorsement on any check or letter accompanying such
payment or rent shall be deemed an accord and satisfaction, and Landlord
may accept such payment without prejudice to Landlord's right to collect
the balance of any rents due under the terms of this Lease. After service
of any notice of termination, or other notice, or commencement of any suit
or dispossessory or distress proceeding, Landlord may receive and collect
any rent due and such collection or receipt shall not operate as a (A)
reinstatement, continuance, renewal or extension of the Lease Term, or (B)
waiver
Page 13
affecting such notice, suit or proceeding.
14.5 TIME OF THE ESSENCE. Time is of the essence of this Lease and all
-------------------
provisions contained herein.
14.6 SEVERABILITY. If any clause, provision, Article, Paragraph or
------------
Subparagraph of this Lease is or becomes unconstitutional, illegal, invalid
or unenforceable because of present or future Laws, the remaining parts of
this Lease shall not be affected thereby unless such invalidity is, in the
sole determination of Landlord, essential to the rights of both parties, in
which event Landlord shall be entitled to terminate this Lease by giving
notice to Tenant.
14.7 SPECIAL STIPULATIONS. Any Special Stipulations which are annexed
--------------------
hereto shall control if in conflict with any of the provisions of this
Lease.
14.8 NOTICES. All notices or demands with respect to this Lease shall
-------
be in writing. Tenant hereby appoints as Tenant's agent to receive service
of any suits, dispossessory or distraint proceedings, and any demands or
notices thereunder, and any notices or demands permitted or required under
this Lease or related to this Lease, the person in charge of or occupying
the Premises at the time of such proceeding, demand or notice; and if no
person be in charge of or occupying the Premises, then such service or
notice shall be deemed properly given if attached to the front entrance of
the Premises. Such appointment of an agent to receive service, notices and
demands shall be in addition to those provided by Laws or otherwise, and
Landlord shall have the option of selecting either the agent appointed
herein or any other agent available by Laws or otherwise. Landlord may
give Tenant any notice or demand hereunder in lieu of, or in addition to,
the manner prescribed above by mailing same, at Landlord's election to (A)
the Premises, or (B) Tenant's last known address if different from the
Premises, and any notice so sent should be deemed duly delivered to Tenant
upon the date of mailing. No demands or notices to Tenant with respect to
performance of any of Tenant's obligations hereunder shall be required
unless expressly required under the terms of this Lease, and Tenant hereby
waives any such notices or demands. In the event that the term Tenant, as
used in this Lease, refers to more than one party, any notice, consent,
approval, request, xxxx, demand or statement given as aforesaid to any of
such parties shall be deemed to have been duly given to Tenant. Rejection
or refusal by Tenant to accept, or inability to deliver, because of changed
address of which no notice has been received, shall also constitute
properly given notice. All notices or demands to Landlord shall be either
hand-delivered or by receipted courier service or sent, certified mail,
return receipt requested, to the address of Landlord specified in
Subparagraph 1.1(B), or at such other place as an authorized officer of
Landlord may designate to Tenant in writing, and such notices to Landlord
shall be deemed validly and effectively given only if and when said hand-
delivery or certified letter shall be actually received by Landlord. Upon
request by Landlord or Mortgagee, a copy of all notices or demands to
Landlord shall also be sent to Mortgagee, and Tenant shall not exercise any
remedies due to any default by Landlord under this Lease unless and until
Mortgagee shall have received such notice or demand and failed to cure such
default within thirty (30) days after such receipt.
14.9 HEADINGS AND TERMINOLOGY. The headings or captions contained in
------------------------
this Lease are for convenience and reference only and in no way define,
affect or limit the scope or content of this Lease. All personal pronouns,
if any, used in this Lease, whether used in the masculine, feminine or
neuter gender, shall include all other genders; the singular shall include
the plurals; and the plurals shall include the singular. All references in
this Lease to any Article, Paragraph or Subparagraph shall refer to the
corresponding Article, Paragraph or Subparagraph of this Lease unless
specific reference is made to the articles, paragraphs, subparagraphs,
sections, subsections or subdivisions of another document or instrument.
14.10 ENTIRE AGREEMENT; AMENDMENT; CONSENTS. This Lease sets forth the
-------------------------------------
entire agreement between the parties hereto concerning the Premises, and no
representation, inducement, promise or agreement, oral or otherwise,
between the parties not embodied herein, shall be of any force or effect.
Tenant acknowledges that no real estate broker or agent, nor any of
Landlord's agents, managers or leasing representatives have the power or
authority to amend, modify, terminate or accept a surrender of this Lease,
and such power and authority is vested solely in Landlord acting in writing
through Landlord's duly authorized corporate officers. No amendment,
modification, termination, change or addition to this Lease shall be
binding upon either party unless reduced to writing and signed by Tenant
and a duly authorized corporate officer of Landlord. Any consent required
or requested of Landlord under this Lease or any portion thereof,
including, without limitation, Paragraph 9.1, must be in writing, and may
be granted or withheld by Landlord in Landlord's sole and absolute
discretion, which may be exercised arbitrarily, without inquiry into the
reasonableness or unreasonableness of the granting or withholding of same.
14.11 TENANT OBLIGATIONS. All rental payable under this Lease shall be
------------------
absolutely "net" to Landlord except as to the obligations of Landlord
expressly contained herein, and accordingly, all Claims related to all
Taxes, Insurance or Work which are not specifically assumed by Landlord
under this Lease are deemed to be the responsibility of Tenant, and Tenant
shall, and does hereby, release and indemnify Landlord from and against all
such Claims not specifically assumed by Landlord in this Lease. In the
event of Tenant Default, Landlord, without thereby waiving such Tenant
Default, may perform such action as will cure such Tenant Default, for the
account and at the expense of Tenant (but shall have no obligation
Page 14
to do so), without notice by Landlord to Tenant of Landlord's intention to
do so. Tenant shall not be entitled to terminate this Lease, nor receive
any abatement, deduction, deferment, suspension or reduction of, or setoff,
defense or counterclaim against any rentals, charges or other sums payable
by Tenant under this Lease, the parties hereto intending that the Minimum
Rent and all other charges and sums payable by Tenant hereunder shall
continue to be payable in all events unless the obligations to pay the same
shall be terminated pursuant to the express provisions of this Lease. In
the event that more than one Tenant is designated in Subparagraph 1.1(C) or
elsewhere in this Lease, or more than one party executes this Lease as
Tenant, then all of such parties shall be jointly and severally liable for
all obligations of Tenant under this Lease.
14.12 AGENT. Agent is a party to this Lease for the sole and limited
-----
purpose of recognizing the right of Agent to a real estate brokerage
commission with respect to this Lease pursuant solely to the terms of the
Commission Agreement. Agent has no authority, express or implied, to (A)
amend, modify, renew, extend or terminate this Lease, (B) bind Landlord in
any fashion, (C) make any representation, statement, warranty or agreement
as agent or on behalf of Landlord, or (D) give or receive any notice or
demand on behalf of Landlord. In the event that Landlord sells or
transfers the Premises, and the purchaser or transferee thereof assumes the
obligations of Landlord under the Commission Agreement, then in such event
Landlord shall be fully released from any further obligations to Agent
under the Commission Agreement. Tenant hereby represents and warrants to
Landlord that Tenant has had no involvement, contact or agreement with any
real estate broker or agent other than Agent. Tenant and Agent shall, and
do hereby, indemnify and hold harmless Landlord from and against all Claims
asserted by any party other than Agent for real estate brokerage commission
or fees arising out of or related to this Lease, which indemnity shall
survive the termination of this Lease.
ARTICLE XV
EXECUTION AND AUTHORITY
15.1 EXECUTION AND AUTHORITY. (A) Submission or preparation of this
-----------------------
Lease by Landlord shall not constitute an offer by Landlord or option for
the Premises, and this Lease shall constitute an offer, acceptance or
contract only as expressly specified by the terms of this Subparagraph
15.1(A). In the event that Tenant executes this Lease first, such action
shall constitute an offer to Landlord, which may be accepted by Landlord by
executing this Lease, and once this Lease is so executed by Landlord, such
offer may not be revoked by Tenant and this Lease shall become a binding
contract. In the event that Landlord executes this Lease first, such
action shall constitute an offer to Tenant, which may be accepted by Tenant
only by delivering to Landlord a fully executed copy of this Lease,
together with a fully executed copy of all guaranty agreements, if any, of
the obligations of Tenant under this Lease, all of which documents must be
received by Landlord within seven (7) days after execution of this Lease by
Landlord; provided that in the event that any party other than Landlord
makes any material or minor alteration of any nature whatsoever to any of
said documents, then such action shall merely constitute a counteroffer,
which Landlord may, at Landlord's election, accept or reject.
Notwithstanding that the Commencement Date may occur and the Lease Term
may commence after the date of execution of this Lease, upon delivery and
acceptance of this Lease in accordance with the terms of this Lease, this
Lease shall be fully effective, and in full force and effect and valid and
binding against the parties in accordance with, but on and subject to, the
terms and conditions of this Lease.
(B) As a material inducement to Landlord to enter into this Lease,
Tenant (and, individually each party executing this Lease on behalf of
Tenant), intending that Landlord rely thereon, represents and warrants to
Landlord that:
(i) Tenant and the party executing on behalf of Tenant are fully and
properly authorized to execute and enter into this Lease on behalf of
Tenant and to deliver this Lease to Landlord;
(ii) This Lease constitutes a valid and binding obligation of Tenant,
enforceable against Tenant in accordance with the terms of this Lease;
(iii) Tenant is duly organized, validly existing and in good standing
under the Laws of the state of Tenant's organization and has full power and
authority to enter into this Lease, to perform Tenant's obligations under
this Lease in accordance with the terms of this Lease, and to transact
business in the state in which the Premises are located; and
(iv) The execution of this Lease by the individual or individuals
executing this Lease on behalf of Tenant, and the performance by Tenant of
Tenant's obligation under this Lease, have been duly authorized and
approved by all necessary corporate or partnership action, as the case may
be, and the execution, delivery and performance of this Lease by Tenant is
not in conflict with Tenant's bylaws or articles of incorporation (if a
corporation), agreement of partnership (if a partnership), and other
charters, agreements, rules or regulations governing Tenant's business as
any of the foregoing may have been supplemented or amended in any manner.
(C) In the event that the Premises are located in Georgia, this Lease
shall be deemed to have been executed in Georgia, and the interpretation,
construction and performance of this Lease shall be governed by the Laws of
the State of Georgia. In the event that the Premises are not located in
Georgia, then the interpretation, construction and performance of this
Lease shall be governed by the Laws of the state in which the Premises are
located.
(D) This Lease shall be executed in duplicate, each counterpart of
which shall be deemed an original and any of which shall be deemed to be
complete of itself and may be introduced into evidence or used for any
purpose without the production of the other counterpart or counterparts.
Page 15
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease in
duplicate, individually or through their authorized officers, agents, or
attorneys-in-fact, as the case may be, causing their respective seals to be
affixed hereto the day and year first above written.
TENANT:BIO-SHIELD TECHNOLOGIES, INC. LANDLORD:XXXXX ENTERPRISES, INC.
By _____________________________(SEAL) By
______________________________(SEAL)
its: ___________________________ its: ___________________________
(CORPORATE SEAL) (CORPORATE SEAL)
AGENT:KING INDUSTRIAL REALTY, INC.
By _____________________________(SEAL)
its: ___________________________
(CORPORATE SEAL)
Page 16
EXHIBIT "B"
DESCRIPTION OF INITIAL WORK TO BE PERFORMED BY LANDLORD
ON OR ABOUT THE COMMENCEMENT DATE, LANDLORD AGREES TO PERFORM THE FOLLOWING
WORK:
1. INSTALL FLOOR DRAIN
2. INSTALL 2" GAS LINE
3. INSTALL A 10" VENT
4. ADD ONE (1) 120 VOLT OUTLET
Page 17
