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EXHIBIT 10.18
STANDARD COMMERCIAL LEASE CONTRACT (Approved December, 1967)
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FORM 58-A XXXXXX'X BOOK & OFFICE SUPPLY CO. ATLANTA
THIS LEASE, made this 19th day of February 1974, by and between Cynwyd
Investments; 000 Xxxxxxxxxxxx Xxxxx Xx, Xxxx-Xxxxxx, XX 00000, first party,
(hereinafter called "Landlord") and Xxxxxxxx Laboratories, Inc.; 0000 Xxxx 00xx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, second party, (hereinafter called "Tenant") and
Xxxxxxx XxXxxxxx, Inc.; First National Xxxx Xxxxx, #0 Xxxxxxxxx Xxxxxx, Xxxxxxx,
XX 00000, third party, (hereinafter called "Agent");
W I T N E S S E T H :
PREMISES
1. The Landlord, for and in consideration of the rents, convenants,
agreements, and stipulations hereinafter mentioned, reserved, and contained, to
be paid, kept and performed by the Tenant, has leased and rented and by these
presents does lease and rent, unto the said Tenant, and said Tenant hereby
agrees to lease and take upon the terms and conditions which hereinafter appear,
the following described property (hereinafter called premises), to wit:
11,238 square feet of building area situated at the northerly end of a
building in Xxxx County, Georgia, containing a total area of 150,428.34
square feet and commonly known as number 0000 Xxxxxxx Xxxxxxxxxx Xxxxx,
X.X., Xxxxxxx, Xxxxxxx. Attached copy of plat market Exhibit "A" is
made a part hereof.
No easement for light or air is included in the premises.
TERM
2. To have and to hold the same for a term beginning on the first day of
March 1974, and ending on the 28th day of February, 1977, at midnight, unless
sooner terminated as hereinafter provided.
RENTAL
3. Tenant agrees to pay Landlord, by payments to Xxxxxxx XxXxxxxx, Inc.,
First National Bank Tower, #2 Peachtree Street, Agent of Landlord, who
negotiated this lease at office of Agent in Atlanta, Georgia promptly on the
first day of each month in advance during the term of this lease, a monthly
rental of Two thousand and eight hundred and seventy-five and 6/100 Dollars
($2,875.06).
AGENT'S COMMISSION
4. Landlord agrees to pay Agent as compensation for services rendered in
procuring this lease, the five month's rent hereunder, and in addition thereto
five percent (5%) of all rentals thereafter paid by Tenant under this lease.
Landlord, with consent of Tenant, hereby assigns to Agent the first month's rent
hereunder and five percent (5%) of all rentals paid under this lease. Landlord
agrees if this lease is extended, or new lease is entered into between Landlord
and Tenant covering leased premises, or any part thereof, then either of said
events, Landlord, in consideration of Agent's having procured Tenant hereunder,
agrees to pay Agent five percent (5%) of all rentals paid to Landlord by Tenant
under such extension or new lease. Agent agrees that, in the event Landlord
sells leased premises, and upon Landlord's furnishing Agent with an agreement
signed by Purchaser assuming Landlord's obligations to Agent under this lease,
Agent will release original Landlord from any further obligations to Agent
hereunder. Tenant agrees that if this lease is validly assigned by him that he
will secure from assignee an agreement in writing by assignee recognizing
assignment held by Agent, and agreeing to pay rental to Agent herein named
during period covered by lease. Agent is party to this contract solely for the
purpose of enforcing his rights under this paragraph and it is understood by all
parties hereto that Agent is acting solely in the capacity as agent for
Landlord, to whom Tenant must look as regards all covenants, agreements and
warranties herein contained, and that Agent shall never be liable to Tenant in
regard to any matter which may arise by virtue of this lease. Voluntary
cancellation of this lease shall not nullify Agent's right to collect the
commission due for the remaining term of the lease.
PURCHASE OF PROPERTY BY TENANT
5. In the event that tenant acquires title to the leased premises at any
time during the term of this lease any renewals thereof, or within six months
after the expiration of the term hereof or the extended term hereof then
Landlord shall pay Agent a commission on the sale of the property of the
Landlord based on the recommended schedule of minimum commissions of the Atlanta
Real Estate Board and in lieu of any additional rent commissions.
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UTILITY BILLS
6. Tenant shall pay water, sewer, gas, electricity, fuel, light, heat
and power bills for leased premises or used by Tenant in connection therewith.
If Tenant does not pay the same, Landlord may pay the same and such payment
shall be added to the rental of the premises.
USE OF PREMISES
7. Premises shall be used for sterilization plant purposes and no
other. Premises shall not be used for any illegal purposes nor in any manner to
create any nuisance or trespass; nor in any manner to vitiate the insurance or
increase the rate of insurance on premises.
ABANDONMENT OF LEASED PREMISES
8. Tenant agrees not to abandon or vacate leased premises during the
period of this lease, and agrees to use said premises for the purpose herein
leased until the expiration hereof.
REPAIRS BY LANDLORD
9. Landlord agrees to keep in good repair the roof, foundations, and
exterior walls of the premises, exclusive of all glass and exclusive of all
exterior doors, and underground utility and sewer pipes outside the exterior
walls of the Building, except repairs rendered necessary by the negligence of
Tenant, its agents, employees, or invitees. Landlord gives to Tenant exclusive
control of premises and shall be under no obligation to inspect said premises.
Tenant shall promptly report in writing to Landlord any defective condition
known to it which Landlord is required to repair, and failure to so report such
defects shall make Tenant responsible to Landlord for any liability incurred by
Landlord by reason of such defects.
REPAIRS BY TENANT
10. Tenant accepts the leased premises in their present condition and
as suited for the uses intended by Tenant. Tenant shall, throughout the initial
term of this lease and all renewals thereof, at its expense, maintain in good
order and repair the leased premises, including the building and other
improvements located thereon, except those repairs expressly required to be made
by Landlord. Tenant further agrees to care for the grounds around the building,
including the mowing of grass, paving, care of shrubs and general landscaping.
Tenant agrees to return said premises to Landlord at the expiration, or prior
termination, of this lease in as good condition and repair as when first
received, natural wear and tear, damage by storm, fire, lightning, earthquake or
other casualty alone excepted.
Elevators, (if any), are accepted by Tenant as in satisfactory
operating condition on this date, and Tenant, at his own expense, shall maintain
said elevators in good operating condition during the term of this lease, or any
extension thereof.
TAX ESCALLATION
11. Tenant shall pay upon demand, as additional rental during the term
of this lease and any extension or renewal thereof, the amount by which all
taxes (including, but not limited to, ad valorem taxes, special assessments and
governmental charges) on the premises for each tax year exceeds all taxes on the
premises for the first full tax year during the lease term. In the event the
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 premises shall be
determined by proration on the basis that the rentable floor area of the
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 tax year, then any
excess for the tax year during which the term ends shall be reduced by the pro
rata part of such tax year beyond the lease term. The agent's commission shall
not apply to any such additional rental resulting from the provisions of this
paragraph.
DESTRUCTION OF, OR DAMAGE TO PREMISES
12. If premises are totally destroyed by storm, fire, lighting,
earthquake or other casualty, this lease shall terminate as of the date of such
destruction, and rental shall be accounted for as between Landlord and Tenant as
of that date. If premises are damaged but not wholly destroyed by any of such
casualties, rental shall xxxxx in such proportion as use of premises has been
destroyed, and Landlord shall restore premises to substantially the same
condition as before damage as speedily as practicable, whereupon full rental
shall recommence.
INDEMNITY
13. Tenant agrees to indemnify and save harmless the Landlord against
all claims for damages to persons or property by reason of the use or occupancy
of the leased premises, and all expenses incurred by Landlord because thereof,
including attorneys' fees and court costs.
GOVERNMENTAL ORDERS
14. Tenant agrees, at his own expense, to promptly comply with all
requirements of any legally constituted public authority made necessary by
reason of Tenant's occupancy of said premises. Landlord agrees to
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promptly comply with any such requirements if not made necessary by reason of
Tenant's occupancy. It is mutually agreed, however, between Landlord and Tenant,
that if in order to comply with such requirements, the cost to Landlord or
Tenant, as the case may be, shall exceed a sum equal to one year's rent, then
Landlord or Tenant who is obligated to comply with such requirements is
privileged to terminate this lease by giving written notice of termination to
the other party, by registered mail, which termination shall become effective
sixty (60) days after receipt of such notice, and which notice shall eliminate
necessity of compliance with such requirement by party giving such notice unless
party receiving such notice of termination shall, before termination becomes
effective, pay to party giving notice all cost of compliance in excess of one
year's rent, or secure payment of said sum in manner satisfactory to party
giving notice.
CONDEMNATION
15. If the whole of the leased premises, or such portion thereof as
will make premises unuseable for the purposes herein leased, be condemned by any
legally constituted authority for any public use or purpose, then in either of
said events the term hereby granted shall cease from the time when possession
thereof is taken by public authorities, and rental shall be accounted for as
between Landlord and Tenant as of that date. Such termination, however, shall be
without prejudice to the rights of either Landlord or Tenant to recover
compensation and damage caused by condemnation from the condemnor. It is further
understood and agreed that neither the Tenant nor Landlord shall have any rights
in any award made to the other by any condemnation authority.
ASSIGNMENT AND SUBLETTING
16. Tenant may sublease portions of the leased premises to others
provided such sublessee's operation is a part of the general operation of Tenant
and under the supervision and control of Tenant, and provided such operation is
within the purposes for which said premises shall be used. Except as provided in
preceding sentence, Tenant shall not, without the prior written consent of
Landlord endorsed hereon, assign this lease or any interest hereunder, or sublet
premises or any part thereof, or permit the use of premises by any party other
than Tenant. Consent to any assignment or sublease shall not destroy this
provision, and all later assignments or subleases shall be made likewise only on
the prior written consent of Landlord. Assignee of Tenant, at option of
Landlord, shall become directly liable to Landlord for all obligations of Tenant
hereunder, but no sublease or assignment by Tenant shall relieve Tenant of any
liability hereunder.
REMOVAL OF FIXTURES
17. Tenant may (if not in default hereunder) prior to the expiration of
this lease, or any extension thereof, remove all fixtures and equipment which he
has placed in premises, provided Tenant repairs all damage to premises caused by
such removal.
CANCELLATION OF LEASE BY LANDLORD
18. It is mutually agreed that in the event the Tenant shall default in
the payment of rent herein reserved, when due, and fails to cure said default
within five (5) days after written notice thereof from Landlord; or if Tenant
shall be in default in performing any of the terms or provisions of this lease
other than the provision requiring the payment of rent, and fails to cure such
default within thirty (30) days after the date of receipt of written notice of
default from Landlord; or if Tenant is adjudicated bankrupt; or if a permanent
receiver is appointed for Tenant's property and such receiver is not removed
within sixty days after written notice from Landlord to Tenant to obtain such
removal; or if, whether voluntarily or involuntarily, Tenant takes advantage of
any debtor relief proceedings under any present or future law, whereby the rent
or any part thereof is, or is proposed to be, reduced or payment thereof
deferred; or if Tenant makes an assignment for benefit of creditors; or if
Tenant's effects should be levied upon or attached under process against Tenant,
not satisfied or dissolved with thirty (30) days after written notice from
Landlord to Tenant to obtain satisfaction thereof; then, and in any of said
events, Landlord at his option may at once, or within six (6) months thereafter
(but only during continuance of such default or condition), terminate this lease
by written notice to Tenant; whereupon this lease shall end. After an authorized
assignment or subletting of the entire premises covered by this lease, the
occurring of any of the foregoing defaults or events shall affect this lease
only if caused by, or happening to, the assignee or sublessee. Any notice
provided in this paragraph may be given by Landlord, or his attorney, or Agent
herein named. Upon such termination by Landlord, Tenant will at once surrender
possession of the premises to Landlord and remove all of Tenant's effects
therefrom; and Landlord may forthwith re-enter the premises and repossess
himself thereof, and remove all persons and effects therefrom, using such force
as may be necessary without being guilty of trespass, forcible entry or detainer
or other tort.
RELETTING BY LANDLORD
19. Landlord, as Tenant's agent, without terminating this lease, upon
Tenant's breaching this contract, may at Landlord's option enter upon and rent
premises at the best price obtainable by reasonable effort, without
advertisement and by private negotiations and for any term Landlord deems
proper. Tenant shall be liable to Landlord for the deficiency, if any, between
Tenant's rent hereunder and the price obtained by Landlord on reletting.
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EXTERIOR SIGNS
20. Tenant shall place no signs upon the outside walls or roof of the
leased premises except with the written consent of the Landlord. Any and all
signs placed on the within leased premises by Tenant shall be maintained in
compliance with rules and regulations governing such signs and the Tenant shall
be responsible to Landlord for any damage caused by installation, use, or
maintenance of said signs, and Tenant agrees upon removal of said signs to
repair all damage incident to such removal.
ENTRY FOR CARDING, ETC.
21. Landlord may card premises "For Rent" or "For Sale" thirty (30)
days before the termination of this lease. Landlord may enter the premises at
reasonable hours to exhibit same to prospective purchasers or tenants and to
make repairs required of Landlord under the terms hereof, or to make repairs to
Landlord's adjoining property, if any.
EFFECT OF TERMINATION OF LEASE
22. No termination of this lease prior to the normal ending thereof, by
lapse of time or otherwise, shall affect Landlord's right to collect rent for
the period prior to termination thereof.
MORTGAGEE'S RIGHTS
23. Tenant's rights shall be subject to any bona fide mortgage or deed
to secure debt which is now, or may hereafter be, placed upon the premises by
Landlord.
NO ESTATE IN LAND
24. This contract shall create the relationship of Landlord and Tenant
between the parties hereto; no estate shall pass out of Landlord. Tenant has
only a usufruct, not subject to levy and sale, and not assignable by Tenant
except by Landlord's consent.
HOLDING OVER
25. If Tenant remains in possession of premises after expiration of the
term hereof, with Landlord's acquiescence and without any express agreement of
parties, Tenant shall be a tenant at will at rental rate in effect at end of
lease; and there shall be no renewal of this lease by operation of law.
ATTORNEY'S FEES AND HOMESTEAD
26. If any rent owing under this lease is collected by or through an
attorney at law, Tenant agrees to pay ten percent (10%) thereof as attorneys'
fees. Tenant waives all homestead rights and exemptions which he may have under
any law as against any obligation owing under this lease. Tenant hereby assigns
to Landlord his homestead and exemption.
RIGHTS CUMULATIVE
27. All rights, powers and privileges conferred hereunder upon parties
hereto shall be cumulative but not restrictive to those given by law.
SERVICE OF NOTICE
28. Tenant hereby appoints as his agent to receive service of all
dispossessory or distraint proceedings and notice thereunder, and all notices
required under this lease, the person in charge of leased premises at the time,
or occupying said premises, and if no person is in charge of, or occupying said
premises, then such service or notice may be made by attaching the same on the
main entrance to said premises. A copy of all notices under this lease shall
also be sent to Tenant's last known address, if different from said premises.
WAIVER OF RIGHTS
29. No failure of Landlord to exercise any power given Landlord
hereunder, or to insist upon strict compliance by Tenant with his obligation
hereunder, and no custom or practice of the parties at variance with the terms
hereof shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof.
TIME OF ESSENCE
30. Time is of the essence of this agreement.
DEFINITIONS
31. "Landlord" as used in this lease shall include first party, his
heirs, representatives, assigns and successors in title to premises. "Tenant"
shall include second party, his heirs and representatives, and if this lease
shall be validly assigned or sublet shall include also Tenant assignees or
sublessees, as to premises covered by such
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assignment or sublease. "Agent" shall include third party, his successors,
assigns, heirs, and representatives. "Landlord", "Tenant", and "Agent", include
male and female, singular and plural, corporation partnership or individual, as
may fit the particular parties.
SPECIAL STIPULATIONS
In so far as the following stipulations conflict with any of the foregoing
provisions, the following shall control:
32. If tenant is not in default at the time, he shall have an option to
renew this lease for an additional three year term beginning March 1, 1977,
provided, however, that tenant must notify Landlord on or before September
1, 1976, of his intention to do so. In the event tenant fails to notify
Landlord in writing at least six months in advance of the expiration of
this lease, then this option shall be null and void.
This lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties, not embodied herein, shall be of any force or effect.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals, in triplicate, the day and year first above written.
CYNWYD INVESTMENTS
Signed, sealed and delivered as A PENNSYLVANIA
to Landlord, in the presence of: PARTNERSHIP BY:
[illegible] (Seal)
--------------------------------- ------------------------------
(Landlord)
/s/ Xxxx X. Chance (Seal)
--------------------------------- ------------------------------
Notary Public (Landlord)
(Seal)
--------------------------------- ------------------------------
Signed, sealed and delivered as (Landlord)
to Tenant, in the presence of: XXXXXXXX LABORATORIES, INC.
/s/ Xxxxxx X. X'Xxxxx [illegible] (Seal)
--------------------------------- ------------------------------
(Tenant)
/s/ Xxxxxx X. Xxxxxx [illegible] (Seal)
--------------------------------- ------------------------------
Notary Public (Tenant)
Signed, sealed and delivered as XXXXXXX XXXXXXXX, INC.
to Agent, in the presence of:
/s/ Xxxxxx Xxxx By:[illegible] (Seal)
--------------------------------- ------------------------------
Agent
/s/ Xxxxx Xxxxx
---------------------------------
Notary Public
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TRANSFER OF LEASE
For, and in consideration of the sum of One Dollar ($1.00), each to the other
paid, receipt of which is hereby acknowledged, and other valuable
considerations, ____________________hereby transfers and assigns
(Seller)
to______________________ all__________ rights and benefits under a written lease
(Purchaser)
from _____________________ to, _______________________ , dated
(Seller) (Tenant)
______________________, 19___ , covering premises known as____________________,
________, Georgia, and _____________________________ hereby accepts said
(Purchaser)
transfer and assignment and agrees to comply with all of Landlord's covenants
and agreements under said lease with both Tenant and Agent therein named.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands and
seals, in triplicate, this day of____________________________, 19___ .
Signed, sealed and delivered as to
Seller, in the presence of:
-----------------------------
----------------------------- ----------------------------------- (SEAL)
Notary Public (Seller)
----------------------------------- (SEAL)
(Seller)
Signed, sealed and delivered as to
Purchaser, in the presence of:
-----------------------------
----------------------------- ----------------------------------- (SEAL)
Notary Public (Seller)
----------------------------------- (SEAL)
(Seller)
RELEASE BY AGENT
GEORGIA, COUNTY
In consideration of___________________________having assumed
(Purchaser)
obligation to Agent under lease from ________________________________ to
(Landlord)
_____________________________________ dated________________________, 19_____ ,
(Tenant)
covering premises located at ________________________________________________,
Georgia, Agent hereby releases________________________________ from
obligations to Agent under said lease.
IN WITNESS WHEREOF, said Agent has hereunto set his hand and affixed
his seal, in triplicate, this day of______________________________, 19___.
Signed, sealed and delivered in
the presence of:
------------------------------------- -------------------------------- (SEAL)
(Agent)
-------------------------------------
Notary Public
Standard Commercial Lease Contract
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LEASE
FROM
-----------------------------------
-----------------------------------
TO
-----------------------------------
-----------------------------------
Expires ___________________________
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EXHIBIT "A"
[SITE PLAN]
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LEASE ASSIGNMENT
Pursuant to the terms of a Preferred Stock Agreement between Xxxxxxxx
Laboratories, Inc. and First Chicago Investment Corporation, Xxxxxxxx
Laboratories U.S.A., Inc. will acquire substantially all of the assets of
Xxxxxxxx Laboratories, Inc., subject to substantially all of its liabilities,
including specifically in such assets and liabilities the following described
lease:
Lease dated February 19, 1974 and expiring February 29, 1980 between Cynwyd
Investments, a Pennsylvania partnership, Landlord, and Xxxxxxxx
Laboratories, Inc., an Illinois corporation, Tenant, for 11,238 square feet
of space at the northerly end of the building commonly known as 0000
Xxxxxxx Xxxxxxxxxx Xxxxx, X.X., Xxxxxxx, Xxxxxxx.
The date upon which such transfer becomes effective (the "Time of Closing")
shall be no later than September 30, 1978.
By reason of such transfer, the undersigned hereby execute the following:
Assignment by Lessee
For value received, Xxxxxxxx Laboratories, Inc. hereby assigns all its
right, title and interest in and to the above described lease unto Xxxxxxxx
Laboratories U.S.A., Inc. effective as of the Time of Closing. This assignment
shall not release Xxxxxxxx Laboratories, Inc. from its obligations under said
lease.
IN WITNESS WHEREOF, Xxxxxxxx Laboratories, Inc. has caused this assignment
to be executed in its name and on its behalf by its officers thereunto duly
authorized and its corporate seal to be hereunto affixed this 26th day of July,
1978.
XXXXXXXX LABORATORIES, INC.
By: [illegible]
-----------------------------
Vice President
CORPORATE SEAL
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ATTEST:
[illegible]
Assistant Secretary
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Acceptance by Assignee
In consideration of the above assignment, and upon the written consent of
the Lessor thereto, Xxxxxxxx Laboratories U.S.A., Inc. hereby assumes and agrees
to keep, observe and perform all of the covenants, terms, promises, conditions
and provisions of the above described lease, by the Lessee therein to be kept,
observed and performed, and to make all payments provided by said lease from and
after the Time of Closing, and agrees that no further assignment or subletting
of the premises described in said lease or any part thereof, will be made except
in the manner therein described.
IN WITNESS WHEREOF, Xxxxxxxx Laboratories U.S.A., Inc. has caused this
acceptance to be executed in its name and on its behalf by its officers
thereunto duly authorized and its corporate seal to be hereunto affixed this
26th day of July, 1978. XXXXXXXX LABORATORIES U.S.A., INC.
By: [illegible]
-----------------------------
Vice President
CORPORATE SEAL
ATTEST:
[illegible]
-----------------------------------
Assistant Secretary
Consent to Assignment
Fidelco Growth Investors, a Pennsylvania business trust, Landlord, hereby
consents to the assignment of the above described lease to Xxxxxxxx Laboratories
U.S.A., Inc., effective as of the
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Time of Closing, in consideration of the covenants, promises and agreements set
forth in the above assignment and acceptance.
IN WITNESS WHEREOF, Fidelco Growth Investors has caused this consent to
assignment to be executed in its name and on its behalf by its officers
thereunto duly authorized and its corporate seal to be hereunto affixed this
23rd day of August, 1978.
By: [illegible]
---------------------------
President
CORPORATE SEAL
ATTEST:
[illegible]
-----------------------------------
Assistant Secretary
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
On this 26th day of July in the year 1978, before me, a Notary Public of
said State, duly commissioned and sworn, personally appeared /s/ Xxxx Xxxxxxxxxx
and /s/ X.X. Xxxxxxxx, personally known to me to be the Vice President and
Assistant Secretary, respectively, of Xxxxxxxx Laboratories, Inc., the
corporation which executed the within instrument, and personally known to me to
be the persons who executed the within instrument on behalf of the corporation
therein named, and acknowledged to me that such corporation executed the same.
In witness whereof, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxxx (Seal)
---------------------------------
Notary Public
My commission expires: May 29, 1982
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STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
On this 26th day of July in the year 1978, before me, a Notary Public of
said State, duly commissioned and sworn, personally appeared /s/ Xxxx Xxxxxxxxxx
and /s/ X.X. Xxxxxxxx, personally known to me to be the Vice President and
Assistant Secretary, respectively, of Xxxxxxxx Laboratories USA, Inc., the
corporation which executed the within instrument, and personally known to me to
be the persons who executed the within instrument on behalf of the corporation
therein named, and acknowledged to me that such corporation executed the same.
In witness whereof, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ Xxxxxxx X. Xxxxx
------------------------- (Seal)
Notary Public
My commission expires: May 29, 0000
XXXXX XX XXXXXXXXXXXX )
) SS.
COUNTY OF PHILADELPHIA )
On this 23rd day of August in the year 1978, before me, a Notary Public of
said State, duly commissioned and sworn, personally appeared [illegible] and
[illegible], personally known to me to be the President and Assistant Secretary,
respectively, of [Fidelco Growth Investors], the corporation which executed the
within instrument, and personally known to me to be the persons who executed the
within instrument on behalf of the corporation therein named, and acknowledged
to me that such corporation executed the same.
In witness whereof, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
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/s/ Xxxxxxx Xxxxxxx (Seal)
---------------------------------------------
Notary Public
My commission expires: XXXXXXX XXXXXXX, NOTARY PUBLIC
PHILADELPHIA, PHILADELPHIA COUNTY
MY COMMISSION EXPIRES JAN. 28, 1981
Member, Pennsylvania Association of Notaries
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XXXXXXX XXXXXXXX INC./REALTORS(R)
FIRST XXXXXXXX XXXX XXXXX, XXXXX 0000
XXXXXXX, XXXXXXX 00000
000 000-0000
April 26, 1976
Xx. Xxxxxx X. X'Xxxxx
Director of Purchasing and Distribution
Xxxxxxxx Laboratories, Inc.
00000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Dear Xx. X'Xxxxx:
This letter is to call your attention to the fact that the lease dated February
19, 1974, between Cynwyd Investments, (the owner of the property is now Fidelco
Growth Investors); Xxxxxxxx Laboratories, Inc.; and Xxxxxxx XxXxxxxx, Inc.; on
the premises you are leasing at 0000 Xxxxxxx Xxxxxxxxxx Xxxxx, X.X., Xxxxxx,
Xxxxxxx, began March 1, 1974 and ends on February 28, 1977.
I also call your attention to the fact that Special Stipulation Number 32 of
that Agreement states, "If tenant is not in default at the time, he shall have
an option to renew this lease for an additional three year term beginning March
1, 1977, provided, however, that tenant must notify Landlord on or before
September 1, 1976, of his intention to do so. In the event tenant fails to
notify Landlord in writing at least six months in advance of the expiration of
this lease, then this option shall be null and void."
Xx. Xxxxxxx Xxxxxx tells me you do intend to exercise the option to renew the
lease and I felt it our obligation to call your attention to the above. You have
been excellent tenants and I hope you will exercise the option to renew.
Sincerely,
/s/ Xxxxxxx X. XxXxxxxx
Xxxxxxx X. XxXxxxxx
CDM:pc
cc: Xx. Xxxxxx Xxxxxx
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[LOGO]
XXXXXXXX LABORATORIES U.S.A. 00000 XXXXX XXXXXXX XXX. XXXXX, XXX. 00000
312/371-0900
July 8, 1976
Xx. Xxxxxxx X. XxXxxxxx
Xxxxxxx XxXxxxxx Inc./Realtors
First Xxxxxxxx Xxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Dear Xx. XxXxxxxx:
Xxxxxxxx Laboratories is interested in extending our lease, dated February 19,
1974. Special Stipulation number 32 of that agreement states that we have an
option to renew our lease for an additional three years, beginning March 1,
1977, provided that we notify you on or before September 1, 1976.
Please accept this letter as our notification to exercise our option to renew.
Very truly yours,
XXXXXXXX LABORATORIES, INC.
/s/ Xxxxxx X. X'Xxxxx
Xxxxxx X. X'Xxxxx
Director of Purchasing and Distribution
JMO/cam
cc: Xxxxxx Xxxxxx
X.X. Xxxxxxxx
X. Xxxxxxx
J. English
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XXXXXXX XXXXXXXX INC./REALTORS(R)
FIRST XXXXXXXX XXXX XXXXX, XXXXX 0000
XXXXXXX, XXXXXXX 00000
000 000-0000
July 15, 1976
Xx. Xxxxxx X. X'Xxxxx
Director of Purchasing and Distribution
Xxxxxxxx Laboratories, Inc.
00000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Dear Xx. X'Xxxxx:
We are pleased that you have exercised your option to extend your lease on the
premises you occupy on Olympic Industrial Drive, NW, for an additional
three-year term beginning March 1, 1977 and terminating on February 29, 1980.
You have been excellent tenants and we are glad you have elected to remain in
this building. Please contact me when I can be helpful to you in any way.
Sincerely,
/s/ Xxxxxxx X. XxXxxxxx
Xxxxxxx X. XxXxxxxx
CDM:pc
18
AMENDMENT TO LEASE AGREEMENT
THIS AMENDMENT TO LEASE AGREEMENT, is made as of the 16 day of November
1979 by and among XXXXXXXX LABORATORIES, INC. (hereinafter referred to as
"Tenant"), SEALY (GA), a Louisiana Partnership (hereinafter referred to as
"Landlord") and XXXXXXX XxXXXXXX, INC. (hereinafter referred to as "Agent").
W I T N E S S E T H:
WHEREAS, Tenant, Cynwyd Investments and Agent entered into a Lease
Agreement dated February 19, 1974 for the lease of 11,238 square feet in a
multi-tenant industrial building commonly known as 0000 Xxxxxxx Xxxxxxxxxx
Xxxxx, X. X., Xxxxxx, Xxxxxxx for a term beginning March 1, 1974 and ending
February 28, 1977 (hereinafter referred to as the "Lease"); and
WHEREAS, Tenant exercised its option as set forth in the Lease to
extend the term of the Lease for three years beginning March 1, 1977 and ending
on February 28, 1980; and
WHEREAS, Cynwyd Investments subsequently conveyed the property on which
said multi-tenant building is located and assigned the Lease to Landlord: and
WHEREAS, the parties hereto desire to amend the terms of the Lease in
order to extend the term of the Lease for an additional one year and provided an
option for Tenant to further extend the term of the Lease an additional three
years upon the same terms and conditions as set forth in the Lease.
NOW THEREFORE, for an in consideration of the Lease and other good and
valuable consideration the parties agree as follows:
1. The term of the Lease as extended by the previous exercise of
Tenant's option to extend the term of the Lease as hereinabove set forth, shall
be extended for a one year term
19
commencing March 1, 1980 and ending February 28, 1981 upon the same terms and
conditions set forth in the Lease.
2. Tenant at its option may extend the term of the Lease as amended
herein for an additional three year term commencing March 1, 1981 through and
including February 28, 1984 upon the same terms and conditions as set forth in
the Lease by notifying Landlord in writing of its intention to exercise this
option sent certified mail return receipt requested to the address set forth
below for Landlord on or before September 1, 1980 with a copy of same to Agent;
provided however, if Tenant does exercise said option, as aforesaid, the Lease
shall be deemed amended to extend the term of the Lease as aforesaid and Tenant
shall be bound thereby; and provided further if Tenant does not exercise
Tenant's option to extend the term of the Lease as aforesaid, said option shall
be deemed waived and null and void.
3. The following provision in its entirety shall be inserted into the
Lease as Paragraph #33 therein, to wit:
In the event that: (1) Landlord's premium for hazard or all risk
insurance is increased or threatened to be increased above its present rates,
(2) the insurance rating for the premises is deemed more hazardous, (3) the
Landlord's insurance policy is cancelled or threatened to be cancelled or (4)
the insurance maintained by any other Tenants within the building is cancelled,
threatened to be cancelled or the premiums therefor are increased or threatened
to be increased as a result of the maintenance, storage or use by Tenant of any
chemicals or other materials (whether or not presently being used by Tenant)
which are or are deemed by the Landlord's or other Tenant's insurance company or
their underwriters as explosive, flammable or hazardous, then, in any of said
events, upon notice to Tenant by Landlord, Tenant hereby agrees, subject to the
last sentence of this paragraph, to promptly satisfy or otherwise comply with,
at Tenant's sole
2
20
cost and expense, any and all requirements of any said insurance company or its
underwriter in order to maintain Landlord's or other Tenant's insurance at its
present rates included but not limited to constructing structural improvements
within the premises and maintaining other safety precautions or procedures. In
all events, subject to the last sentence of this paragraph, Tenant hereby agrees
to pay to Landlord as additional rental hereunder the amount of any increased
insurance premiums above Landlord's present insurance premiums resulting from
said maintenance, storage or use by Tenant of any said chemicals or other said
materials. Within 45 days of receipt of notice by Tenant from Landlord, Tenant
shall decide whether to comply with the requirements of the insurance company,
including but not limited to making structural changes and paying increased
premiums, or whether to terminate this Lease; if Tenant terminates this Lease,
he shall so notify Landlord by the expiration of the above mentioned 30 day
period, and thereafter lease the premises within 30 days after sending the
termination notice; Tenant terminates, it shall pay rent only for as long as it
has occupied the premises.
4. Unless Landlord notifies Tenant in writing to the
contrary, Landlord's address for purposes of receiving notices required herein
or in the Lease shall be as follows:
Sealy (Ga)
c/o Sealy Realty Company, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
5. Except as expressly amended herein, all other terms and conditions
of the Lease shall remain the same and the parties hereto expressly ratify said
terms and conditions and agree to be bound thereby.
IN WITNESS WHEREOF the parties have signed and sealed this Amendment to
Lease as of the date first above written.
3
21
TENANT:
Signed, sealed and delivered XXXXXXXX LABORATORIES, INC.
in the presence of:
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------- ---------------------------
Unofficial Witness
[illegible] Attest: [illegible]
--------------------------------- --------------------------
Notary Public
(CORPORATE SEAL)
AGENT:
Signed, sealed and delivered XXXXXXX XXXXXXXX ,INC.
in the presence of:
[illegible] By: [illegible]
--------------------------------- --------------------------
Unofficial Witness
[illegible] Attest: /s/ Xxxx X. XxXxxxxx
--------------------------------- --------------------------
Notary Public, Georgia, State at Large
My Commission Expires Sept 18, 1983
(CORPORATE SEAL)
LANDLORD:
Signed, sealed and delivered SEALY(GA)
in the presence of:
/s/ Xxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxx (SEAL)
--------------------------------- --------------------------
Unofficial Witness Xxxxx X. Xxxxx
/s/ Xxxxxxx Xxxxxx Xxxx Attest:
--------------------------------- --------------------------
XXXXXXX XXXXXX XXXX, Notary Public
Caddo Parish, Louisiana
My Commission is for Life
4
22
AMENDMENT TO LEASE AGREEMENT
THIS AMENDMENT TO LEASE AGREEMENT, is made as of the 31st day of
October, 1980 by and among XXXXXXXX LABORATORIES, U.S.A., INC., (hereinafter
referred to as "Tenant"), SEALY (GA), a Louisiana Partnership (hereinafter
referred to as "Landlord") and XXXXXXX XxXXXXXX, INC. (hereinafter referred to
as "Agent").
W I T N E S S E T H:
WHEREAS, Tenant, Cynwynd Investments and Agent entered into a Lease
Agreement dated February 19, 1974 for the lease of 11,238 square feet in a
multi-tenant industrial building commonly known as 0000 Xxxxxxx Xxxxxxxxxx
Xxxxx, X.X., Xxxxxx, Xxxxxxx for a term beginning March 1, 1974 and ending
February 28, 1977 (hereinafter referred to as the "Lease"); and
WHEREAS, Cynwynd Investments subsequently conveyed the property on
which said multi-tenant building is located and assigned the Lease to Landlord;
and
WHEREAS, Tenant, Landlord and Agent entered into an Amendment to Lease
Agreement dated November 16, 1979 to extend the term commencing March 1, 1980
and ending February 28, 1981, with an option to Tenant to further extend the
term of the Lease for three years upon the same terms and conditions of the
Lease and appropriate Amendments;
NOW, THEREFORE, for and in consideration of the Lease and other good
and valuable consideration the parties agree as follows:
1. The tenant hereby exercises the option granted by the Amendment
dated November 16, 1979, to renew this Lease for a period of three years, from
March 1, 1981 to February 29, 1984 ("First Option Term"). During this First
Option Term the monthly rental shall
23
be $1,873.00 per month. All other terms of the Lease Agreement and appropriate
Amendment shall remain in effect.
2. Tenant shall also have the option to renew this Lease for an
additional period ("Second Option Term") commencing at the expiration of the
First Option Term, on the same terms and conditions as contained herein, except
that the duration of the Second Option Term and the amount of rental during the
Second Option Term shall be as hereinafter provided.
The duration of the Second Option Term shall be a period of five years.
Tenant shall exercise such option to renew if at all, by delivering
written notice of such exercise to Landlord by not later than 180 days prior to
the expiration of the First Option Term hereof with a copy of same to Agent.
Within 30 days after Landlord receives Tenant's notice of exercise of the option
for the Second Option Term, Landlord shall give written notice to Tenant of the
annual rental which Landlord will accept for the Second Option Term. If Tenant
does not agree to the rental amount set forth in Landlord's notice, then
Landlord and Tenant shall in good faith negotiate to reach agreement upon a
rental acceptable to each of them. If the parties reach agreement as to rental,
the parties shall promptly thereafter execute and deliver to each other an
addendum to this Lease, setting forth the rental agreed to by Landlord and
Tenant. If the parties fail to reach agreement as to the rental for the Second
Option Term prior to 120 days prior to the expiration date of the First Option
Term, then Tenant's right to exercise such option shall terminate and be of no
effect.
3. Except as expressly amended herein, all other terms and conditions
of the Lease shall remain the same and the parties hereto expressly ratify said
terms and conditions and agree to be bound thereby.
2
24
IN WITNESS WHEREOF, the parties have signed and sealed this Amendment
to Lease as of the date first above written.
Signed, Sealed and Delivered TENANT:
in the presence of:
XXXXXXXX LABORATORIES, U.S.A., INC.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------
Unofficial Witness By: [illegible]
-------------------------
[illegible]
------------------------------ Attest: [illegible]
Notary Public -------------------------
(CORPORATE SEAL)
Signed, Sealed and Delivered AGENT:
in the presence of:
XXXXXXX XxXXXXXX, INC.
[illegible]
-------------------------------
Unofficial Witness By: [illegible]
--------------------------
[illegible]
------------------------------ Attest: /s/ Xxxx X. XxXxxxxx
Notary Public -------------------------
(CORPORATE SEAL)
Signed, Sealed and Delivered LANDLORD:
in the presence of:
SEALY (GA)
[illegible]
---------------------------
Unofficial Witness By: /s/ Xxxxx X. Xxxxx(Seal)
-----------------------------
---------------------------
Notary Public
3
25
AMENDMENT TO LEASE AGREEMENT
THIS AMENDMENT TO LEASE AGREEMENT, IS MADE AS OF THE 31st DAY OF AUGUST 1983 BY
AND BETWEEN XXXXXXXX LABORATORIES, U.S.A., INC., (hereinafter referred to as
"Tenant"), SEALY (GA), a Limited Partnership (hereinafter referred to as
"Landlord") and XXXXXXX XX XXXXXX, INC. (hereinafter referred to as "Agent").
W I T N E S S E T H:
WHEREAS, Tenant, Cynwynd Investments and Agent entered into a Lease Agreement
dated February 19, 1974 for the lease of 11,238 sq. ft. in a multi-tenant
industrial building commonly known as 0000 Xxxxxxx Xxxxxxxxxx Xxxxx, X. X.,
Xxxxxx, Xxxxxxx for a term beginning March 1, 1974 and ending February 28, 1977
(hereinafter referred to as the "Lease"); and
WHEREAS, Cynwynd Investments subsequently conveyed the property on which said
multi-tenant building is located and assigned the Lease to Landlord; and
WHEREAS, Tenant, Landlord and Agent entered into an Amendment to lease Agreement
dated October 31, 1980 to extend the term commencing March 1, 1981 and ending
February 28, 1984, with an option to Tenant to further extend the term of the
Lease for three years upon the same terms and conditions of the Lease and
appropriate Amendments;
NOW, THEREFORE, for and in consideration of the Lease and other good and
valuable consideration the parties agree as follows:
1. The Tenant hereby exercises the option granted by the Amendment
dated October 31, 1980, to renew this Lease for a period of five (5) years, from
March 1, 1984 to February 28, 1989 ("Option Term"). During this Option Term the
monthly rental shall be $2,107.13 per
26
month during the first three (3) years and $2,341.25 per month for the remaining
two years. All other terms of the Lease Agreement and appropriate Amendment
shall remain in full force and effect.
2. Tenant shall also have the option to renew this Lease for an
additional term of three (3) years commencing March 1, 1989 and ending February
28, 1992, under the same terms and conditions as the original Lease except the
rental for the second option shall be computed in accordance with the attached
Exhibit A.
3. Except as expressly amended herein, all other terms and conditions
of the Lease shall remain the same and the parties hereto expressly ratify said
terms and conditions and agree to be bound thereby. IN WITNESS WHEREOF the
parties have signed this Amendment to Lease as of the date first above written.
WITNESSES: TENANT:
/s/ Xxxxx Xxxxx XXXXXXXX LABORATORIES, U.S.A., INC.
------------------------------
BY /s/ Xxxxxx X. Xxxxxxx
------------------------------ --------------------------------------
LANDLORD:
/s/ Xxxxxx Xxxxx SEALY, (GA), A LIMITED PARTNERSHIP
------------------------------
/s/ Xxxx Xxxxxx BY /s/ Xxxxx X. Xxxxx
------------------------------ -----------------------------------
Xxxxx X. Xxxxx, General Partner
AGENT:
----------------------------- XXXXXXX XX XXXXXX, INC.
/s/ Xxxxxx X. Xxxxxx BY [illegible]
------------------------------ -----------------------------------
2
27
EXHIBIT A
OPTION TO RENEW
While this lease is in full force and effect, provided that Lessee is not in
default, of any of the terms, covenants, and conditions thereof, Lessee shall
have the right or option upon six (6) months written notice to Lessor to extend
the original term of this lease for one additional term of three (3) years. Such
extension or renewal of the original term shall be on the same terms, covenants
or conditions as provided for in the original term except that the rental during
the option period, shall be increased by an amount to be determined by
multiplying the base rental during the primary term, by the percentage increase
in the Consumer Price Index, as prepared by the U. S. Bureau of Labor
Statistics. CPI-W as used herein shall mean the Consumer Price Index, U. S.
Average, all Items, 1967=100, issued by the U. S. Bureau of Labor Statistics
Section for Urban Wage Earners and Clerical Workers.
The percentage increase shall be determined by subtracting the CPI-W for the
fourth month prior to the beginning date of the lease from the CPI-W for the
fourth month prior to the end of the lease term and dividing that difference by
the CPI-W for the fourth month prior to the beginning date of the lease term. If
an increase shall become effective by application of the foregoing, then such
increase shall be applicable for each month during such extended year term. In
all cases, the CPI-W referenced shall be that monthly published index that is
most recent to the date in question. In no event shall the rental in the renewal
term be below the rental in the original term of the lease.
If the publication of the CPI-W should be discontinued or the base year changed,
the parties hereto shall thereafter accept comparable statistics on consumer
prices for the United States as they shall be computed by an agency of the
United States or by a responsible financial periodical of recognized authority
then to be selected by the parties hereto.
28
THIS AMENDMENT TO LEASE AGREEMENT is made as of the 10th day of February, 1984
by and between XXXXXXXX LABORATORIES, U.S.A., INC., (hereinafter referred to as
"Tenant"), SEALY (GA), A LIMITED PARTNERSHIP (hereinafter referred to as
"Landlord") and XXXXXXX XXXXXXXX, INC. (hereinafter referred to as "Agent").
W I T N E S S E T H:
WHEREAS, Tenant, Cynwynd Investments and Agent entered into a Lease
Agreement dated February 19, 1974 for the lease of 11,238 square feet in a
multi-tenant industrial building commonly known as 0000 Xxxxxxx Xxxxxxxxxx
Xxxxx, X.X., Xxxxxx, Xxxxxxx for a term beginning March 1, 1974, and ending
February 28, 1977 (hereinafter referred to as the "Lease"); and
WHEREAS, Cynwynd Investments subsequently conveyed the property on
which said multi-tenant building is located and assigned the Lease to Landlord;
and
WHEREAS, Tenant, Landlord and Agent entered into an Amendment to Lease
Agreement dated October 31, 1980, to extend the term commencing March 1, 1981,
and ending February 28, 1984, with an option to Tenant to further extend the
term of the Lease for three (3) years upon the same terms and conditions of the
Lease and appropriate Amendments; and
WHEREAS, by Amendment to Lease Agreement dated August 10, 1983, Tenant
exercised the option granted by the Amendment dated October 31, 1980, to renew
this Lease for a period of five (5) years, from March 1, 1984, to February 28,
1989 ("Option Term"). During this Option Term the monthly rental is $2,107.13
per month during the first three (3) years and $2,341.25 per month for the
remaining two years. All other terms of the Lease Agreement and appropriate
Amendment are in full force and effect; and
WHEREAS, Tenant has the option to renew this Lease for an additional
term of three (3) years commencing March 1, 1989, and ending February 28, 1992,
under the same terms and conditions as the original Lease except the rental for
the second option computed in accordance with said Amendment dated August 10,
1983; and
WHEREAS, Tenant desires to expand the premises subject of the Lease.
NOW, THEREFORE, for and in consideration of the Lease and other good
and valuable consideration the parties agree as follows:
1. Commencing September 1, 1984, the leased premises shall be expanded
to include the approximately 5,619 square feet of adjacent space currently
occupied by Bonded Service Company, Inc. shown on Exhibit "A" attached hereto.
2. (a) Commencing September 1, 1984, the rental due under the Lease
shall be increased by $1,053.56 per month (said increased rental computed at the
rate of $2.25 of square
29
foot multiplied times 5,619 square feet). The annual rent for the entire leased
premises including the premises presently subject to the Lease and as increased
by the additional space made part of the Lease by this Amendment shall be
$37,928.28. The total monthly rent shall be $3,160.69.
(b) Commencing March 1, 1987, through and including February 28, 1989, the
total monthly rental for the entire premises subject to the Lease as expanded
hereby shall be $3,511.88 and the total annual rent shall be $42,142.50.
3. As soon as commercially reasonable after September 1, 1984, but before
October 1, 1984, Tenant hereby agrees to construct at its cost and expense, and
in a good and workmanlike manner free and clear of all liens or other
obligations, a demising wall at the column line shown on Exhibit "A". In
addition, Tenant hereby agrees to rewire and/or redirect the utility service for
said expansion space of 5,619 square feet in order that said space be included
in the service for tenant's existing space and that such expanded space be
metered as part of Tenant's existing service, at Tenant's cost and expense.
4. Landlord and Tenant acknowledge that said expanded space is presently
under lease with Bonded Service Company, Inc. until August 31, 1984, and that
this Amendment is subject to said Lease. Between the date hereof and September
1, 1984, Landlord does hereby consent to any sublease for said expanded space
entered into between Bonded Service Company, Inc. and Tenant, provided, however,
such consent is not intended to relieve Bonded Service Company, Inc. under any
of its obligations to Landlord under its Lease. In the event such sublease is
entered into, Tenant shall be responsible for constructing said demising wall
and changing said utility service in accordance with paragraph 3 above, in all
events prior to September 1, 1984.
5. Tenant hereby agrees to hold Landlord harmless from any and all claims
or liabilities resulting from Tenant's construction of said demising wall and
changes in the wiring and/or utility systems pursuant to paragraph 3 or 4
hereof. Tenant further agrees to conduct such construction activities at a
minimal interruption or interference with the leased premises or space adjacent
to said 5,619 square feet.
6. Except as the Lease is expressly amended herein, all other terms and
conditions of the Lease as previously amended shall remain the same and the
parties hereto expressly ratify said terms and conditions and agree to be bound
hereby.
2
30
IN WITNESS WHEREOF, the parties have signed this Amendment to Lease as
of the date first above written.
TENANT:
XXXXXXXX LABORATORIES, U.S.A., INC.
By /s/ Xxxxxx X. Xxxxxxxxx
Vice President, Administration
WITNESSES: UBSCRIBED and SWORN to before me
his 23rd day of February, 1984.
/s/ Xxxxx Xxxxx
-----------------------------
/s/ Xxxxxxxx X. Lemhan
----------------------------- -------------------------------------
Notary Public MY COMMISSION EXPIRES
MAY 1, 1984
LANDLORD:
SEALY (GA), A LIMITED PARTNERSHIP
AGENT:
XXXXXXX XXXXXXXX, INC.
By [illegible]
-----------------------------------
/s/ W. Xxxxxx Xxxx
--------------------------------------
/s/ Xxxxxxxxxx Xxxxxxxx
--------------------------------------
Notary Public, Georgia, State at Large
My Commission Expires Feb. 2, 1988
3
31
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE is entered into this 13th day of May, 1994, by
and between INDCON, L.P., successor to Xxxxx Properties Associates (hereinafter
called "LANDLORD") and XXXXXXXX MICRO SCIENCE, INC. (hereinafter called
"TENANT");
WITNESSETH;
WHEREAS, the LANDLORD and TENANT have previously entered into a Lease
Agreement dated the 19 day of February, 1974, with Amendments thereto dated,
November 16, 1977, October 31, 1980, August 31, 1983, February 10, 1984, May 5,
1994 and Lease Extensions and Modifications dated December 17, 1986 and March
19, 1992, for premises containing approximately 44,815 square feet and located
at 0000 Xxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx (hereinafter referred to as
the "Original Lease"); and
WHEREAS, LANDLORD and TENANT are desirous of modifying and amending
certain parts of the Original Lease;
NOW THEREFORE, in consideration of TEN DOLLARS ($10.00), paid by each
of the parties to the other, the receipt of which is hereby acknowledged, it is
agreed by and between the parties that the Lease shall be hereby amended in the
following manner and upon the terms and conditions hereinafter set forth:
1. The address of the Demised Premises is hereby amended to read 0000 Xxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx.
Except as provided herein, all other terms, conditions, and covenants under said
Original Lease shall remain in full force and effect and cannot be modified
unless said modification is reduced to writing and signed by all parties.
Time is of the essence on this Amendment to lease.
TENANT: LANDLORD:
XXXXXXXX MICRO SCIENCE, INC. INDCON, L.P.
By: Xxxxx Properties Associates
Its General Partner
By: Continental Mortgage & Equity Trust
Its General Partner
BY: /s/ Xxxxx X. Xxxxx BY: [illegible]
------------------------------- ----------------------------------------
NAME: Xxxxx X. Xxxxx NAME:[illegible]
---------------------------- --------------------------------------
TITLE: Vice President Operations TITLE:V.P.
---------------------------- --------------------------------------
DATE: 5-13-94 DATE:5/13/94
---------------------------- --------------------------------------
WITNESS: [illegible] WITNESS: /s/ Xxxxxxxx X. XxXxxxxx
-------------------------- -----------------------------------
32
LEASE EXTENSION AND MODIFICATION AGREEMENT
THIS LEASE EXTENSION AND MODIFICATION AGREEMENT ("Amendment"), made and
entered into this 19th day of March, 1992, by and between XXXXX PROPERTIES
ASSOCIATES, a Georgia general partnership (hereinafter called "Landlord"), and
XXXXXXXX MICRO SCIENCE, INC. (hereinafter called "Tenant"), and XXXXXXX
XXXXXXXX, INC. (hereinafter called "Agent").
W I T N E S S E T H:
WHEREAS, by Lease Agreement, dated February 19, 1974, Cynwynd Investments,
as landlord, leased to Xxxxxxxx Laboratories, Inc. certain premises (the
"Premises") situated at 0000 Xxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx,
currently containing 44,815 square feet of office-warehouse space and;
WHEREAS, Cynwynd Investments subsequently conveyed the Premises to Sealy
(GA), A Limited Partnership, and;
WHEREAS, the Lease Agreement was modified by that certain Amendment to
Lease Agreement dated November 16, 1979, by and among Xxxxxxxx Laboratories,
U.S.A., Inc., Sealy (GA), A Limited Partnership and Agent, by that certain
Amendment to Lease dated October 31, 1980, by and among Xxxxxxxx Laboratories,
U.S.A., Inc., Sealy (GA), A Limited Partnership and Agent, by that certain
Amendment to Lease Agreement dated August 31, 1983, by and between Xxxxxxxx
Laboratories, U.S.A., Inc., Sealy (GA), A Limited Partnership and Agent, and by
that certain Amendment to Lease Agreement dated February 10, 1984 by and among
Xxxxxxxx Laboratories, U.S.A., Inc., Sealy (GA), A Limited Partnership and
Agent;
WHEREAS, Xxxxxxxx Laboratories, U.S.A., Inc. formed a wholly-owned
subsidiary corporation now know as Xxxxxxxx Micro Science, Inc., a Delaware
corporation, in October, 1984 and conveyed all of its assets, including the
Lease Agreement, as amended to Tenant;
WHEREAS, Sealy Consolidated Capital Properties ("SCCP") acquired the
Premises and all the right, title and interest to said Lease Agreement, as
amended, from Sealy (GA), A Limited Partnership, in May 1986;
WHEREAS, the Lease Agreement was further modified by Lease Extension and
Modification Agreement dated December 17, 1986, by and among SCCP, Xxxxxxxx
Laboratories, U.S.A., Inc. and Agent (the Lease Agreement, as amended, is herein
referred to as the "Lease");
WHEREAS, SCCP changed its name on May 2, 1989, to Xxxxx Properties
Associates.
33
NOW, THEREFORE, in consideration for the mutual promises given one to the
other, the parties hereto intending to be legally bound, do hereby covenant and
agree as follows:
1. The term of the Lease is hereby extended for two (2) years, which
extended term shall begin on March 1, 1992, and shall expire on February 28,
1994.
2. The monthly base rental is hereby amended and Tenant agrees to pay to
Landlord, effective March 1, 1992, through February 28, 1994, a base rental of
$9,336.46 per month, in accordance with the terms of the Lease.
3. If Tenant is not in default of any terms or conditions of the Lease,
Tenant shall have the option to renew the Lease for two (2) additional terms of
one (1) year each. The "First Option Period" shall commence upon the expiration
of the extended term herein described and shall be on the same terms and
conditions as contained in the Lease, except the monthly base rental shall be
$10,270.00 beginning March 1, 1994 and ending February 28, 1995. Tenant shall
exercise the "First Option Period" by delivering written notice of such exercise
to Landlord no later than 180 days prior to the expiration of the extended term
described herein.
If Tenant is not in default of any terms or conditions of the "First Option
Period", Tenant shall have a further option to renew for an additional one (1)
year, "Second Option Period", upon expiration of the "First Option Period", upon
the same terms and conditions as contained in the Lease, except the monthly base
rental for the "Second Option Period" shall be $11,203.75 beginning March 1,
1995 and ending February 28, 1996. Tenant shall exercise the "Second Option
Period" by delivering written notice of such exercise to Landlord no later than
180 days prior to the expiration of the "First Option Period".
In the event Tenant fails to exercise the "First Option Period", the
"Second Option Period" shall be void and of no effect.
4. The term "Hazardous Substances", as used in the Lease and this Amendment
shall mean pollutants, contaminants, toxic or hazardous wastes or any other
substances, the use and/or the removal of which is required or the use of which
is restricted, prohibited or penalized by "Environmental Laws". The term
"Environmental Laws" as used in the Lease and this Amendment shall mean any
federal, state or local law, ordinance or other statute of a governmental or
quasi-governmental authority relating to pollution or protection of the
environment.
Tenant hereby agrees that (i) no activity will be conducted on the Premises
that will produce a Hazardous Substance, except for such activities that are
part of the ordinary course of Tenant's business activities ("Permitted
Activities"); provided said Permitted Activities are conducted in accordance
with all Environmental Laws and have been approved in advance in writing by
Landlord; Tenant shall be responsible for obtaining any required permits and
paying any fees and providing any testing required by any governmental agency;
(ii) the Premises will
2
34
not be used in any manner for the storage of any Hazardous Substances, except
for the temporary storage of such materials that are used in the ordinary course
of Tenant's business ("Permitted Materials"), provided such Permitted Materials
are properly stored in a manner and location meeting all Environmental Laws and
approved in advance, in writing, by Landlord; Tenant shall be responsible for
obtaining any required permits and paying any fees and providing any testing
required by any governmental agency; (iii) no portion of the Premises will be
used as a landfill or dump; (iv) Tenant will not install any underground tanks
of any type; (v) Tenant will not allow any surface or subsurface conditions to
exist or come into existence that constitute, or with the passage of time, may
constitute a public or private nuisance; (vi) Tenant will not permit any
Hazardous Substances to be brought onto the Premises, except for the Permitted
Materials described below, and if so, brought or found located thereon, the same
shall be immediately removed, with proper disposal, and all required clean-up
procedures shall be diligently undertaken pursuant to all Environmental Laws.
Landlord or Landlord's representative shall have the right, but not the
obligation, to enter the Premises for the purposes of inspecting the storage,
use and disposal of Permitted Materials to ensure compliance with all
Environmental Laws. Should it be determined by Landlord, applying current
environmental statutes and laws that said Permitted Materials are being
improperly stored, used, or disposed of, then Tenant shall immediately take such
corrective action within twenty-four hours if possible, and, if not possible,
within a reasonable time not to exceed three (3) months; provided, however, if
such corrective action cannot be completed within said three (3) month period,
Tenant, so long as Tenant shall diligently and actively be pursuing such
corrective action, shall have a reasonable period to complete such corrective
work. If Tenant fails to take appropriate corrective action in a timely manner,
Landlord shall then have the right to perform such work and Tenant shall
promptly reimburse Landlord for any and all cost associated with said work. If
at any time during or after the term of the Lease, the Premises are found to be
so contaminated or subject to said conditions and such contamination or
condition occurred during the term of the Lease and such contamination or
condition was caused by Tenant, its employees, representatives or agents, Tenant
shall diligently institute proper and thorough clean-up procedures, at Tenant's
sole cost, and Tenant agrees to indemnify and hold Landlord harmless from all
claims, demands, actions, liabilities, costs, expenses, damages and obligations
of any nature arising from or as a result of the use of the Premises by Tenant.
The foregoing indemnification and the responsibilities of Tenant shall survive
the termination or expiration of the Lease. If such contamination or condition
occurred prior to or after the term of this Lease and was not caused by Tenant,
Landlord shall indemnify and hold Tenant harmless from all claims, demands,
actions, liabilities, costs, expenses, damages and obligations of any nature
arising from or as a result of the use of the Premises. The foregoing
indemnification and the responsibilities of Landlord shall survive the
termination or expiration of the Lease.
Landlord acknowledges that Tenant's contract sterilization operations in
the Premises require the use and storage of ethylene oxide, defined as a
Hazardous Substance under certain state and federal regulations. Tenant's
contract, sterilization operations shall be a
3
35
Permitted Activity, as defined above, and ethylene oxide shall be a Permitted
Material, as defined above.
5. The Landlord under this Amendment is Xxxxx Properties Associates, a
Georgia general partnership composed of (a) Continental Mortgage and Equity
Trust and Income Special Associates, a California general partnership as
managing partner composed of National Income Realty Trust, a California business
trust and Continental Mortgage and Equity Trust, a California business trust.
The Declarations of Trust, as amended, establishing National Income Realty Trust
and Continental Mortgage and Equity Trust, a California business trust
(collectively, the "Trusts" and severally, "Trust"), dated October 31, 1978 and
August 27, 1980, respectively, copies of which, together with all amendments
thereto (the "Declaration"), are duly recorded in the office of other recorder
of the County of Alameda, State of California, provide, with respect to each
Trust, that (a) the Trustee shall conduct the Trust's activities in the name of
the Trust, (b) the name of the Trust refers to the Trustee collectively as
trustees, but not individually or personally, (c) no trustee, shareholder,
officer, employee, or agent shall have any personal liability, jointly or
severally, for any obligation of or claim against the Trust, and (d) all persons
dealing with the Trust, in any way, must look solely to the assets of the Trust
for the payment of any claims against the Trust. Accordingly, Tenant agrees to
look solely to the respective assets of each Trust for the enforcement of any
claims against either National Income Realty Trust or Continental Mortgage and
Equity Trust.
6. Landlord hereby acknowledges the assignment of the Lease by Xxxxxxxx
Laboratories, U.S.A., Inc. to Xxxxxxxx Micro Science, Inc.
7. Except as the Lease is expressly amended herein, all other terms and
conditions of the Lease as previously amended shall remain the same and the
parties hereto expressly ratify said term and conditions and agree to be bound
hereby.
IN WITNESS WHEREOF, the parties have executed this Amendment in triplicate
the day and year first written above.
WITNESSES: LANDLORD
------------------------- XXXXX PROPERTIES ASSOCIATES
------------------------- By: [illegible]
------------------------------
Title: Vice President
------------------------
WITNESSES: TENANT:
-------------------------- XXXXXXXX MICRO SCIENCE, INC
4
36
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Title: Vice President, Operations
-----------------------------
AGENT:
WITNESSES: XXXXXXX XXXXXXXX, INC.
By:
--------------------------- ----------------------------------
Title:
--------------------------- -----------------------------
5
37
March 25, 1992
Xx. Xxxxxxx X. Xxxxxxxx
Vice President - Operations
Xxxxxxxx Micro Science
000 Xxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxxx 00000
Re: 0000 Xxxxxxx, Xxxxxxx, Xxxxxxx (the "Property")
Dear Tenant:
This is to inform you that on March 25, 1992, the Property was purchased by
Sealy Southeastern, L.P. ("Partnership") from Xxxxx Properties Associates
("Xxxxx") and all of Xxxxx' right, title and interest in the lease you hold
encumbering a portion of the Property was assigned to the Partnership. Enclosed
for your files is a copy of the Assignment of Leases by and between Xxxxx and
the Partnership and your copy of the executed Subordination, Non-Disturbance,
Attornment and Estoppel Agreement. From the date hereof, all amounts due and
payable under your Lease and all notices under the Lease should be sent to the
following address:
Sealy Southeastern, L.P.
c/o The Sealy Companies
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxx 00000
Yours very truly,
PARTNERSHIP:
SEALY SOUTHEASTERN, L.P., a
Georgia limited partnership
By: Sealy Venture II, L.P., a
Georgia limited partnership,
its sole general partner
By: Sealy Industrial,
Inc., a Georgia
corporation, its sole
general partner
38
By:/s/ Xxxxx X. Xxxxx
-----------------------
Xxxxx X. Xxxxx,
President
[CORPORATE SEAL]
XXXXX:
XXXXX PROPERTIES ASSOCIATES, a
Georgia general partnership
By: Income Special Associates,
a California general
partnership, General Partner
By: National Income Realty
Trust, a California
business trust, General
Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: Vice President
---------------------------
[TRUST SEAL]
By: Continental Mortgage
and Equity Trust, a
California business
trust, General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: Vice President
---------------------------
[TRUST SEAL]
By: Continental Mortgage and
Equity Trust, a California
business trust, General
Partner
39
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Title: Vice President
-------------------------
[TRUST SEAL]
40
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE is entered into this 13th day of May, 1994, by
and between INDCON, L.P., successor to Xxxxx Properties Associates (hereinafter
called "LANDLORD") and XXXXXXXX MICRO SCIENCE, INC. (hereinafter called
"TENANT");
WITNESSETH;
WHEREAS, the LANDLORD and TENANT have previously entered into a Lease
Agreement dated the 19 day of February, 1974, with Amendments thereto dated,
November 16, 1977, October 31, 1980, August 31, 1983, February 10, 1984, and
Lease Extensions and Modifications dated December 17, 1986 and March 19, 1992,
for premises containing approximately 44,815 square feet and located at 0000
Xxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx (hereinafter referred to as the
"Original Lease"); and
WHEREAS, LANDLORD and TENANT are desirous of modifying and amending
certain parts of the Original Lease;
NOW THEREFORE, in consideration of TEN DOLLARS ($10.00), paid by each
of the parties to the other, the receipt of which is hereby acknowledged, it is
agreed by and between the parties that the Lease shall be hereby amended in the
following manner and upon the terms and conditions hereinafter set forth:
1. Tenant has applied for and received an Air Quality Permit #0000-000-00000
from the State of Georgia Department of Natural Resources Environmental
Protection Division with an effective date of March 24, 1994. In order for
Tenant to comply with this permit Landlord hereby grants its consent for Tenant
to group the aeration ventilation stacks and the chamber backvent into two 68
foot. stacks ("stacks") above the 25 foot roof of the Demised Premises.
2. Tenant shall bear all costs associated with the installation and maintenance
of the stacks. Upon vacation of the Demised Premises by Tenant, Tenant shall
remove, at its sole cost and expense, the aforementioned stacks. Following
installation and removal, Tenant hereby agrees to restore the roof and remaining
structure to the same condition that it was in prior to the installation of said
stacks, reasonable wear and tear excepted.
3. Tenant acknowledges and agrees that it is liable for all damages, whether to
persons or property, caused by, resulting from, or arising as a result of the
installation, maintenance or removal of the stacks, and agrees to indemnify and
hold Landlord harmless from and against all losses, costs, damages, liabilities
or actions, including reasonable attorney's fees, which may arise or which it
may incur as a result of the installation, maintenance or removal of said
stacks.
4. Tenant shall bear all costs associated with compliance with the Air Quality
Permit #0000-000-00000.
41
Except as provided herein, all other terms, conditions, and covenants under the
Original Lease shall remain in full force and effect and cannot be modified
unless said modification is reduced to writing and signed by all parties.
Time is of the essence on this Amendment to lease.
TENANT: LANDLORD:
XXXXXXXX MICRO SCIENCE, INC. INDCON, L.P.
By: Xxxxx Properties Associates
Its General Partner
By: Vice President/Operations By: Continental Mortgage & Equity Trust
Its General Partner
BY /s/ Xxxxx X. Xxxxx BY [illegible]
------------------------------ ------------------------------------
XXXXX X. XXXXX
NAME NAME
--------------------------- -----------------------------------
42
LEASE EXTENSION
THIS LEASE EXTENSION is made and entered into this 18th day of
March, 1994, by and among INDCON L.P SUCCESSOR TO XXXXX PROPERTIES ASSOCIATES, a
Georgia general partnership (hereinafter called "Landlord"), and XXXXXXXX MICRO
SCIENCE, INC. (hereinafter called "Tenant"), and XXXXXXX XXXXXXXX, INC.
(hereinafter called "Agent").
W I T N E S S E T H:
WHEREAS, by Lease Agreement, dated February 19, 1974, Cynwynd
Investments, as landlord, leased to Xxxxxxxx Laboratories, Inc. certain premises
(the "Premises") situated at 0000 Xxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx,
currently containing 44,815 square feet of office-warehouse space; and
WHEREAS, Cynwynd Investments subsequently conveyed the
Premises to Sealy (GA), A Limited Partnership; and
WHEREAS, the Lease Agreement was modified by that certain
Amendment to Lease Agreement dated November 16, 1979, by and among Xxxxxxxx
Laboratories, U.S.A., Inc., Sealy (GA), A Limited Partnership and Agent, by that
certain Amendment to Lease dated October 31, 1980, by and among Xxxxxxxx
Laboratories, U.S.A., Inc., Sealy (GA), A Limited Partnership and Agent, by that
certain Amendment to Lease Agreement dated August 31, 1983, by and between
Xxxxxxxx Laboratories, U.S.A., Inc., Sealy (GA), A Limited Partnership and
Agent, and by that certain Amendment to Lease Agreement dated February 10, 1984
by and among Xxxxxxxx Laboratories, U.S.A., Inc., Sealy (GA), A Limited
Partnership and Agent; and
WHEREAS, Xxxxxxxx Laboratories, U.S.A., Inc. formed a
wholly-owned subsidiary corporation now known as Xxxxxxxx Micro Science, Inc., a
Delaware corporation, in October, 1984 and conveyed all of its assets, including
the Lease Agreement, as amended to Tenant; and
WHEREAS, Sealy Consolidated Capital Properties ("SCCP")
acquired the Premises and all the right, title and interest to said Lease
Agreement, as amended, from Sealy (GA), A Limited Partnership, in May, 1986; and
WHEREAS, the Lease Agreement was further modified by Lease
Extension and Modification Agreement dated December 17, 1986, by and among SCCP,
Xxxxxxxx Laboratories, U.S.A., Inc. and Agent; and
WHEREAS, SCCP changed its name on May 2, 1989 to Xxxxx
Properties Associates; and
43
WHEREAS, the Lease Agreement was further modified by Lease
Extension and Modification Agreement dated March 19, 1992, by and among Xxxxx
Properties Associates, Xxxxxxxx Micro Science, Inc. and Agent (the Lease
Agreement, as amended, is hereby referred to as the "Lease"); and
WHEREAS, by letter dated August 23, 1993 Xxxxxxxx Micro
Science, Inc. notified Xxxxx Properties Associates that it wished to exercise
its option for the First Option Period to extend the lease term through February
28, 1995.
NOW, THEREFORE, in consideration for the mutual promises given
one to the other, the parties hereto intending to be legally bound, do hereby
covenant and agree as follows:
1. The term of the Lease is hereby extended for one (1) year,
which extended term shall begin on March 1, 1994, and shall expire on February
28, 1995.
2. The monthly base rental is hereby amended and Tenant agrees
to pay to Landlord, effective March 1, 1994, through February 28, 1995, a base
rental of $10,270.00 per month, in accordance with terms of the Lease.
3. Except as the Lease is expressly amended herein, all other
terms and conditions of the Lease as previously amended shall remain the same
and the parties hereto expressly ratify said terms and conditions and agree to
be bound hereby.
IN WITNESS WHEREOF, the parties have executed this Amendment
in triplicate the day and year first written above.
LANDLORD:
INDCON, L.P.
BY: XXXXX PROPERTIES ASSOCIATES,
ITS G.P.
By: Continental Mortgage & Equity Trust,
its G.P.
By: [illegible]
--------------------------------
Title: VP
------------------------------
2
44
TENANT:
XXXXXXXX MICRO SCIENCE, INC.
By: /s/ X.X. Xxxxx 2-7-94
-------------------------------------
Title: V.P. Operations
----------------------------------
AGENT:
XXXXXXX XXXXXXXX, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
President
3
45
LEASE EXTENSION
THIS LEASE EXTENSION is made and entered into this 4th day of
November, 1994, by and among INDCON, L.P. (hereinafter called "Landlord"), and
XXXXXXXX MICRO SCIENCE, INC. (hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS, by Lease Agreement, dated February 19, 1974, Cynwynd
Investments, as landlord, leased to Xxxxxxxx Laboratories, Inc. certain premises
(the "Premises") situated at 0000 Xxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx,
currently containing 44,815 square feet of office-warehouse space, with Xxxxxxx
XxXxxxxx, Inc. (hereinafter "Agent") having procured the Lease Agreement; and
WHEREAS, Cynwynd Investments subsequently conveyed the
Premises to Sealy (GA), A Limited Partnership; and
WHEREAS, the Lease Agreement was modified by that certain
Amendment to Lease Agreement dated November 16, 1979, by and among Xxxxxxxx
Laboratories, U.S.A., Inc., Sealy (GA), A Limited Partnership and Agent, by that
certain Amendment to Lease dated October 31, 1980, by and among Xxxxxxxx
Laboratories, U.S.A., Inc., Sealy (GA), A Limited Partnership and Agent, by that
certain Amendment to Lease Agreement dated August 31, 1983, by and between
Xxxxxxxx Laboratories, U.S.A., Inc., Sealy (GA), A Limited Partnership and
Agent, and by that certain Amendment to Lease Agreement dated February 10, 1984
by and among Xxxxxxxx Laboratories, U.S.A., Inc., Sealy (GA), A Limited
Partnership and Agent; and
WHEREAS, Xxxxxxxx Laboratories, U.S.A., Inc. formed a
wholly-owned subsidiary corporation now known as Xxxxxxxx Micro Science, Inc., a
Delaware corporation, in October, 1984 and conveyed all of its assets, including
the Lease Agreement, as amended to Tenant; and
WHEREAS, Sealy Consolidated Capital Properties ("SCCP")
acquired the Premises and all the right, title and interest to said Lease
Agreement, as amended, from Sealy (GA), A Limited Partnership, in May, 1986; and
WHEREAS, the Lease Agreement was further modified by Lease
Extension and Modification Agreement dated December 17, 1986, by and among SCCP,
Xxxxxxxx Laboratories, U.S.A., Inc. and Agent; and
WHEREAS, SCCP changed its name on May 2, 1989 to Xxxxx
Properties Associates; and
46
WHEREAS, the Lease Agreement was further modified by Lease
Extension and Modification Agreement dated March 19, 1992, by and among Xxxxx
Properties Associates, Xxxxxxxx Micro Science, Inc. and Agent; and
WHEREAS, on December 21, 1993 Agent assigned its commission
rights to Xxx. Xxxxxxx X. XxXxxxxx by written Assignment; and
WHEREAS, INDCON, L.P. acquired the Premises and all the
right, title and interest to said Lease Agreement from Xxxxx Properties
Associates; and
WHEREAS, the Lease Agreement was further modified by Lease
Extension dated March 18, 1994, by and among INDCON, L.P., Xxxxxxxx Micro
Science, Inc. and Agent (the Lease Agreement, as amended, is hereby referred to
as the "Lease"); and
NOW, THEREFORE, in consideration for the mutual promises given
one to the other, the parties hereto intending to be legally bound, do hereby
covenant and agree as follows:
1. The term of the Lease is hereby extended through June 30,
1997.
2. The monthly base rental is hereby amended, and Tenant
agrees to pay to Landlord the following base rental, per month, in accordance
with the terms of the Lease:
(a) For the period July 1, 1994 through June 30, 1995,
$10,270.10 per month;
(b) For the period July 1, 1995 through June 30, 1996,
$10,568.87 per month;
(c) For the period July 1, 1996 through June 30, 1997,
$10,904.98 per month.
3. Landlord shall reimburse Tenant for, or shall pay for, up
to $30,000.00 in improvements that Tenant has made, or will make, to the
Premises. Tenant shall furnish Landlord with invoices for any of said
improvements not yet paid for, and Landlord shall promptly pay said invoices.
Tenant shall furnish Landlord with copies of any invoices for any of said
improvements already paid for, and Landlord shall promptly reimburse Tenant for
the amount Tenant has paid.
4. Landlord shall be responsible for, and shall bear all costs
and expenses associated with, any and all alterations to the Premises which may
be required by the Americans With Disabilities Act of 1990 (the "ADA"), for the
accommodation of disabled individuals who may be employed from time to time by
Tenant, or any disabled customers, clients, guests, or invitees or sublessees
provided that the Premises remains in substantially the same condition it was in
at the time this Lease Extension is executed, except for those improvements
referred to in paragraph 3 hereof. If Tenant is notified or becomes aware of
failure of the Premises to conform with the ADA and does not notify Landlord
within thirty working days, Tenant shall indemnify and hold Landlord harmless
from and against any and all liability incurred arising from the
2
47
failure of the Premises to conform with the ADA, including the cost of making
any alterations, renovations or accommodations required by the ADA, or any
government enforcement agency, or any courts, any and all fines, civil
penalties, and damages awarded against Landlord (or those awarded against Tenant
which could become a lien upon the property upon which the Premises are located)
resulting from a violation or violations of the ADA, and all reasonable legal
expenses and court costs incurred in defending claims made under the ADA,
including without limitation reasonable consultants', attorneys' and paralegals'
fees, expenses and court costs; as such results from the accommodation of
disabled individuals employed by Tenant, or Tenant's disabled customers,
clients, guests, invitees or sublessees.
5. Except as the Lease is expressly amended herein, all other
terms and conditions of the Lease as previously amended shall remain the same
and the parties hereto expressly ratify said terms and conditions and agree to
be bound hereby.
IN WITNESS WHEREOF, the parties have executed this Amendment
in triplicate the day and year first written above.
LANDLORD:
INDCON, L.P.
By: Xxxxx Properties Associates, General Partner
By: Continental Mortgage & Equity Trust,
General Partner
By: [illegible]
---------------------------------
Title: Vice President
--------------------------------
TENANT:
XXXXXXXX MICRO SCIENCE, INC.
By: /s/ Xxxxx Xxxxx
----------------------------------
Title: V.P. Operations
---------------------------------
3
48
THIS EXTENSION AND MODIFICATION AGREEMENT (this "Extension Agreement")
is to be attached to and shall form a part of that certain Lease Agreement dated
the 19th day of February, 1974, (which together with any prior amendments,
modifications and extensions thereof is hereinafter called the Lease), and is
executed
BY AND BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST,
AS LANDLORD
AND
XXXXXXXX MICRO SCIENCE, INC.
AS TENANT
AND
XXXXXXX XXXXXXXX, INC.
AS AGENT
COVERING THE PREMISES KNOWN AS
0000 XXXXXXX XXXXXXXXXX XXXXX
XXXXXXX, XXXXXXX 00000
WHEREAS, Landlord's predecessor in title (Cynwyd Investments) and
Tenant have heretofore made and entered into that certain Lease Agreement, dated
as of the 19th day of February, 1977 and further amended by that certain
Amendment to Lease Agreement dated as of the 16th day of November 1979 by and
between SEALY (GA), a Louisiana Partnership ("Landlord") and Agent, and XXXXXXXX
LABORATORIES, U.S.A., INC. ("Tenant"), and that certain Amendment to Lease
Agreement dated as of the 31st day of October, 1990 by and between SEALY (GA), a
Limited Partnership ("Landlord") and Agent, and XXXXXXXX LABORATORIES, U.S.A.,
INC., ("Tenant"), and that certain Amendment to Lease Agreement dated as of the
31st day of August, 1983 by and between SEALY (GA), a Limited Partnership
("Landlord") and Agent, and XXXXXXXX LABORATORIES, U.S.A., INC., ("Tenant"), and
that certain Amendment to Lease Agreement dated as of the 10th day of February,
1984 by and between SEALY (GA), a Limited Partnership ("Landlord") and Agent,
and XXXXXXXX LABORATORIES, U.S.A., INC., ("Tenant"), and that certain Extension
and Modification Agreement dated as of the 17th day of December, 1986 by and
between SEALY CONSOLIDATED CAPITAL PROPERTIES, a Joint Venture, by SEALY VENTURE
1, a Georgia Partnership Managing Partner ("Landlord") and Agent, and XXXXXXXX
LABORATORIES, U.S.A., INC., ("Tenant"), and that certain Lease Extension and
Modification Agreement dated as of the 19th day of March, 1992, by and between
XXXX PROPERTIES ASSOCIATES, a Georgia general partnership ("Landlord") and
Agent, and XXXXXXXX MICRO SCIENCE, INC. ("Tenant"), and that certain Lease
Extension dated as of the 18th day of March, 1994 by and between XXXX PROPERTIES
ASSOCIATES, a Georgia general partnership ("Landlord") and Agent, and XXXXXXXX
MICRO SCIENCE, INC. ("Tenant"), and that certain Amendment to Lease dated as of
the 13th day of May 1994 by and between INDCON, L.P. ("Landlord") and XXXXXXXX
MICRO SCIENCE, INC. ("Tenant"), and that certain Lease Extension dated as of the
4th day of November, 1994 by and between INCON, L.P. ("Landlord") and XXXXXXXX
MICRO SCIENCE, INC. ("Tenant"), pursuant to which Landlord leases to Tenant
approximately 44,815 square feet of space (the "Premises"), being 0000 Xxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx;
WHEREAS, Landlord and Tenant desire to amend the Lease on the terms and
conditions set forth below;
49
NOW THEREFORE, and in consideration of the mutual covenants and
agreements set forth in this Extension Agreement, the sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:
WITNESSETH, that the Lease is hereby renewed and extended for a further
term of eighty-four (84) months to commence on the 1st day of July, 1997 and to
end on the 30th day of June 2004, on the condition that Landlord and Tenant
comply with all of the covenants and agreements contained in the Lease and
herein, except Landlord and Tenant further amend the lease as follows:
1. The new monthly base rental as specified in Paragraph 2 of the Lease
Extension dated as of the 4th day of November, 1994 shall be as
follows:
Months Monthly Base Rent
---------- ------------------
1-24 $ 12,734.93
25-60 $ 13,668.58
61-84 $ 14,602.22
2. Tenant's operating expense escrow's to be paid monthly with the rent
shall be as follows:
Taxes: $399.61
Insurance: $149.36
CAM: $235.87
Management Fee: $260.30
-------
TOTAL: $1,045.14
OPERATING EXPENSE PAYMENTS. During each month of the Lease
Term, on the same date that Base Rent is due, Tenant shall pay Landlord
an amount equal to 1/12 of the annual cost, as estimated by Landlord
from time to time, of Tenant's Proportionate Share (hereinafter
defined) of Operating Expenses for the Building. Payments thereof for
any fractional calendar month shall be prorated. The term "Operating
Expenses" means all costs and expenses incurred by Landlord with
respect to the ownership, maintenance, and operation of the Building,
including, but not limited to costs of: Landlord's insurance;
utilities; maintenance, repair and replacement of all portions of the
Project, including without limitation, paving and parking areas, roads,
roofs, alleys, and driveways, mowing, landscaping, exterior painting,
utility lines, heating, ventilation and air conditioning systems,
lighting, electrical systems and mechanical and building systems;
amounts paid to contractors and subcontractors for work or services
performed in connection with any of the foregoing; charges or
assessments of any association to which the Building is subject; fees
payable to tax consultants and attorneys for consultation and
contesting taxes; property management fees payable to a property
manager, including any affiliate of Landlord, or if there is no
property manager, an administration fee of 15 percent of Operating
Expenses payable to Landlord; security services, if any; trash
collection, sweeping and removal; and additions or alternations made by
Landlord to the Building in order to comply with Legal Requirements
(other than those expressly required herein to be made by Tenant) or
that are appropriate to the continued operation of the Building as a
bulk warehouse facility in the market area, provided that the cost of
such additions or alternations that are required to be capitalized for
federal income tax purposes shall be amortized on a straight line basis
over a period equal to the lesser of the useful life thereof for
federal income tax purposes or 10 years. In addition, Operating
Expenses shall include the amount by which Taxes (hereinafter defined)
for each calendar year during the Lease term exceeds Taxes for the 1975
Base Year. Operating Expenses do not include costs, expenses,
depreciation or amortization for capital repairs and capital
replacements required to be made by Landlord under Paragraph 3 of this
Extension and Modification Agreement, debt service under mortgages or
ground rent under ground leases, cost of restoration to the extent of
net insurance proceeds received by Landlord with respect thereto,
leasing commissions, or the costs of renovating space for tenants.
50
If Tenant's total payments of Operating Expenses for any year
are less than Tenant's Proportionate Share of actual Operating Expenses
for such year, then Tenant shall pay the difference to Landlord within
30 days after demand, and if more, then Landlord shall retain such
excess and credit it against Tenant's next payments. Any excess in the
last year of the term will be reimbursed to the Tenant within thirty
days after the expiration of the term. For purposes of calculating
Tenant's Proportionate share of Operating Expenses, a year shall mean a
calendar year except the first year, which shall begin on the
Commencement Date, and the last year, which shall end on the expiration
of this Lease. With respect to Operating Expenses which Landlord
allocates to the entire Project, Tenant's "Proportionate Share" shall
be Tenant's Proportionate Share of the Building as reasonably adjusted
by Landlord in the future for changes in the physical size of the
Premises or the Building; and, with respect to Operating Expenses which
Landlord allocates only to the Building, Tenant's "Proportionate Share"
shall be Tenant's Proportionate Share of the Building as reasonably
adjusted by Landlord in the future for changes in the physical size of
the Premises or the Building. Landlord may equitably increase Tenant's
Proportionate Share for any item of expense or cost reimbursable by
Tenant that relates to a repair, replacement, or service that benefits
only the Premises or only a portion of the Building that includes the
Premises or that varies with occupancy or use. The estimated Operating
Expenses for the Premises set forth above are only estimates, and
Landlord makes no guaranty or warranty that such estimates will be
accurate. See Addendum One, Number One
3. Any previous rental abatement shall be considered null and void.
4. Paragraph 9 of the Lease Agreement dated as of the 19th day of
February, 1974 is hereby deleted, and the following is substituted as
and shall hereafter be a part of the Lease:
LANDLORD REPAIRS. Landlord shall maintain, at its expense, the
structural soundness of the roof, foundation, and exterior walls of the
Building in good repair, reasonable wear and tear and damages caused by
Tenant excluded. The term "walls" as used in this Paragraph shall not
include windows, glass or plate glass, doors or overhead doors, special
store fronts, dock bumpers, dock plates or levelers, or office entries.
Tenant shall promptly give Landlord written notice of any repair
required by Landlord pursuant to this Paragraph, after which Landlord
shall have a reasonable opportunity to repair.
5. Paragraph 10 of the Lease Agreement dated as of the 19th day of
February, 1974 is hereby deleted, and the following is substituted as
and shall hereafter be a part of the Lease:
TENANT'S REPAIRS. Landlord, at Tenant's expense, through the operating
expense charge, shall maintain in good repair and condition the parking
areas and other common areas of the Building, including, but not
limited to driveways, alleys, landscape and grounds surrounding the
Premises. Subject to Landlord's obligations in Paragraph 3 and 9 of
this Extension and Modification Agreement, Tenant, at its expense,
shall repair, replace and maintain in good condition all portions of
the Premises and all areas, improvements and systems exclusively
serving the Premises including, without limitation, dock and loading
areas, truck doors, plumbing, water, and sewer lines up to points of
common connection, fire sprinklers and fire protection systems,
entries, doors, ceilings and roof membrane, windows, interior walls,
and the interior side of demising walls, and heating, ventilation and
air conditioning systems. Such repair and replacements include capital
expenditures and repairs whose benefit may extend beyond the Term.
Heating, ventilation and air conditioning systems and other mechanical
and building systems serving the Premises shall be maintained at
Tenant's expense pursuant to maintenance service contracts entered into
by Tenant. The scope of services and contractors under such maintenance
contracts shall be reasonably approved by Landlord. Tenant shall not
use the railroad that services the Premises. If Tenant fails to perform
any repair or replacement for which it is responsible, Landlord may
perform such work and be reimbursed by Tenant within 10 days after
demand therefor. Subject to Paragraph 9 of this Extension and
Modification Agreement, Tenant shall bear the full cost of any repair
or replacement to any part of the Building or Project that results from
damage caused by Tenant, its agents, contractors, or invitees and any
repair that benefit only the Premises.
51
6. Landlord's Subordination of Lien dated as of the 16th day of August,
1988 is hereby deleted, and the following is substituted as and shall
hereafter be a part of the Lease:
SUBORDINATION. This Lease and Tenant's interest and rights
hereunder are and shall be subject and subordinate at all times to the
lien of any first mortgage, now existing or hereafter created on or
against the Project or the Premises, and all amendments, restatements,
renewals, modifications, consolidations, refinancing, assignments and
extensions thereof, without the necessity of any further instrument or
act on the part of Tenant. Tenant agrees, at the election of the holder
of any such mortgage, to attorn to any such holder. Tenant agrees upon
demand to execute, acknowledge and deliver such instruments, confirming
such subordination and such instruments of attornment as shall be
requested by any such holder. Notwithstanding the foregoing, any such
holder may at any time subordinate its mortgage to this Lease, without
Tenant's consent, by notice in writing to Tenant, and thereupon this
Lease shall be deemed prior to such mortgage without regard to their
respective dates of execution, delivery or recording and in that event
such holder shall have the same rights with respect to this Lease as
though this Lease had been executed prior to the execution, delivery
and recording of such mortgage and had been assigned to such holder.
The term "mortgage" whenever used in this Lease shall be deemed to
include deeds of trust, security assignments and any other
encumbrances, and any reference to the "holder" of a mortgage shall be
deemed to include the beneficiary under a deed of trust.
7. Paragraph 4 of the Lease Extension and Modification Agreement dated as
of the 19th day of March, 1992 is hereby deleted, and the following is
substituted as and shall hereafter be a part of the Lease.
ENVIRONMENTAL REQUIREMENTS. Except for Hazardous Material
contained in products used by Tenant in de minimus quantities for
ordinary cleaning and office purposes, Tenant shall not permit or cause
any party to bring any Hazardous Material upon the Premises or store or
use any Hazardous Material in or about the Premises without Landlord's
prior written consent. Tenant, at its sole cost and expense, shall
operate its business in the Premises in compliance with all
Environmental Requirements and shall immediately remediate any
Hazardous Materials released on or from the Project by Tenant, its
agents, employees, contractors, subtenants or invitees. The term
"Environmental Requirements" means all applicable present and future
statues, regulations, ordinances, rules, codes, judgments, orders or
other similar enactments of any governmental authority or agency
regulating or relating to health, safety, or environmental conditions
on, under, or about the Premises or the environment, including without
limitation, the following: the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"); the Resource Conversation
and Recovery Act; and all state and local counterparts thereto, and any
regulations or policies promulgated or issued thereunder. The term
"Hazardous Materials" means and includes petroleum ( as defined in
CERCLA) and any substance, material, waste, pollutant, or contaminant
listed or defined as hazardous or toxic, under any Environmental
Requirements. See Addendum Two
52
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Landlord acknowledges that Tenant's contract sterilization operations
in the Premises require the use and storage of ethylene oxide, defined
as a Hazardous Material under certain state and federal regulations.
Tenant's contract, sterilization operations shall be a permitted
activity, as defined above, and ethylene oxide shall be a permitted
hazardous material, as defined above, so long as Tenant's use and
storage of such hazardous materials is in accordance with Applicable
Environmental Requirements.
-----------------------------------------------------------------------
Tenant shall indemnify, defend, and hold Landlord harmless
from and against any and all losses (including, without limitation,
diminution in value of the Premises or the Project and loss of rental
income from the Project), claims, demands, actions, suits, damages
(including, without limitation, punitive damages), expenses (including,
without limitation, remediation, corrective action, or cleanup
expenses), and costs (including, without limitation, actual attorneys'
fees, consultant fees or expert fees) which are brought or recoverable
against, or suffered or incurred by Landlord as a result of any breach
of the obligations under this Paragraph by Tenant, its agents,
employees, contractors, subtenants, or invitees, regardless of whether
Tenant had knowledge of such noncompliance. The indemnification and
hold harmless obligations of Tenant shall survive any termination of
this Lease.
Landlord shall have access to, and a right to perform
inspections and tests of, the Premises as it may require to determine
Tenant's compliance with Environmental Requirements and Tenant's
obligations under this Paragraph. Access shall be granted to Landlord
upon Landlord's prior notice to Tenant and at such times so as to
minimize, so far as may be reasonable under the circumstances, any
disturbance to Tenant's operations. Such inspections and tests shall be
conducted at Landlord's expense, unless such inspections or tests
reveal that Tenant has not complied with any Environmental
Requirements, in which case Tenant shall reimburse Landlord for the
reasonable cost of such inspection and tests. Landlord's receipt of or
satisfaction with any environmental assessment in no way waives any
rights that Landlord holds against Tenant.
8. Paragraph 12 of the Lease Agreement dated as of the 1st day of March,
1974 is hereby deleted, and the following is substituted as and shall
hereafter be a part of the Lease:
FIRE AND CASUALTY DAMAGE. If at any time during the Lease
Term, the Premises or the Project is damaged by fire or other casualty,
Landlord shall notify Tenant, within 30 days after such damage, as to
the amount of time Landlord reasonably estimates it will take to repair
such damage. If the amount of such time exceeds 6 months, either
Landlord or Tenant may elect, upon notice to the other party delivered
as soon as practicable but no later than 30 days after Landlord's
notice, to terminate this Lease (but Landlord agrees not to terminate
this Lease unless it is terminating all Leases in the Building). If
neither party elects to terminate this Lease or if Landlord estimates
that the damage will xxxx 0 months or less to repair, Landlord shall
promptly repair and reconstruct the improvements, subject to delays
arising from the collection of insurance proceeds or from Force Majeure
events, except that Landlord shall not be required to repair and
reconstruct any fixtures, additions, or other improvements paid for by
Tenant; and this Lease shall remain in full force and effect provided
that the Lease Term will be extended for a time equal to the period
beginning on the date the loss or damage was suffered until the repairs
and replacement are completed. Tenant at Tenant's expense shall
promptly perform, subject to delays arising from the collection of
insurance proceeds, all repairs or restoration not required to be done
by Landlord and shall promptly reenter the Premises and commence doing
business in accordance with this Lease. Notwithstanding the foregoing,
either party may terminate this Lease if the improvements are damaged
during the last year of the Lease Term and Landlord reasonably
estimates that it will take more than one month to repair such damage.
If Landlord elects to repair and/or reconstruct the damaged
improvements and such improvements are located solely within the
Premises, Tenant shall pay to Landlord the amount of the commercially
reasonable deductible under Landlord's insurance policy (currently
$10,000) within 10 days after
53
presentment of Landlord's invoice. If the damage involves the premises
of other tenants, tenant shall pay the portion of the deductible in the
proportion that the cost of the repair and replacement of the Premises
bears to the total cost of repair and replacement, as determined by
Landlord.
If the Premises or a portion thereof is not usable as a result
of damage by fire or other casualty to the Premises or building in
which the Premises are located, and Landlord elects to repair and/or
reconstruct the damaged improvements, Base Rent shall abated for the
period of repair and reconstruction in the proportion which the area of
the Premises which is not usable by Tenant bears to the total area of
the premises. Such abatement shall be the sole remedy of Tenant, and to
the extent permitted by applicable law, and except as provided herein,
Tenant waives any right to terminate the Lease by reason of damage or
casualty loss.
9. Paragraph 3 of the Amendment to Lease Agreement dated as of the 16th
day of November, 1979 is hereby deleted, and the following is
substituted as and shall hereafter be a part of the Lease:
INSURANCE. Landlord shall maintain all risk property insurance
covering the full replacement cost of the Building. Landlord may, but
is not obligated to, maintain such other insurance and additional
coverage as it may deem necessary, including, but not limited to,
commercial liability insurance and rent loss insurance. The Project or
Building may be included in a blanket policy (in which case the cost of
such insurance allocable to the Project or Building will be determined
by Landlord based upon the insurer's cost calculations). Tenant shall
also reimburse Landlord for any increased premiums or additional
insurance that Landlord reasonably deems necessary as a result of
Tenant's use of the Premises.
Tenant, at its expense, shall maintain during the Lease Term:
all risk property insurance covering the full replacement cost of all
property and improvements installed or placed in the Premises by Tenant
at Tenant's expense; worker's compensation insurance with no less than
the minimum limits required by law; employer's liability insurance with
such limits as required by law; and commercial liability insurance,
with a minimum limit of $1,000,000 per occurrence and a minimum
umbrella limit of $1,000,000, for a total minimum combined general
liability and umbrella limit of $2,000,000 (together with such
additional umbrella coverage as Landlord may reasonably require) for
property damage, personal injuries, or deaths of persons occurring in
or about the Premises. Landlord may from time to time require
reasonable increases in any such limits. The commercial liability
policies shall name Landlord as an additional insured, insure on an
occurrence and not a claims-made basis, be issued by insurance
companies which are reasonably acceptable to Landlord, not be
cancelable unless 30 days prior written notice shall have been given to
Landlord, contain hostile fire endorsement and a contractual liability
endorsement and provide primary coverage to Landlord (any policy issued
to Landlord providing duplicate or similar coverage shall be deemed
excess over Tenant's policies). Such policies or certificates thereof
shall be delivered to Landlord by Tenant upon commencement of the Lease
Term and upon each renewal of said insurance.
The all risk property insurance obtained by Landlord and
Tenant shall include a waiver of subrogation by the insurers and all
rights based upon an assignment from its insured, against Landlord or
Tenant, their officers, directors, employees, managers, agents,
invitees and contractors, in connection with any loss or damage thereby
insured against. Neither party nor its officers, directors, employees,
managers, agents, invitees and contractors shall be liable to the other
for loss or damage caused by any risk coverable by all risk property
insurance, and each party waives any claims against the other party,
and its officers, directors, employees, managers, agents, invitees and
contractors for such loss or damage. The failure of a party to insure
its property shall not void this waiver. Landlord and its agents,
employees and contractors shall not be liable for, and Tenant hereby
waives all claims against such parties for, business interruption and
losses occasioned thereby sustained by Tenant or any person claiming
through Tenant resulting from any accident or occurrence in or upon the
Premises or the Project from any cause whatsoever, including without
limitation, damage caused in whole or in part, directly or indirectly,
by negligence of Landlord or its agents, employees or contractors.
54
10. Paragraph 15 of the Lease Agreement dated as of the 1st day of March,
1974 is hereby deleted, and the following is substituted as and shall
hereafter be a part of the Lease:
CONDEMNATION. If any part of the Premises or the Project
should be taken for any public or quasi-public use under governmental
law, ordinance, or regulation, or by right of eminent domain, or by
private purchase in lieu thereof (a "Taking" or "Taken"), and the
Taking would prevent or materially interfere with Tenant's use of the
Premises or in Landlord's judgment would materially interfere with or
impair its ownership or operation of the Project, then upon written
notice by Landlord this Lease shall terminate and Base Rent shall be
apportioned as of said date. If part of the Premises shall be Taken,
and this Lease is not terminated as provided above, the Base Rent
payable hereunder during the unexpired Lease Term shall be reduced to
such extent as may be fair and reasonable under the circumstances. In
the event of any such Taking, Landlord shall be entitled to receive the
entire price or award from any such Taking without any payment to
Tenant, and Tenant hereby assigns to Landlord Tenant's interest, if
any, in such award. Tenant shall have the right, to the extent that
same shall not diminish Landlord's award, to make a separate claim
against the condemning authority (but not Landlord) for such
compensation as may be separately awarded or recoverable by Tenant for
moving expenses and damage to Tenant's Trade Fixtures, and the
unamortized cost (amortized over the lease term) of Tenant Improvements
paid for by Tenant, if a separate award for such items is made to
Tenant.
11. The following provisions are hereby added to the Lease as follows:
TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord shall not
be in default hereunder and Tenant shall not have any remedy or cause
of action unless Landlord fails to perform any of its obligations
hereunder within 20 days after written notice from Tenant specifying
such failure (unless such performance will, due to the nature of the
obligation, require a period of time in excess of 20 days, then after
such period of time as is reasonably necessary). All obligations of
Landlord hereunder shall be construed as covenants, not conditions;
and, except as may be otherwise expressly provided in this Lease,
Tenant may not terminate this Lease for breach of Landlord's
obligations hereunder. All obligations of Landlord under this Lease
will be binding upon Landlord only during the period of its ownership
of the premises and not thereafter. The term "Landlord" in this Lease
shall mean only the owner, for the time being of the Premises, and in
the event of the transfer by such owner of its interest in the
Premises, such owner shall thereupon be released and discharged from
all obligations of Landlord thereafter accruing, but such obligations
shall be binding during the Lease term upon each new owner for the
duration of such owner's ownership. Any liability of Landlord under
this Lease shall be limited solely to its interest in the Project, and
no event shall any personal liability be asserted against Landlord in
connection with this Lease nor shall any recourse be had to any other
property or assets of Landlord.
LIMITATION OF LIABILITY OF TRUSTEES, SHAREHOLDERS, AND
OFFICERS OF SECURITY CAPITAL INDUSTRIAL TRUST. Any obligation or
liability whatsoever of Security Capital Industrial Trust, a Maryland
real estate investment trust, which may arise at any time under this
lease or any obligation or liability which may be incurred by it
pursuant to any other instrument, transaction, or undertaking
contemplated hereby shall not be personally binding upon, nor shall
resort for the enforcement thereof be had to the property of, its
trustees, directors, shareholders, officers, employees or agents,
regardless of whether such obligation or liability is in the nature of
contract, tort, or otherwise.
12. Paragraph 3 of the Lease Extension dated as of the 4th day of November,
1994 will be replaced with the following:
Tenant has inspected and agrees to accept the Premises on an "As Is"
basis.
13. Except as modified hereby, all terms and provisions of the Lease are
ratified and confirmed by Landlord and Tenant. In the event of any
conflicts between the provisions of the Lease and the provisions of
this Extension Agreement, the provisions of this Extension Agreement
shall supersede and control. From and
55
after the date hereof, all references in the Lease Agreement to
"Lessor" shall mean "Landlord" and all references in the Lease
Agreement to "Lessee" shall mean "Tenant".
14. The Landlord's address is as follows:
SECURITY CAPITAL INDUSTRIAL TRUST
ATTN: Asset Management
000 Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
15. Exhibit A is attached hereto and made a part hereof for all purposes.
IN WITNESS WHEREOF, the parties hereto have signed this Extension Agreement to
be effective as of the 1st day of October, 1997.
SECURITY CAPITAL INDUSTRIAL TRUST
By: /s/ Xxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
------------------------------
Title: Senior Vice President
-----------------------------
Landlord
XXXXXXXX MICRO SCIENCE, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
------------------------------
Title: V.P. Operations
-----------------------------
Tenant
56
ADDENDUM ONE
MISCELLANEOUS PROVISIONS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED OCTOBER 1, 1997, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST (Landlord)
and
XXXXXXXX MICRO SCIENCE, INC. (Tenant)
1. Paragraph 2 of this Extension and Modification Agreement, captioned
"Operating Expense Payments", is revised to include the following
additional provision:
Notwithstanding the provisions of Paragraph 2 of this
Extension and Modification Agreement, captioned "Operating
Expense Payments," the paragraph is modified to include the
following additional provision:
(i) the initial estimate of monthly installments
of Operating Expenses for the year in which
this Extension and Modification Agreement
commences is set forth on page two of this
Extension and Modification Agreement.
Landlord shall give Tenant its reasonable
estimate of Operating Expenses for each
subsequent calendar year and Tenant's
estimated Proportionate Share thereof at
least thirty (30) days prior to January 1 of
each subsequent calendar year. Until such
time as Landlord forwards to Tenant said
estimate, Tenant shall not be obligated to
pay to Landlord any increases in the monthly
installments of Operating Expenses for the
previous calendar year (or the monthly
installment that would equal the actual
Operating Expense for the previous calendar
year, if such actual Operating Expenses have
been determined). Within ninety (90) days
following the end of each calendar year, or
as soon thereafter as practicable, Landlord
shall provide to Tenant a statement showing
in reasonable detail the total Operating
Expenses actually incurred by Landlord for
the prior calendar year (or partial calendar
year, if applicable) and the calculation of
Tenant's Proportionate Share thereof.
57
ADDENDUM TWO
LANDLORD'S ENVIRONMENTAL REMEDIATION
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED OCTOBER 1, 1997, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST (LANDLORD)
and
XXXXXXXX MICRO SCIENCE, INC. (TENANT)
If Hazardous Materials are hereafter discovered on the Premises, and
the presence of such Hazardous Materials is not the result of Tenant's use of
the Premises or any act or omission of Tenant or its agents, employees,
contractors, subtenants or invitees, and the presence of such Hazardous
Materials results in any contamination, damages, or injury to the Premises that
materially and adversely affects: Tenant's occupancy or use of the Premises,
Landlord shall promptly take all actions at its sole expense as are necessary to
remediate such Hazardous Materials and as may be required by the Environmental
Requirements. Actual or threatened action or litigation by any governmental
authority is not a condition prerequisite to Landlord's obligations under this
paragraph. Within 30 days after notification from Tenant supported by reasonable
documentation setting forth such presence or release of Hazardous Materials, and
after Landlord has been given a reasonable period of time after such 30-day
period to conduct its own investigation to confirm such presence or release of
Hazardous Materials, Landlord shall either terminate this Lease or commence to
remediate such Hazardous Materials within 180 days after the completion of
Landlord's investigation and thereafter diligently prosecute such remediation to
completion. If Landlord fails to commence such remediation or if Landlord
commences such remediation and fails to diligently prosecute same until
completion, then Tenant as its sole remedy may terminate this Lease by written
notice to Landlord after expiration of 30 days following a notice to Landlord
that Tenant intends to terminate this Lease if Landlord does not promptly
commence or diligently prosecute the remediation within such 30-day period. If
Landlord commences remediation pursuant to this paragraph, Base Rent and
Operating Expenses shall be equitably adjusted if and to the extent and during
the period the Premises are unsuitable for Tenant's business. Notwithstanding
anything herein to the contrary, if Landlord obtains a letter from the
appropriate governmental authority that no further remediation is required prior
to the effective date of any such termination, such termination shall be null
and void and this Lease shall remain in full force and effect.
58
EXHIBIT A
0000 Xxxxxxx
Xxxxxxxxxx Xxxxx
[ Survey ]
59
SECOND EXTENSION AND MODIFICATION AGREEMENT
THIS SECOND EXTENSION AND MODIFICATION AGREEMENT (the "Amendment") is
made and entered into effective as of the 1st day of December, 1997, by and
between Security Capital Industrial Trust ("Landlord") and XXXXXXXX MICRO
SCIENCE, INC. ("Tenant").
WI T N E S S E T H:
WHEREAS, Tenant and Cynwyd Investments, Landlord's predecessor in
interest, and Xxxxxxx XxXxxxxx, Inc., Agent, entered into that certain lease
dated as of the 19th day of February, 1977, and further amended by that certain
Amendment to Lease Agreement dated as of the 16th day of November 1979 by and
between SEALY (GA), a Louisiana Partnership ("Landlord") and Agent, and XXXXXXXX
LABORATORIES, U.S.A., INC. ("Tenant"), and that certain Amendment to Lease
Agreement dated as of the 31st day of October, 1980 by and between SEALY (GA), a
Limited Partnership ("Landlord") and Agent, and XXXXXXXX LABORATORIES, U.S.A.,
INC., ("Tenant"), and that certain Amendment to Lease Agreement dated as of the
31st day of August, 1983 by and between SEALY (GA), a Limited Partnership
("Landlord") and Agent, and XXXXXXXX LABORATORIES, U.S.A., INC., ("Tenant"), and
that certain Amendment to Lease Agreement dated as of the 10th day of February,
1984 by and between SEALY (GA), a Limited Partnership ("Landlord") and Agent,
and XXXXXXXX LABORATORIES, U.S.A., INC., ("Tenant"), and that certain Extension
and Modification Agreement dated as of the 17th day of December, 1986 by and
between SEALY CONSOLIDATED CAPITAL PROPERTIES, a Joint Venture, by SEALY VENTURE
1, a Georgia Partnership Managing Partner ("Landlord") and Agent, and XXXXXXXX
LABORATORIES, U.S.A., INC., ("Tenant"), and that certain Lease Extension and
Modification Agreement dated as of the 19th day of March, 1992, by and between
XXXX PROPERTIES ASSOCIATES, a Georgia general partnership ("Landlord") and
Agent, and XXXXXXXX MICRO SCIENCE, INC. ("Tenant"), and that certain Lease
Extension dated as of the 18th day of March, 1994 by and between XXXX PROPERTIES
ASSOCIATES, a Georgia general partnership ("Landlord") and Agent, and XXXXXXXX
MICRO SCIENCE, INC. ("Tenant"), and that certain Amendment to Lease dated as of
the 13th day of May 1994 by and between INDCON, L.P. ("Landlord") and XXXXXXXX
MICRO SCIENCE, INC. ("Tenant"), and that certain Lease Extension dated as of the
4th day of November, 1994 by and between INDCON, L.P. ("Landlord") and XXXXXXXX
MICRO SCIENCE, INC. ("Tenant"), and that certain Extension and Modification
Agreement dated as of the 1st day of October, 1997 by and between Security
Capital Industrial Trust ("Landlord") and Agent, and XXXXXXXX MICRO SCIENCE,
INC. ("Tenant"), and that certain Amendment to Commercial Lease dated as of the
1st day of August, 1997 by and between Security Capital Industrial Trust
("Landlord") and Agent, and XXXXXXXX MICRO SCIENCE, INC. ("Tenant"), pertaining
to 0000 Xxxxxxx Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx (the "Original Premises"),
containing approximately 44,815 square feet.
60
WHEREAS, the parties hereto desire to enter into this Amendment for the
purpose of evidencing their mutual understanding and agreement regarding the
expansion of the Premises.
NOW, THEREFORE, for and in consideration of the premises hereto, the
keeping and performance of the covenants and agreements hereinafter contained,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
The Lease is hereby amended as follows:
1. Amendment to Commercial Lease. The Amendment to Commercial Lease
dated as of the 1st day of August, 1997, by and between Security Capital
Industrial Trust ("Landlord") and Agent, and XXXXXXXX MICRO SCIENCE, INC.
("Tenant") is hereby terminated, effective as of November 30, 1997, provided all
provisions regarding payment of rent and other sums shall survive such
termination.
2. Premises. Effective as of December 1, 1997, the Premises is hereby
expanded to include the approximately twenty-nine thousand seven hundred seventy
two (29,772) square feet at 0000 Xxxxxxx Xxxxxxxxxx Xxxxx, Xxxxx X, Xxxxxxx,
Xxxxxxx, (the "Expansion Premises"), making the total square footage of the
Premises (now defined to include the Premises and the Expansion Premises) 74,587
square feet, as set forth in Exhibit A hereto (the "Expanded Premises").
Tenant's "proportionate share" of the Building under the Lease shall be
51.36%.
3. Rent. As of December 1, 1997, Lessee hereby agrees to pay Rent for
the Expansion Premises to Lessor, without set-off or deduction, in accordance
with the following schedule:
Months Monthly Base Rent
------ -----------------
1-7 $6,518.78
8-19 $6,518.78
20-31 $6,996.70
32-43 $6,996.70
44-55 $6,996.70
56-67 $7,474.62
68-79 $7,474.62
In addition to the rent payable, Tenant shall pay, as additional rent,
all other sums due under the Lease, including but not limited to amounts due
pursuant to Paragraphs 2, 5, and 9 of the Extension and Modification Agreement
dated as of the 1st day of October, 1997, for the Expansion Premises during the
Expansion Term.
2
61
4. Condition of the Expansion Premises. Landlord shall make those
improvements to the Expansion Premises, using building standard materials,
outlined in the scope of work summary attached herein as Addendum One and made a
part hereof for all purposes, such improvements to be substantially completed
within forty-five (45) days from the Effective Date of this Second Extension and
Modification Agreement. The improvements shall be deemed "substantially
completed" when, in the reasonable opinion of both the construction manager for
such improvements, and Tenant, agree such improvements have been completed in
accordance with Addendum One, except for punch list items which do not prevent
in any material way the utilization of the Premises for the purpose for which
they were intended. Tenant shall be solely responsible for any delays caused by
the action or inaction of Tenant. Tenant shall be solely responsible for the
costs of any changes in the scope of work attached as Addendum One.
5. Security Deposit. A Security Deposit in the amount of $3,018.78,
due and payable on the Commencement Date, shall be held by Landlord as security
for the performance of Tenant's obligations under this Lease. The Security
Deposit is not an advance rental deposit or a measure of Landlord's damages in
case of Tenant's default. Upon each occurrence of an Event of Default
(hereinafter defined), Landlord may use all or part of the Security Deposit to
pay delinquent payments due under this Lease, and the cost of any damage,
injury, expense or liability caused by such Event of Default, without prejudice
to any other remedy provided herein or provided by law. Tenant shall pay
Landlord on demand the amount that will restore the Security Deposit to its
original amount. Landlord's obligations respecting the Security Deposit is that
of a debtor, not a trustee; no interest shall accrue thereon. the Security
Deposit shall be the property of Landlord, but shall be paid to Tenant when
Tenant's obligations under this Lease have been completely fulfilled. Landlord
shall be released from any obligation with respect to the Security Deposit upon
transfer of this Lease and the Premises to a person or entity assuming
Landlord's obligations under this Paragraph 4.
6. Assignment and Subletting. Addendum Two is attached hereto and made
a part hereof for all purposes.
7. Notice. The Landlord's address is as follows:
Security Capital Industrial Trust
Attn: Asset Manager
000 Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
8. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia, and shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors, representatives and assigns. In the event of any inconsistency or
conflict between the terms of this Agreement and of the Lease, the terms hereof
shall control. Time is of the essence of all of the terms of this Agreement.
3
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9. Continued Validity. Except as hereinabove provided, all other terms
and conditions of the Lease shall remain unchanged and in full force and effect,
and are hereby ratified and confirmed by Tenant and Landlord. Tenant hereby
acknowledges and agrees that, as of the date hereof, the Lease is subject to no
offsets, claims, counterclaims or defenses of any nature whatsoever.
10. Limitation of Liability. Any obligation or liability whatsoever of
Security Capital Industrial Trust, a Maryland real estate investment trust,
which may arise at any time under the Lease or this Agreement or any obligation
or liability which may be incurred by it pursuant to any other instrument,
transaction or undertaking contemplated hereby, shall not be personally binding
upon, nor shall resort for the enforcement thereof, be had to the property of,
its trustees, directors, shareholders, officers, employees, or agents regardless
of whether such obligation or liability is in the nature of contract, tort or
otherwise.
11. Modifications. This Agreement may not be changed, modified,
discharged or terminated orally in any manner other than by an agreement in
writing signed by Tenant and Landlord or their respective heirs,
representatives, successors and permitted assigns, but subject always, in the
case of Tenant, to Landlord's prior written consent to any proposed assignment
of the Lease by Tenant.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly authorized, executed and delivered as of the day and year first above
written.
LANDLORD:
Security Capital Industrial Trust
------------------------------------------
By: /s/ Xxxx X. Xxxxxx, Xx.
---------------------------------------
Title: Senior Vice President
-----------------------------------
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TENANT:
Xxxxxxxx Micro Science, Inc.
/s/ Xxxx X. Xxxxxxxx
------------------------------------------
By: Xxx X. Xxxxxxxx
---------------------------------------
Title: Vice Pres. N. A. Operations
------------------------------------
Attest: /s/ Xxxxxxx X. Redichs
-----------------------------------
Title: Director of Finance & Administration
------------------------------------
(CORPORATE SEAL)
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ADDENDUM ONE
SECOND EXTENSION AND MODIFICATION AGREEMENT
DATED 1st of December, 1997 BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST ("LANDLORD")
and
XXXXXXXX MICRO SCIENCE, INC. ("TENANT")
Scope of Work
Landlord shall complete the following improvements in accordance with Paragraph
3 of this Second Extension and Modification Agreement:
I. Install four (4) fire extinguishers in the warehouse area.
II. Perform the following electrical work as defined herein below:
A. recircuit office outlets,
B. provide duplex outlet at phone board,
C. recircuit warehouse outlets,
D. provide phone box with pull string,
E. provide one (1) exit emergency light,
F. provide four (4) emergency wall lights,
G. replace single pole switch,
H. recircuit warehouse lights,
I. recircuit three (3) existing unit heaters,
J. recircuit one (1) existing warehouse fan,
K. wire split system for office,
L. provide 100 Amp service.
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ADDENDUM TWO
ASSIGNMENT AND SUBLETTING (CONSENT)
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED 1st of December , 1997, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST ("LANDLORD")
and
XXXXXXXX MICRO SCIENCE, INC. ("TENANT")
(a) Landlord shall not unreasonably withhold its consent to Tenant's
request for permission to assign the Lease or sublease all of part of the
Premises. It shall be reasonable for the Landlord to withhold its consent to any
assignment or sublease in any of the following instances:
(i) The assignee or sublessee does not have a net worth
calculated according to generally accepted accounting principles at least equal
to the greater of the net worth of Tenant immediately prior to such assignment
or sublease or the net worth of the Tenant at the time it executed the Lease;
(ii) The intended use of the Premises by the assignee or
sublessee is not reasonably satisfactory to Landlord;
(iii) The intended use of the Premises by the assignee or
sublessee would materially increase the pedestrian or vehicular traffic to the
Premises or the Project;
(iv) Occupancy of the Premises by the assignee or sublessee
would, in Landlord's opinion, violate any agreement binding upon Landlord or the
Project with regard to the identity of tenants, usage in the Project, or similar
matters;
(v) The identity or business reputation of the assignee or
sublessee will, in the good faith judgment of Landlord, tend to damage the
goodwill or reputation of the Project;
(vi) The assignment or sublet is to another tenant in the
Project and is at rates which are below those charged by Landlord for comparable
space in the Project;
(vii) In the case of a sublease, the subtenant has not
acknowledged that the Lease controls over any inconsistent provision in the
sublease; or
(viii) The proposed assignee or sublessee is a government
entity.
The foregoing criteria shall not exclude any other reasonable basis for Landlord
to refuse its consent to such assignment or sublease.
(b) Any approved assignment or sublease shall be expressly subject to
the terms and conditions of this Lease.
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(c) Tenant shall provide to Landlord all information concerning the
assignee or sublessee as Landlord may request.
(d) Landlord may revoke its consent immediately and without notice if,
as of the effective date of the assignment or sublease, there has occurred and
is continuing any default under the Lease.
(e) Landlord's agreement to not unreasonably withhold its consent shall
only apply to the first assignment or sublease under the Lease.
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EXHIBIT A
[SITE PLAN]
