INDUSTRIAL LEASE
Basic Lease Information
Date: February 13, 2004
Landlord: SUWANEE CREEK BUSINESS CENTER, LLC, a Delaware limited liability
company.
Tenant: XX XXXXXX COMPANY, a Pennsylvania corporation
Guarantor: N/A
Premises (section 1.1): The space(s) in the building(s) outlined in Exhibit A,
containing approximately 14,000 square feet (more or less) of building
area, the street address(es) of which is (are) known as Suite A, Building
100, 000 Xxxxxxxxx Xxxxxxxxx XX, Xxxxxxx, Xxxxxxx 00000
Property (section 1.1): The land and the building(s) outlined in Exhibit A,
containing approximately 172,800 square feet (more or less) of total
building area, located in Gwinnett County, Georgia, and known as Suwanee
Creek Business Park, 130, 000 xxx 000 Xxxxxxxxx Xxxxxxxxx XX, Xxxxxxx,
Xxxxxxx 00000
Term (section 2.1): One Hundred Twenty-Seven (127) Months
Commencement Date (section 2.1): March 1, 2004
Expiration Date (section 2.1): September 30, 2014
Monthly Base Rent (dollars per month) (section 3.1(a)):
Period Monthly
Installments
------ ------------
03/01/04 - 02/28/05 $6,277.00
03/01/05 - 02/28/06 $6,465.00
03/01/06 - 02/28/07 $6,659.00
03/01/07 - 02/29/08 $6,858.00
03/01/08 - 02/28/09 $7,064.00
03/01/09 - 02/28/10 $7,276.00
03/01/10 - 02/28/11 $7,495.00
03/01/11 - 02/29/12 $7,720.00
03/01/12 - 02/28/13 $7,951.00
03/01/13 - 02/28/14 $8,190.00
03/01/14 - 09/30/14 $8,435.00
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Tenant's Percentage Share of Property (section 3.1(b)): 8.12%
Tenant's Percentage Share of Building (section 3.1(b)): 20.83%
Initial Additional Monthly Rent Estimate (dollars per month) (section 3.2(a)):
$1237.33
Security Deposit (section 3.3): $6,277.00
Rent Payment Address (section 3.7): CalEast Industrial Investors, LLC, Atlanta
Suwanee, 0000 Xxxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000
Permitted Use of the Premises (section 4.1): Office/warehouse and product
testing for parts and equipment related to the railroad industry and
matters reasonably similar or related thereto
Landlord's Address (section 14.1): c/o LaSalle Investment Management, Inc., 0000
Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attn. Xxxxxxxx
Xxxxxxxxxxx Xxxxxx, and a copy simultaneously to (i) LaSalle Investment
Management, Inc., 00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxx 00000,
Attn: Xxxx Xxxxxxxxx and to (ii) Xxxxxxxx Xxxx Company, Five Concourse
Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000
Tenant's Address (section 14.1): XX Xxxxxx Company, 000 Xxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attn.: Xxxxx Xxxx and a copy simultaneously
to XX Xxxxxx Company, 000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attn.: General Counsel.
Guarantor's Address (section 14.1): N/A
Real Estate Broker(s) (section 15.5): TC Atlanta, Inc. -- Representing Landlord
Alliance Partners, Inc. -- Representing Tenant
Exhibit A - Plan(s) Outlining the Premises and the Property
Exhibit B - Description of Landlord's work
Exhibit C - Form of Memorandum Confirming Term
Exhibit D - Permitted Use of Hazardous Substances
Addendum to Industrial Lease
[BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]
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The foregoing Basic Lease Information is incorporated in and made a part of
the Lease to which it is attached. If there is any conflict between the Basic
Lease Information and the Lease, the Basic Lease Information shall control.
TENANT: LANDLORD:
XX XXXXXX COMPANY, a Pennsylvania SUWANEE CREEK BUSINESS CENTER LLC,
corporation Delaware limited liability company
By: /s/Xxxx X. Xxxxxxxxxxx By: CalEast Industrial Investors, LLC,
Name: Xxxx X. Xxxxxxxxxxx a California limited liability company,
Title: CEO & President its Member
[CORPORATE SEAL] By: LaSalle Investment Management, Inc.,
a Maryland corporation, its Manager
By:/s/Xxxxxxxx Xxxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxxxxx Xxxxxx,
Vice President
(CORPORATE SEAL)
By: TC Suwanee Creek, Inc., a Delaware
corporation, its Member
By:/s/Xxxxx
Name:
Title:
(CORPORATE SEAL)
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Table of Contents
Page
ARTICLE 1 Premises..................................................1
1.1 Lease of Premises.........................................1
1.2 Relocation of Premises....................................1
ARTICLE 2 Term......................................................1
2.1 Term of Lease.............................................1
2.2 Improvements..............................................2
2.3 Adjustment of Commencement Date...........................2
2.4 Holding Over..............................................2
ARTICLE 3 Rent......................................................3
3.1 Base Rent and Additional Rent.............................3
3.2 Procedures................................................3
3.3 Security Deposit..........................................4
3.4 Late Payment..............................................4
3.5 Other Taxes Payable by Tenant.............................4
3.6 Certain Definitions.......................................5
3.7 Rent Payment Address......................................5
3.8 No Accord and Satisfaction................................5
ARTICLE 4 Use of the Premises.......................................6
4.1 Permitted Use.............................................6
4.2 Environmental Definitions.................................6
4.3 Environmental Requirements................................6
4.4 Compliance With Law.......................................7
4.5 Rules and Regulations.....................................7
4.6 Entry by Landlord.........................................7
ARTICLE 5 Utilities and Services....................................7
5.1 Tenant's Responsibilities.................................7
ARTICLE 6 Maintenance and Repairs...................................8
6.1 Obligations of Landlord...................................8
6.2 Obligations of Tenant.....................................8
ARTICLE 7 Alteration of the Premises................................9
7.1 No Alterations by Tenant..................................9
7.2 Landlord's Property.......................................9
ARTICLE 8 Indemnification and Insurance............................10
8.1 Damage or Injury.........................................10
8.2 Insurance Coverages and Amounts..........................10
8.3 Insurance Requirements...................................10
8.4 Subrogation..............................................11
8.5 Landlord Insurance Requirements..........................11
ARTICLE 9 Assignment or Sublease...................................11
9.1 Prohibition..............................................11
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TABLE OF CONTENTS
(continued)
9.2 Landlord's Consent or Termination........................12
9.3 Completion...............................................12
9.4 Tenant Not Released......................................12
ARTICLE 10 Events of Default and Remedies...........................13
10.1 Default by Tenant........................................13
10.2 Landlord's Remedies......................................13
10.3 Continuation.............................................14
10.4 Remedies Cumulative......................................14
10.5 Tenant's Primary Duty....................................15
10.6 Abandoned Property.......................................15
10.7 Landlord Default.........................................15
10.8 Landlord's Lien..........................................15
ARTICLE 11 Damage or Destruction....................................15
11.1 Restoration..............................................15
11.2 Termination of Lease.....................................16
ARTICLE 12 Eminent Domain...........................................16
12.1 Condemnation.............................................16
12.2 Award....................................................16
12.3 Temporary Use............................................17
12.4 Definition of Taking.....................................17
ARTICLE 13 Subordination and Sale...................................17
13.1 Subordination............................................17
13.2 Sale of the Property.....................................17
13.3 Estoppel Certificate.....................................17
ARTICLE 14 Notices..................................................18
14.1 Method...................................................18
ARTICLE 15 Miscellaneous............................................18
15.1 General..................................................18
15.2 No Waiver................................................18
15.3 Attorneys' Fees..........................................18
15.4 Exhibits.................................................18
15.5 Broker(s)................................................18
15.6 Waivers of Jury Trial and Certain Damages................19
15.7 Entire Agreement.........................................19
15.8 No Estate................................................19
15.9 No Recordation of Lease..................................19
Exhibit A - Plan(s) Outlining the Premises and the Property
Exhibit B - Description of Landlord's Work
Exhibit C - Form of Memorandum Confirming Term
Exhibit D - Permitted Use of Hazardous Materials
Addendum to Industrial Lease
1
INDUSTRIAL LEASE
THIS LEASE, made as of the date specified in the Basic Lease Information,
by and between SUWANEE CREEK BUSINESS CENTER LLC, a Delaware limited liability
company ("Landlord"), and the tenant specified in the Basic Lease Information
("Tenant"),
W I T N E S S E T H:
ARTICLE 1
Premises
1.1 Lease of Premises. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, for the term and subject to the covenants hereinafter set
forth, to all of which Landlord and Tenant hereby agree, the space(s) in the
building(s) specified in the Basic Lease Information (the "Premises") located on
the real property specified in the Basic Lease Information (the "Property"), all
as outlined on the plan(s) attached hereto as Exhibit A. The Property includes
the land and the building(s) in which the Premises is located. Landlord and
Tenant agree that, for purposes of this Lease, the Premises and the Property,
respectively, each contains the number of square feet of building area specified
in the Basic Lease Information and Tenant's Percentage Share specified in the
Basic Lease Information is the ratio of such building area of the Premises to
such building area of the Property. During the term of this Lease, Tenant shall
have the nonexclusive right, in common with other tenants of the Property, to
use only for their intended purposes the common areas (such as driveways,
sidewalks, parking areas, loading areas and access roads) in the Property that
are designated by Landlord as common areas and not leased to or allocated for
the exclusive use of another tenant of the Property. Landlord shall have the
right from time to time to change the size, location, configuration, character
or use of any such common areas, construct additional improvements or facilities
in any such common areas, or close any such common areas. Tenant shall not
interfere with the rights of Landlord and other tenants of the Property to use
such common areas.
1.2 Relocation of Premises. [Intentionally Deleted].
ARTICLE 2
Term
2.1 Term of Lease. The term of this Lease shall be the term specified in
the Basic Lease Information, which shall commence on the commencement date
specified in the Basic Lease Information (the "Commencement Date") and, unless
sooner terminated as hereinafter provided, shall end on the expiration date
specified in the Basic Lease Information (the "Expiration Date"). If Landlord,
for any reason whatsoever, does not deliver possession of the Premises to Tenant
on the Commencement Date, this Lease shall not be void or voidable and Landlord
shall not be liable to Tenant for any loss or damage resulting therefrom, but,
in such event, the Commencement Date shall be postponed until the date on which
Landlord delivers possession of the Premises to Tenant and the Expiration Date
shall be extended for an equal period (subject to adjustment in accordance with
section 2.3 hereof). Tenant acknowledges that Xxxxxx has inspected the Premises
and the Property or has had the Premises and the Property inspected by
professional consultants retained by Xxxxxx, Tenant is familiar with the
condition of the Premises and the Property, the Premises and the Property are
suitable for Tenant's purposes, and, except for the improvements to be
constructed or installed by Landlord pursuant to Exhibit B (if any), the
condition of the Premises and the Property is acceptable to Tenant. Except for
the improvements to be constructed or installed by Landlord pursuant to Exhibit
B (if any), Landlord shall have no obligation to construct or install any
improvements in the Premises or the Property or to remodel, renovate,
recondition, alter or improve the Premises or the Property in any manner, and
Tenant shall accept the Premises "as is" on the Commencement Date. Landlord and
Tenant expressly agree that there are and shall be no implied warranties of
merchantability, habitability, fitness, for a particular purpose or of any other
kind arising out of this Lease and there are no warranties which extend beyond
those expressly set forth in this Lease.
2.2 Improvements. This section 2.2 shall apply only if Landlord is required
to construct or install improvements in the Premises or the Property pursuant to
Exhibit B. Landlord shall construct or install the improvements to be
constructed or installed by Landlord pursuant to Exhibit B. Landlord shall
deliver possession of
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the Premises to Tenant on the Commencement Date or the date of substantial
completion of the improvements, whichever is later, and Tenant shall accept such
delivery of the Premises. Notwithstanding section 2.1 hereof, the term of this
Lease shall not commence until Landlord has substantially completed the
improvements pursuant to Exhibit B attached hereto and delivered possession of
the Premises to Tenant. The date of substantial completion of the improvements
shall be the date on which construction is sufficiently complete, substantially
in accordance with the plans and specifications, so the improvements may be used
or occupied for their intended purpose as permitted under this Lease. If
Landlord is delayed in substantially completing the improvements by any cause of
delay for which Tenant is responsible, then Tenant shall pay to Landlord, as
additional rent, the monthly Base Rent (based on the first month for which the
Base Rent is to be paid) and the additional monthly rent payable under section
3.1 hereof, calculated on a per diem basis, multiplied by the number of days of
such delay, which shall be due and payable on the Commencement Date specified in
the Basic Lease Information for such delay before such date and monthly in
arrears on the first day of each month thereafter for such delay after such
date. If the improvements are substantially complete and the Premises is ready
for occupancy by Tenant prior to the Commencement Date, Tenant shall have the
right to take early occupancy of the Premises prior to the Commencement Date and
the term of this Lease shall commence on such date of early occupancy by Tenant,
in which event the Commencement Date shall be advanced to such date of early
occupancy, the Expiration Date shall be advanced by an equal period (subject to
adjustment in accordance with section 2.3 hereof), and each of the Monthly Base
Rent adjustment dates set forth in the Basic Lease Information shall also be
advanced accordingly. Tenant shall give Landlord written notice of Xxxxxx's
determination to take early occupancy of the Premises at least ten (10) days in
advance, which notice shall specify the date of such early occupancy.
2.3 Adjustment of Commencement Date. If the Commencement Date as determined
in accordance with section 2.1 or section 2.2 hereof would not be the first day
of the month and the Expiration Date would not be the last day of the month,
then the actual Commencement Date shall be the first day of the next calendar
month following the date so determined and the actual Expiration Date shall be
the last day of the appropriate calendar month so the term of this Lease shall
be the full term specified in the Basic Lease Information. The period of the
fractional month between the date so determined and the actual Commencement Date
shall be on and subject to all of the covenants in this Lease and, on the actual
Commencement Date, Tenant shall pay to Landlord, as additional rent, the monthly
Base Rent (based on the first month for which the Base Rent is to be paid) and
the additional monthly rent payable under section 3.1 hereof, calculated on a
per diem basis, for such period. Landlord and Tenant each shall, promptly after
the actual Commencement Date and the actual Expiration Date have been
determined, execute and deliver to the other a Memorandum Confirming Term in the
form of Exhibit C attached hereto, which shall set forth the actual Commencement
Date and the actual Expiration Date for this Lease, but the term of this Lease
shall commence and end in accordance with this Lease whether or not the
Memorandum Confirming Term is executed.
2.4 Holding Over. In the event that Tenant shall continue in occupancy of
the Premises after the expiration of the Term, such occupancy shall not be
deemed to extend or renew the term of this Lease, but such occupancy shall
continue as a tenancy at will upon the covenants, provisions and conditions
herein contained at a daily Base Rental equal to one twentieth (1/20th) of the
monthly Base Rental in effect at the expiration of the term of this Lease.
Landlord may terminate such tenancy at any time on the later of three (3) days'
written notice or the minimum notice period, if any, required under applicable
law.
ARTICLE 3
Rent
3.1 Base Rent and Additional Rent. Tenant shall pay to Landlord the
following amounts as rent for the Premises:
(a) During the term of this Lease, Tenant shall pay to Landlord, as base
monthly rent, the amount of monthly Base Rent specified in the Basic Lease
Information.
(b) During each calendar year (or part thereof) during the term of this
Lease, Tenant shall pay to Landlord, as additional monthly rent:
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(i) Tenant's Percentage Share specified in the Basic Lease Information of
all CAM Expenses paid or incurred by Landlord in such year, provided, however,
that beginning with the second full calendar year of the term of this Lease,
Tenant's additional rent obligation under this Section 3.1(b)(i) as it relates
to those items of CAM Expenses that lie within the reasonable control of
Landlord (but not any items of CAM Expenses that are not within the reasonable
control of Landlord) shall not increase by more than five percent (5%) per
annum;
(ii) Tenant's Percentage Share specified in the Basic Lease Information of
all Property Taxes paid or incurred by Landlord in such year; and
(iii) Tenant's Percentage Share specified in the Basic Lease Information of
all Insurance Costs paid or incurred by Landlord in such year.
(c) Throughout the term of this Lease, Tenant shall pay, as additional
rent, all other amounts of money and charges required to be paid by Tenant under
this Lease, whether or not such amounts of money or charges are designated
"additional rent." As used in this Lease, "rent" shall mean and include all Base
Rent, additional monthly rent and additional rent payable by Tenant in
accordance with this Lease.
3.2 Procedures. The additional monthly rent payable by Tenant pursuant to
section 3.1(b) hereof (CAM Expenses, Property Taxes and Insurance Costs) shall
be calculated and paid in accordance with the following procedures:
(a) Prior to the execution of this Lease, and on or before the first day of
each subsequent calendar year during the term of this Lease, or as soon
thereafter as practicable, Landlord shall give Tenant written notice of
Landlord's estimate of the amounts payable under section 3.1(b) hereof for the
balance of the first calendar year after the Commencement Date or for the
ensuing calendar year, as the case may be. Xxxxxxxx's estimate of the initial
monthly rent payable by Tenant under section 3.1(b) hereof each month for the
balance of the first calendar year after the Commencement Date is specified in
the Basic Lease Information. Tenant shall pay such estimated amounts to Landlord
in equal monthly installments, in advance, on or before the Commencement Date
and on or before the first day of each month during such balance of the first
calendar year after the Commencement Date or during such ensuing calendar year,
as the case may be. If such notice is not given for any calendar year, Tenant
shall continue to pay on the basis of the prior year's estimate until the month
after such notice is given, and subsequent payments by Tenant shall be based on
Landlord's current estimate. If, at any time, Landlord determines that the
amounts payable under section 3.1(b) hereof for the current calendar year will
vary from Landlord's estimate, Landlord may, by giving written notice to Xxxxxx,
revise Xxxxxxxx's estimate for such year, and subsequent payments by Tenant for
such year shall be based on such revised estimate.
(b) Within a reasonable time after the end of each calendar year, Landlord
shall give Tenant a written statement of the amounts payable by Tenant under
section 3.1(b) hereof for such calendar year certified by Landlord. If such
statement shows a total amount owing by Tenant that is less than the estimated
payments for such calendar year previously made by Tenant, Landlord shall credit
the excess to the next monthly installments of the amounts payable by Tenant
under section 3.1(b) hereof (or, if the term of this Lease has ended, Landlord
shall refund the excess to Tenant with such statement). If such statement shows
a total amount owing by Tenant that is more than the estimated payments for such
calendar year previously made by Tenant, Tenant shall pay the deficiency to
Landlord within thirty (30) days after delivery of such statement. Tenant or
Tenant's authorized agent or representative shall have the right once each
calendar year to inspect the books of Landlord relating to CAM Expenses,
Property Taxes and Insurance Costs for the prior calendar year, after giving
reasonable prior written notice to Landlord and during the business hours of
Landlord at the office of Landlord's property manager for the Property, for the
purpose of verifying the information in such statement. Failure by Landlord to
give any notice or statement to Tenant under this section 3.2 shall not waive
Landlord's right to receive, or Tenant's obligation to pay, the amounts payable
by Tenant under section 3.1(b) hereof.
(c) If the term of this Lease commences or ends on a day other than the
first or last day of a calendar year, respectively, the amounts payable by
Tenant under section 3.1(b) hereof applicable to the calendar year in which such
term commences or ends shall be prorated according to the ratio which the number
of days during the term of this Lease in such calendar year bears to three
hundred sixty-five (365). Termination of this Lease shall not
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affect the obligations of Landlord and Tenant pursuant to section 3.2(b) hereof
to be performed after such termination.
3.3 Security Deposit. Upon signing this Lease, Tenant shall pay to Landlord
(a) an amount equal to the Base Rent for the first month of the term of this
Lease for which the Base Rent is to be paid, which amount Landlord shall apply
to the Base Rent for such first month, and (b) the amount of the security
deposit specified in the Basic Lease Information (the "Security Deposit"). The
Security Deposit shall be held by Landlord as security for the performance by
Tenant of all of the covenants of this Lease to be performed by Xxxxxx, and
Tenant shall not be entitled to interest thereon. If Tenant fails to perform any
of the covenants of this Lease to be performed by Xxxxxx, then Landlord shall
have the right, but no obligation, to apply the Security Deposit, or so much
thereof as may be necessary, to cure any such failure by Tenant. If Landlord
applies the Security Deposit or any part thereof to cure any such failure by
Tenant, then Tenant shall immediately pay to Landlord the sum necessary to
restore the Security Deposit to the full amount required by this Section 3.3.
Provided Tenant performs all of its obligations under this Lease as provided
herein, Landlord shall return any remaining portion of the Security Deposit to
Tenant within thirty (30) days after termination of this Lease. Upon termination
of the original Landlord's or any successor owner's interest in the Premises,
the original Landlord or such successor owner shall be released from further
liability with respect to the Security Deposit upon the original Landlord's or
such successor owner's transferring the Security Deposit to the new owner.
3.4 Late Payment. Tenant acknowledges that the late payment by Tenant of
any monthly installment of Base Rent or additional monthly rent will cause
Landlord to incur costs and expenses, the exact amount of which is extremely
difficult and impractical to fix. Such costs and expenses will include
administration and collection costs and processing and accounting expenses.
Therefore, if any monthly installment of Base Rent or additional monthly rent is
not received by Landlord within ten (10) days after such installment is due,
Tenant shall immediately pay to Landlord a late charge equal to five percent
(5%) of such delinquent installment. Landlord and Tenant agree that such late
charge represents a reasonable estimate of such costs and expenses and is fair
reimbursement to Landlord. In no event shall such late charge be deemed to grant
to Tenant a grace period or extension of time within which to pay any monthly
rent or prevent Landlord from exercising any right or enforcing any remedy
available to Landlord upon Tenant's failure to pay each installment of monthly
rent due under this Lease when due, including the right to terminate this Lease
and recover all damages from Tenant. All amounts of money payable by Tenant to
Landlord hereunder, if not paid when due, shall bear interest from the due date
until paid at the lesser of (a) the rate of twelve percent (12%) per annum and
(b) the maximum rate permitted by law, and Tenant shall pay such interest to
Landlord on written demand.
3.5 Other Taxes Payable by Xxxxxx. Tenant shall reimburse Landlord upon
written demand for all taxes, assessments, excises, levies, fees and charges,
including all payments related to the cost of providing facilities or services,
whether or not now customary or within the contemplation of Landlord and Tenant,
that are payable by Landlord and levied, assessed, charged, confirmed or imposed
by any public or government authority upon, or measured by, or reasonably
attributable to (a) the cost or value of Tenant's furniture, fixtures, equipment
and other personal property located in the Premises or the cost or value of any
improvements made in or to the Premises by or for Tenant, regardless of whether
title to such improvements is vested in Tenant or Landlord, (b) any rent payable
under this Lease, including any gross income tax or excise tax levied by any
public or government authority with respect to the receipt of any such rent so
long as such tax is a tax on rent, (c) the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of the
Premises, or (d) this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises. Such taxes,
assessments, excises, levies, fees and charges shall not include net income
(measured by the income of Landlord from all sources or from sources other than
solely rent) or franchise taxes of Landlord, unless levied or assessed against
Landlord in whole or in part in lieu of, as a substitute for, or as an addition
to any such taxes, assessments, excises, levies, fees and charges. All taxes,
assessments, excises, levies, fees and charges payable by Tenant under this
section 3.5 shall be deemed to be, and shall be paid as, additional rent.
3.6 Certain Definitions. As used in this Lease, certain words are defined
as follows:
(a) "CAM Expenses" shall mean all direct and indirect costs and expenses
paid or incurred by Landlord in connection with the ownership, management,
operation, maintenance or repair of the Property or providing services in
accordance with this Lease, including permit and inspection fees; electricity,
gas, fuel, steam,
5
heat, light, power, water, sewer and other utilities; management fees and
expenses (not exceeding three percent [3%] of Landlord's annual gross income for
the Property); security, guard, extermination, water treatment, garbage and
waste disposal, rubbish removal, plumbing and other services; snow and ice
removal; maintenance of the fire suppression systems; landscape maintenance;
supplies, tools, materials and equipment; accounting and other professional fees
and expenses; painting the exterior of the Property; maintaining and repairing
the exterior walls and roof, the parking and loading areas, the sidewalks,
landscaping and common areas, and the other parts of the Property; costs and
expenses required by or resulting from compliance with any laws, ordinances,
rules, regulations or orders applicable to the Property; and costs and expenses
of contesting by appropriate proceedings any matter concerning managing,
operating, maintaining or repairing the Property, or the validity or
applicability of any law, ordinance, rule, regulation or order relating to the
Property, or the amount or validity of any Property Taxes. CAM Expenses shall
not include Property Taxes, Insurance Costs, charges payable by Tenant pursuant
to section 3.5 hereof, depreciation on the Property, costs of tenants'
improvements, real estate brokers' commissions, interest, or capital costs for
major roof, major parking lot replacement, foundation or masonry wall
replacement or restoration work necessitated by fire or other casualty damage to
the extent of net insurance proceeds received by Landlord with respect thereto.
(b) "Property Taxes" shall mean all taxes, assessments, excises, levies,
fees and charges (and any tax, assessment, excise, levy, fee or charge levied
wholly or partly in lieu thereof or as a substitute therefor or as an addition
thereto) of every kind and description, general or special, ordinary or
extraordinary, foreseen or unforeseen, secured or unsecured, whether or not now
customary or within the contemplation of Landlord and Tenant, that are levied,
assessed, charged, confirmed or imposed by any public or government authority on
or against, or otherwise with respect to, the Property or any part thereof or
any personal property used in connection with the Property. Property Taxes shall
not include net income (measured by the income of Landlord from all sources or
from sources other than solely rent) or franchise taxes of Landlord, unless
levied or assessed against Landlord in whole or in part in lieu of, as a
substitute for, or as an addition to any Property Taxes. Property Taxes shall
not include charges payable by Tenant pursuant to section 3.5 hereof.
(c) "Insurance Costs" shall mean all premiums and other charges for all
property, earthquake, flood, loss of rental income, business interruption,
liability and other insurance relating to the Property carried by Landlord.
3.7 Rent Payment Address. Tenant shall pay all Base Rent and additional
monthly rent under section 3.1 hereof to Landlord, in advance, on or before the
first day of each and every calendar month during the term of this Lease. Tenant
shall pay all rent to Landlord without notice, demand, deduction or offset, in
lawful money of the United States of America, at the address for the payment of
rent specified in the Basic Lease Information, or to such other person or at
such other place as Landlord may from time to time designate in writing.
3.8 No Accord and Satisfaction. No payment by Tenant or receipt by Landlord
of a lesser amount of monthly Base Rent and additional rent or any other sum due
hereunder, shall be deemed to be other than on account of the earliest due rent
or payment, nor shall any endorsement or statement on any check or any letter
accompanying any such check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such rent or payment or pursue any other remedy
available in this Lease, at law or in equity. Landlord may accept any partial
payment from Tenant without invalidation of any contractual notice required to
be given herein (to the extent such contractual notice is required) and without
invalidation of any notice required by any law pertaining to eviction or summary
remedy for regaining possession of real property in the event of tenant default.
ARTICLE 4
Use of the Premises
4.1 Permitted Use. Tenant shall use the Premises only for the Permitted Use
of the Premises specified in the Basic Lease Information and for lawful purposes
incidental thereto, and no other purpose whatsoever. Tenant shall not do or
permit to be done in, on or about the Premises, nor bring or keep or permit to
be brought or kept therein, anything which is prohibited by or will in any way
conflict with any law, ordinance, rule, regulation or order now in force or
which may hereafter be enacted, or which is prohibited by any insurance policy
carried by Landlord for the Property, or will in any way increase the existing
rate of, or disallow any fire rating or sprinkler
6
credit, or cause a cancellation of, or affect any insurance for the Property. If
Tenant causes any increase the premium for any insurance covering the Property
carried by Landlord, Tenant shall pay to Landlord, on written demand as
additional rent, the entire amount of such increase. Tenant shall not do or
permit anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of Landlord or other tenants of the
Property, or injure or annoy them. Tenant shall not use or allow the Premises to
be used for any improper, immoral, unlawful or objectionable activity, nor shall
Tenant cause, maintain or permit any nuisance in, on or about the Premises or
commit or suffer to be committed any waste in, on or about the Premises. Tenant
shall not store any materials, equipment or vehicles outside the Premises and
agrees that no washing of any type (including washing vehicles) shall take place
in or outside the Premises. Tenant shall not receive, store or otherwise handle
any product or material that is explosive or highly inflammable. Tenant shall
not install any signs on the Premises without the prior written consent of
Landlord. Tenant shall, at Tenant's expense, remove all such signs prior to or
upon termination of this Lease, repair any damage caused by the installation or
removal of such signs, and restore the Premises to the condition that existed
before installation of such signs.
4.2 Environmental Definitions. As used in this Lease, "Hazardous Material"
shall mean any substance that is (a) defined under any Environmental Law as a
toxic substance, hazardous substance, hazardous waste, hazardous material,
pollutant or contaminant, (b) a petroleum hydrocarbon, including crude oil or
any fraction or mixture thereof, (c) hazardous, toxic, corrosive, flammable,
explosive, infectious, radioactive, carcinogenic or a reproductive toxicant, or
(d) otherwise regulated pursuant to any Environmental Law. As used in this
Lease, "Environmental Law" shall mean all federal, state and local laws,
statutes, ordinances, regulations, rules, judicial and administrative orders and
decrees, permits, licenses, approvals, authorizations and similar requirements
of all federal, state and local governmental agencies or other governmental
authorities pertaining to the protection of human health and safety or the
environment, now existing or later adopted during the term of this Lease. As
used in this Lease, "Permitted Activities" shall mean the lawful activities of
Tenant that are part of the ordinary course of Tenant's business in accordance
with the Permitted Use specified in the Basic Lease Information. As used in this
Lease, "Permitted Materials" shall mean the materials, which are not Hazardous
Materials, handled by Tenant in the ordinary course of conducting Permitted
Activities and any Hazardous Material that is listed by name and maximum
quantity and approved by Landlord on Exhibit D attached hereto.
4.3 Environmental Requirements. Tenant hereby agrees that: (a) Tenant shall
not conduct, or permit to be conducted, on the Premises any activity which is
not a Permitted Activity; (b) Tenant shall not use, store or otherwise handle,
or permit any use, storage or other handling of, any Hazardous Material which is
not a Permitted Material on or about the Premises; (c) Tenant shall obtain and
maintain in effect all permits and licenses required pursuant to any
Environmental Law for Tenant's activities on the Premises, and Tenant shall at
all times comply with all applicable Environmental Laws; (d) Tenant shall not
engage in the storage, treatment or disposal on or about the Premises of any
Hazardous Material except for any temporary accumulation of waste generated in
the course of Permitted Activities; (e) Tenant shall not install any aboveground
or underground storage tank or any subsurface lines for the storage or transfer
of any Hazardous Material, except for the lawful discharge of waste to the
sanitary sewer, and Tenant shall store all Hazardous Materials in a manner that
protects the Premises, the Property and the environment from accidental spills
and releases; (f) Tenant shall not cause or permit to occur any release of any
Hazardous Material or any condition of pollution or nuisance on or about the
Premises, whether affecting surface water or groundwater, air, the land or the
subsurface environment; (g) Tenant shall promptly remove from the Premises any
Hazardous Material introduced, or permitted to be introduced, onto the Premises
by Tenant which is not a Permitted Material and, on or before the date Tenant
ceases to occupy the Premises, Tenant shall remove from the Premises all
Hazardous Materials and all Permitted Materials handled by or permitted on the
Premises by Tenant; (h) if any release of a Hazardous Material to the
environment, or any condition of pollution or nuisance, occurs on or about or
beneath the Premises as a result of any act or omission of Tenant or its agents,
officers, employees, contractors, invitees or licensees, Tenant shall
immediately notify Landlord and, where required by law, appropriate governmental
authorities, and shall, at Tenant's sole cost and expense, promptly undertake
all remedial measures required to clean up and xxxxx or otherwise respond to the
release, pollution or nuisance in accordance with all applicable Environmental
Laws; and (i) Tenant shall not use, store or handle any chlorinated solvent
except for de minimus amounts contained in cleaning supplies provided that such
chlorinated solvents and their de minimus amounts are listed and approved by
Landlord on Exhibit D attached hereto and incorporated herein by reference and
are used in conformance with Environmental Laws and good environmental practice.
Landlord and Landlord's representatives shall have the right, but not the
obligation, to enter the Premises at any reasonable time for the purpose of
inspecting the storage, use and handling of any Hazardous Material on the
Premises in order to determine
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Tenant's compliance with the requirements of this Lease and applicable
Environmental Law. If Landlord gives written notice to Tenant that Xxxxxx's use,
storage or handling of any Hazardous Material on the Premises may not comply
with this Lease or applicable Environmental Law, Tenant shall correct any such
violation within five (5) days after Xxxxxx's receipt of such notice from
Landlord. Tenant shall indemnify and defend Landlord against and hold Landlord
harmless from all claims, demands, actions, judgments, liabilities, costs,
expenses, losses, damages, penalties, fines and obligations of any nature
(including reasonable attorneys' fees and disbursements incurred in the
investigation, defense or settlement of claims) that Landlord may incur as a
result of, or in connection with, claims arising from the presence, use,
storage, transportation, treatment, disposal, release or other handling, on or
about or beneath the Premises, of any Hazardous Material introduced or permitted
on or about or beneath the Premises by any act or omission of Tenant or its
agents, officers, employees, contractors, invitees or licensees. The liability
of Tenant under this Section 4.3 shall survive the termination of this Lease and
Xxxxxx's relinquishment of possession of the Premises with respect to acts or
omissions that occur before the later to occur of such termination and Xxxxxx's
relinquishment of possession. Notwithstanding the foregoing, Tenant shall have
no liability under this Section 4.3 for any Hazardous Material that was present
on or under the Premises or the Property as of the Commencement Date that was
not caused by Tenant or its agents, officers, employees, contractors, invitees
or licensees.
4.4 Compliance With Law. Tenant shall, at Tenant's sole cost and expense,
promptly comply with all laws, ordinances, rules, regulations, orders and other
requirements of any government or public authority now in force or which may
hereafter be in force, with all requirements of any board of fire underwriters
or other similar body now or hereafter constituted, and with all directions and
certificates of occupancy issued pursuant to any law by any governmental agency
or officer, insofar as any thereof relate to or are required by the condition,
use or occupancy of the Premises or the operation, use or maintenance of any
personal property, fixtures, machinery, equipment or improvements in the
Premises, but Tenant shall not be required to make structural changes unless
structural changes are related to or required by Xxxxxx's acts or use of the
Premises or by improvements made by or for Tenant. Notwithstanding the
foregoing, Tenant shall not be required to make any structural changes that are
necessary to remedy or cure any non-compliance of the Premises with any
applicable laws in effect as of the Commencement Date.
4.5 Rules and Regulations. Tenant shall faithfully observe and fully comply
with all rules and regulations (the "Rules and Regulations") from time to time
made in writing by Landlord for the safety, care, use and cleanliness of the
Property or the common areas of the Property and the preservation of good order
therein. If there is any conflict, this Lease shall prevail over the Rules and
Regulations.
4.6 Entry by Landlord. Landlord shall have the right to enter the Premises
at any time to (a) inspect the Premises, (b) exhibit the Premises to prospective
purchasers, lenders or tenants, (c) determine whether Tenant is performing all
of Tenant's obligations, (d) supply any service to be provided by Landlord, (e)
post notices of nonresponsibility, and (f) make any repairs to the Premises, or
make any repairs to any adjoining space or utility services, or make any
repairs, alterations or improvements to any other portion of the Property,
provided all such work shall be done as promptly as reasonably practicable and
so as to cause as little interference to Tenant as reasonably practicable.
Tenant waives all claims for damages for any injury or inconvenience to or
interference with Xxxxxx's business, any loss of occupancy or quiet enjoyment of
the Premises or any other loss occasioned by such entry. Landlord shall have the
right to use any and all means which Landlord may deem proper to open all doors
in, on or about the Premises in an emergency to obtain entry to the Premises.
Any entry to the Premises obtained by Landlord by any of such means shall not
under any circumstances be construed or deemed to be a forcible or unlawful
entry into or a detainer of the Premises or an eviction, actual or constructive,
of Tenant from the Premises or any portion thereof.
ARTICLE 5
Utilities and Services
5.1 Tenant's Responsibilities. Tenant shall pay, directly to the
appropriate supplier before delinquency, for all water, gas, heat, light, power,
telephone, sewer, refuse disposal and other utilities and services supplied to
the Premises, together with all taxes, assessments, surcharges and similar
expenses relating to such utilities and services. Tenant shall furnish the
Premises with all telephone service, window washing, security service, janitor,
scavenger and disposal services, and other services required by Tenant for the
use of the Premises permitted by this Lease. Tenant shall furnish all electric
light bulbs and tubes and restroom supplies used in the
8
Premises. Landlord shall not be in default under this Lease or be liable for any
damage or loss directly or indirectly resulting from, nor shall the rent be
abated or a constructive or other eviction be deemed to have occurred by reason
of, any interruption of or failure to supply or delay in supplying any such
utilities and services or any limitation, curtailment, rationing or restriction
on use of water, electricity, gas or any resource or form of energy or other
service serving the Premises or the Property, whether such results from
mandatory restrictions or voluntary compliance with guidelines.
ARTICLE 6
Maintenance and Repairs
6.1 Obligations of Landlord. Landlord shall maintain and repair only the
foundations, the exterior walls (which shall not include windows, glass or plate
glass, doors, special fronts, entries, or the interior surfaces of exterior
walls, all of which shall be the responsibility of Tenant, provided that
Landlord, and not Tenant, shall be responsible for repairing any broken glass
and plate glass caused by any settling of the foundation of the Building), the
roof and other structural components of the Premises and the common areas of the
Property and keep them in good condition, reasonable wear and tear excepted.
Tenant shall give Landlord written notice of the need for any maintenance or
repair for which Landlord is responsible, after which Landlord shall have a
reasonable opportunity to perform the maintenance or make the repair, and
Landlord shall not be liable for any failure to do so unless such failure
continues for an unreasonable time after Xxxxxx gives such written notice to
Landlord. Tenant waives any right to perform maintenance or make repairs for
which Landlord is responsible at Landlord's expense. Landlord's liability with
respect to any maintenance or repair for which Landlord is responsible shall be
limited to the cost of the maintenance or repair. Any damage to any part of the
Property for which Landlord is responsible that is caused by Tenant or any
agent, officer, employee, contractor, licensee or invitee of Tenant shall be
repaired by Landlord at Tenant's expense and Tenant shall pay to Landlord, upon
billing by Xxxxxxxx, as additional rent, the cost of such repairs incurred by
Landlord.
6.2 Obligations of Tenant. Tenant shall, at all times during the term of
this Lease and at Tenant's sole cost and expense, maintain and repair the
Premises and every part thereof (except only the parts for which Landlord is
expressly made responsible under this Lease) and all equipment, fixtures and
improvements therein (including windows, glass, plate glass, doors, special
fronts, entries, the interior surfaces of exterior walls, interior walls,
floors, heating and air conditioning systems, dock boards, truck doors, dock
bumpers, plumbing fixtures and equipment, electrical components and mechanical
systems) and keep all of the foregoing clean and in good order and operating
condition, ordinary and normal wear and tear excepted. Tenant shall not damage
the Premises or disturb the integrity and support provided by any wall. Tenant
shall, at Tenant's expense, promptly repair any damage to the Premises caused by
Tenant or any agent, officer, employee, contractor, licensee or invitee of
Tenant. Tenant shall take good care of the Premises and keep the Premises free
from dirt, rubbish, waste and debris at all times. Tenant shall not overload the
floors in the Premises or exceed the load-bearing capacity of the floors in the
Premises. Tenant shall, at Tenant's expense, enter into a regularly scheduled
preventative maintenance and service contract with a maintenance contractor
approved in writing by Landlord for servicing all hot water, heating and air
conditioning systems and equipment in the Premises. The maintenance and service
contract shall include all services suggested by the equipment manufacturer and
shall become effective (and Tenant shall deliver a copy to Landlord) within
thirty (30) days after the Commencement Date. Tenant and Tenant's maintenance
contractor shall at all times conduct maintenance on the HVAC equipment at the
Premises in accordance with all Federal, state or local laws. In the event that
a leak occurs in any portion of the HVAC equipment at the Premises, Tenant shall
cause Tenant's maintenance contractor to repair promptly such leak in accordance
with such Federal, state or local laws and shall, in any event, cause such leaks
to be repaired within the deadline imposed by such Federal, state or local laws.
Tenant hereby agrees to indemnify, defend and hold Landlord harmless against any
and all damages, liabilities, losses, costs and expenses, including, without
limitation, reasonable attorneys' fees, incurred by Landlord as a result of
Tenant's failure to cause maintenance to be conducted on the HVAC equipment at
the Premises in accordance with all Federal, state or local laws or as a result
of Tenant's failure to cause the repair of any leak in any portion of the HVAC
equipment at the Premises in accordance with Federal, state or local laws. In
the event of a replacement of a part or portion of the HVAC equipment which is
warranted by the manufacturer and/or guaranteed by the installer, Tenant shall
provide the Landlord with a duplicate original of the warranty and/or guarantee.
Tenant shall, at the end of the term of this Lease, surrender to Landlord the
Premises and all alterations, additions, fixtures and improvements therein or
thereto in the same condition as when received, ordinary wear and tear excepted.
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ARTICLE 7
Alteration of the Premises
7.1 No Alterations by Tenant. Tenant shall not make any alterations,
additions or improvements in or to the Premises or any part thereof, or attach
any fixtures or equipment thereto, without Landlord's prior written consent.
Notwithstanding the preceding sentence, Tenant may make such alterations,
additions or improvements without Landlord's consent only if the total cost of
such alterations, additions or improvements is five thousand dollars ($5,000) or
less and such alterations, additions or improvements will not affect in any way
the structural, exterior or roof elements of the Property or the mechanical,
electrical, plumbing or life safety systems of the Property, but Tenant shall
give prior written notice of any such alterations, additions or improvements to
Landlord. All alterations, additions and improvements (except improvements made
by Landlord pursuant to Exhibit B, if any) in or to the Premises to which
Landlord consents shall be made by Tenant at Tenant's sole cost and expense as
follows:
(a) Tenant shall submit to Landlord, for Landlord's written approval,
complete plans and specifications for all work to be done by Tenant, provided
that no plans and specifications shall be required for any work in which (i) the
total cost of the proposed alteration, addition or improvement is five thousand
dollars ($5,000) or less and (ii) such alteration, addition or improvement will
not affect in any way the structural, exterior or roof elements of the Property
or the mechanical, electrical, plumbing or life safety systems of the Property.
Such plans and specifications shall be prepared by responsible licensed
architect(s) and engineer(s), shall comply with all applicable codes, laws,
ordinances, rules and regulations, shall not adversely affect any systems,
components or elements of the Property, shall be in a form sufficient to secure
the approval of all government authorities with jurisdiction over the Property,
and shall be otherwise satisfactory to Landlord in Landlord's reasonable
discretion.
(b) Tenant shall obtain all required permits for the work. Tenant shall
engage responsible licensed contractor(s) to perform all work. Tenant shall
perform all work in accordance with the plans and specifications approved by
Landlord, in a good and workmanlike manner, in full compliance with all
applicable laws, codes, ordinances, rules and regulations, and free and clear of
any mechanics', materialmen's or any other construction related liens. Tenant
shall pay for all work (including the cost of all utilities, permits, fees,
taxes, and property and liability insurance premiums in connection therewith)
required to make the alterations, additions and improvements. Tenant shall pay
to Landlord all direct costs and shall reimburse Landlord for all expenses
incurred by Landlord in connection with the review, approval and supervision of
any alterations, additions or improvements made by Tenant. Under no
circumstances shall Landlord be liable to Tenant for any damage, loss, cost or
expense incurred by Tenant on account of design of any work, construction of any
work, or delay in completion of any work.
(c) Tenant shall give written notice to Landlord of the date on which
construction of any work will be commenced at least five (5) days prior to such
date. Tenant shall keep the Premises and the Property free from mechanics',
materialmen's and all other liens arising out of any work performed, labor
supplied, materials furnished or other obligations incurred by Tenant. Tenant
shall promptly and fully pay and discharge all claims on which any such lien
could be based. Tenant shall have the right to contest the amount or validity of
any such lien, provided Xxxxxx gives prior written notice of such contest to
Landlord, prosecutes such contest by appropriate proceedings in good faith and
with diligence, and, upon request by Xxxxxxxx, furnishes such bond as may be
required by law or such security as Landlord may require to protect the Premises
and the Property from such lien. Landlord shall have the right to post and keep
posted on the Premises any notices that may be provided by law or which Landlord
may deem to be proper for the protection of Landlord, the Premises and the
Property from such liens, and to take any other action Landlord deems necessary
to remove or discharge liens or encumbrances at the expense of Tenant.
7.2 Landlord's Property. All alterations, additions, fixtures and
improvements, including improvements made pursuant to Exhibit B (if any),
whether temporary or permanent in character, made in or to the Premises by
Landlord or Tenant, shall become part of the Property and Landlord's property.
Upon termination of this Lease, Landlord shall have the right, at Landlord's
option, by giving written notice to Tenant at any time before or within thirty
(30) days after such termination, to retain all such alterations, additions,
fixtures and improvements in the Premises, without compensation to Tenant, or to
remove all such alterations, additions, fixtures and improvements from the
Premises, repair all damage caused by any such removal, and restore the Premises
to the condition in which the Premises existed before such alterations,
additions, fixtures and improvements were made, and in the latter case Tenant
shall pay to Landlord, upon billing by Landlord, the cost of such removal,
repair and
10
restoration (including a reasonable charge for Xxxxxxxx's overhead and profit),
provided, however, that Tenant shall have no obligation to pay Landlord for the
cost of removing the original Tenant Improvements that are installed by Landlord
pursuant to the Approved Plans (as hereafter defined in Exhibit B). All movable
furniture, equipment, trade fixtures, computers, office machines and other
personal property shall remain the property of Tenant. Upon termination of this
Lease, Tenant shall, at Tenant's expense, remove all such movable furniture,
equipment, trade fixtures, computers, office machines and other personal
property from the Property and repair all damage caused by any such removal.
Termination of this Lease shall not affect the obligations of Tenant pursuant to
this section 7.2 to be performed after such termination.
ARTICLE 8
Indemnification and Insurance
8.1 Damage or Injury. Landlord shall not be liable to Tenant, and Tenant
hereby waives all claims against Landlord, for any damage to or loss or theft of
any property or for any bodily or personal injury, illness or death of any
person in, on or about the Premises or the Property arising at any time and from
any cause whatsoever, except to the extent caused by the gross negligence or
willful misconduct of Landlord. Tenant shall indemnify and defend Landlord
against and hold Landlord harmless from all claims, demands, liabilities,
damages, losses, costs and expenses, including reasonable attorneys' fees and
disbursements, arising from or related to any use or occupancy of the Premises,
or any condition of the Premises, or any default in the performance of Tenant's
obligations under this Lease, or any damage to any property (including property
of employees and invitees of Tenant) or any bodily or personal injury, illness
or death of any person (including employees and invitees of Tenant) occurring
in, on or about the Premises or any part thereof arising at any time and from
any cause whatsoever (except to the extent caused by the gross negligence or
willful misconduct of Landlord) or occurring in, on or about any part of the
Property other than the Premises when such damage, bodily or personal injury,
illness or death is caused by any act or omission of Tenant or its agents,
officers, employees, contractors, invitees or licensees. This section 8.1 shall
survive the termination of this Lease with respect to any damage, bodily or
personal injury, illness or death occurring prior to such termination.
8.2 Insurance Coverages and Amounts. Tenant shall, at all times during the
term of this Lease and at Xxxxxx's sole cost and expense, obtain and keep in
force the insurance coverages and amounts set forth in this section 8.2. Tenant
shall maintain commercial general liability insurance, with limits not less than
one million dollars ($1,000,000) per occurrence and two million dollars
($2,000,000) general aggregate, which insures against claims for bodily injury,
personal injury, advertising injury and property damage based upon, involving or
arising out of the use, occupancy or maintenance of the Premises and the
Property. Such insurance shall include blanket contractual liability, broad form
property damage liability, fire legal liability, premises, products and
completed operations, and medical payments, with minimum limits of $10,000 each
accident. The policy shall contain an exception to any pollution exclusion which
insures damage or injury arising out of heat, smoke or fumes from a hostile
fire. Such insurance shall be written on an occurrence basis and contain a
standard separation of insureds provision with cross liability. Tenant shall
maintain business auto liability insurance with limits not less than one million
dollars ($1,000,000) each accident covering owned, hired and non-owned vehicles
used by Tenant. If Tenant has no owned autos, Tenant shall at a minimum provide
hired and non-owned auto liability coverage. Tenant shall maintain umbrella
excess liability insurance on a following form basis in excess of the required
commercial general liability, business auto and employers liability insurance
with limits of not less than five million dollars ($5,000,000) per occurrence
and aggregate. Tenant shall maintain (i) workers' compensation insurance in
statutory limits for all of its employees in the state in which the Property is
located and (ii) employers liability insurance which affords not less than one
million dollars ($1,000,000) for each coverage and policy limit. Tenant shall
maintain "all risk" property insurance for all personal property of Tenant,
improvements, fixtures and equipment constructed or installed by Tenant in the
Premises in an amount not less than the full replacement cost. Such property
insurance, shall include business income and extra expense coverage with
sufficient limits for Tenant to sustain its business operation at this location
for a period of twelve (12) months. Tenant shall maintain boiler and machinery
insurance against loss or damage from an accident from Tenant installed or above
building standard equipment installed for Tenant's use in the Premises for full
replacement cost and plate glass insurance coverage against breakage of plate
glass in the Premises from causes other than insured perils. Tenant may self
insure for plate glass. Any deductibles selected by Tenant shall be the sole
responsibility of Tenant.
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8.3 Insurance Requirements. All insurance and all renewals thereof shall be
issued by companies with a rating of at least "A-" "VIII" or better in the
current edition of Best's Insurance Reports and be approved to do business in
the state in which the Property is located. Each policy shall expressly provide
that the policy shall not be canceled or materially reduced below the limits
required without thirty (30) days' prior written notice to Landlord and shall
remain in effect notwithstanding any such cancellation or alteration until such
notice shall have been given to Landlord and such period of thirty (30) days
shall have expired. All liability insurance (except employers liability) shall
name Landlord and any other parties designated by Landlord (including without
limitation the State of California Public Employees Retirement System, CalEast
Industrial Investors, LLC, LaSalle Investment Management, Inc., Xxxxxxxx Xxxx
Company, or any other investment manager, asset manager or property manager) as
an additional insured, shall be primary and noncontributory to any insurance
which may be carried by Landlord, shall afford coverage for all claims based on
any act, omission, event or condition that occurred or arose (or the onset of
which occurred or arose) during the policy period, and shall expressly provide
that Landlord, although named as an insured, shall nevertheless be entitled to
recover under the policy for any loss, injury or damage to Landlord. All
property insurance shall name Landlord as loss payee as respects Landlord's
interest in any improvements and betterments. Tenant shall deliver certificates
of insurance acceptable to Landlord at least ten (10) days before the
Commencement Date and at least ten (10) days before expiration of each policy.
Additional Insured Endorsement CG 20 11 11 85 or its equivalent is required to
be provided as soon as it is available. If Tenant fails to insure or fails to
furnish any such insurance certificate or endorsement, Landlord shall have the
right, but shall not be required to, from time to time to effect such insurance
for the benefit of Tenant or Landlord or both of them, and Tenant shall pay to
Landlord on written demand, as additional rent, all premiums paid by Landlord.
Landlord may at any time amend the requirements herein due to (i) information
not previously known to the Landlord and which poses a material risk (ii)
changed circumstances which, in the reasonable judgment of the Landlord renders
such coverage materially inadequate or (iii) as required by the Landlord's
lender.
8.4 Subrogation. Tenant waives on behalf of all insurers under all policies
of property insurance now or hereafter carried by Tenant insuring or covering
the Premises, or any portion or any contents thereof, or any operations therein,
all rights of subrogation which any such insurer might otherwise, if at all,
have to any claims of Tenant against Landlord. Landlord waives on behalf of all
insurers under all policies of property insurance now or hereafter carried by
Landlord insuring or covering the Property, or any portion or any contents
thereof, or any operations therein, all rights of subrogation which any such
insurer might otherwise, if at all, have to any claims of Landlord against
Tenant. Landlord and Tenant shall procure from each of their insurers under all
policies of property insurance now or hereafter carried by Tenant insuring or
covering the Premises, or any portion or any contents thereof, or any operations
therein, a waiver of all rights of subrogation which the insurer might
otherwise, if at all, have to any claims of either party against the other as
required by this section 8.4.
8.5 Landlord Insurance Requirements. Landlord shall, at all times during
the term of this Lease, secure and maintain:
(a) All risk property insurance coverage on the Property. Landlord shall
not be obligated to insure any furniture, equipment, trade fixtures, machinery,
goods, or supplies which Tenant may keep or maintain in the Demised Premises or
any alteration, addition or improvement which Tenant may make upon the Demised
Premises. In addition, Landlord shall secure and maintain rental income
insurance and any other insurance coverage required to be maintained by any
mortgage of the property. If the annual cost to Landlord for such property or
rental income insurance exceeds the standard rates because of the nature of
Tenant's operations, Tenant shall, upon the receipt of appropriate invoices,
reimburse Landlord for such increased cost.
Commercial general liability insurance with limits not less than $5,000,000 per
occurrence and aggregate. Such insurance shall be in addition to, and not in
lieu of, insurance required to be maintained by Tenant. Tenant shall not be
named as an additional insured on any policy of liability insurance maintained
by Landlord.
ARTICLE 9
Assignment or Sublease
9.1 Prohibition. Tenant shall not, directly or indirectly, without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, assign this Lease or any interest herein or sublease the Premises or
any part thereof, or permit the use or occupancy of the Premises by any person
or entity other than Tenant.
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Tenant shall not, directly or indirectly, without the prior written consent of
Landlord, pledge, mortgage or hypothecate this Lease or any interest herein.
This Lease shall not, nor shall any interest herein, be assignable as to the
interest of Tenant involuntarily or by operation of law without the prior
written consent of Landlord. For purposes of this Lease, any of the following
transfers on a cumulative basis shall constitute an assignment of this Lease
that requires the prior written consent of Landlord: if Tenant is a corporation,
the transfer of more than forty-nine percent (49%) of the stock of the
corporation; if Tenant is a partnership, the transfer of more than forty-nine
percent (49%) of the capital or profits interest in the partnership; if Tenant
is a limited liability company, the transfer of more than forty-nine percent
(49%) of the membership interests in the limited liability company or a change
in the manager of the limited liability company, if any; and if Tenant is a
trust, the transfer of more than forty-nine percent (49%) of the beneficial
interest under the trust. Any of the foregoing acts without such prior written
consent of Landlord shall be void and shall, at the option of Landlord,
constitute a default that entitles Landlord to terminate this Lease. Tenant
agrees that the instrument by which any assignment or sublease to which Landlord
consents is accomplished shall expressly provide that the assignee or subtenant
will perform all of the covenants to be performed by Tenant under this Lease (in
the case of a sublease, only insofar as such covenants relate to the portion of
the Premises subject to such sublease) as and when performance is due after the
effective date of the assignment or sublease and that Landlord will have the
right to enforce such covenants directly against such assignee or subtenant. Any
purported assignment or sublease without an instrument containing the foregoing
provisions shall be void. Tenant shall in all cases remain liable for the
performance by any assignee or subtenant of all such covenants.
9.2 Landlord's Consent or Termination. If Tenant wishes to assign this
Lease or sublease all or any part of the Premises, Tenant shall give written
notice to Landlord identifying the intended assignee or subtenant by name and
address and specifying all of the terms of the intended assignment or sublease.
Tenant shall give Landlord such additional information concerning the intended
assignee or subtenant (including complete financial statements and a business
history) or the intended assignment or sublease (including true copies thereof)
as Landlord requests. For a period of thirty (30) days after such written notice
is given by Xxxxxx, Landlord shall have the right, by giving written notice to
Tenant, (a) to consent in writing to the intended assignment or sublease, unless
Landlord determines not to consent, or (b) in the case of an assignment of this
Lease or a sublease of substantially the entire Premises for substantially the
balance of the term of this Lease, to terminate this Lease, which termination
shall be effective as of the date on which the intended assignment or sublease
would have been effective if Landlord had not exercised such termination right.
9.3 Completion. If Landlord consents in writing, Tenant may complete the
intended assignment or sublease subject to the following covenants: (a) the
assignment or sublease shall be on the same terms as set forth in the written
notice given by Tenant to Landlord, (b) no assignment or sublease shall be valid
and no assignee or subtenant shall take possession of the Premises or any part
thereof until an executed duplicate original of such assignment or sublease, in
compliance with section 9.1 hereof, has been delivered to Landlord, (c) no
assignee or subtenant shall have a right further to assign or sublease, and (d)
all "excess rent" (as hereinafter defined) derived from such assignment or
sublease shall be paid to Landlord. Such excess rent shall be deemed to be, and
shall be paid by Tenant to Landlord as, additional rent. Tenant shall pay such
excess rent to Landlord immediately as and when such excess rent becomes due and
payable to Tenant. As used in this section 9.3, "excess rent" shall mean the
amount by which the total money and other economic consideration to be paid by
the assignee or subtenant as a result of an assignment or sublease, whether
denominated rent or otherwise, exceeds, in the aggregate, the total amount of
rent which Tenant is obligated to pay to Landlord under this Lease (prorated to
reflect the rent allocable to the portion of the Premises subject to such
assignment or sublease), less only the reasonable costs paid by Tenant for
additional improvements installed in the portion of the Premises subject to such
assignment or sublease by Xxxxxx at Tenant's sole cost and expense for the
specific assignee or subtenant in question and reasonable leasing commissions
paid by Xxxxxx in connection with such assignment or sublease, without deduction
for carrying costs due to vacancy or otherwise. Such costs of additional
improvements and leasing commissions shall be amortized without interest over
the term of such assignment or sublease.
9.4 Tenant Not Released. No assignment or sublease whatsoever shall release
Tenant from Tenant's obligations and liabilities under this Lease or alter the
primary liability of Tenant to pay all rent and to perform all obligations to be
paid and performed by Xxxxxx. No assignment or sublease shall amend or modify
this Lease in any respect, and every assignment and sublease shall be subject
and subordinate to this Lease. The acceptance of rent by Landlord from any other
person or entity shall not be deemed to be a waiver by Landlord of any provision
of this Lease. Consent to one assignment or sublease shall not be deemed consent
to any subsequent assignment or
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sublease. Concurrently with any request for Xxxxxxxx's consent, Tenant shall pay
to Landlord a service fee of Five Hundred Dollars ($500.00), which shall be used
by Landlord to defray the costs incurred by Landlord in reviewing and processing
such request. In the event that the actual costs incurred by Landlord in
reviewing Tenant's request exceeds Five Hundred Dollars ($500.00), then Tenant
shall reimburse Landlord for the amount of such excess within ten (10) days of
written demand therefor. If the actual costs incurred by Landlord in reviewing
Tenant's request is less than Five Hundred Dollars ($500.00), then Landlord
shall refund the difference to Tenant. If any assignee, subtenant or successor
of Tenant defaults in the performance of any obligation to be performed by
Tenant under this Lease, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against such assignee, subtenant or
successor. Xxxxxxxx may consent to subsequent assignments or subleases or
amendments or modifications to this Lease with assignees, subtenants or
successors of Xxxxxx, without notifying Tenant or any successor of Xxxxxx and
without obtaining any consent thereto from Tenant or any successor of Xxxxxx,
and such action shall not release Tenant from liability under this Lease.
ARTICLE 10
Events of Default and Remedies
10.1 Default by Tenant. The occurrence of any one or more of the following
events ("Event of Default") shall constitute a breach of this Lease by Xxxxxx:
(a) Tenant fails to pay any Base Rent, or any additional monthly rent under
section 3.1 hereof, or any additional rent or other amount of money or charge
payable by Tenant hereunder as and when such rent becomes due and payable and
such failure continues for more than five (5) business days after Landlord gives
written notice thereof to Tenant; provided, however, that after the second such
failure in a calendar year, only the passage of time, but no further written
notice, shall be required to establish an Event of Default in the same calendar
year; or
(b) Tenant fails to perform or breaches any other agreement or covenant of
this Lease to be performed or observed by Tenant as and when performance or
observance is due and such failure or breach continues for more than ten (10)
days after Landlord gives written notice thereof to Tenant; provided, however,
that if, by the nature of such agreement or covenant, such failure or breach
cannot reasonably be cured within such period of ten (10) days, an Event of
Default shall not exist as long as Tenant commences with due diligence and
dispatch the curing of such failure or breach within such period of ten (10)
days and, having so commenced, thereafter prosecutes with diligence and dispatch
and completes the curing of such failure or breach; or
(c) Tenant (i) files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganization or arrangement or any
other petition in bankruptcy or for liquidation or to take advantage of any
bankruptcy, insolvency or other debtors' relief law of any jurisdiction, (ii)
makes an assignment for the benefit of its creditors, or (iii) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers of Tenant or of any substantial part of Tenant's property; or
(d) Without consent by Xxxxxx, a court or government authority enters an
order, and such order is not vacated within thirty (30) days, (i) appointing a
custodian, receiver, trustee or other officer with similar powers with respect
to Tenant or with respect to any substantial part of Tenant's property, or (ii)
constituting an order for relief or approving a petition for relief or
reorganization or arrangement or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy, insolvency or other debtors'
relief law of any jurisdiction, or (iii) ordering the dissolution, winding-up or
liquidation of Tenant; or
(e) This Lease or any estate of Tenant hereunder is levied upon under any
attachment or execution and such attachment or execution is not vacated within
thirty (30) days; or
(f) Tenant (i) abandons the Premises without providing Landlord with thirty
(30) days advance written notice of its intention to vacate the Premises and
(ii) after vacating the Premises fails to perform or observe any covenant, term
or condition contained in this Lease, including without limitation the
obligation to pay all rent due hereunder, the duty to maintain the Premises and
the covenant to obtain and maintain the insurance coverages required under this
Lease.
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10.2 Landlord's Remedies. Upon the occurrence of an Event of Default,
Landlord shall have the option to do and perform any one or more of the
following:
(a) Terminate this Lease, in which event Xxxxxx shall immediately surrender
the Premises to Landlord. If Tenant shall fail to do so, Landlord may, without
further notice and without prejudice to any other remedy Landlord may have,
lawfully enter upon the Premises without the requirement of resorting to the
dispossessory procedures set forth in O.C.G.A. xx.xx. 44-7-50 et seq. and expel
or remove Tenant and Xxxxxx's effects without being liable for any claim for
trespass or damages therefor. Upon any such termination, Tenant shall remain
liable to Landlord for damages, due and payable monthly on the day Base Rent
would have been payable hereunder, in an amount equal to the Base Rent and any
other amounts which would have been owing by Tenant for the balance of the Term,
had this Lease not been terminated, less the net proceeds, if any, of any
reletting of the Premises by Landlord, after deducting all of Landlord's costs
and expenses (including, without limitation, advertising expenses, professional
fees and the preparation of the Premises for reletting) incurred in connection
with or in any way related to the termination of this Lease, eviction of Tenant
and such reletting; and/or
(b) Declare the entire amount of Base Rent calculated on the current rate
being paid by Tenant, and other sums (including additional rent) which in
Landlord's reasonable determination would become due and payable during the
remainder of the Term (including, but not limited to, increases in Base Rent),
discounted to present value by using a reasonable discount rate selected by
Landlord, to be due and payable immediately. Upon such acceleration of such
amounts Tenant agrees to pay the same at once, together with all Base Rent and
other amounts theretofore due, less the market rental value of the Premises for
the remainder of the Term, as determined by Landlord (taking into consideration
the probable costs of marketing and reletting the Premises (including
improvements required to be made to ready the Premises for reletting),
then-current rental rates, probable rental rates for the remainder of the Term,
probable concession packages, the probability of reletting the Premises and the
probable amount of time which will elapse before the Premise are relet), at
Landlord's address as provided herein; provided however, that such payment shall
not constitute a penalty or forfeiture but shall constitute liquidated damages
for Tenant's failure to comply with the terms and provisions of this Lease
(Landlord and Tenant agreeing that Landlord's actual damages in such an event
are impossible to ascertain and that the amount set forth above is a reasonable
estimate thereof). The acceptance of such payment by Landlord shall not
constitute a waiver or rights or remedies to Landlord for any failure of Tenant
thereafter occurring to comply with any term, provision, condition or covenant
of this Lease; and/or
(c) Lawfully enter the Premises as the agent of Tenant without the
requirement of resorting to the dispossessory procedures set forth in O.C.G.A.
xx.xx. 44-7-50 et seq. and without being liable for any claim for trespass or
damages therefor, and, in connection therewith, rekey the Premises, remove
Xxxxxx's effects therefrom and store the same at Tenant's expense, without being
liable for any damage thereto, and relet the Premises as the agent of Tenant,
without advertisement, by private negotiations, for any term Landlord deems
proper, and receive the rent therefor. Tenant shall pay Landlord on demand any
deficiency that may arise by reason of such reletting, but Tenant shall not be
entitled to any surplus so arising. Tenant shall reimburse Landlord for all
reasonable costs and expenses (including, without limitation, advertising
expenses and reasonable professional fees) incurred in connection with or in any
way related to the eviction of Tenant and reletting the Premises. Landlord, in
addition to but not in lieu of or in limitation of any other right or remedy
provided to Landlord under the terms of this Lease or otherwise (but only to the
extent such sum is not reimbursed to Landlord in conjunction with any other
payment made by Tenant to Landlord), shall have the right to be immediately
repaid by Tenant the amount of all sums expended by Landlord and not repaid by
Tenant in connection with preparing or improving the Premises to Tenant's
specifications and any and all costs and expenses incurred in renovating or
altering the Premises to make it suitable for reletting; and/or
(d) As agent of Tenant, do whatever Tenant is obligated to do under this
Lease, including, but not limited to, lawfully entering the Premises, without
being liable to prosecution or any claims for damages, in order to accomplish
this purpose. Xxxxxx agrees to reimburse Landlord immediately upon demand for
any expenses which Landlord may incur in thus effecting compliance with this
Lease on behalf of Xxxxxx. Landlord shall not be liable for any damages
resulting to Tenant from such action, unless caused by the negligence or willful
misconduct of Landlord or otherwise.
10.3 Continuation. If an Event of default occurs, this Lease shall continue
in effect for so long as Landlord does not terminate Tenant's right to
possession, and Landlord shall have the right to enforce all its rights
15
and remedies under this Lease, including the right to recover all rent as it
becomes due under this Lease. Acts of maintenance or preservation or efforts to
relet the Premises or the appointment of a receiver upon initiative of Landlord
to protect Xxxxxxxx's interest under this Lease shall not constitute a
termination of Tenant's right to possession unless written notice of termination
is given by Landlord to Tenant.
10.4 Remedies Cumulative. Upon the occurrence of an Event of Default,
Landlord shall have the right to exercise and enforce all rights and remedies
granted or permitted by law. The remedies provided for in this Lease are
cumulative and in addition to all other remedies available to Landlord at law or
in equity by statute or otherwise. Exercise by Landlord of any remedy shall not
be deemed to be an acceptance of surrender of the Premises by Xxxxxx, either by
agreement or by operation of law. Surrender of the Premises can be effected only
by the written agreement of Landlord and Xxxxxx.
10.5 Tenant's Primary Duty. All agreements and covenants to be performed or
observed by Tenant under this Lease shall be at Tenant's sole cost and expense
and without any abatement of rent. If Tenant fails to pay any sum of money to be
paid by Tenant or to perform any other act to be performed by Tenant under this
Lease, Landlord shall have the right, but shall not be obligated, and without
waiving or releasing Tenant from any obligations of Tenant, to make any such
payment or to perform any such other act on behalf of Tenant in accordance with
this Lease. All sums so paid by Xxxxxxxx and all costs incurred or paid by
Landlord shall be deemed additional rent hereunder and Tenant shall pay the same
to Landlord on written demand, together with interest on all such sums and costs
from the date of expenditure by Landlord to the date of repayment by Xxxxxx at
the rate of ten percent (10%) per annum.
10.6 Abandoned Property. If Tenant abandons the Premises, or is
dispossessed by process of law or otherwise, any movable furniture, equipment,
trade fixtures or personal property belonging to Tenant and left in the Premises
shall be deemed to be abandoned, at the option of Landlord, and Landlord shall
have the right to sell or otherwise dispose of such personal property in any
commercially reasonable manner.
10.7 Landlord Default. If Landlord defaults under this Lease, Tenant shall
give written notice to Landlord specifying such default with particularity, and
Landlord shall have thirty (30) days after receipt of such notice within which
to cure such default, or if default cannot reasonably be cured within such
thirty (30) day period, such longer period of time as may be required to cure
such default provided that Landlord commences efforts to cure such default
within such thirty (30) day period and thereafter continues to diligently
prosecute such cure to completion. In the event of any default by Landlord,
Xxxxxx's exclusive remedy shall be an action for damages. Notwithstanding any
other provision of this Lease, Landlord shall not have any personal liability
under this Lease. In the event of any default by Landlord under this Lease,
Xxxxxx agrees to look solely to the equity or interest then owned by Landlord in
the Property, and in no event shall any deficiency judgment or personal money
judgment of any kind be sought or obtained against Landlord.
10.8 Landlord's Lien. [Intentionally Deleted.]
ARTICLE 11
Damage or Destruction
11.1 Restoration. If the Property or the Premises, or any part thereof, is
damaged by fire or other casualty before the Commencement Date or during the
term of this Lease, and this Lease is not terminated pursuant to section 11.2
hereof, Landlord shall repair such damage and restore the Property and the
Premises to substantially the same condition in which the Property and the
Premises existed before the occurrence of such fire or other casualty and this
Lease shall, subject to this section 11.1, remain in full force and effect. If
such fire or other casualty damages the Premises or common areas of the Property
necessary for Tenant's use and occupancy of the Premises and if such damage is
not the result of the negligence or willful misconduct of Tenant or Tenant's
agents, officers, employees, contractors, licensees or invitees, then, during
the period the Premises is rendered unusable by such damage, Tenant shall be
entitled to a reduction in Base Rent in the proportion that the area of the
Premises rendered unusable by such damage bears to the total area of the
Premises. Landlord shall not be obligated to repair any damage to, or to make
any replacement of, any movable furniture, equipment, trade fixtures or personal
property in the Premises. Tenant shall, at Tenant's sole cost and expense,
repair and replace all such movable furniture, equipment, trade fixtures and
personal property.
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11.2 Termination of Lease. If the Property or the Premises, or any part
thereof, is damaged by fire or other casualty before the Commencement Date or
during the term of this Lease and (a) such fire or other casualty occurs during
the last twelve (12) months of the term of this Lease and the repair and
restoration work to be performed by Landlord in accordance with section 11.1
hereof cannot, as reasonably estimated by Landlord, be completed within two (2)
months after the occurrence of such fire or other casualty, or (b) the insurance
proceeds received by Landlord in respect of such damage are not adequate to pay
the entire cost, as reasonably estimated by Landlord, of the repair and
restoration work to be performed by Landlord in accordance with section 11.1
hereof (including inadequacy resulting from the requirement of the holder of any
indebtedness secured by a mortgage or deed of trust covering the Premises that
the insurance proceeds be applied to such indebtedness), or (c) the repair and
restoration work to be performed by Landlord in accordance with section 11.1
hereof cannot, as reasonably estimated by Landlord, be completed within four (4)
months after the occurrence of such fire or other casualty, then, in any such
event, Landlord shall have the right, by giving written notice to Tenant within
sixty (60) days after the occurrence of such fire or other casualty, to
terminate this Lease as of the date of such notice. If Landlord does not
exercise the right to terminate this Lease in accordance with this section 11.2,
Landlord shall repair such damage and restore the Property and the Premises in
accordance with section 11.1 hereof and this Lease shall, subject to section
11.1 hereof, remain in full force and effect. A total destruction of the
Property shall automatically terminate this Lease effective as of the date of
such total destruction.
ARTICLE 12
Eminent Domain
12.1 Condemnation. Landlord shall have the right to terminate this Lease if
any part of the Premises or any substantial part of the Property (whether or not
it includes the Premises) is taken by exercise of the power of eminent domain
before the Commencement Date or during the term of this Lease. Tenant shall have
the right to terminate this Lease if a substantial portion of the Premises is
taken by exercise of the power of eminent domain before the Commencement Date or
during the term of this Lease and the remaining portion of the Premises is not
reasonably suitable for Tenant's purposes. In each such case, Landlord or Tenant
shall exercise such termination right by giving written notice to the other
within thirty (30) days after the date of such taking. If either Landlord or
Tenant exercises such right to terminate this Lease in accordance with this
section 12.1, this Lease shall terminate as of the date of such taking. If
neither Landlord nor Tenant exercises such right to terminate this Lease in
accordance with this section 12.1, this Lease shall terminate as to the portion
of the Premises so taken as of the date of such taking and shall remain in full
force and effect as to the portion of the Premises not so taken, and the Base
Rent and Tenant's Percentage Share shall be reduced as of the date of such
taking in the proportion that the area of the Premises so taken bears to the
total area of the Premises. If all of the Premises is taken by exercise of the
power of eminent domain before the Commencement Date or during the term of this
Lease, this Lease shall terminate as of the date of such taking.
12.2 Award. If all or any part of the Premises is taken by exercise of the
power of eminent domain, all awards, compensation, damages, income, rent and
interest payable in connection with such taking shall, except as expressly set
forth in this section 12.2, be paid to and become the property of Landlord, and
Tenant hereby assigns to Landlord all of the foregoing. Without limiting the
generality of the foregoing, Tenant shall have no claim against Landlord or the
entity exercising the power of eminent domain for the value of the leasehold
estate created by this Lease or any unexpired term of this Lease. Tenant shall
have the right to claim and receive directly from the entity exercising the
power of eminent domain only the share of any award determined to be owing to
Tenant for the taking of improvements installed in the portion of the Premises
so taken by Tenant at Tenant's sole cost and expense based on the unamortized
cost actually paid by Tenant for such improvements, for the taking of Tenant's
movable furniture, equipment, trade fixtures and personal property, for loss of
goodwill, for interference with or interruption of Tenant's business, or for
removal and relocation expenses.
12.3 Temporary Use. Notwithstanding sections 12.1 and 12.2 hereof to the
contrary, if the use of all or any part of the Premises is taken by exercise of
the power of eminent domain during the term of this Lease on a temporary basis
for a period less than the term of this Lease remaining after such taking, this
Lease shall continue in full force and effect, Tenant shall continue to pay all
of the rent and to perform all of the covenants of Tenant in accordance with
this Lease, to the extent reasonably practicable under the circumstances, and
the condemnation proceeds in respect of such temporary taking shall be paid to
Tenant.
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12.4 Definition of Taking. As used herein, a "taking" means the acquisition
of all or part of the Property for a public use by exercise of the power of
eminent domain or voluntary conveyance in lieu thereof and the taking shall be
considered to occur as of the earlier of the date on which possession of the
Property (or part so taken) by the entity exercising the power of eminent domain
is authorized as stated in an order for possession or the date on which title to
the Property (or part so taken) vests in the entity exercising the power of
eminent domain.
ARTICLE 13
Subordination and Sale
13.1 Subordination. This Lease shall be subject and subordinate at all
times to the lien of all mortgages and deeds of trust securing any amount or
amounts whatsoever which may now exist or hereafter be placed on or against the
Property or on or against Landlord's interest or estate therein, all without the
necessity of having further instruments executed by Tenant to effect such
subordination. Notwithstanding the foregoing, in the event of a foreclosure of
any such mortgage or deed of trust or of any other action or proceeding for the
enforcement thereof, or of any sale thereunder, this Lease shall not be
terminated or extinguished, nor shall the rights and possession of Tenant
hereunder be disturbed, if no Event of Default then exists under this Lease, and
Tenant shall attorn to the person who acquires Landlord's interest hereunder
through any such mortgage or deed of trust. Xxxxxx agrees to execute,
acknowledge and deliver upon demand such further instruments evidencing such
subordination of this Lease to the lien of all such mortgages and deeds of trust
as may reasonably be required by Landlord.
13.2 Sale of the Property. If the original Landlord hereunder, or any
successor owner of the Property, sells or conveys the Property, all liabilities
and obligations on the part of the original Landlord, or such successor owner,
under this Lease accruing after such sale or conveyance shall terminate and the
original Landlord, or such successor owner, shall automatically be released
therefrom, and thereupon all such liabilities and obligations shall be binding
upon the new owner. Xxxxxx agrees to attorn to such new owner.
13.3 Estoppel Certificate. At any time and from time to time, Tenant shall,
within ten (10) days after written request by Landlord, execute, acknowledge and
deliver to Landlord a certificate certifying: (a) that this Lease is unmodified
and in full force and effect (or, if there have been modifications, that this
Lease is in full force and effect as modified, and stating the date and nature
of each modification); (b) the Commencement Date and the Expiration Date
determined in accordance with Article 2 hereof and the date, if any, to which
all rent and other sums payable hereunder have been paid; (c) that no notice has
been received by Tenant of any default by Tenant hereunder which has not been
cured, except as to defaults specified in such certificate; (d) that Landlord is
not in default under this Lease, except as to defaults specified in such
certificate; and (e) such other matters as may be reasonably requested by
Landlord or any actual or prospective purchaser or mortgage lender. Any such
certificate may be relied upon by Landlord and any actual or prospective
purchaser or mortgage lender of the Property or any part thereof. At any time
and from time to time, Tenant shall, within ten (10) days after written request
by Xxxxxxxx, deliver to Landlord copies of all current financial statements
(including a balance sheet, an income statement, and an accumulated retained
earnings statement), annual reports, and such other financial and operating
information and data of Tenant prepared by Tenant in the course of Tenant's
business as Landlord shall reasonably require. Unless available to the public,
Landlord shall disclose such financial statements, annual reports and other
information or data only to actual or prospective purchasers or mortgage lenders
of the Property or any part thereof, and otherwise keep them confidential unless
other disclosure is required by law.
ARTICLE 14
Notices
14.1 Method. All requests, approvals, consents, notices and other
communications given by Landlord or Tenant under this Lease shall be properly
given only if made in writing and either deposited in the United States mail,
postage prepaid, certified with return receipt requested, or delivered by hand
(which may be through a messenger or recognized delivery, courier or air express
service) and addressed as follows: To Landlord at the address of Landlord
specified in the Basic Lease Information, or at such other place as Landlord may
from time to time designate in a written notice to Tenant; to Tenant at the
address of Tenant specified in the Basic Lease Information, or at such other
place as Tenant may from time to time designate in a written notice to Landlord;
and to Guarantor at the address of Guarantor specified in the Basic Lease
Information, or at such other place as Guarantor may from time to time designate
in a written notice to Landlord. Such requests, approvals, consents,
18
notices and other communications shall be effective on the date of receipt
(evidenced by the certified mail receipt) if mailed or on the date of hand
delivery if hand delivered. If any such request, approval, consent, notice or
other communication is not received or cannot be delivered due to a change in
the address of the receiving party of which notice was not previously given to
the sending party or due to a refusal to accept by the receiving party, such
request, approval, consent, notice or other communication shall be effective on
the date delivery is attempted. Any request, approval, consent, notice or other
communication under this Lease may be given on behalf of a party by the attorney
for such party.
ARTICLE 15
Miscellaneous
15.1 General. The words "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
If there is more than one Tenant, the obligations hereunder imposed upon Tenant
shall be joint and several. Time is of the essence of this Lease and each and
all of its provisions. This Lease shall benefit and bind Landlord and Xxxxxx and
the permitted personal representatives, heirs, successors and assigns of
Landlord and Xxxxxx. If any provision of this Lease is determined to be illegal
or unenforceable, such determination shall not affect any other provision of
this Lease and all such other provisions shall remain in full force and effect.
Tenant shall not record this Lease or any memorandum or short form of it. This
Lease shall be governed by and construed in accordance with the laws of the
state in which the Property is located.
15.2 No Waiver. The waiver by Landlord or Tenant of any breach of any
covenant in this Lease shall not be deemed to be a waiver of any subsequent
breach of the same or any other covenant in this Lease, nor shall any custom or
practice which may grow up between Landlord and Tenant in the administration of
this Lease be construed to waive or to lessen the right of Landlord or Tenant to
insist upon the performance by Landlord or Tenant in strict accordance with this
Lease. The subsequent acceptance of rent hereunder by Xxxxxxxx or the payment of
rent by Tenant shall not waive any preceding breach by Tenant of any covenant in
this Lease, nor cure any Event of Default, nor waive any forfeiture of this
Lease or unlawful detainer action, other than the failure of Tenant to pay the
particular rent so accepted, regardless of Landlord's or Tenant's knowledge of
such preceding breach at the time of acceptance or payment of such rent.
15.3 Attorneys' Fees. If there is any legal action or proceeding between
Landlord and Tenant to enforce this Lease or to protect or establish any right
or remedy under this Lease, the unsuccessful party to such action or proceeding
shall pay to the prevailing party all costs and expenses, including reasonable
attorneys' fees and disbursements, incurred by such prevailing party in such
action or proceeding and in any appeal in connection therewith. If such
prevailing party recovers a judgment in any such action, proceeding or appeal,
such costs, expenses and attorneys' fees and disbursements shall be included in
and as a part of such judgment.
15.4 Exhibits. Exhibit A (Plan(s) Outlining the Premises and the Property),
Exhibit B (Description of Landlord's Work), Exhibit C (Form of Memorandum
Confirming Term), Exhibit D (Permitted Use of Hazardous Materials), and any
other attachments specified in the Basic Lease Information, are attached to and
made a part of this Lease.
15.5 Broker(s). Tenant warrants and represents to Landlord that Xxxxxx has
negotiated this Lease directly with the real estate broker(s) specified in the
Basic Lease Information and has not authorized or employed, or acted by
implication to authorize or to employ, any other real estate broker to act for
Tenant in connection with this Lease.
15.6 Waivers of Jury Trial and Certain Damages. Landlord and Tenant each
hereby expressly, irrevocably, fully and forever releases, waives and
relinquishes any and all right to trial by jury and any and all right to receive
punitive, exemplary and consequential damages from the other (or any past,
present or future board member, trustee, director, officer, employee, agent,
representative, or advisor of the other) in any claim, demand, action, suit,
proceeding or cause of action in which Landlord and Tenant are parties, which in
any way (directly or indirectly) arises out of, results from or relates to any
of the following, in each case whether now existing or hereafter arising and
whether based on contract or tort or any other legal basis: This Lease; any
past, present or future act, omission, conduct or activity with respect to this
Lease; any transaction, event or occurrence
19
contemplated by this Lease; the performance of any obligation or the exercise of
any right under this Lease; or the enforcement of this Lease. Landlord and
Tenant reserve the right to recover actual or compensatory damages, with
interest, attorneys' fees, costs and expenses as provided in this Lease, for any
breach of this Lease.
15.7 Entire Agreement. There are no oral agreements between Landlord and
Tenant affecting this Lease, and this Lease supersedes and cancels any and all
previous negotiations, arrangements, brochures, offers, agreements and
understandings, oral or written, if any, between Landlord and Tenant or
displayed by Landlord to Tenant with respect to the subject matter of this
Lease, the Premises or the Property. There are no commitments, representations
or assurances between Landlord and Tenant or between any real estate broker and
Tenant other than those expressly set forth in this Lease and all reliance with
respect to any commitments, representations or assurances is solely upon
commitments, representations and assurances expressly set forth in this Lease.
This Lease may not be amended or modified in any respect whatsoever except by an
agreement in writing signed by Landlord and Xxxxxx.
15.8 No Estate. Xxxxxx has only a usufruct under this Lease, not subject to
levy or sale. No estate shall pass out of Landlord by this Lease.
15.9 No Recordation of Lease. Without the prior written consent of
Landlord, neither this Lease nor any memorandum hereof shall be recorded or
placed on public record.
[BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]
20
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this Lease under seal
as of the date specified in the Basic Lease Information.
TENANT: LANDLORD:
XX XXXXXX COMPANY, a Pennsylvania SUWANEE CREEK BUSINESS CENTER LLC, a
corporation Delaware limited liability company
By: /s/Xxxx X. Xxxxxxxxxxx By: CalEast Industrial Investors, LLC,
Name: Xxxx X. Xxxxxxxxxxx a California limited liability company,
Title: CEO & President its Member
By: LaSalle Investment Management, Inc.,
[CORPORATE SEAL] a Maryland corporation, its Manager
By:/s/Xxxxxxxx Xxxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxxxxx Xxxxxx,
Vice President
(CORPORATE SEAL)
By: TC Suwanee Creek, Inc., a Delaware
corporation, its Member
By:/s/Xxxxx
Name:
Title:
(CORPORATE SEAL)
This site plan or floor plan is used solely for the purpose of identifying the
approximate location and size of the Premises. Building sizes, site dimensions,
access, common and parking areas, and existing tenants and locations are subject
to change at Landlord's discretion.
EXHIBIT A
Plan(s) Outlining the Premises and the Property
EXHIBIT B
Description of Landlord's Work
Plans and Specifications prepared by Xxxxxxx and Associates dated January 6,
2004 (the "Approved Plans").
EXHIBIT C
MEMORANDUM CONFIRMING TERM
THIS MEMORANDUM, made as of __________________, ________, by and between
SUWANEE CREEK BUSINESS CENTER LLC, a Delaware limited liability company
("Landlord"), and XX XXXXXX COMPANY, a Pennsylvania corporation ("Tenant"),
W I T N E S S E T H:
Recital of Facts:
Landlord and Tenant entered into the Industrial Lease (the "Lease") dated
____________, _______. Words defined in the Lease have the same meanings in this
Memorandum.
NOW, THEREFORE, in consideration of the covenants in the Lease, Landlord
and Tenant agree as follows:
1. Landlord and Tenant hereby confirm that:
(a) The Commencement Date under the Lease is ____________________,
_________;
(b) The Expiration Date under the Lease is ____________________, _________;
and
(c) The date on which Landlord substantially completed the improvements
pursuant to Exhibit B to the Lease (if any), Landlord delivered possession of
the Premises to Tenant as required by the Lease, and Xxxxxx's obligation to pay
rent begins under the Lease is ____________________, _________.
2. Xxxxxx xxxxxx confirms that:
(a) All commitments, representations and assurances made to induce Tenant
to enter into the Lease have been fully satisfied;
(b) All improvements to the Property and in the Premises to be constructed
or installed by Landlord have been completed and furnished in accordance with
the Lease to the satisfaction of Tenant; and
(c) Xxxxxx has accepted and is in full and complete possession of the
Premises.
3. This Memorandum shall be binding upon and inure to the benefit of
Landlord and Xxxxxx and their permitted successors and assigns under the Lease.
The Lease is in full force and effect.
[BALANCE OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have executed this Memorandum as of
the date first hereinabove written.
TENANT: LANDLORD:
XX XXXXXX COMPANY, a Pennsylvania SUWANEE CREEK BUSINESS CENTER LLC, a
corporation Delaware limited liability company
By: By: CalEast Industrial Investors, LLC,
Name: a California limited liability
Title: company, its Member
By: LaSalle Investment Management, Inc.,
[CORPORATE SEAL] a Maryland corporation, its Manager
By:____________________________
Xxxxxxxx Xxxxxxxxxxx Xxxxxx,
Vice President
(CORPORATE SEAL)
By: TC Suwanee Creek, Inc., a Delaware
corporation, its Member
By:__________________________________
Name:
Title:
(CORPORATE SEAL)
EXHIBIT D
PERMITTED USE OF HAZARDOUS MATERIALS
Name of Hazardous Material Maximum Amount Per Year
-------------------------- -----------------------
Lubricants 1,125 lbs.
Forklift fuel & welding gas 400 lbs.
Galvanized hardware 20,000 lbs.
Rubber 40,000 lbs.
Cleaners, paint, ink, adhesives 800 lbs.
Railroad hardware including de minimus amounts N/A
of alloy metals and cured adhesives
Office furniture, files and office supplies N/A
ADDENDUM TO INDUSTRIAL LEASE
1. Rent Abatement. Provided that Tenant is not in default in its obligations
under this Lease, Landlord shall xxxxx in its entirety the Monthly Base
Rent and Tenant's contributions for CAM Expenses, Property Taxes and
Insurance Costs for the second (2nd), third (3rd), fourth (4th), fifth
(5th), sixth (6th), seventh (7th) and eighth (8th) months of this Lease.
2. Improvements. Subject to the terms and conditions of this Lease, including
without limitation Section 2.2 of this Lease, Landlord shall, at Landlord's
expense, construct or install improvements in the Premises (the "Tenant
Improvements") in accordance with the Approved Plans. Notwithstanding
anything to the contrary, the parties hereby acknowledge and agree as
follows:
a. Landlord shall complete the Tenant Improvements with its standard
building finishes as described in the Approved Plans and such
above-standard building finishes as shall have been expressly
requested by Tenant and described in the notes to the Approved Plans
(collectively, the "Upgrade Finishes"). The parties agree that any
notes in the Approved Plans calling for above-standard building
finishes that were not expressly requested by Tenant shall be
disregarded.
b. Except for the Upgrade Finishes, the Approved Plans will not
provide for, and Landlord shall have no responsibility for, the
furnishing or installation of (i) Tenant's telecommunications,
computer, security, fire alarm and fire extinguishing systems
(the "Tenant Systems") and (ii) any fixtures, equipment,
furniture, cabinetry, mill work or other items specific to
Tenant's operation and proposed use of the Premises (the "Tenant
FF&E").
c. Tenant, and not Landlord, shall be responsible for any additional
cost of the Tenant Improvements arising from a Tenant Delay (as
hereinafter defined) or any change to the Approved Plans (a
"Change Order"), whether such Change Order is voluntarily
requested or is the result of a change to the Approved Plans
required by any governmental entity having jurisdiction over the
Premises, provided, however that Landlord shall be responsible
for any additional cost of the Tenant Improvements that results
from a change to the Approved Plans required by any governmental
entity for reasons other than Tenant's use of the Premises.
d. Any sums owed to Landlord under this paragraph 2 shall be deemed
"Additional Rent" under the Lease.
e. The furnishing and installation of the Tenant Systems and Tenant
FF&E shall be performed by Tenant at Tenant's sole cost and
expense in accordance with the terms of this Lease, including
Article 7 (relating to Alterations) and Section 4.4.
Each of the following events shall constitute a "Tenant Delay": (a)
delays resulting from any Direction by Tenant that Landlord suspend
work or otherwise hold up construction of any portion of the Tenant
Improvements because of a possible change to be initiated by Tenant or
for any other reason Directed by Tenant; (b) delays due to the failure
of Tenant to pay when due any amount payable pursuant to this Lease;
or (c) delays which result directly or indirectly from requested
changes in the Approved Plans Directed by Tenant. As used herein, the
terms "Direction" and "Directed" shall mean a written communication
from Xxxxxx X. Xxxx to Landlord.
3. Warranty of Tenant. Tenant represents and warrants that as of the date
of the Lease it is a corporation organized, validly existing and in
good standing under the laws of Pennsylvania, and that it is in good
standing and qualified to do business in the State of Georgia. Tenant
covenants that throughout the term of this Lease it will at all times
remain in good standing under the laws of Pennsylvania and that it
will remain in good standing and qualified to do business in the State
of Georgia.
4. Tenant's Contribution for Tenant Improvements. Upon signing this
Lease, Tenant shall pay Landlord the sum of Six Thousand Dollars
($6,000.00) for construction and other costs to be incurred by
Landlord in connection with the Tenant Improvements.
