LEASE
BY AND BETWEEN
UNITED WASTE SERVICE, INC., A GEORGIA CORPORATION, AS LANDLORD
AND
GREEN MAN TECHNOLOGIES OF GEORGIA, INC., A GEORGIA CORPORATION, AS TENANT
September 3, 1998
LEASE
This Lease is made as of this _____ day of __________, 1998 by and between
UNITED WASTE SERVICE, INC., a Georgia corporation ("Landlord") and GREEN MAN
TECHNOLOGIES OF GEORGIA, INC., a Georgia corporation ("Tenant").
1. FUNDAMENTAL LEASE PROVISIONS
Demised
Premises: Address of Demised Premises: 000 Xxxxxx Xxxxx
City: Lawrenceville County: Gwinnett State: Georgia
Term: One (1) year.
"Commencement Date": the later to occur of the date of full
execution of this Lease or delivery of the Premises to Tenant.
Extension
Terms: Four (4) options of One (1) year each.
Rent: One Hundred Forty Seven Thousand and no/100 Dollars
($147,000.00) per year, payable in equal monthly installments
of Twelve Thousand Two Hundred Fifty and No/100 Dollars
($12,250.00) per month during the Term.
Prepaid
Rent: Tenant shall pay the Rent for the first month of the Term upon
execution of this Lease.
Permitted
Use: Scrap tire collection and processing facility, and any lawful
use in connection therewith with Landlord's prior written
consent, not to be unreasonably withheld.
Address To Landlord: United Waste Service, Inc.
For 000 Xxx Xxxxx Xxxxxxx
Notices: Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
With copy to: Republic Services, Inc.
000 X. X. 0xx Xxxxxx, 00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
To Tenant: President, Xxxxxxxx Technologies of Georgia, Inc.
0 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
With copy to: General Manager, Xxxxxxxx Technologies of
Georgia, Inc.
000 X Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
and
Xxxx X. Xxxxxxxxx, P.C.
000 XxxxXxxx Xxxxx, Xxxxx 000
Xxxxxxxxx Xxxx, XX 00000
Address
For Payment United Waste Service, Inc.
of Rent: 000 Xxx Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000
2. DEMISED PREMISES
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord
the tract of property described in Exhibit "A", which is annexed hereto and
incorporated by reference herein and made a part hereof for all purposes, which
collectively with any buildings, parking area, sidewalks, service area and other
improvements now existing or hereafter erected thereon are herein referred to as
the "Demised Premises."
3. TERM; EXTENSION TERMS
The Term of this Lease shall commence on the Commencement Date and shall
expire at midnight on the last day of the first Lease Year, unless earlier
terminated or extended as provided herein. For purposes hereof, "Lease Year"
shall be defined as that 12 month period during the Term commencing on the
Commencement Date or the annual anniversary thereof, as may be applicable;
provided, however that if the Commencement Date is other than the first day of a
calendar month, then the first Lease Year shall include that period of time from
the Commencement Date up to the first day of the next calendar month, and any
subsequent Lease Year shall be the 12 month period beginning on the first day of
such month. Tenant shall have the right to extend the Term of this Lease for the
Extension Terms set forth in Section 1 hereof, upon at least thirty (30) days
advance written notice to Landlord prior to the expiration of the then-existing
Term. For purposes of this Lease, the "Term" shall include any Extension Terms
exercised by Tenant hereunder.
4. RENT
(a) Rent. Tenant shall pay the Rent set forth in Section 1 hereof on the
first day of each month in advance, beginning on the Commencement Date. If the
Commencement Date occurs on a day other than the first day of the month, then
the Rent for the partial month in which the Commencement Date occurs shall be
prorated on the basis of a thirty (30) day month. Notwithstanding anything to
the contrary set forth herein, the Rent will be a net rental payment. All costs
of maintenance for which Tenant is responsible pursuant to Section 11 hereof,
repairs, utilities, taxes and insurance, and any and all other expenses
necessary in connection with the operation of the Demised Premises will be paid
solely by Tenant during the Term of this Lease.
(b) Prepaid Rent. Tenant shall pay prepaid Rent within ten (10) days of
the full execution of this Lease, as set forth in Section 1 hereof.
5. TAXES PAYABLE SOLELY BY TENANT
In addition to the Rent to be paid by Tenant, Tenant shall, prior to
delinquency, pay the full amount of all taxes, assessments, impositions, levies,
charges, excises, fees, licenses and other sums levied, assessed, charged or
imposed, by any governmental authority or other taxing authority upon Tenant's
leasehold interest under this Lease and all alterations, additions, fixtures
(including Removable Trade Fixtures), inventory and other property installed or
placed or permitted at the Demised Premises by Tenant.
6. LATE PAYMENT
In the event that Tenant shall fail to pay to Landlord when due any Rent,
or other sums owing to Landlord pursuant to the terms of this Lease, said late
payment shall bear interest at the Agreed Rate as herein provided and, in
addition for each such late payment that is not paid within ten (10) days after
the date
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the same was due, Tenant shall pay to Landlord a service charge equal to five
percent (5%) of the overdue amount.
7. USE
(a) Permitted Use. Tenant shall use the Demised Premises for the purposes
as set forth in Section 1 hereof. During the term hereof the Demised Premises
and every part thereof, shall be kept by Tenant in a neat and clean condition.
(b) Objectionable Use. Tenant shall not do or permit anything to be done
in or about the Demised Premises nor bring or keep anything therein which will
in any way increase the existing rate of or affect or cause a cancellation of
any fire or other insurance covering the Demised Premises or any of its
contents, nor shall Tenant sell or permit to be kept, used or sold in or about
the Demised Premises any article which may be prohibited by a standard form
policy of insurance. Tenant shall neither use the Demised Premises, nor allow
the Demised Premises to be used, for any unlawful purpose, nor cause, maintain
or permit any nuisance on the Demised Premises. Tenant shall not use or allow
anything to be done in or about the Demised Premises which will in any way
conflict with any law, ordinance or governmental regulation or requirement of
any board of fire underwriters or any duly constituted public authority now in
force or hereafter enacted or promulgated affecting the use or occupancy of the
Demised Premises, and shall promptly comply with all such laws or requirements
at its sole cost and expense.
(c) Hazardous Materials. Tenant shall not do anything throughout the term
of this Lease and any extension thereof that will violate any Environmental Laws
(defined below). Tenant shall indemnify, defend and hold harmless Landlord, its
directors, officers, employees, and agents and assignees or successors to
Landlord's interest in the Demised Premises, their directors, officers,
employees, and agents from and against any and all losses, claims, suits,
damages, judgments, penalties and liability including, without limitation, (i)
all out-of-pocket litigation costs and reasonable attorneys' fees actually
incurred, (ii) all damages (including consequential damages), directly or
indirectly arising out of the use, generation, storage, release or threatened
release or disposal of Hazardous Materials by Tenant, its agents and contractors
and (iii) the cost of and the obligation to perform any required or necessary
repair, clean-up, investigation, removal, remediation or abatement, and the
preparation of any closure or other required plans, to the full extent that such
action is attributable, directly or indirectly, to the use, generation, storage,
release or threatened release or disposal of Hazardous Materials by Tenant, its
agents and contractors. This indemnification obligation of Tenant does not
extend to any repair, clean-up, investigation, removal, remediation or abatement
of Hazardous Materials (i) which were present on, under or in the Demised
Premises on the Commencement Date, or (ii) for which Landlord is otherwise
obligated to indemnify Tenant pursuant to this Section 7(c).
Landlord shall indemnify, defend and hold harmless Tenant, its directors,
officers, employees, and agents, and any assignees, subtenants or successors to
Tenant's interest in the Demised Premises, their directors, officers, employees,
and agents, from and against any and all losses, claims, suits, damages,
judgments, penalties, and liability including, without limitation, all (i)
out-of-pocket litigation costs and reasonable attorneys' fees actually incurred,
(ii) all damages (including consequential damages), directly or indirectly
arising out of the presence, use, generation, storage, release, threatened
release or disposal of Hazardous Materials on, under or in the Demised Premises
before or after the Commencement Date by or due to the actions or omissions of
Landlord, or its agents and contractors and (iii) the cost of and the obligation
to perform any required or necessary repair, clean-up, investigation, removal,
remediation or abatement and the preparation of any closure or other required
plans, whether such action is required or necessary prior to or following the
commencement of the initial lease term, to the full extent that such action is
attributable, directly or indirectly, to the presence, use, generation, storage,
release, threatened release, or disposal of Hazardous Materials on, under or in
the Demised Premises due to the actions or omissions of Landlord or its agents
and contractors.
For the purpose of this Section 7(c), Hazardous Materials shall include
but not be limited to substances defined as "hazardous substances," "hazardous
materials," or "toxic substances" in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C.
4
Section 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq.; the common law; and any and all state, local or federal
laws, rules, regulations and orders pertaining to environmental, public health
or welfare matters, as the same may be amended or supplemented from time to time
(collectively, the "Environmental Laws"). Any terms mentioned in this Lease
which are defined in any applicable Environmental Laws shall have the meanings
ascribed to such terms in such laws, provided, however, that if any such laws
are amended so as to broaden any term defined therein, such broader meaning
shall apply subsequent to the effective date of such amendment.
In the event any clean-up, investigation, removal, remediation, abatement,
or other similar action on, in or under the Premises is required by any
governmental or quasi-governmental agency as a result of the actions or
omissions of any party other than Tenant or its agents, contractors or invitees
before or after the Commencement Date and such action requires that Tenant be
closed for business for greater than a period of ten (10) consecutive business
days, or if access to the Demised Premises as a result of such action is
materially adversely affected for a period in excess of ten (10) business days,
then Tenant's rental obligations under this Lease shall be abated during the
period beyond the ten (10) days that Tenant is required to be closed for
business in proportion to the degree of interference suffered by Tenant, for a
period not to exceed sixty (60) days, at which point Tenant shall either resume
the payment of Rent, or terminate the Lease.
The provisions of this Section 7(c) shall survive the expiration or sooner
termination of this Lease.
8. PROPERTY TAXES
Tenant agrees to pay to Landlord, or at Landlord's election, directly to
the taxing or assessing authority prior to delinquency, all Real Estate Taxes
during the Term of this Lease upon the land, buildings and personal property
comprising the Demised Premises. Real Estate Taxes for the first and last years
of the Term hereof shall be prorated between Landlord and Tenant. For the
purposes of this Lease, the term "Real Estate Taxes" shall include any form of
real property taxes and general assessments (including special assessments),
imposed by any authority having the direct power to tax, including any city,
county, state or federal government.
9. UTILITIES AND OTHER SERVICES
Tenant shall pay, prior to delinquency, all charges for utility service to
the Demised Premises, including, but not limited to, water, gas, power and
electric current, telephone, trash removal, and all other materials and services
used by Tenant in, on or about the Demised Premises from and after the delivery
of possession of the Demised Premises by Landlord, together with any taxes
thereon. If any such charges are not paid when due Landlord may pay the same,
and any amount so paid by Landlord, together with interest thereon at the
Default Rate from the date of payment, shall thereupon become due to Landlord
from Tenant as Rent.
10. ENTRY BY LANDLORD
Landlord and its authorized representatives shall have the right to enter
the Demised Premises at all reasonable times during normal business hours and at
any time in case of an emergency Landlord shall have the right at all times to
have and retain a key with which to unlock all doors in, upon and about the
Demised Premises, excluding Tenant's vaults and safes, and Landlord shall have
the right to use any and all means which Landlord may deem proper to gain entry
in an emergency.
11. MAINTENANCE AND REPAIR
(a) Tenant, at its sole cost and expense, shall keep in good order,
condition and repair the Demised Premises and every part thereof including,
without limiting the generality of the foregoing, all plumbing; electrical and
lighting facilities and equipment within the Demised Premises (including any
heating, ventilation and air conditioning system serving the Demised Premises);
fixtures; interior walls; roof and roof
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membrane; floors; ceilings; windows; doors; plate glass; skylights; entrances
and vestibules and signage located within the Demised Premises. If Tenant fails
to maintain the Demised Premises in good order, condition and repair, Landlord
may give Tenant notice to do such acts which are Tenant's obligation hereunder.
If Tenant thereafter fails to promptly complete such obligations within ten (10)
days, or if such obligations cannot be completed within ten (10) days, to
commence such work within ten (10) days and diligently prosecute it to
completion, then Landlord shall have the right to do such acts and expend such
funds at the expense of Tenant as are reasonably required to perform such work.
Any amount so expended by Landlord (together with a charge for Landlord's
administration and overhead equal to fifteen percent (15%) thereof) shall be
paid by Tenant promptly after demand, with interest at the Default Rate from the
date of such work. Landlord shall have no liability to Tenant for any damage,
inconvenience, or interference with the use of the Demised Premises by Tenant as
a result of performing any such work.
(b) Notwithstanding anything in this Section 11 to the contrary, Landlord
shall be responsible for the replacement of (i) the foundation, (ii) exterior
walls, (iii) roof and roof membrane, and (iv) the plumbing and electrical
systems outside the Demised Premises, except for (x) any damage caused by any
act, negligence, or omission of Tenant or Tenant's agents, employees,
contractors or customers, (y) reasonable wear and tear, or (z) structural
alterations or improvements required by any governmental agency by reason of
Tenant's use and occupancy of the Demised Premises. The actual cost of any item
set forth in subsections (i) - (iv) may be amortized over the useful life of
such item according to generally accepted accounting procedures and Tenant
agrees to pay annually during the Term hereof an amount equal to the annual
amortized cost of such replacement.
(c) Compliance with Law. Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances, and rules of any public
authority relating to their respective maintenance obligations as set forth
herein. Should any federal, state or local regulatory or governmental agency or
department require any structural changes, repairs or modifications to the
improvements on the Demised Premises not resulting from Tenant or related to
Tenant's use or occupancy of the Demised Premises, Landlord shall be responsible
for payment for said charges, repairs or modifications; otherwise, the same
shall be made by Tenant at its sole cost and expense.
12. ALTERATIONS AND ADDITIONS
Tenant shall make no structural alterations, additions or improvements, or
utility installations (which for purposes of this Section shall be defined to
mean ducting, power panels, lighting fixtures, space heaters, conduits and
wiring), to the Demised Premises or any part thereof without obtaining the prior
written consent of Landlord in each instance. Such consent may be granted or
withheld at Landlord's reasonable discretion.
13. INDEMNIFICATION
Tenant agrees to indemnify and hold harmless Landlord and its affiliated
companies and their agents, servants, directors, officers, shareholders, and
employees (as used in this provision, Landlord and its affiliated companies and
their agents, servants, directors officers, shareholders, and employees are
collectively called "Indemnitees") from and against any and all liabilities,
losses, damages, liens, claims, suits, causes of action, costs (including court
costs, reasonable attorneys' fees actually incurred, and costs of
investigation), and actions of any kind arising out of, caused by, resulting
from or alleged to arise by reason of injury to or death of any person or damage
to or loss of property occurring on the Demised Premises, except to the extent
caused by Landlord's negligence or willful misconduct. Landlord agrees to
indemnify and hold harmless Tenant and its affiliated companies and their
agents, servants, directors, officers, shareholders, and employees (as used in
this provision, Tenant and its affiliated companies and their agents, servants,
directors officers, shareholders, and employees are collectively called
"Indemnitees") from and against any and all liabilities, losses, damages, liens,
claims, suits, causes of action, costs (including court costs, reasonable
attorneys' fees actually incurred, and costs of investigation), and actions of
any kind arising out of, caused by, resulting from or alleged to arise by reason
of injury to or death of any person or damage to or loss of property occurring
on or about the Demised Premises as a result of the acts or omissions of
Landlord, except to the extent caused by Tenant's gross negligence or willful
misconduct
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14. INSURANCE
(a) General. All insurance required to be carried by Tenant hereunder
shall be issued by responsible insurance companies licensed to do business in
Georgia and reasonably acceptable to Landlord and the holder of any deed of
trust secured by any portion of the Demised Premises (hereinafter referred to as
a "Mortgagee"). Tenant shall deliver duplicate originals of all policies to
Landlord, evidencing the existence and amounts of such insurance, at least ten
(10) days prior to Tenant's occupancy in the Demised Premises (Tenant may
deliver certificates of such insurance in lieu of duplicate originals of
policies, provided that such certificates shall in Landlord's sole judgment
provide clear and unambiguous evidence of the existence and amounts of such
insurance). Failure to make such delivery shall constitute a material default by
Tenant under this Lease. All policies of insurance delivered to Landlord must
contain a provision that the company writing said policy will give to Landlord
thirty (30) days notice in writing in advance of any modification, cancellation
or lapse or reduction in the amounts of insurance. All public liability,
property damage and other casualty insurance policies shall be written as
primary policies, not contributing with, and not in excess of coverage which
Landlord may carry. Tenant shall furnish Landlord with renewals or "Binders" of
any such policy at least thirty (30) days prior to the expiration thereof.
Tenant agrees that if Tenant does not procure and maintain such insurance,
Landlord may (but shall not be required to) obtain such insurance on Tenant's
behalf and charge Tenant the premiums therefor together with a ten percent (10%)
handling charge, payable upon demand.
(b) Casualty Insurance. At all times during the Term hereof, Tenant shall
maintain in effect policies of casualty insurance covering trade fixtures,
merchandise and other personal property from time to time in, on or upon the
Demised Premises. Such policies shall include coverage in an amount not less
than one hundred percent (100%) of the actual replacement cost thereof from time
to time during the Term of this Lease. Such policies shall provide protection
against any peril included within the classification "Fire and Extended
Coverage," against vandalism and malicious mischief, against theft unless waived
in writing by Landlord, against sprinkler leakage, against earthquake damage
unless waived in writing by Landlord, and against flood damage unless waived in
writing by Landlord (and including cost of demolition and debris removal).
Replacement cost for purposes hereof shall be determined by an accredited
appraiser selected by Landlord or otherwise by mutual agreement. The proceeds of
such insurance shall be used for the repair or replacement of the property so
insured. Upon termination of this Lease following a casualty as set forth
herein, the proceeds shall be paid to Tenant.
(c) Liability Insurance. Tenant shall at all times during the Term hereof
at its own cost and expense obtain and continue in force bodily injury liability
and property damage liability insurance adequate to protect Landlord against
liability for injury to or death of any person in connection with the activities
of Tenant in, on or about the Demised Premises or with the use, operation or
condition of the Demised Premises. Such insurance at all times shall be in an
amount of not less than Two Million Dollars ($2,000,000.00) for injuries to
persons in one accident, not less than One Million Dollars ($1,000,000.00) for
injury to any one person and not less than Five Hundred Thousand Dollars
($500,000.00) with respect to damage to property. The limits of such insurance
do not limit the liability of Tenant hereunder.
(d) Workers' Compensation Insurance. Tenant shall also, at all times
during the Term hereof, and at Tenant's own cost and expense, procure and
continue in force workers' compensation insurance with employer liability
(coverage B) limits of not less than Five Hundred Thousand Dollars
($500,000.00).
(e) Comprehensive Automobile Liability. Tenant shall maintain
comprehensive automobile liability insurance on a standard from written to cover
all owned, hired and non-owned automobiles with insurance in an amount of not
less than One Million Dollars ($1,000,000.00) for injuries to persons in one
accident, not less than Five Hundred Thousand Dollars ($500,000.00) for injury
to any one person and not less than Two Hundred Fifty Thousand Dollars
($250,000.00) with respect to damage to property.
15. DAMAGE AND DESTRUCTION
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(a) Partial Damage - Insured. If the Demised Premises are damaged by a
risk covered under fire and extended coverage insurance protecting Landlord,
then Landlord shall restore such damage provided insurance proceeds are
available to Landlord to pay one hundred percent (100%) of the cost of
restoration, and provided such restoration by Landlord can be completed within
six (6) months after the commencement of work, in the opinion of a registered
architect or engineer appointed by Landlord. In such event this Lease shall
continue in full force and effect, except that Tenant shall, so long as the
damage is not due to the act or omission of Tenant, be entitled to an equitable
reduction of Rent while such restoration takes place, such reduction to be based
upon the extent to which the damage and the restoration efforts materially
interfere with Tenant's business in the Demised Premises.
(b) Partial Damage - Uninsured. If the Demised Premises are damaged by a
risk not covered by such insurance or the insurance proceeds available to
Landlord are less than one hundred percent (100%) of the cost of restoration for
any reason whatsoever (including, without limitation, as a result of a Mortgagee
requiring the proceeds of insurance to be applied towards any indebtedness owed
to Mortgagee), or if the restoration cannot be completed within six (6) months
after the commencement of work in the opinion of the registered architect or
engineer appointed by Landlord, then Landlord shall have the option either to
(i) repair or restore such damage, this Lease continuing in full force and
effect, but the Rent to be equitably reduced as hereinabove provided, or (ii)
give notice to Tenant at any time within ninety (90) days after such damage
terminating this Lease as of a date to be specified in such notice, which date
shall be not less than thirty (30) nor more than sixty (60) days after giving
such notice. If such notice is given, this Lease shall expire and any interest
of Tenant in the Demised Premises shall terminate on the date specified in such
notice and the Rent, reduced by an equitable reduction (except as hereinabove
provided) based upon the extent, if any, to which such damage materially
interfered with Tenant's business in the Demised Premises, shall be paid to the
date of such termination, and Landlord agrees to refund to Tenant any Rent or
Expenses theretofore paid in advance for any period of time subsequent to such
date.
(c) Total Destruction. If the Demised Premises are totally destroyed, or
if in Landlord's judgment the Demised Premises cannot be restored as required
herein under applicable laws and regulations, then, notwithstanding the
availability of insurance proceeds, this Lease shall be terminated effective as
of the date of the damage.
(d) Landlord's Obligations. Landlord shall not be required to carry
insurance of any kind on Tenant's property and shall not be required to repair
any injury or damage thereto by fire or other cause, or to make any restoration
or replacement of any paneling, decorations, partitions, ceilings, floor
covering, office fixtures, utility installations or any other improvements or
property installed in the Demised Premises by or at the direct or indirect
expense of Tenant, and Tenant shall be required to restore or replace same in
the event of damage. Tenant shall have no claim against Landlord for any loss
suffered by reason of any such damage, destruction, repair or restoration.
Notwithstanding anything to the contrary contained in this Section, Landlord
shall have no obligation whatsoever to repair, reconstruct or restore the
Demised Premises with respect to damage or destruction as described in this
Section occurring during the last twelve (12) months of the Term of this Lease
or any extension thereof, in which event this Lease shall terminate as of the
date of damage or destruction.
16. CONDEMNATION
If all or any part of the Demised Premises is taken or appropriated for
public or quasi-public use by the right of eminent domain or otherwise by a
taking in the nature of inverse condemnation, with or without litigation, or is
transferred by agreement in lieu thereof (any of the foregoing being referred to
herein as a "taking"), either party hereto may, by written notice given to the
other within thirty (30) days of receipt of notice of taking, elect to terminate
this Lease as of the date possession is transferred pursuant to the taking;
provided, however, that before Landlord or Tenant may terminate this Lease for a
taking, such taking shall be of such an extent and nature as to materially and
adversely affect Tenant's business in Demised Premises. Tenant shall be entitled
to pursue an award for separate damages, provided the same shall not diminish
Landlord's claim or award. Nothing contained herein shall be deemed to give
Landlord any interest in, or to require Tenant to assign to Landlord, any award
made to Tenant for the taking of personal property belonging
8
to Tenant. In the event of a partial taking which does not result in a
termination of this Lease, Rent shall be equitably reduced to the extent
Tenant's business in or use of the Demised Premises is materially and adversely
affected and impaired as described above. No temporary taking of the Demised
Premises shall terminate this Lease, or give Tenant any right to any abatement
of Rent or Expenses hereunder, except that Rent and Expenses shall be equitably
reduced as described above during that portion of any temporary taking lasting
more than thirty (30) days. Each party hereto waives the provisions of any
applicable law allowing either party to petition the court to terminate this
Lease for a partial taking, it being the intent of the parties that this Section
shall govern.
17. LIENS
Tenant shall keep the Demised Premises free from any liens arising out of
work performed, materials furnished, or obligations incurred by Tenant, and
shall indemnify, hold harmless and defend Landlord from any liens and
encumbrances arising out of any work performed or materials furnished by or at
the direction of Tenant. Landlord shall have the right at all times to keep
posted on the Demised Premises any notices permitted or required by law, or
which Landlord shall deem proper for the protection of Landlord and the Demised
Premises, and any other party having any interest therein, from mechanics' and
materialmen's liens. If any claim of lien is filed against the Demised Premises
or any similar action affecting title to such property is commenced, the party
receiving notice of such lien or action shall immediately give the other party
written notice thereof. If Tenant fails, within twenty (20) days following the
imposition of any lien, to cause such lien to be released of record by payment
or posting of a proper bond, Landlord shall have, in addition to all other
remedies provided herein and by law, the right (but not the obligation) to cause
the same to be released by such means as it shall deem proper, including payment
of the claim giving rise to such lien. All such sums paid by Landlord and all
costs and expenses incurred by it in connection therewith (including attorneys'
fees) shall be payable to Landlord by Tenant on demand, with interest at the
Agreed Rate from the date of expenditure.
18. DEFAULTS BY TENANT
The occurrence of any one or more of the following events shall constitute
a material default and breach of this Lease by Tenant:
(a) Monetary Default. The failure by Tenant to make any payment of Rent or
of any other sum required to be made by Tenant hereunder, within ten (10) days
of the date such sum shall be due and payable.
(b) Non-Monetary Default. The failure by Tenant to observe or perform any
of the covenants, conditions or provisions of this Lease to be observed or
performed by Tenant, if such failure is not cured within twenty (20) days after
written notice thereof from Landlord to Tenant; provided, however, that if the
nature of Tenant's default is such that it cannot be cured solely by payment of
money and more than twenty (20) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure within
the twenty (20) day period and thereafter diligently prosecutes such cure to
completion; provided, further, that repeated breaches or defaults by Tenant
(more than three (3) in any twelve (12) month period) shall entitle Landlord at
its option, to terminate this Lease.
(c) Bankruptcy. The making by Tenant of any general assignment for the
benefit of creditors, the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or of a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against Tenant, the same is dismissed within sixty (60) days); the appointment
of a trustee or receiver to take possession of substantially all of Tenant's
assets located at the Demised Premises or of Tenant's interest in this Lease,
where such seizure is not discharged within thirty (30) days.
19. LANDLORD'S REMEDIES
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In the event of any default or breach of this Lease by Tenant, Landlord
may at any time thereafter, without limiting Landlord in the exercise of any
other right or remedy at law or in equity which Landlord may have (all remedies
provided herein being non-exclusive and cumulative), do any one or more of the
following:
(a) Right to Relet. Maintain this Lease in full force and effect and
recover the Rent and other monetary charges as they become due, without
terminating Tenant's right to possession irrespective of whether Tenant shall
have abandoned the Demised Premises. If Landlord elects not to terminate the
Lease, Landlord shall have the right to attempt to relet the Demised Premises at
such rent and upon such conditions, and for such a term, as Landlord deems
appropriate in its sole discretion and to do all acts necessary with regard
thereto, without being deemed to have elected to terminate the Lease, including
re-entering the Demised Premises to make repairs or to maintain or modify the
Demised Premises, and removing all persons and property from the Demised
Premises; such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant. Reletting may be for a
period shorter or longer than the remaining term of this Lease, and for more or
less rent. If reletting occurs, this Lease shall terminate automatically when
the new tenant takes possession of the Demised Premises and commences rent
payment. Notwithstanding that Landlord fails to elect to terminate the Lease
initially, Landlord at any time thereafter may elect to terminate the Lease by
virtue of any previous uncured default by Tenant. In the event of any such
termination, Landlord shall be entitled to recover from Tenant all damages
incurred by Landlord by reason of Tenant's default (including, without
limitation, the damages described below), as well as all costs of reletting,
including commissions, reasonable attorneys' fees actually incurred, restoration
or remodeling costs for subsequent tenant, and all other consequential damages.
(b) Termination. Terminate Tenant's right to possession by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Demised Premises to Landlord. In such event Landlord
shall be entitled to recover from Tenant all damages incurred by Landlord by
reason of Tenant's default.
(c) Right to Cure Tenant's Default. Proceed to cure the default at
Tenant's sole cost and expense, without waiving or releasing Tenant from any
obligation hereunder. If at any time Landlord pays any sum or incurs any expense
as a result of or in connection with curing any default of Tenant (including any
administrative fees provided for herein and attorneys' fees), the amount thereof
shall be immediately due as of the date of such expenditure and, together with
interest at the Agreed Rate from the date of such expenditures, shall be paid by
Tenant to Landlord immediately upon demand, and Tenant hereby covenants to pay
any and all such sums.
(d) Remedies are Cumulative. Notwithstanding any termination of this Lease
pursuant to a default by Tenant, Landlord shall be entitled to any and all
remedies set forth in this Lease or at law or equity.
20. COSTS OF SUIT
If either party brings action for relief against the other, declaratory or
otherwise, arising out of this Lease, including any suit by Landlord for the
recovery of Rent or possession of the Demised Premises, the unsuccessful party
shall pay the successful party its costs incurred in connection with and in
preparation for said action, including its reasonable attorneys' fees actually
incurred (which costs shall be deemed to have accrued on the commencement of
such action and shall be paid whether or not such action is prosecuted to
judgment).
21. SURRENDER OF DEMISED PREMISES
(a) Surrender. On expiration or termination of this Lease, Tenant shall
surrender to Landlord the Demised Premises, and all Tenant's improvements
thereto and alterations thereof, broom clean and in good condition (except for
ordinary wear and tear and damage due to casualty), and shall remove all of its
personal property including any signs, notices and displays.
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(b) Holding Over. If Tenant holds over after the Term hereof, with or
without the express or implied consent of Landlord, such tenancy shall be from
month-to-month only, and not a renewal hereof or an extension for any further
term, and in such case Rent shall be payable at a rental in the amount of one
hundred fifty percent (150%) of the Rent in effect as of the last month of the
Term hereof and at the time specified in this Lease, and such month-to-month
tenancy shall be subject to every other term, covenant and agreement contained
herein. The foregoing shall not, however, be construed as a consent by Landlord
to any holding over by Tenant and Landlord reserves the right to require Tenant
to surrender possession of the Demised Premises upon expiration or termination
of this Lease.
22. TRANSFER OF LANDLORD'S INTEREST
Landlord shall have the right to assign its interest in this Lease to any
party in Landlord's sole discretion. If Landlord sells or transfers its interest
in the Demised Premises (other than a transfer for security purposes) Landlord
shall be released from all obligations and liabilities accruing thereafter under
this Lease, if Landlord's successor has assumed in writing Landlord's
obligations under this Lease. Any prepaid Rent or other funds of Tenant in the
hands of Landlord at the time of transfer shall be delivered to such successor.
Tenant agrees to attorn to the purchaser or assignee, provided all Landlord's
obligations hereunder are assumed in writing by such successor.
23. ASSIGNMENT AND SUBLETTING
Tenant shall not transfer this Lease or any interest therein, and shall
not sublet the Demised Premises or any part thereof, without the prior written
consent of Landlord (such consent to be in the reasonable discretion of
Landlord) in each instance.
24. ATTORNMENT
If any proceeding is brought for default under any ground or underlying
lease to which this Lease is subject, or in the event of foreclosure or the
exercise of the power of sale under any mortgage or deed of trust made by
Landlord covering the Demised Premises, Tenant shall attorn to the successor
upon any such foreclosure or sale and recognize that successor as Landlord under
this Lease, provided such successor expressly agrees in writing to be bound to
all future obligations by the terms of this Lease, and, if so requested, Tenant
shall enter into a new lease with that successor on the same terms and
conditions as are contained in this Lease (for the unexpired term of this Lease
then remaining).
25. SUBORDINATION
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, this Lease shall be subject and
subordinate at all times to: (i) all ground or underlying leases which may now
exist or hereafter be executed affecting the Demised Premises, and (ii) the lien
of any first mortgage or first deed of trust which may now exist or hereafter be
executed in any amount for which the Demised Premises, such ground or underlying
leases, or Landlord's interest or estate in any of them, is specified as
security. Tenant covenants and agrees to execute and deliver, upon demand by
Landlord and in such form as shall be reasonably requested by Landlord, any
documents evidencing the priority or subordination of this Lease with respect to
any such ground or underlying leases or the lien of any such first mortgage or
first deed of trust, and specifically to execute, acknowledge, and deliver to
Landlord from time to time within ten (10) days after requested to do so a
subordination of lease, or a subordination of deed of trust, in substantially
the form set forth in Exhibit "B" respectively, attached hereto, or such other
form as may be reasonably required by any Mortgagee of Landlord, and failure of
Tenant to do so shall be a material default hereunder. Tenant hereby irrevocably
appoints Landlord as its attorney-in-fact to execute, deliver, and record any
such documents in the name and on behalf of Tenant if Tenant fails to comply
with the foregoing.
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26. ESTOPPEL CERTIFICATE
Tenant shall from time to time within twenty (20) days after prior written
notice from Landlord execute, acknowledge and deliver to Landlord a statement in
writing in the form set forth in Exhibit "C" attached hereto.
27. QUIET ENJOYMENT
Tenant shall lawfully and quietly have, hold and enjoy the Demised
Premises without hindrance or molestation by Landlord or anyone claiming by,
through or under Landlord, subject, however, to all the provisions of this
Lease.
28. NOTICES
Any notice, demand or communication required or permitted to be given
hereunder shall be personally served, deposited in the United States mails, duly
registered or certified with postage fully prepaid thereon or by Federal Express
or other reputable overnight courier service, addressed to the other party at
the address set forth in Section 1 hereof, or to such other address requested in
writing by either party upon thirty (30) days notice to the other party, notices
shall be deemed to have been given upon the date same is post-marked if sent by
registered or certified mail or the day deposited with Federal Express or such
reputable overnight courier or the day sent if by personal service, but shall
not be deemed received until one (1) business day following deposit with Federal
Express or other reputable overnight courier or three (3) days following deposit
in the United States Mail if sent by certified or registered mail or upon
receipt if by personal service.
29. NON-WAIVER
No delay or omission in the exercise of any right or remedy of Landlord
for any default by Tenant shall impair such right or remedy or be construed as a
waiver. The receipt and acceptance by Landlord of delinquent payments shall not
constitute a waiver of any other default, and shall not constitute a waiver of
timely payment of the particular payment involved. No act or conduct of
Landlord, including, without limitation, the acceptance of keys to the Demised
Premises, shall constitute an acceptance of the surrender of the Demised
Premises by Tenant before the expiration of the Term. Only an express notice to
such effect from Landlord to Tenant shall constitute acceptance of the surrender
of the Premised sufficient to terminate this Lease. Landlord's consent to or
approval of any act by Tenant requiring Landlord's consent or approval shall not
constitute a consent or approval of any subsequent act by Tenant. Any waiver by
Landlord of any default must be in writing and shall not be a waiver of any
other default concerning the same or any other provision of this Lease.
30. MISCELLANEOUS
(a) Not an Offer. The submission of this document for examination and
negotiation does not constitute an offer to lease, or a reservation of, or an
option for, the Demised Premises.
(b) Execution. This document becomes effective and binding only upon
execution and delivery hereof by Tenant and by Landlord. No act or omission of
any employee or agent of Landlord or of Landlord's broker shall alter, change or
modify any of the provisions hereof. This Lease may be executed in any number of
counterparts, each of which shall be an original but all of which shall
constitute one and the same instrument. A telecopy signature of any party shall
be considered to have the same binding effect as an original signature.
(c) Landlord and Tenant. As used in this Lease, the words "Landlord" and
"Tenant" include the plural as well as the singular. Words used in the neuter
gender include the masculine and feminine and words in the masculine or feminine
gender include the neuter, If there is more than one person or entity
constituting Landlord or Tenant, the obligations imposed hereunder upon Landlord
or Tenant are joint and several, If Tenant consists of a husband and wife, the
obligations of Tenant hereunder extend individually to the sole and
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separate property of each of them as well as to their community property. The
obligations contained in this Lease to be performed by Landlord shall be binding
on Landlord's successors and assigns only during their respective periods of
ownership of the Demised Premises.
(d) Brokers. Each party shall indemnify and hold the other party harmless
from all damages (including attorneys' fees and costs) resulting from any claims
that may be asserted by any broker, finder, or other person claiming by, through
or under the party, except as specifically set forth above.
(e) Nonrecordability of Lease. Tenant agrees that in no event shall this
Lease or a memorandum hereof be recorded.
(f) Matters of Record. This Lease and Tenant's rights hereunder are
subject and subordinate in all respects to matters affecting Landlord's title
recorded in the official records of the county recorder's office for the county
in which the Demised Premises is located. Tenant agrees that as to its leasehold
estate it, and all persons in possession or holding under it, will conform with
and will not violate any such covenants, conditions and restrictions, or other
matters, of record; provided, however, that in the event any such matter
prohibits Tenant from using the Demised Premises for a scrap tire collection and
processing facility, Tenant may terminate this Lease upon thirty (30) days
advance written notice to Landlord.
(g) Severability. If any provision of this Lease shall, to any extent, be
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Lease shall not be affected thereby, and every other term
and provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
(h) Construction. All provisions hereof, whether covenants or conditions,
shall be deemed to be both covenants and conditions. The definitions contained
in this Lease shall be used to interpret this Lease.
(i) Interest. Except as expressly provided otherwise in this Lease, any
amount due to Landlord which is not paid when due shall bear interest from the
date due at the prime commercial rate of interest published from time to time by
the Wall Street Journal as the base rate on corporate loans posted by at least
75% of the nations thirty (30) largest banks, plus two percent (2%) per annum,
but not to exceed the maximum rate of interest allowable under the law (the
"Agreed Rate"). Payment of such interest shall not excuse or cure any default by
Tenant under this Lease.
(j) Binding Effect; Choice of Law. Except as expressly provided otherwise
in this Lease, all of the provisions hereof shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns. This Lease shall be governed by the
laws of the state where the Demised Premises is located.
(k) Time; Rights Cumulative. Time is of the essence of this Lease and each
and every provision hereof, except as to the provisions relating to delivery of
possession of the Demised Premises to Tenant. All rights and remedies of the
parties shall be cumulative and non-exclusive of any other remedy at law or in
equity.
(l) Inability to Perform. This Lease and the obligations of Tenant
hereunder shall not be affected or impaired because Landlord is unable to
fulfill any of its obligations hereunder or is delayed in doing so, if such
inability or delay is caused by reason of force majeure, strike, labor troubles,
acts of God, acts of government, unavailability of materials or labor, or any
other cause beyond the control of Landlord (the "Permitted Delays").
(m) Authority. The individuals executing this Lease on behalf of Landlord
and Tenant represent and warrant that they are duly authorized to execute and
deliver this Lease.
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(n) No Partnership. Nothing herein contained, either in the method of
computing Rent or otherwise, shall create between the parties hereto, or be
relied upon by others as creating, any relationship or partnership, association,
joint venture, or otherwise. The sole relationship of the parties hereto shall
be that of landlord and tenant.
(o) Exhibits. Each of the following exhibits are incorporated herein as a
part of this Lease:
(i) Exhibit "A" - Legal Description of the Demised Premises
(ii) Exhibit "B" - Subordination of Lease
(iii) Exhibit "C" - Estoppel Statement
31. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior
agreement, negotiations, brochures, arrangements, or understanding pertaining to
any such matter shall be effective for any purpose unless expressed herein. No
provisions of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
last date indicated below.
LANDLORD: TENANT:
UNITED WASTE SERVICE, INC., GREEN MAN TECHNOLOGIES OF GEORGIA,
a Georgia corporation a Georgia corporation
BY: /s/ Xxxxx X. Xxxxxxx BY: /s/ Xxxxxxx X. Xxxxx
------------------------------- -----------------------------
ITS: Assistant Secretary ITS: Treasurer
------------------------------- -----------------------------
DATE: DATE: 9/4/98
------------------------------- -----------------------------
EXHIBIT A
[INSERT LEGAL DESCRIPTION OF THE DEMISED PREMISES]
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EXHIBIT B
SUBORDINATION OF LEASE
Recording Requested By And
When Recorded Return To:
Attention:
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN THE LEASEHOLD ESTATE IN THE
PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER
OR LATER SECURITY DOCUMENT.
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
THIS AGREEMENT made as of the ___________ day of _______________________
19__, among __________________________ (hereinafter referred to as "Mortgagee"),
UNITED WASTE SERVICE, INC., a Georgia corporation (hereinafter referred to as
"Landlord"), and GREEN MAN TECHNOLOGIES, INC., a Delaware corporation
(hereinafter referred to as "Tenant").
W I T N E S S E T H
WHEREAS, Mortgagee has become the owner and holder of a beneficial
interest under a deed of trust recorded ____________________ as Instrument No.
__________________, Official Records, County of _____________________,
____________ (hereinafter referred to as the "Mortgage") covering certain
premises described in Exhibit A attached hereto (hereinafter referred to as the
"Mortgaged Demised Premises") and of the note, bond or other obligation secured
thereby (hereinafter referred to as the 'Note");
WHEREAS, Tenant is the holder of a leasehold estate in a portion of the
Mortgaged Demised Premises (hereinafter referred to as the "Demised Premises")
under and pursuant to the provisions of a certain lease dated
_____________________, 19_______ by and between Tenant and Landlord (hereinafter
referred to as the "Lease");
WHEREAS, Landlord's interest in the Lease has been assigned to Mortgagee
as additional security for the Mortgage; and
WHEREAS, Tenant has agreed to subordinate the Lease to the Mortgage and to
the lien thereof and Mortgagee has agreed to grant non-disturbance to Tenant
under the Lease on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants
and agreements herein contained, and other good and valuable consideration, the
receipt of which is hereby acknowledged, Mortgagee and Tenant hereby covenant
and agree as follows:
1. So long as Tenant is not in default in the payment of rent or
additional rent or in the performance of any of the other terms, covenants or
conditions of the Lease on Tenant's part to be performed. Tenant's possession of
the Demised Premises under the Lease, or any extensions or renewals thereof
which may be effected in accordance with any option therefor in the Lease, shall
not be diminished or interfered with by Mortgagee and Mortgagee shall not join
Tenant as a party defendant in any action or proceeding for the purpose of
terminating Tenant's interest and estate under the Lease because of any default
under the Mortgage.
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2. If Mortgagee shall become the owner of the Mortgaged Demised Premises
or the Mortgaged Demised Premises shall be sold by reason of foreclosure,
trustee's sale or other proceedings brought to enforce the Mortgage, or if the
Mortgaged Demised Premises shall be transferred by deed in lieu of the
foreclosure, the Lease shall continue in full force and effect as a direct Lease
between the then owner of the Mortgaged Demised Premises (including Mortgagee or
the grantee under a deed in lieu of foreclosure) and Tenant, upon and subject to
all of the terms, covenants and conditions of the Lease for the balance of the
term thereof remaining and any extensions or renewals thereof which may be
effected in accordance with any option therefor in the Lease, and Tenant does
hereby attorn to Mortgagee or any other such owner as its Landlord, said
attornment to be effective and self-operative without the execution of any
further instruments, except that Tenant shall, from and after Mortgagee's or
other such owner's succession to the interest of Landlord under the Lease, have
the same remedies for the breach of covenant contained in the Lease that Tenant
might have had under the Lease against Landlord.
3. The Lease is hereby made, and shall at all times be subject and
subordinate in each and every respect, to the Mortgage and to any and all
renewals, modifications, extensions, substitutions, replacements and/or
consolidations of the Mortgage, but any and all such renewals, modifications,
extensions, substitutions, replacements and/or consolidations, shall
nevertheless be subject to and entitled to the benefits of the terms of this
Agreement.
4. To the extent that the Lease shall entitle the Tenant to notice of any
Mortgage, this Agreement shall constitute such notice to the Tenant with respect
to the Mortgage and to any and all renewals, modifications, extensions,
substitutions, replacements and/or consolidations of the Mortgage.
5. This Agreement may not be modified orally or in any other manner than
by an agreement in writing signed by the parties hereto or their respective
successors in interest. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and acknowledged as of the day and year first above written.
Mortgagee: Landlord:
UNITED WASTE SERVICE, INC.
-----------------------------------
/s/ Xxxxx X. Xxxxxxx
----------------------------------- -----------------------------------
By: By: Xxxxx X. Xxxxxxx
----------------------------------- -----------------------------------
Title: Title: Assistant Secretary
----------------------------------- -----------------------------------
Tenant:
GREEN MAN TECHNOLOGIES, INC.
-----------------------------------
By:
-----------------------------------
Title:
-----------------------------------
16
EXHIBIT C
ESTOPPEL STATEMENT
Re: Lease dated as of ______________ (hereinafter the "Lease"),
between UNITED WASTE SERVICE, INC., a Georgia corporation
(hereinafter the "Lessor") and GREEN MAN TECHNOLOGIES, INC., a
Delaware corporation (hereinafter the "Lessee"), concerning the
premises described in Exhibit A attached hereto (the "Demised
Premises").
As Lessee under the above-referenced Lease, the undersigned hereby
acknowledges for the benefit of __________________ ("Lender"), which has or is
about to make a loan to said Lessor, part of the security for which will be a
mortgage or deed of trust covering the Demised Premises leased to the
undersigned and an assignment of Lessor's interest in the Lease, the truth and
accuracy of the following statements pertaining to said Lease. To Lessee's
knowledge:
1. Lessee is not aware of any patent or latent defects in construction of
said improvements (except for only nonsubstantial defects, notice of which has
previously been given to Lessor) which would constitute a default by Lessor
pursuant to the Lease.
2. Lessee is paying the full rent stipulated in said Lease to be paid by
Lessee as of the date hereof with no offsets, defenses or claims.
3. Lessor is not presently in default under any of the terms, covenants or
provisions of said Lease.
4. Lessor has satisfactorily complied with all of the requirements and
conditions precedent to the commencement of the term of said Lease as specified
in said Lease.
5. The current fixed base monthly rent under said Lease is
$_______________ and no moneys have been paid to Lessor in advance of the due
date set forth in the Lease described above, except as follows:
________________________________________________________________________________
______________________________________________________________________________.
6. The Lease is for a term of ___________ years and Lessee has been in
occupancy since ________________ and paying rent since ________________.
7. The Lease commenced on __________________.
8. Lessee acknowledges that Lender assumes no liability for its security
deposits, if any, or for sums escrowed with the Lessor for taxes or insurance or
other expenses in the event that Lender acquires the Demised Premises through
foreclosure or through a transfer of title in lieu of foreclosure, unless such
security deposits or escrowed sums have been delivered to Lender.
Dated: ____________________________ 19 __.
LESSEE:
--------------------------------
BY:
----------------------------
ITS
----------------------------
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