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EXHIBIT 10.2
[XXXXXXXX-XXXXX REALTY CORP. LETTERHEAD]
LEASE AGREEMENT FOR XXXXXX FOUR HUNDRED CORPORATE CENTER
THIS LEASE AGREEMENT, made and entered into as of this ______
DAY OF JANUARY, 1997, by and between XXXXXXXX NORTH XXXXXX GROUP, (hereinafter
referred to as "Landlord"), and VAL-U-MED, INC., (hereinafter referred to as
"Tenant");
W I T N E S S E T H:
1.0 PREMISES. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, SUITE 700 in the XXXXXX FOUR HUNDRED
CORPORATE CENTER (hereinafter referred to as "Building") located at 0000
XXXXXXX XXXX, XXXXXXX, XXXXXX XXXXXX, XXXXXXX. The space leased in the
BUILDING (hereinafter referred to as "Leased Premises") consists of
approximately 9,600 SQUARE FEET and it outlined and hatched in the drawing
attached as EXHIBIT "A". For purposes of this Lease Agreement, the Building
shall be deemed to consist of 91,200 SQUARE FEET of floor space. The Building,
together with the parcel of land on which it, other buildings in the Xxxxxx
Four Hundred Corporate Center, the parking, landscaping, driveways and service
areas are located is referred to herein as the "Complex". Landlord shall have
the right at any time from time to time to change the Building name and to make
alterations to the Complex. This Lease shall confer no rights on Tenant with
respect to the Complex other than tenancy of the Leased Premises and the
non-exclusive license to use, in common with others authorized by Landlord, the
"Common Areas":. No easement for light and air is included in the Leased
Premises.
2.0 DEFINED TERMS. Certain basic terms of this Lease
Agreement are defined or set forth on EXHIBIT "B". Capitalized terms not
otherwise defined herein shall have the meanings set forth on EXHIBIT "B".
3.0 TERM. The term of this Lease Agreement shall
commence on the Lease Commencement Date and shall expire at midnight on the
last day of the SIXTIETH (60TH) MONTH after the month in which the Lease
Commencement Date occurs. The Lease Commencement shall begin on THE 1ST DAY OF
MARCH, 1997, and end on THE 28TH DAY OF FEBRUARY, 2002 at midnight, unless
sooner terminated as hereinafter provided. At the request of either, Tenant
and Landlord will from time to time execute memoranda or letters stating the
commencement and termination dates of this Lease Agreement.
4.0 CONSTRUCTION WORK. See Bid Detail attached as
EXHIBIT "C" and incorporated by reference herein for all purposes.
5.0 RENTAL. See Special Stipulations attached as EXHIBIT
"D" and incorporated by reference herein for all purposes.
5.1 As "Base Rent" for the Lease Agreement and use of the
Leased Premises, Tenant will pay Landlord or Landlord's assigns the sum per
Special Stipulations, EXHIBIT "D", Paragraph 1.0, subject to adjustment, as set
forth in subsection 5.2 below; and for each succeeding calendar year or part
thereof during the Lease Term, the monthly sum computed pursuant to subsection
5.2. Base Rent shall be paid monthly in advance on the first day of each month
in lawful money of the United States, without prior notice or demand and
without deduction, abatement or setoff except as expressly provided in this
Lease Agreement; partial months shall be prorated. The terms "rent" or "rental"
shall include all sums payable by Tenant to Landlord in addition to Base Rent,
including without limitation, those sums payable pursuant to Sections 6.0 and
9.0. Upon execution of this Lease Agreement, Tenant is to pay to Landlord an
amount equal to the first and last months' Base Rent and said amount shall be
immediately disbursed to Landlord. In the event the Lease Agreement does not
commence on the first day of a month or terminate on the last day thereof the
Base Rental for such month shall be prorated on a daily basis.
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6.0 ESCALATIONS.
6.1 Tenant shall pay upon demand, as additional rental
during the term of this Lease Agreement any extension or renewal thereof, the
amount by which all taxes (including, but not limited to, ad valorem taxes,
special assessments and any other governmental charges) on the Leased Premises
for each tax year exceed Landlord's tax Contribution. In the event the Leased
Premises are less than the entire property assessed for such taxes for any such
tax year, then the tax for any such year applicable to the Leased Premises
shall be determined by proration on the basis that the rentable floor area of
the Leased Premises bears to the rentable floor area of the entire property
assessed. If the final year of the Lease Term fails to coincide with the end
of the tax year, then as excess for the tax year during which the term ends
shall be reduced by the pro rata part of such tax year that extends beyond the
Lease Term. If such taxes for the year in which the Lease Agreement terminates
are not ascertainable before payment of the last month's rental, then the
amount of such taxes assessed against the property for the previous tax year
shall be used as a basis of determining the pro rata share, if any, to be paid
by Tenant for that portion of the last Lease Year. Tenant's pro rata portion
of increased taxes, as provided herein, hall be payable within fifteen (15)
days after receipt of notice from Landlord as to the amount due.
6.3 Tenant shall pay upon demand, as additional rental
during the term of this Lease Agreement and any extension or renewal thereof,
Tenant's "pro rata share" of the amount by which Landlord's costs of
maintaining casualty and public liability insurance covering the Complex
exceeds Landlord's Insurance Contribution. For these purposes, Tenant's "pro
rata share" of such costs and the method by which Tenant's "pro rata share"
shall be computed in the event of a partial year shall be calculated in
accordance with subsection 6.2 above.
7.0 SECURITY DEPOSIT. Tenant agrees to deposit with
Landlord on the date hereof the Security Deposit, which Security Deposit shall
be held by Landlord, without obligation for interest, as security for the
performance of Tenant's covenants and obligations under this Lease Agreement, it
being expressly understood and agreed that the Security Deposit is not an
advance rental deposit or a measure of Landlord's damages in case of Tenant's
default. Upon the occurrence of any event of default by Tenant, Landlord
may, from time to time without prejudice to any other remedy provided herein or
provided by law, use the Security Deposit to the extent necessary to make good
any arrears of rent and any other damage, injury, expense or liability caused by
such event of default; and Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount. If
Tenant is not then in default hereunder, any remaining balance of the Security
Deposit shall be returned by Landlord to Tenant upon termination of this Lease
Agreement. In the event of bankruptcy or other creditor-debtor proceedings
against Tenant, the Security Deposit shall be deemed to be applied first to
payment of rent and other charges due Landlord for all periods prior to filing
such proceedings.
8.0 USE. Tenant will use the Leased Premises solely as
an office and a warehouse facility. Tenant will not permit carry-out sales of
any type from the Leased Premises. Tenant will not in any way use or obstruct
any area outside the Leased Premises. Loading or unloading of trucks at the
Building shall be strictly limited to the areas specifically designed by
Landlord and at such times as are designated by Landlord. There will be no
outside storage of trash, goods or materials or equipment; Tenant agrees to
keep the areas immediately in front of , beside and behind the Leased Premises
clean and free of trash or debris. Tenant, at its expense, will comply with
reasonable Rules and Regulations from time to time promulgated by Landlord.
Tenant shall not do or permit to be done in or about the Leased Premises
anything which would increase the rate or cause cancellation of any insurance
on the Building or its contents, whether the insurance is maintained by
Landlord, Tenant or other tenants. Tenant shall, at its sole expense, comply
with all laws, ordinances, rules and regulations then applicable to the use and
occupancy of Leased Premises. Tenant shall not obstruct, injure, annoy or
interfere with the rights of other occupants or tenants of the Complex, their
employees, contractors, agents or invitees, or with the rights of Landlord of
Landlord's agents. Tenant shall not cause or maintain any nuisance in or about
the Complex or engage in any course of conduct which might damage Landlord's
goodwill or reputation.
9.0 SERVICE AND UTILITIES.
9.1 Tenant shall be responsible for an promptly pay all
charges for separately metered gas, electricity and other utilities used or
consumed in the Leased Premises directly to the provider of such services. No
interruption or malfunction of any utility services or other services shall
constitute an eviction or disturbance or Tenant or a breach by Landlord of any
of its obligations or grant any right of see off or recoupment. Tenant will
pay to Landlord Tenant's Contribution for water and sewer services for the
garbage collection, as set forth on EXHIBIT "B".
9.2 Landlord shall furnish janitorial and groundkeeping
services for portions of the Complex not leased to specific tenants and
intended for general use ("Common Areas"). Day to day and periodic maintenance
relating to the heating ventilation and air conditioning system service the
Leased Premises, such as lubrication, changing the filters, fan belts, etc.
shall be the responsibility of Tenant. Maintenance of major components of the
system, such as the compressor, except in the event of failure caused by the
failure of Tenant to perform its periodic maintenance obligations, shall be the
responsibility of Landlord.
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10.0 REPAIRS OF DAMAGE.
10.1 Landlord will, at its own expense, repair damage to
the roof, the exterior portion or exterior walls and the structural members of
the Building, and to the Common Areas. If such damage is caused by acts or
omissions of Tenant, its agents, employees, customers or invitees, then Tenant
shall bear the total cost of such repairs. Under no circumstances shall decor
items, signs, glass, doors or associated hardware be deemed to constitute any
part of the exterior walls.
10.2 All damages to the Leased Premises other than that
which Landlord undertakes to repair will be repaired at Tenant's cost and
expense. Repair and maintenance shall be by workmen of Landlord, except for
guaranty or warranty work performed by third parties previously approved by
Landlord; however, no such guaranty or warranty work shall be performed unless
approved in advance by Landlord. Upon Tenant's failure or refusal promptly to
discharge its duties to repair and maintain (and in any event, in case of
emergency), Landlord shall have the right, but shall not be obligated, to
perform such maintenance or make such repair or replacement (Tenant waiving any
damage caused thereby) and Tenant will, at Landlord's demand, pay for the cost
of such repair. Such cost may be treated by Landlord as Additional Rent for
purposes of determining Landlord's remedies in the event of any failure by
Tenant to pay. If Landlord makes or undertakes any repairs, Tenant shall
indemnify and hold Landlord harmless with respect to all loss or damage that
may occur to Tenant's merchandise, fixtures or other property or to Tenant's
business incident to such action by Landlord.
10.3 Tenant will not commit waste and will not injure the
Leased Premises or the Complex, but will maintain the Leased Premises in a
clean, attractive condition and in good repair. Upon expiration of this Lease,
Tenant will surrender the Leased Premises to Landlord broom-clean and in good
condition excepting only ordinary wear and tear and damage arising from any
cause not required to be repaired by Tenant.
11.0 ADDITIONS AND FIXTURES. Tenant will make no
alterations or additions to the Leased Premises without the prior written
consent of Landlord. At such times as Tenant requests such written consent of
Landlord, Tenant shall submit plans and specifications for such alterations or
additions to landlord. Tenant may only remove "Removable Trade Fixtures" and
signs purchased and installed at its own cost and expense provided:
a. the removal is made prior to the termination
of the term of this Lease Agreement;
b. Tenant is not in default in the performance
of any obligation or covenant under this Lease at the time of removal; and
c. removal may be effected without damage to the
Leased Premises or the Building, and Tenant promptly repair all damage caused
by such removal.
If Landlord requests in writing, Tenant will, by the
expiration of the Lease Term, remove any or all alterations, additions,
fixtures, equipment and property installed by it in the Leased Premises and
will repair any damage caused by such removal and restore the Leased Premises
to as good a condition as at the time Tenant opened for business, excepting
only ordinary wear and tear and damage not otherwise required to be repaired by
Tenant. The phrase "Removable Trade Fixtures" shall mean counters, tables,
chairs, desks, racks, shelves, signs, merchandisers and displayers, standards,
wall brackets, hang-rods, mirrors, marking equipment, cash registers and other
business machines.
12.0 FIRE OR OTHER CASUALTY.
12.1 If at any time during the Lease Term, the Leased
Premises or any portion of the Building
shall be damaged or destroyed by fire or other casualty, then Landlord shall
have the election to terminate this Lease Agreement or to repair and restore
the Leased Premises and the Building to the condition in which they existed
immediately prior to such damage or destruction. If Landlord elects to repair
and restore, its obligations shall extend only to the construction originally
undertaken by Landlord and shall not include any improvements installed by
Tenant or at Tenant's expense. Landlord shall give Tenant notice of its
election within sixty (60) days of the date of such damage or destruction.
12.2 If this Lease Agreement is terminated, Landlord shall
refund to Tenant any prepaid unaccrued rent, less any sum then owing Landlord
by Tenant. If Landlord has elected to repair and restore the Leased Premises,
Base Rent shall xxxxx proportionately during the period and to the extend that
the Leased Premises are unfit for use and not actually used by Tenant in the
ordinary conduct of its business. Repairs will be made within a reasonable
time, subject to delays arising from shortages of labor or material, acts of
God, war or other conditions beyond Landlord's reasonable control. If Landlord
repairs and reconstructs the Leased Premises, the Lease Term may be extended by
Landlord for a period of time equal to the period of the repair and
reconstruction.
13.0 TENANT'S INSURANCE.
13.1 Tenant will maintain a policy of fire and extended
coverage insurance and a policy protecting against sprinkler leakage on its
fixtures, leasehold improvements, equipment, merchandise and all other property
placed at the Leased Premises, insuring all such property for its full
replacement value. To the extent that Tenant fails to take out or maintain the
policy, such failure shall be a default under this Lease and shall be a defense
to any claim asserted by Tenant against Landlord by reason of any loss
sustained by Tenant due to fire or other casualty, notwithstanding that such
loss might have been approximately caused solely by the negligence of Landlord.
Such insurance policy shall contain an endorsement showing Landlord's lien and
security interest with respect to the insured property.
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13.2 Tenant will maintain
(i) comprehensive general liability insurance
(including coverage for bodily injury and death, property damage and products
liability coverage) in a minimum amount of $100,000.00 for property damage and
$1,000,000.00 for injury to or death of one or more persons in each occurrence;
(ii) contractual liability coverage insuring the
obligations of Tenant under the terms of this Lease in the amounts referred to
immediately above; and
(iii) plate glass insurance insuring damage or
destruction of all store front plate glass and any other plate glass or window
glass in the Leased Premises to its full replacement value.
The liability policies shall name Landlord and
Landlord's mortgagee as additional insureds and shall be non-cancelable with
respect to them except after ten (10) days' written notice.
13.3 Tenant's insurance shall be in a form and with
companies acceptable to Landlord. If Tenant fails to have current
certificates of such insurance on deposit with Landlord at all times during the
lease term (or subsequent to the termination date hereof in the event of a
holdover), then Landlord shall have the right to take out and maintain any
insurance policy required under this Lease, and Tenant shall be obligated to
pay Landlord as Additional Rent the amount of the premium applicable to such
policy of insurance.
13.4 Landlord and Tenant each waive any and all rights of
recovery, claim or cause of action, against the other, its agents, officers or
employees, for any loss or damage that may occur to the Leased Premises or the
Building, or any improvements, or any personal property of such party, by
reason of fire, the elements, or any other cause which could be insured against
under the terms of a Georgia standard fire and extended coverage insurance
policy or which is, in fact, insured against by Landlord or Tenant, regardless
of cause or origin, including negligence of the other party, its agents,
officers of employees, and covenants that no insurer shall hold any right of
subrogation against such other party, by reason of any such loss or damage.
14.0 LIABILITY AND INDEMNITY.
14.1 Tenant agrees to indemnify and save Landlord harmless
from all claims, including costs and expenses of defending against such claims,
arising or alleged to arise from any act or omission of Tenant or Tenant's
agents, employees, contractors, customers or invitees, or arising from any
injury to any person or damage to the property or any person occurring during
the term of this Lease in or about the Leased Premises. Tenant agrees to use
and occupy the Leased Premises and other facilities of the Complex at its own
risk and releases Landlord, its agents and employees from all claims for any
damage to injury to the full extent permitted by law. Landlord shall not be
responsible or liable to Tenant, its employees, agents, customers or invitees
for personal injury or bodily injury (fatal or non-fatal) or property damage
occasioned by the acts or omissions of any other tenant or such other tenant's
employees, agents, contractors, customers or invitees.
14.2 Tenant hereby agrees that Landlord shall not be
liable for any injury or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water rain or snow or
leaks from any part of the Leased Premises or from the pipes, appliances or
plumbing works or from the roof, street or subsurface or from any other place
or by dampness or by any other cause of whatsoever nature. Landlord shall not
be liable for any such damage caused by other tenants or persons in the
Complex, occupants of adjacent property, or the public, or caused by operations
and construction of any private, public or quasi-public work. Landlord shall
not be liable for any latent defect in the Leased Premises or in the Building
except for a period of one (1) year from the date Tenant takes possession of
the Leased Premises. All property of Tenant kept or stored on the Leased
Premises shall be so kept or stored at the risk of Tenant only and Tenant
shall hold Landlord harmless from any claims arising out of damage to the same,
including subrogation claims by Tenant's insurance carrier, unless such damage
shall be caused by the willful act or gross neglect of Landlord.
15.0 PERSONAL PROPERTY AND OTHER TAXES. Tenant shall pay,
before delinquency, all taxes and assessments levied, assessed or imposed upon
Tenant's Removable Trade Fixtures, merchandise, inventory, other personal
property and improvements in the Leased Premises owned by Tenant, whether such
improvements were installed or paid for by Landlord or Tenant. Tenant shall
also pay, before delinquency, all sales, excise, use, business, occupation or
other taxes, assessments, license fees or charges levied, assessed or imposed
upon Tenant's business operations conducted at the Leased Premises. Tenant
shall pay, or reimburse Landlord on demand if any of the above taxes,
assessments, fees and charges payable by Tenant are imposed upon Landlord or
the Complex, and payment may be made by Landlord regardless of the validity of
such taxes, assessments, fees and charges. Tenant shall pay, or reimburse
Landlord on demand if Landlord is assessed, any excise, gross receipts or other
tax (however designated and whether charged to Landlord, Tenant or both() which
is imposed or based on rentals paid, on an estate or interest of Tenant, or on
Tenant's occupancy, use or possession of the Leased Premises. Nothing
contained herein shall be construed as requiring Tenant to pay any inheritance,
estate, succession, transfer, gift, franchise, net income or profits tax
imposed upon Landlord.
16.0 LANDLORD'S LIEN. Tenant gives to Landlord an express
first and prior contract lien and security interest on property which may be
placed in the Leased Premises, and upon all proceeds of any insurance which may
accrue to Tenant by reason of destruction of or damage to any such property.
This lien and security interest may be foreclosed with or without court
proceedings by public or private sale and is given in addition to the
Landlord's statutory lien and shall be cumulative thereto. Tenant agrees that
this Lease may be filed as a non-conforming financing statement pursuant to the
Georgia Uniform Commercial Code.
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17.0 ASSIGNMENTS AND SUBLETTING.
17.1 Neither Tenant nor Tenant's legal representatives or
successors in interest by operation or law or otherwise shall assign this Lease
or sublease the Leased Premises or any part thereof or mortgage, pledge or
hypothecate its leasehold interest or grant any concession or license within
the Leased Premises without the prior written permission of Landlord, which
shall not be unreasonably withheld. Should Landlord's consent be granted,
Tenant shall remain primarily liable under this Lease, and Landlord may enforce
the provisions of this Lease against Tenant and/or any assignee, sublessee or
other transferee.
17.2 Any time Tenant requests permission to assign,
sublease or engage in any other transaction contemplated under this Section
17.0, Landlord, by notice to Tenant within fifteen (15) days after Tenant's
request, may cancel and terminate this Lease for the portion of the Leased
Premises affected by the assignment, sublease or other transaction. In the
event of such cancellation and termination, this Lease shall apply to the
remainder of the Leased Premises (if any) with Base Rent and other charges
proportionately reduced.
18.0 SIGNS AND DISPLAYS. All designs, fixtures and
displays in the Leased Premises visible from the Common Areas, shall be subject
to Landlord's approval. No sign, logo, name, placard picture, advertisement or
notice shall be placed, displayed, installed or maintained by Tenant in or on
the Leased Premises or any part of the Complex without Landlord's prior written
approval, which approval may be granted or withheld in Landlord's sole
discretion.
19.0 LANDLORD'S MORTGAGEE.
19.1 Tenant accepts this Lease subject and subordinate to
any mortgage, deed to secure debt or other lien, or other matters of record
presently existing or hereafter placed upon the Complex, and to any renewals
and extensions thereof. Tenant agrees that any such mortgagee and/or
beneficiary of any deed to secure debt or other lien ("Landlord's Mortgagee")
and/or Landlord shall have the right at any time to subordinate such mortgage,
deed to secure debt or other lien to this Lease on such terms and subject to
such conditions as such Landlord or Landlord's Mortgagee may deem appropriate.
Tenant agrees to execute further instruments subordinating this Lease, as
Landlord or Landlord's Mortgagee may request.
19.2 In any instance in which Tenant gives a notice to
Landlord alleging default by Landlord, Tenant will also simultaneously give a
copy of such notice to each Landlord's Mortgagee (provided Landlord or
Landlord's Mortgagee shall have advised Tenant of the name and address of
Landlord's Mortgagee) and each Landlord's Mortgagee shall have the right to
cure or remedy such default during the period that is permitted to Landlord,
plus an additional period of thirty (30) days, and Tenant will accept such
curative or remedial action (if any) taken by Landlord's Mortgagee with the
same effect as if such action had been taken by Landlord.
19.3 If requested from time to time, Landlord and Tenant
shall execute and deliver to each other or any mortgagee an estoppel
certificate verifying the terms of the Lease and other reasonably requested
information.
20.0 EMINENT DOMAIN. If during the lease term any part
of the Leased Premises or the Complex is taken by power of eminent domain,
Landlord may elect to terminate this Lease. In the event of any such taking or
private purchase in lieu thereof, the entire award or compensation, whether as
compensation for diminution in value of the leasehold or to the fee of the
Leased Premises shall be paid to and belong to Landlord; provided, however,
that any award made to Tenant for moving expenses or for the value of any trade
fixtures or equipment installed by or belonging to Tenant shall be paid to and
belong to Tenant.
21.0 EVENTS OF DEFAULT. The following events shall be
deemed to be events of default to Tenant under this Lease Agreement:
21.1 Tenant shall fail to pay any installment of the rent
hereby reserved when due, and such failure shall continue for a period of five
(5) days from the date such installment was due;
21.2 Tenant shall become insolvent, or shall make a
transfer in fraud of creditors, or shall make an assignment for the benefit of
creditors;
21.3 Tenant shall file a petition under any section or
chapter of the National Bankruptcy Act, as amended, or under nay similar law or
statute of the United States or any state thereof; or an order for relief shall
be entered against Tenant in bankruptcy or insolvency in proceedings filed
against Tenant;
21.4 A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant;
21.5 Should the Leased Premises or Tenant's effects or
interest therein by levied upon or attached under process against Tenant, and
not satisfied or dissolved within sixty (60) days after written notice from
Landlord to Tenant to obtain satisfaction thereof;
21.6 Tenant shall desert or vacate any substantial portion
of the Leased Premises;
21.7 Tenant shall fail to comply with any term, provision
or covenant of this Lease (other than the foregoing in this Section 21.0) and
shall not cure such failure within twenty (20) days after written notice
thereof to Tenant.
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22.0 REMEDIES. Upon the occurrence of any of such events
of default described in Section 21 hereof, Landlord shall have the option to
pursue any one or more of the following remedies without an notice or demand
whatsoever;
22.1 Terminate this Lease, in which event Tenant shall
immediately surrender the Leased Premises to Landlord, and if Tenant fails to
do so, Landlord may, without prejudice to any other remedy which it may have
for possession or arrearages in rent, enter upon and take possession of the
Leased Premises and expel or remove Tenant and any other person who may be
occupying the Leased Premises or any part thereof, by force if necessary,
without being liable for prosecution or any claim of damages therefore; and
Tenant agrees to pay to Landlord on demand the amount of all loss and damage
which Landlord may suffer by reason of such termination, whether through
inability to relet the Leased Premises on terms satisfactory to Landlord or
otherwise.
22.2 Enter upon and take possession of the Leased Premises
and expel or remove Tenant and any other person who may be occupying such
Leased Premises or any part thereof, by force if necessary, without being
liable for prosecution or any claim for damage therefore, and relet the Leased
Premises and receive the rent therefore; and Tenant agrees to pay to Landlord
on demand all costs incurred by Landlord and any deficiency that may arise by
reason of such reletting.
22.3 Enter upon the Leased Premises, by force if
necessary, without being liable for prosecution or any claim for damages
therefore, and do whatever Tenant is obligated to do under the terms of this
Lease; and Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in this effecting compliance with Tenant's obligations under
this Lease, and Tenant further agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action, whether caused by the negligence
of Landlord or otherwise.
In the event Tenant fails to pay any installment of
rent hereunder as and when such installment is due, Tenant shall pay to
Landlord on demand a late charge in an amount equal to five percent (5%) of
such installment; and the failure to pay such amount within ten (10) days after
demand therefore shall be an event of default hereunder. The provision for
such late charge shall be in addition to all of Landlord's other rights and
remedies hereunder or at law and shall not be construed as liquidated damages
or as limiting Landlord's remedies in any manner.
Pursuit of any of the foregoing remedies shall not
preclude pursuit of any of the other remedies herein provided or any other
remedies provided by law, nor shall pursuit of any remedy herein provided
constitute a forfeiture of waiver of any rent due to Landlord hereunder or of
any damages accruing to Landlord by reason of the violation of any of the
terms, provisions and covenants herein contained. No waiver by Landlord of any
violation or breach of any of the terms, provisions and covenants herein
contained shall be deemed or construed to constitute a waiver of any other
violation or breach of any of the terms, provisions and covenants herein
contained. Landlord's acceptance of the payment of rental or other payments
hereunder after the occurrence of an event of default shall not be construed as
a waiver of such default, unless Landlord so notifies Tenant in writing, and
the receipt by Landlord of rent with knowledge of the breach of any covenant or
other provision contained in this Lease shall not be deemed or construed to
constitute a waiver of any other violation or breach of any of the terms,
provisions and covenants contained herein. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default shall not
be deemed or construed to constitute a waiver of such default. If, on account
of any breach or default by Tenant in Tenant's obligations under the terms and
conditions of this Lease, it shall become necessary or appropriate for Landlord
to employ or consult with an attorney concerning or to enforce or defend any of
Landlord's rights or remedies hereunder, Tenant agrees to pay any reasonable
attorneys' fees. No act or thing done by Landlord or its agents during the
term hereby granted shall be deemed an acceptance of the surrender of the
Leased Premises, and no agreement to accept a surrender of the Leased Premises
shall be valid unless in writing signed by Landlord.
23.0 HOLDING OVER. If Tenant should remain in possession
of the Leased Premises after the expiration of the term of this Lease, then
Tenant shall e deemed to be occupying the Leased Premises as a tenant from
month-to-month, subject to all the covenants and obligations of this Lease and
at a monthly Base Rent equal to twice the Base Rent for the month immediately
prior to such expiration.
24.0 ACCESS BY LANDLORD. Landlord and any Landlord's
Mortgagee shall have a right to enter the Leased Premises at any reasonable
time to inspect its condition, to make necessary repairs and improvements, or
to repair or maintain pipes, wires and other facilities serving its nearby
property, to show the Leased Premises to prospective purchasers or Complex
tenants, and for any other reasonable purpose.
25.0 NON-WAIVER. Neither acceptance of rent by Landlord
nor failure by Landlord to complain of any action, non-action or default by
Tenant shall constitute a waiver of any of Landlord's rights. Waiver by
Landlord of any right for any default of Tenant shall not constitute a waiver
of any right for either a subsequent default of the same obligation or any
other default.
26.0 NOTICE. Any notice which may or shall be given
under the terms of this Lease shall be in writing and shall be either delivered
by hand or sent by United States registered or certified mail, postage prepaid,
if for Landlord, to XXXXXXXX-XXXXX EQUITY CORPORATION, 0000-X XXXX XXXX XXXXX,
XXXXX XXXXXXXX, XXXXXXX 00000; or if for Tenant, to Tenant's address as set
forth on EXHIBIT "B" prior to commencement of the lease term and to the Leased
Premises after commencement of the lease term. Such address may be changed
from time to time by either party giving written notice to the other party in
the manner herein provided.
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27.0 PARKING. Tenant shall have no rights with respect to
any parking facilities offered to tenants or users of the Building, except the
right to use such facilities on the same basis as other tenants. Landlord
shall not be responsible for any loss or damage to any vehicle or property
therein or for fatal or non-fatal injuries to persons occurring in connection
with use of the parking facilities.
28.0 TERMINOLOGY AND MISCELLANEOUS.
28.1 With respect to terminology in this Lease, each
number (singular or plural) shall include all numbers, and each gender (male,
female or neuter) shall include all genders. If any provision of this Lease
shall ever be held to be invalid or unenforceable, such invalidity or
enforceability shall not affect any other provision of the Lease, but such
other provisions shall continue in full force and effect. The titles of the
paragraphs in this Lease shall have no effect and shall neither limit or
amplify the provisions of the Lease itself.
28.2 In all instances where Tenant is required to pay any
sum or do any act at a particular indicated time or within an indicated period,
it is understood that time is of the essence.
28.3 The obligation of Tenant to pay all rent and other
sums to be paid by Tenant and the obligation of Tenant to perform Tenant's
other covenants and duties constitute independent, unconditional obligations to
be performed at all times provided, ,save and except only when an abatement or
reduction is expressly provided for in this Lease and not otherwise. Tenant
waives and relinquishes all rights which Tenant might have to claim any nature
of lien against or withhold, or deduct from or offset against any rent and
other sums to be paid Landlord by Tenant. Tenant waives and relinquishes any
right to assert, either as a claim or as a defense, that Landlord is bound to
perform or liable for the non-performance of any implied covenant or implied
duty not expressly herein set forth.
28.4 Under no circumstances whatsoever shall Landlord ever
be liable for consequential damages or special damages; and all liability of
Landlord for breach of any of its covenants, duties or obligations may be
satisfied only out of its interest in the Complex and the rents issues and
profits therefrom arising after the time any such liability is adjudicated in a
proceeding as to which the judgment adjudicating such liability is
non-appealable and not subject to further review.
29.0 SPECIAL STIPULATIONS. Anything to the contrary
herein notwithstanding, the Special Stipulations set forth as EXHIBIT "D",
which is attached hereto and incorporated herein by reference, shall in all
cases be controlling.
30.0 ENTIRE AGREEMENT AND BINDING EFFECT. This Lease and
the attached exhibits referenced herein constitute the entire agreement between
Landlord and Tenant; no prior written or prior or contemporaneous oral promises
or representations shall be binding. This Lease shall not be extended except
by written instrument signed by both parties. This Lease shall be binding upon
and shall accrue to the benefit of Landlord, Tenant and their successors and
assigns (or heirs, executors and administrators, as the case may be ); however,
this clause does not constitute a consent by Landlord to any assignment by
Tenant. Anything to the contrary herein notwithstanding, the Special
Stipulations set forth in EXHIBIT D", which is attached hereto and incorporated
herein by reference, shall in all cases be controlling.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals, in triplicate, the _________ DAY OF JANUARY, 1997.
LANDLORD:
XXXXXXXX-XXXXX REALTY CORPORATION
Signed, sealed and delivered as to Landlord, AS MANAGING AGENT FOR:
in the presence of: THE XXXXXXXX NORTH XXXXXX GROUP
_________________________________________ BY: ___________________________________
Witness XXXXXXX X. XXXXX, PRESIDENT
_________________________________________
Witness
TENANT:
Signed, sealed and delivered as to Tenant, in the VAL-U-MED, INC.
in the presence of:
_________________________________________ BY: ___________________________________
Witness X. X. XXXXX, PRESIDENT
_________________________________________
Witness [SEAL]
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