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EXHIBIT 10.14
Lease Agreement by and between
AMB PROPERTY, L.P., A DELAWARE LIMITED PARTNERSHIP
AND
HEADHUNTERS, L.L.C.
September 1, 1998
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TABLE OF CONTENTS
PAGE
1. BASIC PROVISIONS....................................................................................1
1.1 Parties.....................................................................................1
1.2 Premises....................................................................................1
1.3 Term........................................................................................1
1.4 Base Rent...................................................................................1
1.5 Tenant's Share of Operating Expenses........................................................1
1.6 Tenant's Estimated Monthly Rent Payment.....................................................1
1.7 Security Deposit............................................................................1
1.8 Permitted Use...............................................................................2
1.9 Guarantor...................................................................................2
1.10 Addenda and Exhibits........................................................................2
1.11 Address for Rent Payments...................................................................2
2. PREMISES, PARKING AND COMMON AREAS..................................................................2
2.1 Letting.....................................................................................2
2.2 Common Areas -Definition....................................................................2
2.3 Common Areas -Tenant's Rights...............................................................2
2.4 Common Areas -Rules and Regulations.........................................................2
2.5 Common Area Changes.........................................................................2
3. TERM ..........................................................................................3
3.1 Term........................................................................................3
3.2 Delay in Possession.........................................................................3
3.3 Commencement Date Certificate...............................................................3
4. RENT ..........................................................................................3
4.1 Base Rent...................................................................................3
4.2 Operating Expenses..........................................................................4
5. Security Deposit....................................................................................5
6. USE ..........................................................................................5
6.1 Permitted Use...............................................................................5
6.2 Hazardous Substances........................................................................5
6.3 Tenant's Compliance with Requirements.......................................................6
6.4 Inspection; Compliance with Law.............................................................7
7. MAINTENANCE, REPAIRS, TRADE FIXTURES AND ALTERATIONS................................................7
7.1 Tenant's Obligations........................................................................7
7.2 Landlord's Obligations......................................................................7
7.3 Alterations.................................................................................7
7.4 Surrender/Restoration.......................................................................8
8. INSURANCE; INDEMNITY................................................................................8
8.1 Payment of Premiums.........................................................................8
8.2 Tenant's Insurance..........................................................................8
8.3 Landlord's Insurance........................................................................8
8.4 Waiver of Subrogation.......................................................................9
8.5 Indemnity...................................................................................9
8.6 Exemption of Landlord from Liability........................................................9
9. DAMAGE OR DESTRUCTION...............................................................................9
9.1 Termination Right...........................................................................9
9.2 Damage Caused by Tenant....................................................................10
10. REAL PROPERTY TAXES................................................................................10
10.1 Payment of Real Property Taxes.............................................................10
10.2 Real Property Tax Definition...............................................................10
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10.3 Additional Improvements....................................................................10
10.4 Joint Assessment...........................................................................10
10.5 Tenant's Property Taxes....................................................................10
11. UTILITIES..........................................................................................11
12. ASSIGNMENT AND SUBLETTING..........................................................................11
12.1 Landlord's Consent Required................................................................11
12.2 Rent Adjustment............................................................................11
13. DEFAULT; REMEDIES..................................................................................11
13.1 Default....................................................................................11
13.2 Remedies...................................................................................12
13.3 Late Charge................................................................................12
14. CONDEMNATION.......................................................................................12
15. ESTOPPEL CERTIFICATE AND FINANCIAL STATEMENTS......................................................13
15.1 Estoppel Certificate.......................................................................13
15.2 Financial Statement........................................................................13
16. ADDITIONAL COVENANTS AND PROVISIONS................................................................13
16.1 Severability...............................................................................13
16.2 Interest on Past-Due Obligations...........................................................13
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TABLE OF CONTENTS
PAGE
16.3 Time of Essence............................................................................13
16.4 Landlord Liability.........................................................................13
16.5 No Prior or Other Agreements...............................................................13
16.6 Notice Requirements........................................................................13
16.7 Date of Notice.............................................................................14
16.8 Waivers....................................................................................14
16.9 Holdover...................................................................................14
16.10 Cumulative Remedies........................................................................14
16.11 Binding Effect; Choice of Law..............................................................14
16.12 Landlord...................................................................................14
16.13 Attorneys' Fees and Other Costs............................................................15
16.14 Landlord's Access: Showing Premises; Repairs...............................................15
16.15 Signs......................................................................................15
16.16 Termination: Merger........................................................................15
16.17 Quiet Possession...........................................................................15
16.18 Subordination: Attornment; Non-Disturbance.................................................15
16.19 Rules and Regulations......................................................................16
16.20 Security Measures..........................................................................16
16.21 Reservations...............................................................................16
16.22 Conflict...................................................................................17
16.23 Offer......................................................................................17
16.24 Amendments.................................................................................17
16.25 Multiple Parties...........................................................................17
16.26 Authority..................................................................................17
SIGNATURES..............................................................................................11
EXHIBIT A Diagram of Premises
EXHIBIT B Remedies of Addendum
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GLOSSARY
The following terms in the Lease are defined in the paragraphs opposite
the terms.
TERM DEFINED IN PARAGRAPH
---- --------------------
Additional Rent 4.1
Applicable Requirements 6.3
Assign 12.1
Base Rent 1.4
Basic Provisions 1.1
Building 1.2
Building Operating Expenses 4.2(b)
Code 12.1
Commencement Date 1.3
Commencement Date Certified 3.3
Common Areas 2.2
Common Area Operating Expenses 4.2(b)
Condemnation 14
Default 13.1
Expiration Date 1.3
HVAC 4.2(a)
Hazardous Substance 6.2
Indemnity 8.5
Industrial Center 1.2
Landlord 1.1
Landlord Entities 6.2(c)
Lease 1.1
Lenders 6.4
Mortgage 16.18
Operating Expenses 4.2
Party/Parties 1.1
Permitted Use 1.8
Premises 1.2
Prevailing Party 16.13
Real Property Taxes 10.2
Rent 4.1
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Reportable Use 6.2
Requesting Party 15
Responding Party 15
Rules and Regulations 2.4
Security Deposit 1.7,5
Taxes 10.2
Tenant 1.1
Tenant Acts 9.2
Tenant's Share 1.5
Term 1.3
Use 6.1
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AMB PROPERTY CORPORATION
INDUSTRIAL MULTI-TENANT LEASE
1. BASIC PROVISIONS ("Basic Provisions").
1.1 Parties: This Lease ("Lease") dated September 9, 1998, is made
by and between AMB PROPERTY, L.P., A DELAWARE LIMITED PARTNERSHIP, ("Landlord")
AND XXXXXXXXXX.XXX, INC., a Georgia corporation ("Tenant") (collectively the
"Parties," or individually a "Party")
1.2 Premises: A portion, outlined on Exhibit A which is
approximately 6,915 square feet and attached hereto ("Premises"), of the
building ("Building") located at 0000 Xxxxxxxx Xxxxxxxxx, Suites 155 and 150, in
the City of Norcross State of GA. The Building is located in the industrial
center commonly known as Peachtree Northeast Business Park (the "Industrial
Center"). Tenant shall have non-exclusive rights to the Common Areas (as defined
in Paragraph 2.3 below), but shall not have any rights to the roof, exterior
walls or utility raceways of the Building or to any other buildings in the
Industrial Center. The Premises, the Building, the Common Areas, the land upon
which they are located and all other buildings and improvements thereon are
herein collectively referred to as the "Industrial Center."
1.3 Term: 0 years and 5 months ("Term") commencing September 1,
1998 ("Commencement Date") and ending January 31, 1999 ("Expiration Date").
1.4 Base Rent: $5,186.25 per month ("Base Rent"). $0 payable on
execution of this Lease for period 0.
1.5 Tenant's Share of Operating Expenses ("Tenant's Share"):
(a) Industrial Park 0%
--
(b) Building 13%
--
1.6 Tenant's Estimated Monthly Rent Payment: Following is the
estimated monthly Rent payment to Landlord pursuant to the provisions of this
Lease. This estimate is made at the inception of the Lease and is subject to
adjustment pursuant to the provisions of this Lease:
(a) Base Rent (Paragraph 4.1) $ 5,186.25
----------
(b) Operating Expenses (Paragraph 4.2;
excluding Real Property Taxes, and
Landlord Insurance) $ 288.13
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(d) Landlord Insurance (Paragraph 8.3) $
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(e) Real Property Taxes (Paragraph 10) $
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Estimated Monthly Payment $5,474.38
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1.7 Security Deposit: $5,186.25 ("Security Deposit").
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1.8 Permitted Use ("Permitted Use"): Office activities pursuant to
the operation of an internet job posting business.
1.9 Guarantor: N/A
1.10 Addenda and Exhibits: Attached hereto are the following
Addenda and Exhibits, all of which constitute a part of this Lease:
(a) Addenda:
(b) Exhibits: Exhibit A: Diagram of Premises.
Exhibit B: Landlord Remedies.
1.11 Address for Rent Payments: All amounts payable by Tenant to
Landlord shall until further notice from Landlord be paid to AMB Property
Corporation at the following address:
Xxxxxxxx Xxxx Company
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
2. PREMISES, PARKING AND COMMON AREAS.
2.1 Letting. Landlord hereby leases to Tenant and Tenant hereby
leases from LANDLORD the Premises upon all of the terms, covenants and
conditions set forth in this Lease. Any statement of square footage set forth in
this Lease or that may have been used in calculating Base Rent and/or Operating
Expenses is an approximation which Landlord and Tenant agree is reasonable and
the Base Rent and Tenant's Share based thereon is not subject to revision
whether or not the actual square footage is more or less.
2.2 Common Areas - Definition. "Common Areas" are all areas and
facilities outside the Premises and within the exterior boundary line of the
Industrial Center and interior utility raceways within the Premises that are
provided and designated by the Landlord from time to time for the general
non-exclusive use of Landlord, Tenant and other tenants of the Industrial Center
and their respective employees, suppliers, shippers, tenants, contractors and
invitees.
2.3 Common Areas - Tenant's Rights. Landlord hereby grants to
Tenant, for the benefit of Tenant and its employees, suppliers, shippers,
contractors, customers and invitees, during the term of this Lease, the
non-exclusive right to use, in common with others entitled to such use, the
Common Areas as they exist from time to time, subject to any rights, powers, and
privileges reserved by Landlord under the terms hereof or under the terms of any
rules and regulations or covenants, conditions and restrictions governing the
use of the Industrial Center.
2.4 Common Areas - Rules and Regulations. Landlord shall have the
exclusive control and management of the Common Areas and shall have the right,
from time to time, to establish, modify, amend and enforce reasonable Rules and
Regulations with respect thereto in accordance with Paragraph 16.19.
2.5 Common Area Changes. Landlord shall have the right, in
Landlord's sole discretion, from time to time:
(a) To make changes to the Common Areas, including,
without limitation, changes in the locations, size, shape and number of
driveways, entrances, parking spaces, parking
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areas, loading and unloading areas, ingress, egress, direction of traffic,
landscaped areas, walkways and utility raceways;
(b) To close temporarily any of the Common Areas for
maintenance purposes so long as reasonable access to the Premises remains
available;
(c) To designate other land outside the boundaries of the
Industrial Center to be a part of the Common Areas;
(d) To add additional buildings and improvements to the
Common Areas;
(e) To use the Common Areas while engaged in making
additional improvements, repairs or alterations to the Industrial Center, or any
portion thereof, and
(f) To do and perform such other acts and make such
other changes in, to or with respect to the Common Areas and Industrial Center
as Landlord may, in the exercise of sound business judgment, deem to be
appropriate.
3. TERM.
3.1 Term. The Commencement Date, Expiration Date and Term of this
Lease are as specified in Paragraph 1.3.
3.2 Delay in Possession. If for any reason Landlord cannot deliver
possession of the Premises to Tenant by the Commencement Date, Landlord shall
not be subject to any liability therefor, nor shall such failure affect the
validity of this Lease or the obligations of Tenant hereunder. In such case,
Tenant shall not, except as otherwise provided herein, be obligated to pay Rent
or perform any other obligation of Tenant under the terms of this Lease until
Landlord delivers possession of the Premises to Tenant. The term of the Lease
shall commence on the earlier of (i) the date Tenant takes possession of the
Premises to Tenant or (ii) 10 days following notice to Tenant that Landlord is
prepared to tender possession of the Premises to Tenant. If possession of the
Premises is not delivered to Tenant within 60 days after the Commencement Date
and such delay is not due to Tenant's acts, failure to act or omissions Tenant
may by notice in writing to Landlord within 10 days after the end of said 60 day
period cancel this Lease and the parties shall be discharged from all
obligations hereunder. If such written notice of Tenant is not received by
Landlord within said 10 day period, Tenant's right to cancel this Lease shall
terminate.
3.3 Commencement Date Certificate. At the request of Landlord,
Tenant shall execute and deliver to Landlord a completed certificate
("Commencement Date Certificate") in the form attached hereto as Exhibit B.
4. RENT.
4.1 Base Rent. Tenant shall pay to Landlord Base Rent and other
monetary obligations of Tenant to Landlord under the terms of this Lease (such
other monetary obligations are herein referred to as "Additional Rent") in
lawful money of the United States, without offset or deduction, in advance on or
before the first day of each month. Base Rent and Additional Rent for any period
during the term hereof which is for less than one full month shall be prorated
based upon the actual number of days of the month involved. Payment of Base Rent
and Additional Rent shall be made to Landlord at its address stated herein or to
such other persons or at such other addresses as Landlord may from time to time
designate in writing to Tenant. Base Rent and Additional Rent are collectively
referred to as "Rent". All monetary obligations of Tenant to Landlord under the
terms of this Lease are deemed to be rent.
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4.2 Operating Expenses. Tenant shall pay to Landlord on the first
day of each month during the term hereof, in addition to the Base Rent, Tenant's
Share of all Operating Expenses in accordance with the following provisions:
(a) "Operating Expenses" are all costs incurred by
Landlord relating to the ownership and operation of the Industrial Center,
Building and Premises including, but not limited to, the following:
(i) The operation, repair, maintenance and
replacement in neat, clean, good order and condition of the Common Areas,
including parking areas, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, parkways, driveways, landscaped areas, striping, bumpers,
irrigation systems, drainage systems, lighting facilities, fences and gates,
exterior signs and tenant directories.
(ii) Water, gas, electricity, telephone and other
utilities servicing the Common Areas.
(iii) Trash disposal, janitorial services, snow
removal, property management and security services.
(iv) Reserves set aside for maintenance, repair
and replacement of the Common Areas and Building.
(v) Real Property Taxes over the 1998 Base Year.
(vi) Premiums for the insurance policies over the
1998 Base Year maintained by Landlord under Paragraph 8 hereof.
(vii) Environmental monitoring and insurance
programs.
(viii) Monthly amortization of capital improvements
to the Common Areas and the Building. The monthly amortization of any given
capital improvement shall be the sum of the (i) quotient obtained by dividing
the cost of the capital improvement by Landlord's estimate of the number of
months of useful life of such improvement plus (ii) an amount equal to the cost
of the capital improvement times 1/12 of the lesser of 12% or the maximum annual
interest rate permitted by law.
(ix) Maintenance of the Building including, but
not limited to, painting, caulking and repair and replacement of Building
components, including, but not limited to, roof, elevators and fire detection
and sprinkler systems.
(xi) If Tenant fails to maintain the Premises,
any expense incurred by Landlord for such maintenance.
(b) Tenant's Share of Operating Expenses that are not
specifically attributed to the Premises or Building ("Common Area Operating
Expenses") shall be that percentage shown in Paragraph 1.5(a). Tenant's Share of
Operating Expenses that are attributable to the Building ("Building Operating
Expenses") shall be that percentage shown in Paragraph 1.5(b). Landlord in its
sole discretion shall determine which Operating Expenses are Common Area
Operating Expenses, Building Operating Expenses or expenses to be entirely borne
by Tenant.
(c) The inclusion of the improvements, facilities and
services set forth in Subparagraph 4.2(a) shall not be deemed to impose any
obligation upon Landlord to either have said improvements or facilities or to
provide those services.
(d) Tenant shall pay monthly in advance on the same day as the
Base Rent is due Tenant's Share of estimated Operating Expenses in the amount
set forth in Paragraph 1.6. Landlord shall deliver to Tenant within 90 days
after the expiration of each calendar year a reasonably detailed statement
showing Tenant's Share of the actual Operating Expenses incurred
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during the preceding year. If Tenant's estimated payments under this Paragraph
4(d) during the preceding year exceed Tenant's Share as indicated on said
statement, Tenant shall be credited the amount of such overpayment against
Tenant's Share of Operating Expenses next becoming due. If Tenant's estimated
payments under this Paragraph 4.2(d) during said preceding year were less than
Tenant's Share as indicated on said statement, Tenant shall pay to Landlord the
amount of the deficiency within 10 days after delivery by Landlord to tenant of
said statement. At any time Landlord may adjust the amount of the estimated
Tenant's Share of Operating Expenses to reflect Landlord's estimate of such
expenses for the year.
5. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon Tenant's
execution hereof the Security Deposit set forth in Paragraph 1.7 as security for
Tenant's faithful performance of Tenants obligations under this Lease. If Tenant
fails to pay Base Rent or Additional Rent or otherwise defaults under this Lease
(as defined in Paragraph 13.1), Landlord may use the Security Deposit for the
payment of any amount due Landlord or to reimburse or compensate Landlord for
any liability, cost, expense, loss or damage (including attorney's fees) which
Landlord may suffer or incur by reason thereof. Tenant shall on demand pay
Landlord the amount so used or applied so as to restore the Security Deposit to
the amount set forth in Paragraph 1.7. Landlord shall not be required to keep
all or any part of the Security Deposit separate from its general accounts.
Landlord shall, at the expiration or earlier termination of the term hereof and
after Tenant has vacated the Premises, return to Tenant that portion of the
Security Deposit not used or applied by Landlord. No part of the Security
Deposit shall be considered to be held in trust, to bear interest, or to be
prepayment for any monies to be paid by Tenant under this Lease.
6. USE.
6.1 Permitted Use. Tenant shall use and occupy the Premises only
for the Permitted Use set forth in Paragraph 1.8. Tenant shall not commit any
nuisance, permit the emission of any objectionable noise or odor, suffer any
waste, make any use of the Premises which is contrary to any law or ordinance or
which will invalidate or increase the premiums for any of Landlord's insurance.
Tenant shall not service, maintain or repair vehicles on the Premises, Building
or Common Areas. Tenant shall not store foods, pallets, drums or any other
materials outside the Premises.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous
Substance" as used in this Lease shall mean any product, substance, chemical,
material or waste whose presence, nature, quantity and/or intensity of
existence, use, manufacture, disposal, transportation, spill, release or effect,
either by itself or in combination with other materials expected to be on the
Premises, is either: (i) potentially injurious to the public health, safety or
welfare, the environment, or the Premises; (ii) regulated or monitored by any
governmental authority; or (iii) a basis for potential liability of Landlord to
any governmental agency or third party under any applicable statute or common
law theory. Hazardous Substance shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil or any products or by-products
thereof Tenant shall not engage in any activity in or about the Premises which
constitutes a Reportable Use (as hereinafter defined) of Hazardous Substances
without the express prior written consent of Landlord and compliance in a timely
manner (at Tenant's sole cost and expense) with all Applicable Requirements (as
defined in Paragraph 6.3). "Reportable Use" shall mean (i) the installation or
use of any above or below ground storage tank, (ii) the generation, possession,
storage, use, transportation, or disposal of a Hazardous Substance that requires
a permit from, or
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with respect to which a report, notice, registration or business plan is
required to be filed with, any governmental authority, and (iii) the presence
in, on or about the Premises of a Hazardous Substance with respect to which any
Applicable Requirements require that a notice be given to persons entering or
occupying the Premises or neighboring properties. Notwithstanding the foregoing,
Tenant may, without Landlord's prior consent, but upon notice to Landlord and in
compliance with all Applicable Requirements, use any ordinary and customary
materials reasonably required to be used by Tenant in the normal course of the
Permitted Use, so long as such use is not a Reportable Use and does not expose
the Premises, or neighboring properties to any meaningful risk of contamination
or damage or expose Landlord to any liability therefor. In addition, Landlord
may (but without any obligation to do so) condition its consent to any
Reportable Use of any Hazardous Substance by Tenant upon Tenant's giving
Landlord such additional assurances as Landlord, in its reasonable discretion,
deems necessary to protect itself, the public, the Premises and the environment
against damage, contamination or injury and/or liability therefor, including but
not limited to the installation (and, at Landlord's option, removal on or before
Lease expiration or earlier termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements) and/or the deposit
of an additional Security Deposit.
(b) Duty to Inform Landlord. If Tenant knows, or has
reasonable cause to believe, that a Hazardous Substance is located in, under or
about the Premises or the Building, Tenant shall immediately give Landlord
written notice thereof, together with a copy of any statement, report, notice,
registration, application, permit, business plan, license, claim, action, or
proceeding given to, or received from, any governmental authority or private
party concerning the presence, spill, release, discharge of, or exposure to,
such Hazardous Substance. Tenant shall not cause or permit any Hazardous
Substance to be spilled or released in, on, under or about the Premises
(including, without limitation, through the plumbing or sanitary sewer system).
(c) Indemnification. Tenant shall indemnify, protect,
defend and hold Landlord, Landlord's affiliates, Lenders, and the officers,
directors, shareholders, partners, employees, managers, independent contractors,
attorneys and agents of the foregoing ("Landlord Entities") and the Premises,
harmless from and against any and all damages, liabilities, judgments, costs,
claims, liens, expenses, penalties, loss of permits and attorneys' and
consultants' fees arising out of or involving any Hazardous Substance brought
onto the Premises by or for Tenant or by any of Tenant's employees, agents,
contractors or invitees. Tenant's obligations under this Paragraph 6.2(c) shall
include, but not be limited to, the effects of any contamination or injury to
person, property or the environment created or suffered by Tenant, and the cost
of investigation (including consultants' and attorneys' fees and testing),
removal, remediation, restoration and/or abatement thereof, or of any
contamination therein involved. Tenant's obligations under this Paragraph 6.2(c)
shall survive the expiration or earlier termination of this Lease.
6.3 Tenant's Compliance with Requirements. Tenant shall, at
Tenant's sole cost and expense, fully, diligently and in a timely manner, comply
with all "Applicable Requirements," which term is used in this Lease to mean all
laws, rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Landlord's
engineers and/or consultants, relating in any manner to the Premises (including
but not limited to matters pertaining to (i) industrial hygiene, (ii)
environmental conditions on, in, under or about the Premises, including soil and
groundwater conditions, and (iii) the use, generation, manufacture, production,
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installation, maintenance, removal, transportation, storage, spill or release of
any Hazardous Substance), now in effect or which may hereafter come into effect.
Tenant shall, within 5 days after receipt of Landlord's written request, provide
Landlord with copies of all documents and information evidencing Tenant's
compliance with any Applicable Requirements and shall immediately upon receipt,
notify Landlord in writing (with copies of any documents involved) of any
threatened or actual claim, notice, citation, warning, complaint or report
pertaining to or involving failure by Tenant or the Premises to comply with any
Applicable Requirements.
6.4 Inspection; Compliance with Law. In addition to Landlord's
environmental monitoring and insurance program, the cost of which is included in
Operating Expenses, Landlord and the holders of any mortgages, deeds of trust or
ground leases on the Premises ("Lenders") shall have the right to enter the
Premises at any time in the case of an emergency, and otherwise at reasonable
times, for the purpose of inspecting the condition of the Premises and for
verifying compliance by Tenant with this Lease and all Applicable Requirements.
Landlord shall be entitled to employ experts and/or consultants in connection
therewith to advise Landlord with respect to Tenant's installation, operation,
use, monitoring, maintenance, or removal of any Hazardous Substance on or from
the Premises. The cost and expenses of any such inspections shall be paid by the
party requesting same unless a violation of Applicable Requirements exists or is
imminent or the inspection is requested or ordered by a governmental authority.
In such case, Tenant shall upon request reimburse Landlord or Landlord's Lender,
as the case may be, for the costs and expenses of such inspections.
7. MAINTENANCE, REPAIRS, TRADE FIXTURES AND ALTERATIONS.
7.1 Tenant's Obligations. Subject to the provisions of Paragraph
7.2 (Landlord's Obligations), Paragraph 9 (Damage or Destruction) and Paragraph
14 (Condemnation), Tenant shall, at Tenant's sole cost and expense and at all
times, keep the Premises and every part thereof in good order, condition and
repair (whether or not such portion of the Premises requiring repair, or the
means of repairing the same, are reasonable or readily accessible to Tenant and
whether or not the need for such repairs occurs as a result of Tenant's use, any
prior use, the elements or the age of such portion of the Premises) including,
without limiting the generality of the foregoing, all equipment or facilities
specifically serving the Premises, such as plumbing, heating, air conditioning,
ventilating, electrical, lighting facilities, boilers, fired or unfired pressure
vessels, fire hose connectors if within the Premises, fixtures, interior walls,
interior surfaces of exterior walls, ceilings, floors, windows, doors, plate
glass, and skylights, but excluding any items which are the responsibility of
Landlord pursuant to Paragraph 7.2 below. Tenant's obligations shall include
restorations, replacements or renewals when necessary to keep the Premises and
all improvements thereon or a part thereof in good order, condition and state of
repair.
7.2 Landlord's Obligations. Subject to the provisions of Paragraph
6 (Use), Paragraph 7.1 (Tenant's Obligations), Paragraph 9 (Damage or
Destruction) and Paragraph 14 (Condemnation), Landlord at its expense and not
subject to reimbursement pursuant to Paragraph 4.2, shall keep in good order,
condition and repair the foundations and exterior walls of the Building and
utility systems outside the Building. Landlord, subject to reimbursement
pursuant to Paragraph 4.2, shall keep in good order, condition and repair the
Building roof and Common Areas.
7.3 Alterations. Tenant shall not make nor cause to be made any
alterations, installations in, on, under or about the Premises.
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7.4 Surrender/Restoration. Tenant shall surrender the Premises by
the end of the last day of the Lease term or any earlier termination date, clean
and free of debris and in good operating order, condition and state of repair
ordinary wear and tear excepted. Without limiting the generality of the above,
Tenant shall remove all personal property, trade fixtures and floor bolts, patch
all floors and cause all lights to be in good operating condition.
8. INSURANCE; INDEMNITY.
8.1 Payment of Premiums. The cost of the premiums for the
insurance policies maintained by Landlord under this Paragraph 8 shall be a
Common Area Operating Expenses pursuant to Paragraph 4.2 hereof. Premiums for
policy periods commencing prior to, and extending beyond, the term of this Lease
shall be prorated to coincide with the corresponding Commencement Date of
Expiration Date.
8.2 Tenant's Insurance.
(i) At its sole cost and expense, Tenant shall maintain
in full force and effect during the Term of the lease the following insurance
coverages insuring against claims which may arise from or in connection with the
Tenant's operation and use of the leased premises.
(a) Commercial General Liability with minimum
limits of $1,000,000 per occurrence; $3,000,000 general aggregate for bodily
injury, personal injury and property damage. If required by Landlord, liquor
liability coverage will be included.
(b) Workers' Compensation insurance with
statutory limits and Employers Liability with a $ 1,000,000 per accident limit
for bodily injury or disease.
(c) Automobile Liability covering all owned,
non-owned and hired vehicles with a $1,000,000 per accident limit for bodily
injury and property damage.
(d) Property insurance against all risks of loss
to any tenant improvements or betterments and business personal property on a
full replacement cost basis with no coinsurance penalty provision; and Business
Interruption Insurance with a limit of liability representing loss of at least
approximately six months of income.
(ii) Tenant shall deliver to AMB certificates of all
insurance reflecting evidence of required coverages prior to initial occupancy;
and annually thereafter.
(iii) If, in the opinion of Landlord's insurance advisor,
the amount of scope of such coverage is deemed inadequate at any time during the
Term, Tenant shall increase such coverage to such reasonable amounts or scope as
Landlord's advisor deems adequate.
(iv) All insurance required under Paragraph 8.2 (i) shall
be primary and non-contributory (ii) shall provide for severability of
interests, (iii) shall be issued by insurers, licensed to do business in the
state in which the Premises are located and which are rated A:VII or better by
Best's Key Rating Guide, (iv) shall be endorsed to include Landlord and such
other persons or entities as Landlord may from time to time designate, as
additional insureds (Commercial General Liability only), and (v) shall be
endorsed to provide at least 30-days prior notification of cancellation or
material change in coverage to said additional insureds.
8.3 Landlord's Insurance. Landlord may, but shall not be obligated
to, maintain all risk, including earthquake and flood, insurance covering the
buildings within the Industrial Center. Commercial General Liability and such
other insurance in such amounts and covering such other liability or hazards as
deemed appropriate by Landlord. The amount and scope of coverage of Landlord's
insurance shall be determined by Landlord from time to time in its sole
discretion and shall be subject to such deductible amounts as Landlord may
elect. Landlord shall have the right
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to reduce or terminate any insurance or coverage. Premiums for any such
insurance shall be a Common Area Operating Expense.
8.4 Waiver of Subrogation. To the extent permitted by law and
without affecting the coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to recover against the other
on account of any and all claims Landlord or Tenant may have against the other
with respect to property insurance actually carried, or required to be carried
hereunder, to the extent of the proceeds realized from such insurance coverage.
8.5 Indemnity. Tenant shall protect, indemnify and hold the
Landlord Entities harmless from and against any and all loss, claims, liability
or costs (including court costs and attorney's fees) incurred by reason of:
(i) any damage to any property (including but not limited
to property of any Landlord Entity) or death or injury to any person occurring
in or about the Premises, the Building or the Industrial Center to the extent
that such injury or damage shall be caused by or arise from any actual or
alleged act, neglect, fault or omission by or of Tenant, its agents, servants,
employees, invitees, or visitors;
(ii) the conduct or management of any work or anything
whatsoever done by the Tenant on or about the Premises or from transactions of
the Tenant concerning the Premises;
(iii) Tenant's failure to comply with any and all
governmental laws, ordinances and regulations applicable to the condition or use
of the Premises or its occupancy; or
(iv) any breach or default of the part of Tenant in the
performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to this Lease. The provisions of this Paragraph 8.5 shall
survive the termination of this Lease with respect to any claims or liability
accruing prior to such termination.
8.6 Exemption of Landlord from Liability. Except to the extent
caused by the gross negligence or willful misconduct of Landlord, Landlord
Entities shall not be liable for and Tenant waives any claims against Landlord
Entities for injury or damage to the person or the property of Tenant, Tenant's
employees, contractors, invitees, customers or any other person in or about the
Premises, Building or Industrial Center from any cause whatsoever, including,
but not limited to, damage or injury which is caused by or results from (i)
fire, steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, fire sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures or (ii) from the condition of
the Premises, other portions of the Building or Industrial Center. Landlord
shall not be liable for any damages arising from any act or neglect of any other
tenant of Landlord nor from the failure by Landlord to enforce the provisions of
any other lease in the Industrial Center. Notwithstanding Landlord's negligence
or breach of this Lease, Landlord shall under no circumstances be liable for
injury to Tenant's business, for any loss of income or profit therefrom or any
indirect, consequential or punitive damages.
9. DAMAGE OR DESTRUCTION.
9.1 Termination Right. Tenant shall give Landlord immediate
written notice of any damage to the Premises. Subject to the provisions of
Paragraph 9.2, if the Premises or the Building shall be damaged to such an
extent that there is substantial interference for a period exceeding 90
consecutive days with the conduct by Tenant of its business at the Premises,
Tenant, at any time prior to commencement of repair of the Premises and
following 10 days written notice to Landlord, may terminate this Lease effective
30 days after delivery of such notice to Landlord. Such termination shall not
excuse the performance by Tenant of those covenants which under the
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terms hereof survive termination. Rent shall be abated in proportion to the
degree of interference during the period that there is such substantial
interference with the conduct of Tenant's business at the Premises. Abatement of
rent and Tenant's right of termination pursuant to this provision shall be
Tenant's sole remedy for failure of Landlord to keep in good order, condition
and repair the foundations and exterior walls of the Building, Building roof,
utility systems outside the Building, the Common Areas and HVAC.
9.2 Damage Caused by Tenant. Tenant's termination rights under
Paragraph 9.1 shall not apply if the damage to the Premises or Building is the
result of any act or omission of Tenant or of any of Tenant's agents, employees,
customers, invitees or contractors ("Tenant Acts"). Any damage resulting from a
Tenant Act shall be promptly repaired by Tenant. Landlord at its option may at
Tenant's expense repair any damage caused by Tenant Acts. Tenant shall continue
to pay all rent and other sums due hereunder and shall be liable to Landlord for
all damages that Landlord may sustain resulting from a Tenant Act.
10. REAL PROPERTY TAXES.
10.1 Payment of Real Property Taxes. Landlord shall pay the Real
Property Taxes due and payable during the term of this Lease and, except as
otherwise provided in Paragraph 10.3, any such amounts shall be included in the
calculation of Operating Expenses in accordance with the provisions of Paragraph
4.2.
10.2 Real Property Tax Definition. As used herein, the term "Real
Property Taxes" is any form of tax or assessment, general, special, ordinary or
extraordinary, imposed or levied upon (a) the Industrial Center, (b) any
interest of Landlord in the Industrial Center, (c) Landlord's right to rent or
other income from the Industrial Center, and/or (d) Landlord's business of
leasing the Premises. Real Property Taxes include (i) any license fee,
commercial rental tax, excise tax, improvement bond or bonds, levy or tax; (ii)
any tax or charge which replaces or is in addition to any of such
above-described "Real Property Taxes" and (iii) any fees, expenses or costs
(including attorney's fees, expert fees and the like) incurred by Landlord in
protesting or contesting any assessments levied or any tax rate. The term "Real
Property Taxes" shall also include any increase resulting from a change in the
ownership of the Industrial Center or Building, the execution of this Lease or
any modification, amendment or transfer thereof. Real Property Taxes for tax
years commencing prior to, or extending beyond, the term of this Lease shall be
prorated to coincide with the corresponding Commencement Date of Expiration
Date.
10.3 Additional Improvements. Operating Expenses shall not include
Real Property Taxes attributable to improvements placed upon the Industrial
Center by other tenants or by Landlord for the exclusive enjoyment of such other
tenants. Notwithstanding Paragraph 10.1 hereof, Tenant shall, however, pay to
Landlord at the time Operating Expenses are payable under Paragraph 4.2, the
entirety of any increase in Real Property Taxes if assessed by reason of
improvements placed upon the Premises by Tenant or at Tenant's request.
10.4 Joint Assessment. If the Building is not separately assessed,
Real Property Taxes allocated to the Building shall be an equitable proportion
of the Real Property Taxes for all of the land and improvements included within
the tax parcel assessed.
10.5 Tenant's Property Taxes. Tenant shall pay prior to delinquency
all taxes assessed against and levied upon Tenant's improvements, fixtures,
furnishings, equipment and all personal property of Tenant contained in the
Premises or stored within the Industrial Center.
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11. UTILITIES. Tenant shall pay directly for all utilities and services
supplied to the Premises, including but not limited to electricity, telephone,
security, gas and cleaning of the Premises, together with any taxes thereon.
12. ASSIGNMENT AND SUBLETTING.
12.1 Landlord's Consent Required.
(a) Tenant shall not assign, transfer, mortgage or
otherwise transfer or encumber (collectively, "assign") or sublet all or any
part of Tenant's interest in this Lease or in the Premises without Landlord's
prior written consent which consent shall not be unreasonably withheld. Relevant
criteria in determining reasonability of consent include, but are not limited
to, credit history of a proposed assignee or sublessee, references from prior
landlords, any change or intensification of use of the Premises or the Common
Areas and any limitations imposed by the Internal Revenue Code and the
Regulations promulgated thereunder relating to Real Estate Investment Trusts.
Assignment or sublet shall not release Tenant from its obligations hereunder.
Tenant shall not (i) sublet or assign or enter into other arrangements such that
the amounts to be paid by the sublessee or assignee thereunder would be based,
in whole or in part, on the income or profits derived by the business activities
of the sublessee or assignee; (ii) sublet the Premises or assign this Lease to
any person in which Landlord owns an interest, directly or indirectly (by
applying constructive ownership rules set forth in Section 856(d)(5) of the
Internal Revenue Code (the "Code"); or (iii) sublet the Premises or assign this
Lease in any other manner which could cause any portion of the amounts received
by Landlord pursuant to this Lease or any sublease to fail to qualify as "rents
from real property" within the meaning of Section 856(d) of the Code, or which
could cause any other income received by Landlord to fail to qualify as income
described in Section 856(c)(2) of the Code. The requirements of this Section
12.1 shall apply to any further subleasing by any subtenant.
(b) A change in the control of Tenant shall constitute an
assignment requiring Landlord's consent. The transfer, on a cumulative basis, of
25% or more of the voting or management control of Tenant shall constitute a
change in control for this purpose.
12.2 Rent Adjustment. If, as of the effective date of any permitted
assignment or subletting the then remaining term of this Lease is less than
three (3) years, Landlord may, as a condition to its consent: (i) require that
the amount and adjustment schedule of the rent payable under this Lease be
adjusted to what is then the market value and/or adjustment schedule for
property similar to the Premises as then constituted, as determined by Landlord;
or (ii) terminate the Lease as of the date of assignment or subletting subject
to the performance by Tenant of those covenants which under the terms hereof
survive termination.
13. DEFAULT; REMEDIES.
13.1 Default. The occurrence of any one of the following events
shall constitute an event of default on the part of Tenant ("Default"):
(a) The abandonment of the Premises by Tenant;
(b) Failure to pay any installment of Base Rent,
Additional Rent or any other monies due and payable hereunder, said failure
continuing for a period of 3 days after the same is due;
(c) A general assignment by Tenant or any guarantor for
the benefit of creditors;
(d) The filing of a voluntary petition in bankruptcy by
Tenant or any guarantor, the filing of a voluntary petition for an arrangement,
the filing of a petition, voluntary or
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involuntary, for reorganization, or the filing of an involuntary petition by
Tenant's creditors or guarantors;
(e) Receivership, attachment, of other judicial seizure
of the Premises or all or substantially all of Tenant's assets on the Premises;
(f) Failure of Tenant to maintain insurance as required
by Paragraph 8.2;
(g) Any breach by Tenant of its covenants under Paragraph
6.2;
(h) Failure in the performance of any of Tenant's
covenants, agreements or obligations hereunder (except those failures specified
as events of Default in other Paragraphs of this Paragraph 13.1 which shall be
governed by such other Paragraphs), which failure continues for 10 days after
written notice thereof from Landlord to Tenant provided that, if Tenant has
exercised reasonable diligence to cure such failure and such failure cannot be
cured within such 10 day period despite reasonable diligence, Tenant shall not
be in default under this subparagraph unless Tenant fails thereafter diligently
and continuously to prosecute the cure to completion;
(i) Any transfer of a substantial portion of the assets
of Tenant, or any incurrence of a material obligation by Tenant, unless such
transfer or obligation is undertaken or incurred in the ordinary course of
Tenants business or in good faith for equivalent consideration, or with
Landlord's consent; and
(j) The default of any guarantors of Tenant's obligations
hereunder under any guaranty of this Lease, or the attempted repudiation or
revocation of any such guaranty.
13.2 Remedies. In the event of any Default by Tenant, Landlord
shall have the remedies set forth in the Addendum attached hereto entitled
"Landlord's Remedies in Event of Tenant Default".
13.3 Late Charge. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent and other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges. Accordingly, if any installment of rent or
other sum due from Tenant shall not be received by Landlord or Landlord's
designee within 10 days after such amount shall be due, then, without any
requirement for notice to Tenant, Tenant shall pay to Landlord a late charge
equal to 5% of such overdue amount. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs Landlord will
incur by reason of late payment by Tenant. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's Default with respect
to such overdue amount, nor prevent Landlord from exercising any of the other
rights and remedies granted hereunder.
14. CONDEMNATION. If the Premises or any portion thereof are taken under
the power of eminent domain or sold under the threat of exercise of said power
(all of which are herein called "condemnation"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. If more than 10% of the floor area of the
Premises, or more than 25% of the portion of the Common Areas designated for
Tenant's parking, is taken by condemnation, Tenant may, at Tenant's option, to
be exercised in writing within 10 days after Landlord shall have given Tenant
written notice of such taking (or in the absence of such notice, within 10 days
after the condemning authority shall have taken possession) terminate this Lease
as of the date the condemning authority takes such possession. If Tenant does
not terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises remaining,
except that the Base Rent shall
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be reduced in the same proportion as the rentable floor area of the Premises
taken bears to the total rentable floor area of the Premises. No reduction of
Base Rent shall occur if the condemnation does not apply to any portion of the
Premises. Any award for the taking of all or any part of the Premises under the
power of eminent domain or any payment made under threat of the exercise of such
power shall be the property of Landlord, provided, however, that Tenant shall be
entitled to any compensation, separately awarded to Tenant for Tenant's
relocation expenses and/or loss of Tenants trade fixtures. In the event that
this Lease is not terminated by reason of such condemnation, Landlord shall to
the extent of its net severance damages in the condemnation matter, repair any
damage to the Premises caused by such condemnation authority. Tenant shall be
responsible for the payment of any amount in excess of such net severance
damages required to complete such repair.
15. ESTOPPEL CERTIFICATE AND FINANCIAL STATEMENTS.
15.1 Estoppel Certificate. Each party (herein referred to as
"Responding Party") shall within 10 days after written notice from the other
Party (the "Requesting Party") execute, acknowledge and deliver to the
Requesting Party, to the extent it can truthfully do so, an estoppel certificate
in the form attached hereto, plus such additional information, confirmation a/or
statements as be reasonably requested by the Requesting Party.
15.2 Financial Statement. If Landlord desires to finance,
refinance, or sell the Building, Industrial Center or any part thereof, Tenant
and all Guarantors shall deliver to any potential lender or purchaser designated
by Landlord such financial statements of Tenant and such Guarantors as may be
reasonably required by such lender or purchaser, including but not limited to
Tenant's financial statements for the past 3 years. All such financial
statements shall be received by Landlord and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
16. ADDITIONAL COVENANTS AND PROVISIONS.
16.1 Severability. The invalidity of any provision of this Lease,
as determined by a court of competent jurisdiction, shall not affect the
validity of any other provision hereof.
16.2 Interest on Past-Due Obligations. Any monetary payment due
Landlord hereunder not received by Landlord within 10 days following the date on
which it was due shall bear interest from the date due at 12% per annum, but not
exceeding the maximum rate allowed by law in addition to the late charge
provided for in Paragraph 13.3.
16.3 Time of Essence. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the Parties under
this Lease.
16.4 Landlord Liability. Tenant, its successors and assigns, shall
not assert nor seek to enforce any claim for breach of this Lease against any of
Landlord's assets other than Landlord's interest in the Industrial Center.
Tenant agrees to look solely to such interest for the satisfaction of any
liability or claim against Landlord under this Lease. In no event whatsoever
shall Landlord (which term shall include, without limitation, any general or
limited partner, trustees, beneficiaries, officers, directors, or stockholders
of Landlord) ever be personally liable for any such liability.
16.5 No Prior or Other Agreements. This Lease contains all
agreements between the Parties with respect to any matter mentioned herein, and
supersedes all oral, written prior or contemporaneous agreements or
understandings.
16.6 Notice Requirements. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by
messenger or courier service) or may be sent by regular, certified or registered
mail or U.S. Postal Service Express Mail, with postage
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prepaid, or by facsimile transmission during normal business hours, and shall be
deemed sufficiently given if served in a manner specified in the Paragraph 16.6.
The addresses noted adjacent to a Party's signature on this Lease shall be that
Party's address for delivery or mailing of notice purposes. Either Party may by
written notice to the other specify a different address for notice purposes,
except that upon Tenant's taking possessing of the Premises, the Premises shall
constitute Tenants address for the purpose of mailing or delivering notices to
Tenant. A copy of all notices required or permitted to be given to Landlord
hereunder shall be concurrently transmitted to such party or parties at such
addresses as Landlord may from time to time hereafter designate by written
notice to Tenant.
16.7 Date of Notice. Any notice sent by registered or certified
mail, return receipt requested, shall be deemed given on the date of delivery
shown on the receipt card, or if no delivery date is shown, the postmark
thereon. If sent by regular mail, the notice shall be deemed given 48 hours
after the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantees next day delivery shall be deemed given 24 hours after delivery of
the same to the United States Postal Service or courier. If any notice is
transmitted by facsimile transmission or similar means, the same shall be deemed
served or delivered upon telephone or facsimile confirmation of receipt of the
transmission thereof, provided a copy is also delivered via hand or overnight
delivery or certified mail. If notice is received on a Saturday or a Sunday or a
legal holiday, it shall be deemed received on the next business day.
16.8 Waivers. No waiver by Landlord of a Default by Tenant shall be
deemed a waiver of any other term, covenant or condition hereof, or of any
subsequent Default by Tenant of the same or any other term, covenant or
condition hereof.
16.9 Holdover. Tenant has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. If Tenant holds over with the consent of Landlord: (i) the Base Rent
payable shall be increased to 175% of the Base Rent applicable during the month
immediately preceding such expiration or earlier termination; (ii) Tenant's
right to possession shall terminate on 30 days notice from Landlord and (iii)
all other terms and conditions of this Lease shall continue to apply. Nothing
contained herein shall be construed as a consent by Landlord to any holding over
by Tenant. Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all claims, demands, actions, losses, damages, obligations,
costs and expenses, including, without limitation, attorneys' fees incurred or
suffered by Landlord by reason of Tenant's failure to surrender the Premises on
the expiration or earlier termination of this Lease in accordance with the
provisions of this Lease.
16.10 Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies in law or in equity.
16.11 Binding Effect: Choice of Law. This Lease shall be binding
upon the Parties, their personal representatives, successors and assigns and be
governed by the laws of the State in which the Premises are located. Any
litigation between the Parties hereto concerning this Lease shall be initiated
in the county in which the Premises are located.
16.12 Landlord. The covenants and obligations contained in this
Lease on the part of Landlord are binding on Landlord, its successors and
assigns, only during and in respect of their respective period of ownership of
such interest in the Industrial Center. In the event of any transfer or
transfers of such title to the Industrial Center, Landlord (and in case of any
subsequent transfers or conveyances, the then grantor) shall be concurrently
freed and relieved from and after
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the date of such transfer or conveyance, without any further instrument or
agreement, of all liability with respect to the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be
performed.
16.13 Attorneys' Fees and Other Costs. If any Party brings an action
or proceeding to enforce the terms hereof or declare rights hereunder, the
Prevailing Party (as hereafter defined) in any such proceeding shall be entitled
to reasonable attorneys' fees. The term "Prevailing Party" shall include,
without limitation, a Party who substantially obtains or defeats the relief
sought. Landlord shall be entitled to attorneys' fees, costs and expenses
incurred in preparation and service of notices of Default and consultations in
connection therewith, whether or not a legal action is subsequently commenced in
connection with such Default or resulting breach. Tenant shall reimburse
Landlord on demand for all reasonable legal, engineering and other professional
services expenses incurred by Landlord in connection with all requests by Tenant
for consent or approval hereunder.
16.14 Landlord's Access, Showing Premises; Repairs. Landlord and
Landlord's agents shall have the right to enter the Premises at any time, in the
case of an emergency, and otherwise at reasonable times upon reasonable notice
for the purpose of showing the same to prospective purchasers, lenders, or
tenants, and making such alterations, repairs, improvements or additions to the
Premises or to the Building, as Landlord may reasonably deem necessary. Landlord
may at any time place on or about the Premises or Building any ordinary "For
Sale" signs and Landlord may at any time during the last 180 days of the term
hereof place on or about the Premises any ordinary "For Lease" signs. All such
activities of Landlord shall be without abatement of rent or liability to
Tenant.
16.15 Signs. Tenant shall not place any signs at or upon the
exterior of the Premises or the Building, except that Tenant may, with
Landlord's prior written consent, install (but not on the roof) such signs as
are reasonably required to advertise Tenant's own business so long as such signs
are in a location designated by Landlord and comply with sign ordinances and the
signage criteria established for the Industrial Center by Landlord.
16.16 Termination: Merger. Unless specifically stated otherwise in
writing by Landlord, the voluntary or other surrender of this Lease by Tenant,
the mutual termination or cancellation hereof, or a termination hereof by
Landlord for Default by Tenant, shall automatically terminate any sublease or
lesser estate in the Premises; provided, however, Landlord shall, in the event
of any such surrender, termination or cancellation, have the option to continue
any one or all of any existing subtenancies. Landlord's failure within 10 days
following any such event to make a written election to the contrary by written
notice to the holder of any such lesser interest, shall constitute Landlord's
election to have such event constitute the termination of such interest.
16.17 Quiet Possession. Upon payment by Tenant of the Base Rent and
Additional Rent for the Premises and the performance of all of the covenants,
conditions and provisions on Tenant's part to be observed and performed under
this Lease, Tenant shall have quiet possession of the Premises for the entire
term hereof subject to all of the provisions of this Lease.
16.18 Subordination; Attornment; Non-Disturbance.
(a) Subordination. This Lease shall be subject and
subordinate to any ground lease, mortgage, deed of trust, or other hypothecation
or mortgage (collectively, "Mortgage") now or hereafter placed by Landlord upon
the real property of which the Premises are a part, to any and all advances made
on the security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. Tenant agrees that any person holding any
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Mortgage shall have no duty, liability or obligation to perform any of the
obligations of Landlord under this Lease. In the event of Landlord's default
with respect to any such obligation, Tenant will give any Lender, whose name and
address have previously in writing been furnished Tenant, notice of a default by
Landlord. Tenant may not exercise any remedies for default by Landlord unless
and until Landlord and the Lender shall have received written notice of such
default and a reasonable time (not less than 90 days) shall thereafter have
elapsed without the default having been cured. If any Lender shall elect to have
this Lease superior to the lien of its Mortgage and shall give written notice
thereof to Tenant, this Lease shall be deemed prior to such Mortgage. The
provisions of a Mortgage relating to the disposition of condemnation and
insurance proceeds shall prevail over any contrary provisions contained in this
Lease.
(b) Attornment. Subject to the non-disturbance provisions
of subparagraph C of this Paragraph 16.18, Tenant agrees to attorn to a Lender
or any other party who acquires ownership of the Premises by reason of a
foreclosure of a Mortgage. In the event of such foreclosure, such new owner
shall not: (i) be liable for any act or omission of any prior landlord or with
respect to events occurring prior to acquisition of ownership, (ii) be subject
to any offsets or defenses which Tenant might have against any prior Landlord,
or (iii) be liable for security deposits or be bound by prepayment of more than
one month's rent.
(c) Non-Disturbance. With respect to Mortgage entered
into by Landlord after the execution of this Lease, Tenant's subordination of
this Lease shall be subject to receiving assurance (a "non-disturbance
agreement") from the Mortgage holder that Tenant's possession and this Lease
will not be disturbed so long as Tenant is not in default and attorns to the
record owner of the Premises.
(d) Self-Executing. The agreements contained in this
Paragraph 16.18 shall be effective without the execution of any further
documents; provided, however, that upon written request from Landlord or a
Lender in connection with a sale, financing or refinancing of Premises, Tenant
and Landlord shall execute such further writings as may be reasonably required
to separately document any such subordination or non-subordination, attornment
and/or nondisturbance agreement as is provided for herein. Landlord is hereby
irrevocably vested with full power to subordinate this Lease to a Mortgage.
16.19 Rules and Regulations. Tenant agrees that it will abide by,
and to cause its employees, suppliers, shippers, customers, tenants, contractors
and invitees to abode by all reasonable rules and regulations ("Rules and
Regulations") which Landlord may make from time to time for the management,
safety, care, and cleanliness of the Common Areas, the parking and unloading of
vehicles and the preservation of good order, as well as for the convenience of
other occupants or tenants of the Building and the Industrial Center and their
invitees. Landlord shall not be responsible to Tenant for the non-compliance
with said Rules and Regulations by other tenants of the Industrial Center.
16.20 Security Measures. Tenant acknowledges that the rental payable
to Landlord hereunder does not include the cost of guard service or other
security measures. Landlord has no obligations to provide same. Tenant assumes
all responsibility for the protection of the Premises, Tenant, its agents and
invitees and their property from the acts of third parties.
16.21 Reservations. Landlord reserves the right to grant such
easements that Landlord deems necessary and to cause the recordation of parcel
maps, so long as such easements and maps do not reasonably interfere with the
use of the Premises by Tenant. Tenant agrees to sign any documents reasonable
requested by Landlord to effectuate any such easements or maps.
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16.22 Conflict. Any conflict between the printed provisions of this
Lease and the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
16.23 Offer. Preparation of this Lease by either Landlord or Tenant
or Landlord's agent or Tenant's agent and submission of same to Tenant or
Landlord shall not be deemed an offer to lease. This Lease is not intended to be
binding until executed and delivered by all Parties hereto.
16.24 Amendments. This Lease may be modified only in writing, signed
by the parties in interest at the time of the modification.
16.25 Multiple Parties. Except as otherwise expressly provided
herein, if more than one person or entity is named herein as Tenant, the
obligations of such persons shall be the joint and several responsibility of all
persons or entities named herein as such Tenant.
16.26 Authority. Each person signing on behalf of Landlord or Tenant
warrants and represents that she or he is authorized to execute and deliver this
Lease and to make it a binding obligation of Landlord or Tenant.
The parties hereto have executed this Lease at the place and
on the dates specified above their respective signatures.
WITNESS AMB PROPERTY LIMITED PARTNERSHIP,
a Delaware limited partnership, as successor
in interest to Connecticut Mutual Life
------------------------------- Insurance Company
By: AMB Property Corporation,
a Maryland corporation, its G.P.
By:
---------------------------------
Xxxx Xxxxxxxxxx
Its: Vice President
--------------------------------
WITNESS XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------- ------------------------------------------
Its: CFO
-----------------------------------------
If during the Term of this Lease, Landlord surveys the size of Premises for the
purpose of determining whether the actual square footage differs from the square
footages stated herein, Base Rent shall be appropriately adjusted assuming a
$9.00 per square foot rental rate.
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EXHIBIT A
SITE PLAN
PEACHTREE NORTHEAST BUSINESS PARK
BUILDING 6410
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EXHIBIT B
LANDLORD'S REMEDIES ADDENDUM IN THE EVENT OF TENANT DEFAULT
(STATE OF GEORGIA)
(a) In the event of any Default by Tenant, Landlord may, at
Landlord's option, without any demand or notice whatsoever (except as expressly
required in Paragraph 13 of the Lease):
(i) Terminate this Lease by giving Tenant notice of
termination, in which event this Lease shall expire and terminate on the date
specified in such notice of termination and all rights of Tenant under this
Lease and in and to the Premises shall terminate. Tenant shall remain liable for
all obligations under this Lease arising up to the date of such termination, and
Tenant shall surrender the Premises to Landlord on the date specified in such
notice; or
(ii) Terminate this Lease as provided in subparagraph (a)
(i) above and recover from Tenant all damages Landlord may incur by reason of
Tenant's default, including, without limitation, an amount which, at the date
of such termination, is calculated as follows: (1) the value of the excess, if
any, of (A) the Base Rent, Additional Rent and all other sums which would have
been payable hereunder by Tenant for the period commencing with the day
following the date of such termination and ending with the Expiration Date had
this Lease not been terminated (the "Remaining Term"), over (B) the aggregate
reasonable rental value of the Premises for the Remaining Term (which excess,
if any shall be discounted to present value at the "Treasury Yield" as defined
below for the Remaining Term); plus (2) the costs of recovering possession of
the Premises and all other expenses incurred by Landlord due to Tenant's
default, including, without limitation, reasonable attorney's fees; plus (3)
the unpaid Base Rent and Additional Rent earned as of the date of termination
plus any interest and late fees due hereunder, plus other sums of money and
damages owing on the date of termination by Tenant to Landlord under this Lease
or in connection with the Premises. The amount as calculated above shall be
deemed immediately due and payable. The payment of the amount calculated is
subparagraph (ii) (1) shall not be deemed a penalty but shall merely constitute
payment of liquidated damages, it being understood and acknowledged by Landlord
and Tenant that actual damages to Landlord are extremely difficult, if not
impossible, to ascertain. "Treasury Yield" shall mean the rate of return in
percent per annum of Treasury Constant Maturities for the length of time
specified as published in document H.15(519) (presently published by the Board
of Governors of the U.S. Federal Reserve System titled "Federal Reserve
Statistical Release") for the calendar week immediately preceding the calendar
week in which the termination occurs. If the rate of return of Treasury
Constant Maturities for the calendar week in question is not published on or
before the business day preceding the date of the Treasury Yield in question is
to become effective, then the Treasury Yield shall be based upon the rate of
return of Treasury Constant Maturities for the length of time specified for the
most recent calendar week for which such publication has occurred. If no rate
of return for Treasury Constant Maturities is published for the specific length
of time specified, the Treasury Yield for such length of time shall be the
weighted average of the rates of return of Treasury Constant Maturities most
nearly corresponding to the length of the applicable period
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specified. If the publishing of the rate of return of Treasury Constant
Maturities is ever discontinued, then the Treasury Yield shall be based upon
the index which is published by the Board of Governors of the U.S. Federal
Reserve System in replacement thereof or, if no such replacement index is
published, the index which, in Landlord's reasonable determination, most nearly
corresponds to the rate of return of Treasury Constant Maturities. In
determining the aggregate reasonable rental value pursuant to subparagraph
(ii)(1)(B) above, the parties hereby agree that, at the time Landlord seeks to
enforce this remedy, all relevant factors should be considered, including, but
not limited to, (a) the length of time remaining in the Term, (b) the then
current market conditions in the general area in which the Building is located,
(c) the likelihood of reletting the Premises for a period of time equal to the
remainder of the Term, (d) the net effective rental rates then being obtained
by landlords for similar type space of similar size in similar type buildings
in the general area in which the Building is located , (e) the vacancy levels
in the general area in which the Building is located, (f) current levels of new
construction that will be completed during the remainder of the Term and how
this construction will likely affect vacancy rates and rental rates and (g)
inflation; or
(iii) Without terminating this Lease, declare immediately
due and payable the sum of the following: (1) the present value (calculated
using the "Treasury Yield") of all Base Rent and Additional Rent due and coming
due under this Lease for the entire Remaining Term (as if by the terms of this
Lease they were payable in advance), plus (2) the cost of recovering and
reletting the Premises and all other expenses incurred by Landlord in
connection with Tenant's default, plus (3) any unpaid Base Rent, Additional
Rent and other rentals, charges, assessments and other sums owing by Tenant to
Landlord under this Lease or in connection with the Premises as of the date
this provision is invoked by Landlord, plus (4) interest on all such amounts
from the date due at the Interest Rate, and Landlord may immediately proceed to
distrain, collect, or bring action for such sum, or may file a proof of claim
in any bankruptcy or insolvency proceedings to enforce payment thereof;
provided, however, that such payment shall not be deemed a penalty or
liquidated damages, but shall merely constitute payment in advance of all Base
Rent and Additional Rent payable hereunder throughout the Term, and provided
further, however, that upon Landlord receiving such payment, Tenant shall be
entitled to receive from Landlord all rents received by Landlord from other
assignees, tenants and subtenants on account of said Premises during the
remainder of the Term (provided that the monies to which Tenant shall so become
entitled shall in no event exceed the entire amount actually paid by Tenant to
Landlord pursuant to this subparagraph (iii)), less all costs, expenses and
attorneys' fees of Landlord incurred but not yet reimbursed by Tenant in
connection with recovering and reletting the Premises; or
(iv) Without terminating this Lease, in its own name but
as agent for Tenant, enter into and upon and take possession of the Premises or
any part thereof. Any property remaining in the Premises may be removed and
stored in a warehouse or elsewhere at the cost of, and for the account of,
Tenant without Landlord being deemed guilty of trespass or becoming liable for
any loss or damage which may be occasioned thereby unless caused by Landlord's
negligence. Thereafter, Landlord may, but shall not be obligated to, lease to a
third party the Premises or any portion thereof as the agent of Tenant upon
such terms and conditions as Landlord may deem necessary or desirable in order
to relet the Premises. The remainder of any rentals received by Landlord from
such reletting, after the payment of any indebtedness due
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hereunder from Tenant to Landlord, and the payment of any costs and expenses of
such reletting, shall be held by Landlord to the extent of and for application
in payment of future rent owed by Tenant, if any, as the same may become due
and payable hereunder. If such rentals received from such reletting shall at
any time or from time to time be less than sufficient to pay to Landlord the
entire sums then due from Tenant hereunder, Tenant shall pay any such
deficiency to Landlord. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease for any such
previous default provided same has not been cured: or
(v) Without terminating this Lease, and with or without
notice to Tenant, enter into and upon the Premises and, without being liable
for prosecution or any claim for damages therefor, maintain the Premises and
repair or replace any damage thereto or do anything or make any payment for
which Tenant is responsible hereunder. Tenant shall reimburse Landlord
immediately upon demand for any expenses which Landlord incurs in thus
effecting Tenant's compliance under this Lease and Landlord shall not be liable
to Tenant for any damages with respect thereto; or
(vi) Without liability to Tenant or any other party and
without constituting a constructive or actual eviction, suspend or discontinue
furnishing or rendering to Tenant any property, material, labor, utilities or
other service, wherever Landlord is obligated to furnish or render the same so
long as a Default exists under this Lease; or
(vii) With or without terminating this Lease, allow the
Premises to remain unoccupied and collect rent from Tenant as it comes due; or
(viii) Pursue such other remedies as are available at law or
equity.
(c) If this Lease shall terminate as a result of or while there
exists a Default hereunder, any funds of Tenant held by Landlord may be applied
by Landlord to any damages payable by Tenant (whether provided for herein or by
law) as a result of such termination or default.
(d) Neither the commencement of any action or proceeding, nor the
settlement thereof, nor entry of Judgment thereon shall bar Landlord from
bringing subsequent actions or proceedings from time to time, nor shall the
failure to include in any action or proceeding any sum or sums then due be a bar
to the maintenance of any subsequent actions or proceedings for the recovery of
such sum or sums so omitted.
(e) No agreement to accept a surrender of the Premises and no act
or omission by Landlord or Landlord's agents during the Term shall constitute
an acceptance or surrender of the Premises unless made in writing and signed by
Landlord. No re-entry or taking possession of the Premises by Landlord shall
constitute an election by Landlord to terminate this Lease unless a written
notice of such intention is given to Tenant. No provision of this lease shall
be deemed to have been waived by either party unless such waiver is in writing
and signed by the party making such waiver. Landlord's acceptance of Base Rent
or Additional Rent in full or in part following a Default hereunder shall not
be construed as a waiver of such Default. No custom or practice which may grow
up between the parties in connection with the terms of this Lease shall be
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construed to waive or lessen either party's right to insist upon strict
performance of the terms of this Lease, without a written notice thereof to the
other party,
(f) If a Default shall occur, Tenant shall pay to Landlord, on
demand, all expenses incurred by Landlord as a result thereof, including
reasonable attorneys' fees, court costs and expenses actually incurred.
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FIRST LEASE EXTENSION AND MODIFICATION AGREEMENT
THIS FIRST LEASE EXTENSION AND MODIFICATION AGREEMENT made and entered
into this 27th day of January, 1999, by and between AMB Property, L.P., a
Delaware limited partnership, as successors in interest to Peachtree Xxxx
Limited Partnership (hereinafter referred to as "Landlord") and XXXXXXXXXXX.XXX,
INC., a Georgia Corporation, (hereinafter referred to as "Tenant").
WITNESSETH:
WHEREAS, by Lease Agreement dated September 9, 1998, and made a part
hereof as Exhibit "A", Landlord leased to Tenant certain premises (The
"Premises") comprised of approximately 6,915 square feet situated at 0000
Xxxxxxxx Xxxxxxxxx, Suites 000 & 000, Xxxxxxxx, Xxxxxxx, 00000, and
NOW, THEREFORE, in consideration of the mutual promises given one to
the other, the parties hereto intending to be legally bound, do hereby covenant
and agree as follows:
1. Said Lease Agreement is hereby extended for an additional term
of twelve (12) months commencing February 1, 1999 and ending January 31, 2000.
2. Tenant agrees to pay Base Monthly Rental according to the
following schedule:
MONTH MONTHLY BASE RENTAL
02/01/99 - 01/31/00 $5,186.00
All payments are due and payable on or before the first day of each month in
advance.
3. Tenant agrees to accept the Premises in its current "as-is"
condition.
4. Except as herein modified and extended, all terms and
conditions of the Lease Agreement, dated May 21, 1998, attached hereto as
Exhibit "A" and made part hereof, shall remain in full force and effect.
5. The word "Landlord" herein shall be construed to include the
said Landlord, its successors and assigns and the word "Tenant" shall be
construed to include the said Tenant, its successors and assigns.
6. This Agreement shall be binding upon and inure to the benefit
of the parties, their respective heirs, successors and assigns.
IN WITNESS HEREOF, the said parties have executed this First Lease
Extension and Modification Agreement in quadruplicate the day and year first
written above.
WITNESS: AMB PROPERTY UNITED PARTNERSHIP,
a Delaware limited partnership
-----------------------------
30
By: AMB Property Corporation,
a Maryland corporation, its G.P.
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxxx
Its: Vice President
------------------------------------
WITNESS: XXXXXXXXXXX.XXX, INC., a Georgia
Corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: CFO
----------------------------------
31
SECOND LEASE EXTENSION AND MODIFICATION AGREEMENT
THIS SECOND LEASE EXTENSION AND MODIFICATION AGREEMENT made and entered
into this 22nd day of March, 1999, by and between AMB Property, L.P., a Delaware
limited partnership, (hereinafter referred to as "Landlord") and
XXXXXXXXXXX.XXX, INC., a Georgia Corporation, (hereinafter referred to as
"Tenant").
WITNESSETH:
WHEREAS, by Lease Agreement dated September 9, 1998 and First Lease
Extension and Modification Agreement dated January 27, 1999, and made a part
hereof as Exhibit "B", Landlord leased to Tenant certain premises comprised of
approximately 6,915 square feet situated at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxx 000
& 000, Xxxxxxxx, Xxxxxxx, 00000, and
WHEREAS, Tenant desires to lease from Landlord and Landlord desires to
lease to Tenant an additional 2,966 square feet of space (The "Expansion
Premises") as shown on Exhibit "A", situated at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxxx, Xxxxxxx 00000. This brings the total space under lease to 9,881
square feet (The "Premises").
NOW, THEREFORE, in consideration of the mutual promises given one to
the other, the parties hereto intending to be legally bound, do hereby covenant
and agree as follows:
1. Said Lease Agreement is for the term of ten (10) months
commencing April 1, 1999 and ending January 31, 2000.
2. Tenant agrees to pay Base Monthly Rental according to the
following schedule:
MONTH MONTHLY BASE RENTAL
04/01/99 - 01/31/00 $7,411.00
All payments are due and payable on or before the first day of each month in
advance.
3. Tenant agrees to accept the Premises in its Current "as-is"
condition. Tenant may construct improvements as provided for in the attached
Addendum entitled "Tenant's Right to Construct Improvements."
4. Except as herein modified and extended, all terms and
conditions of the Lease Agreement dated May 21, 1998 and First Lease Extension
and Modification Agreement dated January 27, 1999 attached hereto as Exhibit
"B" and made part hereof, shall remain in full force and effect.
5. The word "Landlord" herein shall be construed to include the
said Landlord, its successors and assigns and the word "Tenant" shall be
construed to include tile said Tenant, its successors and assigns.
32
6. This Agreement shall be binding upon and inure to the benefit
of the parties, their respective heirs, successors and assigns.
IN WITNESS HEREOF, the said parties have executed this Second Lease
Extension and Modification Agreement in quadruplicate the day and year first
written above.
WITNESS: AMB PROPERTY UNITED PARTNERSHIP,
a Delaware limited partnership
-------------------------------
By: AMB Property Corporation,
a Maryland corporation, its G.P.
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------
Xxxx Xxxxxxxxxx
Its: Vice President
----------------------------------
WITNESS: XXXXXXXXXXX.XXX, INC., a Georgia
Corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Title: CFO
--------------------------------
33
ADDENDUM
TENANT'S RIGHT TO CONSTRUCT IMPROVEMENTS
This Tenant Improvement Addendum is a part of the Lease dated March 22, 1999 by
and between AMB PROPERTY, L.P. ("Landlord") and XXXXXXXXXXX.XXX, INC., a
Georgia Corporation ("Tenant") for the premises commonly known as 0000 Xxxxxxxx
Xxxxxxxxx, Suites 135 and 150.
Tenant may construct at its sole cost and expense the improvements
("Alterations") described on Attachment I attached hereto. Prior to
commencement of construction, Tenant shall obtain and deliver to Landlord any
building permit required by applicable law and a copy of the executed
construction contract(s). Tenant shall reimburse Landlord within 10 days after
the rendition of a xxxx for all of Landlord's actual out-of-pocket costs
incurred in connection with the Alterations, including, without limitation, all
management, engineering, construction fees and outside consulting incurred by
or on behalf of Landlord for the review and approval of Tenant's plans and
specifications and for the monitoring of construction of the Alterations.
Tenant shall require its contractor to maintain insurance in the amounts and in
the forms described in Attachment 2. The Alterations shall be constructed by
licensed contractors approved by Landlord and in accordance with rules, such as
hours of construction, imposed by Landlord. The Alterations shall be completed
lien free, in accordance with the plans and specifications described in
Attachment 1, in a good, workmanlike and prompt manner, with new materials of
first-class quality and comply with all applicable local, state and federal
regulations. The completed Alterations shall be the property of Landlord and
shall, subject to the provisions of the next sentence, be surrendered with the
Premises upon the expiration or sooner termination of this Lease. However,
Tenant shall at Tenant's sole cost and expense remove, prior to the expiration
or sooner termination of this Lease, the Alterations which are designated by
Landlord to be removed and following such removal repair and restore the
Premises in a good and workmanlike manner to their original condition,
reasonable wear and tear excepted.
Tenant shall pay when due all claims for labor or materials furnished or
alleged to have been furnished to or for Tenant at or for use on the Premises.
Tenant shall give Landlord not less than 10 days notice prior to the
commencement of any work in, on or about the Premises, and Landlord shall have
the right to post notices of non-responsibility in or on the Premises as
provided by the appropriate Georgia Statutes, and detailed within Paragraph 7.3
of this Lease.
Tenant agrees to indemnify, protect and defend Landlord and hold Landlord
harmless against any loss, liability or damage resulting from construction of
the Alterations.
ATTACHMENTS
Attachment 1: Description of Alterations and Plans and Specifications
Attachment 2: Insurance Requirements
