THE SUWANEE COMMERCE CENTER STANDARD MULTI-TENANT LEASE

2.4 Common Areas - Definition. The term "Common Areas" is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Industrial Center and interior utility raceways within the Premises that are provided and designated by the Landlord from time to time for the general non-exclusive use of Landlord, Tenant and other tenants of the Industrial Center and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash and dumpster areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas.

2.5 Common Areas - Tenant's Rights. During the Term, Tenant shall have the non-exclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of any Rules and Regulations or restrictions governing the use of the Industrial Center. Under no circumstances shall the right herein granted to Tenant to use the Common Areas be deemed to include the right to store any property, temporary or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Landlord, whic h consent may be revoked at any time. In the event that any unauthorized storage shall occur then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord and Tenant shall indemnify and hold Landlord harmless from any loss, cost, expense or claim arising in connection with any such removal of property from the Common Areas by Landlord.

2.6 Common Areas - Rules and Regulations. Landlord or such other person(s) as Landlord may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable Rules and Regulations with respect thereto. Tenant agrees to abide by and conform to all such Rules and Regulations, and to cause all owners, employees, suppliers, shippers, contractors, customers and invitees (collectively, the "Tenant Group" ) to so abide and conform. Landlord shall not be responsible to Tenant for the non-compliance with said Rules and Regulations by other tenants of the Industrial Center.

2.7 Common Areas - Changes. Landlord shall have the right, in Landlord's sole discretion, from time to time to: (a) make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways; (b) close temporarily any of the Common Areas for maintenance or construction purposes or to prevent a dedication of the Common Areas or the accrual of any rights to any person or the public; (c) designate other land outside the boundaries of the Industrial Center to b e a part of the Common Areas and/or enter into operating and easement agreements with respect to the Common Areas; (d) add additional buildings and improvements to the Common Areas; (e) use the Common Areas while engaged in making additional improvements, repairs or alterations to the Industrial Center, or any portion thereof; and (f) do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Industrial Center as Landlord may, in the exercise of sound business judgment, deem to be appropriate,

3.2 Early Possession. If an Early Possession Date is specified in Paragraph 1.4 and if Tenant totally or partially occupies the Premises after the Early Possession Date but prior to the Commencement Date, the obligation to pay Base Rent shall be abated for the period of such early occupancy. All other terms of this Lease, however, (including but not limited to the obligations to pay Tenant's Share of Common Area Operating Expenses and to carry the insurance required by Paragraph 8) shall be in effect during such period. Any such early possession shall not affect nor advance the Expiration Date of the Term. Such early possession is conditioned upon Tenant, and Ten ant's agents, contractors, workmen, mechanics, suppliers and invitees, working in harmony and not interfering with Landlord or Landlord's agents in the prosecution of Landlord's Work (if any) in the Premises and for other tenants and occupants of the Building. If at any time such entry shall cause or threaten to cause disharmony or interference, Landlord shall have the right to withdraw such permission upon written notice to Tenant. Tenant agrees that Landlord shall not be liable in any way for any injury, loss or damage which may occur to any of Tenant's work and installations made in the Premises or to the properties placed therein prior to the Commencement Date, the same being at Tenant's sole risk.

 

3.3 Delay in Possession. If for any reason Landlord cannot deliver possession of the Premises to Tenant by the Early Possession Date, if one is specified In Paragraph 1.4, or if no Early Possession Date is specified, by the Commencement Date, Landlord shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease, or the obligations of Tenant hereunder, or extend the term hereof, but in such case, Tenant shall not, except as otherwise provided herein, be obligated to pay rent or perform any other obligation of Tenant under the terms of this Lease until Landlord delivers possession of the Premises to Tenant. If possession of the Premises is not delivered to Tenant within ninety (90) days after the Commencement Date through no fault of or delay caused by Tenant, Tenant may, at its option, by notice in writing to Landlord within ten (10) days after the end of said ninety (90) day period, cancel this Lease, in which event the parties shall be discharged from all obligations hereunder; provided further, however, that if (a) such written notice of Tenant is not received by Landlord within said ten (10) day period or in any event prior to Landlord's tender of possession of the Premises to Tenant, or (b) Landlord tenders possession of the Premises to Tenant within ten (10) days after Landlord's receipt of such cancellation notice, then, in either event, Tenant's right to cancel this Lease hereunder shall terminate and be of no further force or effect.

 

 

4.1 Base Rent. Tenant shall pay Base Rent and other rent charges, as the same may be adjusted from time to time, to Landlord in lawful money of the United States, without offset or deduction, for receipt by Landlord on or before the day on which it is due under the terms of this Lease. Base Rent and all other rent and charges for any period during the term hereof which is for less than one full month shall be prorated based upon the actual number of days of the month involved. Payment of Base Rent and other charges shall be made to Landlo rd at its address stated herein or to such other persons or at such other addresses as Landlord may from time to time designate in writing to Tenant.

 

4.2 Common Area Operating Expenses. Tenant shall pay to Landlord during the term hereof, in addition to the Base Rent, Tenant's Share of all Common Area Operating Expenses, as hereinafter defined, during each calendar year of the term of this Lease, in accordance with the following provisions:

 

(a)"Common Area Operating Expenses" are defined, for purposes of this Lease, as all costs and expenses incurred by Landlord relating to the ownership, maintenance and operation of the Industrial Center, including, but not limited to, the following: (I) the operation, repair, cleaning and maintenance of the following: the Common Areas, including parking areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways, landscaped areas, mowing, striping, bumpers, irrigation systems, Common Area lighting facilities, fences, gates and roof; exterior signs and any tenant directories; utility lines, fire detection, protection and sprinkler systems; snow and ice removal; and painting; (ii) the cost of water, gas, electricity, telephone and other utilities for the Common Areas; (iii) trash disposal, property management fees and security services (if any) and the costs of any environmental inspections; (iv) Real Property Taxes (as defined in Paragraph 10.2) and any fees payable to tax consultants and attorneys for consultation and contesting taxes; (v) Insurance Costs (as defined in Paragraph 8.1) including any environmental insurance or environmental management fees; (vi) any deductible portion of any insured loss; (vii) any other services to be provided by Landlord that are stated elsewhere in this Lease or would otherwise customarily be deemed to be a Common Area Operating Expense; (ix) personal property and equipment used in the maintenance and operation of the Industrial Center; (x) the costs of any heating, ventilation, air conditioning, or other similar main tenance contract; (xi) exterior lighting and mechanical and building systems and amounts paid to contractors and subcontractors for work or services performed in connection with any of the foregoing; (xii) charges or assessments of any association to which the Industrial Center is subject; (xiii) capital improvements or expenditures required due to Applicable Requirements or which will serve to reduce Common Area Operating Expenses, amortized over their useful lives.

5. Security Deposit. Tenant shall deposit with Landlord upon Tenant's execution hereof the Security Deposit set forth in Paragraph 1.7 as security for Tenant's faithful performance of Tenant's obligations under this Lease. If Tenant fails to pay Base Rent or other rent or charges due hereunder, or otherwise Defaults (as defined in Paragraph 13.1) under this Lease, Landlord may, but shall not be obligated to, use, apply or retain all or any portion of said Security Deposit for the payment of any amount due Landlord or to reimburse or compensate Landlord for any liability, cost, expense, loss or damage (including attorneys' fees) which Landlord may suffer or incur by reason thereof without prejudice to any other remedy provided herein or by law. Tenant acknowledges that the Security Deposit is not an advance payment of rent or a measure of Landlord's damages in case of default by Tenant. If Landlord uses or applies all or any portion of said Security Deposit, Tenant shall within three (3) days after written request therefor, deposit monies with Landlord sufficient to restore said Security Deposit to the full amount required by this Lease. Any time the Base Rent increases during the term of this Lease, Tenant shall upon written request from Landlord, deposit additional monies with Landlord as an addition to the Security Deposit so that the total amount of the Security Deposit shall at all times bear the same proportion to the then current Base Rent as the initial Security Deposit bears to the initial Base Rent set forth in Par agraph 1.5. Landlord shall not be required to keep all or any part of the Security Deposit separate from its general accounts. Landlord shall, as required by law after the expiration or earlier termination of the term hereof and after Tenant has vacated the Premises, return to Tenant (or, at Landlord's option, to the last assignee, if any, of Tenant's interest herein), that portion of the Security Deposit not used or applied by Landlord. Unless otherwise expressly agreed in writing by Landlord, no part of the Security Deposit shall be considered to be held in trust, to bear interest or other increment for its use, or to be prepayment for any monies to be paid by Tenant under this Lease.

 

6. Use.

 

6.1 Permitted Use. Tenant shall use and occupy the Premises only for the Permitted Use set forth in Paragraph 1.8 and for no other purpose. Tenant shall not use or permit the use of the Premises in a manner that is unlawful, creates waste or a nuisance, violates any Applicable Requirements or that disturbs owners and/or occupants of, or causes damage to, • the Premises, the Industrial Center or neighboring premises or properties. Tenant shall not conduct or give notice of any auction, liquidation, or going out of business sale on the Premises. Tenant will use the Premises in a careful, safe and proper manner and will not overload the floor or structure of the Premises or subject the Premises to use that would damage the Premises. Tenant shall not permit any objectionable or unpleasant odors, smoke, dust, gas, noise, or vibrations to emanate from the Premises, or take any other action that would disturb, unreasonably interfere with, or endanger Landlord or any tenants of the Industrial Center. Outside storage, including without limitation, storage of trucks and other vehicles, is prohibited without Landlord's prior written consent.

 

6.2 Hazardous Substances.

 

(a) Reportable Uses Require Consent. The term "Hazardous Substance" as used in this Lease shall mean any product, substance, chemical, material or waste whose presence, nature, quantity and/or intensity of existence, use, manufacture, disposal, transportation, spill, release or effect, either by itself or in combination with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment, or the Premises; (ii) regulated or monitored by any governmental authority; or (iii) a basis for potential liability of Landlord to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substance shall include, but not be limited to, hydrocarbons, petroleum, gasoline, crude oil or any products or by-products thereof. Tenant shall not engage in any activity in or about the Premises which constitutes a Reportable Use (as hereinafter defined) of Hazardous Substances without the express prior written consent of Landlord and compliance in a timely manner (at Tenant's sole cost and expense) with all Applicable Requirements (as defined in Paragraph 6.3). "Reportable Use" shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be filed with, any governmental aut hority, and (iii) the presence in, on or about the Premises of a Hazardous Substance with respect to which any Applicable Requirements require that a notice be given to persons entering or occupying the Premises or neighboring properties or which if spilled or released would be in quantities sufficient, in Landlord's determination, to subject Landlord to liability therefor or cause any damage to or diminution in value of, all or any part of the Industrial Center. Notwithstanding the foregoing, Tenant may, without Landlord's prior consent, but upon notice to Landlord and in compliance with all Applicable Requirements, use any ordinary and customary materials reasonably required to be used by Tenant in the normal course of the Permitted Use, so long as such use is not a Reportable Use and does not expose the Premises or neighboring properties to any meaningful risk of contamination or damage or expose Landlord to any liability therefor as determined in Landlord's sole and absolute discretion. In addition, Land lord may (but without any obligation to do so) condition its consent to any Reportable Use of any Hazardous Substance by Tenant upon Tenant's giving Landlord such additional assurances as Landlord, in its reasonable discretion, deems necessary to protect itself, the public, the Premises and the environment against damage, contamination or injury and/or liability therefor, including but not limited to the installation (and, at Landlord's option, removal on or before Lease expiration or earlier termination) of reasonably necessary protective modifications to the Premises (such as concrete encasements) and/or the deposit of an additional Security Deposit under Paragraph 5 hereof.

 

(b) Duty to Inform Landlord. If Tenant knows, or has reasonable cause to believe, that a Hazardous Substance has come to be located in, on, or under or about the Premises of the Building, other than as previously consented to by Landlord, Tenant shall immediately give Landlord written notice thereof, together with a copy of any statement, report, notice, registration, application, permit, business plan, license, claim, action, or proceeding given to, or received from, any governmental authority or priv ate party concerning the presence, spill, release, discharge of, or exposure to, such Hazardous Substance including but not limited to all such documents as may be involved in any Reportable Use involving the Premises. Tenant shall not cause or permit any Hazardous Substance to be spilled or released in, on, under or about the Premises (including, without limitation, through the plumbing or sanitary sewer system).

 

(c) Indemnification. Tenant shall indemnify, protect, defend and hold Landlord, its agents, employees, Lenders and ground landlord, if any, and the Premises, Building, Common Areas and other portions of the Industrial Center harmless from and against any and all damages, liabilities, judgments, costs, claims, liens, expenses, penalties, fines, loss of permits and attorneys' and consultants' fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Tenant or by any member o f the Tenant Group. Tenant's obligations under this Paragraph 6.2(c) shall include, but not be limited to the effects of any contamination or injury to person, property or the environment created or suffered by Tenant, and the cost of Investigation (including consultants' and attorneys' fees and testing), studies, sampling and testing procedures, removal, remediation, restoration and/or abatement thereof, or of any contamination therein involved, in accordance with all applicable environmental laws and to the satisfaction of Landlord.These indemnification obligations shall survive the expiration or earlier termination of this Lease. No termination, cancellation or release agreement entered into by Landlord and Tenant shall release Tenant from its obligations under this Lease with respect to Hazardous Substances, unless specifically so agreed by Landlord in writing at the time of such agreement.

6.3 Tenant's Compliance with Requirements. Tenant shall, at Tenant's sole cost and expense, fully, diligently and in a timely manner, comply with all "Applicable Requirements", which term is used in this Lease to mean all laws, statutes, codes, rules, regulations, ordinances, directives, covenants, easements and restrictions of record, permits, the requirements of any applicable fire insurance underwriter or rating bureau, and the recommendations of Landlord's engineers and/or consultants, relating in any manner to the Premises (including but not limited to matters pertaining to (i) industrial hygiene, (ii) environmental conditions on, in, under or about the Premises, including soil and groundwater conditions, and (iii) the use, generation, manufacture, production, installation, maintenance, removal, transportation, storage, spill, or release of any Hazardous Substance), now in effect or which may hereafter come into effect. Tenant shall, within five (5) days after receipt of Landlord's written request, provide Landlord with copies of all documents and information, including but not limited to permits, registrations, manifests, applications, reports and certificates, evidencing Tenant's compliance with any Applicable Requirements specified by Landlord, and shall immediately upon receipt, notify Landlord in writing (with copies of any documents involved) of any threatened or actual claim, notice, warning, complaint or report pertaining to or involving failure by Tenant or the Premises to comply with any Applicable Requirements.

 

6.4 Inspection; Compliance with Law. Landlord, Landlord's agents, employees, contractors and designated representatives, and the holders of any mortgages, deeds of trust or ground leases on the Premises ("Lenders") shall have the right to enter the Premises at any time in the case of an emergency, and otherwise at reasonable times, for the purpose of inspecting the condition of the Premises and for verifying compliance by Tenant with this Lease and all Applicable Requirements, and Landlord shall be entitled to employ experts and/or consultants in connection therewith to advise Landlord with respect to Tenant's activities, including but n ot limited to Tenant's installation, operation, use, monitoring, maintenance, or removal of any Hazardous Substance on or from the Premises. The costs and expenses of any such inspections shall be paid by the party requesting same, unless a Default by Tenant or a violation of Applicable Requirements or a contamination, caused or materially contributed to by Tenant, is found to exist or to be imminent, or unless the inspection is requested or ordered by a governmental authority as the result of any such existing or imminent violation or contamination (an "Event of Non­compliance"). In an Event of Non-compliance, Tenant shall upon request reimburse Landlord or Lenders, as the case may be, for the costs and expenses of such inspections. Further, in an Event of Non­compliance, Landlord will have the right, but not the obligation, in addition to Landlord's other remedies available at law and i n equity, to enter upon the Premises immediately and take such action as Landlord in its sole judgment deems appropriate to remediate any actual or threatened contamination caused by an Event of Non-compliance.

(a) Unless expressly reserved to Landlord in Paragraph 7.2 below, Tenant shall, at Tenant's sole cost and expense and at all times, keep the Premises and every part thereof in good order, condition and repair and free from infestation by insects, rodents or other pests (whether or not such portion of the Premises requiring repair or replacement, or the means of repairing or replacing the same, are reasonably or readily accessible to Tenant, and whether or not the need for such repairs occurs as a result of Tenant's use, any prior use, the elements or the age of such portion of the Premises), including, without limiting the generality of the foregoing, all equipment or facilities specifically serving the Premises, such as: any telephone and cable facilities; plumbing, heating, air conditioning, gas and ventilating systems; electrical and lighting systems and facilities (including bulbs and ballasts), boilers, fired or unfired pressure vessels, fire hose connections If within the Premises, fixtures, interior walls and interior surfaces of exterior walls of the Premises, ceilings, floors, windows, doors, window and door frames, plate glass, skylights, emergency exits and exit lights, fire extinguishers, smoke detectors, sprinkler systems, fire and/or other safety equipment, Trade Fixtures, Alterations and Tenant Owned Alterations and Utility Installations. Tenant, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices in compliance with all Applicable Requirements. Tenant's obligations shall include restorations, replacements or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in good order, condition and state of rep air, including without limitation, professional carpet cleaning at a minimum of once during each twelve (12) month period of the Term.

(b) Landlord shall procure and maintain a contract to for the inspection and maintenance of the heating, air conditioning and ventilation system for the Premises and Tenant shall reimburse Landlord for this expense through its inclusion in the Common Area Operating Expenses. However, Landlord reserves the right, upon notice to Tenant, to have Tenant procure the inspection and maintenance contract for the heating, air conditioning and ventilating systems, at Tenant's sole cost and expense. Repairs required to the heating, air conditioning and ventilation system for the Premises are the sole responsibility of the Tenant.

7.2 Landlord's Obligations. Subject to the provisions of Paragraph 2.2 (Condition), 4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Tenant's Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Landlord, subject to reimbursement pursuant to Paragraph 4.2, shall keep in good order, condition and repair the foundations, exterior surface of exterior walls, structural condition of interior load bearing walls, and exterior roof, fire hydrants, parking lots, walkways, parkways, driveways, landscaping, fences, signs and utility systems serving the Common Areas and all parts thereof, as well as providing the services for which there is a Common Area Operati ng Expense pursuant to Paragraph 4.2; provided, however, Landlord shall have no obligation to repair any damage caused by Tenant or any member of the Tenant Group. If any damage is caused by Tenant or any member of the Tenant Group, Tenant shall either perform the necessary repair work or shall pay Landlord the cost thereof in advance, as Landlord may elect. Landlord shall not be obligated to paint the exterior or interior surfaces of exterior walls nor shall Landlord be obligated to maintain, repair or replace windows, doors or plate glass of the Premises. Tenant expressly waives the benefit of any statute now or hereafter in effect which would otherwise afford Tenant the right to make repairs at Landlord's expense or to terminate this Lease because of Landlord's failure to keep the Building, Industrial Center or Common Areas in good order, condition and repair.

(a) Ownership. Subject to Landlord's right to require their removal and to cause Tenant to become the owner thereof as hereinafter provided in this Paragraph 7.4, all Alterations and Utility Installations made to the Premises by Tenant shall be the property of and owned by Tenant during the Term, but considered a part of the Premises. Unless otherwise instructed per Paragraph 7.4(b) hereof, all Alterations and Utility Installations shall, at the expiration or earlier termination of this Lease or the Term, become the property of Landlord and remain upon the Premises and be surrendered with the Premises by Tenant.

 

(b) Removal. Unless otherwise agreed in writing, Landlord may require that any or all Alterations or Utility Installations be removed by Tenant at the expiration or earlier termination of this Lease or the Term, notwithstanding that their installation may have been installed by or consented to by Landlord. Landlord may require the removal at any time of all or any part of any Alterations or Utility Installations made without the required consent of Landlord.

 

(c) Surrender/Restoration. Tenant shall surrender the Premises by the end of the last day of the Lease term or any earlier termination date, clean and free of debris and in good operating order, condition and state of repair, ordinary wear and tear excepted. Ordinary wear and tear shall not include any damage or deterioration that would have been prevented by good maintenance practice or by Tenant performing all of its obligations under this Lease. Except as otherwise agreed or specified herein, the Premises, as surrendered, shall include the Alterations and Utility Installations. The obli gation of Tenant shall include the repair of any damage occasioned by the installation, maintenance or removal of Tenant's Trade Fixtures, furnishings, equipment, and Tenant Alterations and Utility Installations, as well as the removal of any storage tank installed by or for Tenant, and the removal, replacement, or remediation of any soil, material or ground water contaminated by Tenant, all as may then be required by Applicable Requirements and/or good practice.

8.1 Payment of Premium Increases. As used herein, the term "Insurance Cost" is defined as the actual cost of the insurance applicable to Industrial Center carried by Landlord ("Required Insurance") c alculated on an annual basis. "Insurance Cost" shall include, but not be limited to, requirements of the holder of a mortgage or deed of trust covering the Premises, increased valuation of the Premises, and/or a general premium rate increase. Tenant shall pay Tenant's Share of the Insurance Cost to Landlord pursuant to Paragraph 4.2. Premiums for policy periods commencing prior to, or extending beyond the Term shall be prorated to coincide with the corresponding Commencement Date or Expiration Date.

(a) Carried by Tenant. Tenant shall obtain and keep in force during the term of this Lease a Commercial General Liability policy of insurance protecting Tenant, Landlord and any Lender(s) whose names have been provided to Tenant in writing (as additional insureds) against claims for bodily injury, personal injury and property damage based upon, involving or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit c overage with broad form general liability endorsement in an amount not less than $2,000,000.00 per occurrence with an "Additional Insured-Managers or Landlords of Premises" endorsement and contain the "Amendment of the Pollution Exclusion" endorsement for damage caused by heat, smoke or fumes caused by hostile fire, with a deductible satisfactory to Landlord. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shall Include coverage for liability assumed under this Lease as an "insured contract" for the performance of Tenant's indemnity obligations under this Lease. The limits of said insurance required by this Lease or as carried by Tenant shall not, however, limit the liability of Tenant nor relieve Tenant of any obligation hereunder. All insurance to be carried by Tenant shall be primary to and not contributory with any similar insurance carried by Landlord, whose insurance shall be considered excess insurance only. Tenant shall increase said insuranc e coverage as required by Landlord, not more frequently than once each year, if, in the reasonable opinion of Landlord, the amount of liability insurance required hereunder is inadequate.

 

(b) Carried by Landlord. Landlord shall also maintain liability insurance, in addition to and not in lieu of, the insurance required to be maintained by Tenant. Tenant shall not be named as an additional insured therein. Any insurance carried by Landlord may be provided by means of a "blanket" insurance or "umbrella" policy.

 

8.3 Property Insurance-Building, Improvements and Rental Value.

 

(a) Building and Improvements. Landlord shall obtain and keep in force during the term of this Lease a policy or policies in the name of Landlord, with loss payable to Landlord and to any Lender(s), insuring against loss or damage to the Premises (other than Leasehold Improvements) in such form and amounts as determined by Landlord. Leasehold Improvements and Tenant's personal property shall be insured by Tenant pursuant to Paragraph 8.4. If the coverage is available and commercially appropriate, Landlord's policy or policies may Insure against all risks of direct physical loss or damage, including coverage for any additional costs resulting from debris removal and reasonable amounts of coverage for the enforcement of any ordinance or law regulating the reconstruction or replacement of any undamaged sections of the Building required to be demolished or removed by reason of the enforcement of any building, zoning, safety or land use laws as a result of a covered loss. Said policy or policies may also contain an agreed valuation provision in lieu of any co-insurance clause, waiver of subrogation, and inflation guard protection causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located.

 

(b) Rental Value. Landlord may also obtain and keep in force during the term of this Lease a policy or policies in the name of Landlord, with loss payable to Landlord and any Lender(s), insuring the loss of use of the Premises for any reason and loss of the full rental and other charges payable by all tenants of the Industrial Center to Landlord for a minimum of one year (including all Real Property Taxes, insurance costs, all Common Area Operating Expenses and any scheduled rental increases). Said insurance may provide that in the even t the Lease is terminated by reason of an insured loss, the period of indemnity for such coverage shall be extended beyond the date of the completion of repairs or replacement of the Premises, to provide for one full year's loss of rental revenues from the date of any such loss. Said insurance may contain an agreed valuation provision in lieu of any co-insurance clause, and the amount of coverage may be adjusted annually to reflect the projected rental income, Real Property Taxes, insurance premium costs and other costs and expenses, if any, otherwise payable for the next twelve-month period. Common Area Operating Expenses shall include any deductible amount in the event of such loss.

8.5 Insurance Policies. Insurance required hereunder shall be in companies duly licensed to transact business in the state where the Premises are located, and maintaining during the policy term a "General Policyholders Rating" of at least B+, VII, or such other rating as may be required by a Lender, as set forth in the most current issue of "Best's Insurance Guide." Tenant shall not do or permit to be done anything which shall invalidate the insurance policies referred to in this Paragraph 8. Tenant shall cause to be delivered to Landlord, prior to the earlier of the Early Possession Date or the Commencement Date, certified copies of, or certificates evidencing the existence and amounts of th e insurance required under Paragraph 8.2(a) and 8.4. No such policy shall be cancelable or subject to modification except after thirty (30) days' prior written notice to Landlord and any such certificates shall so state and also state that Landlord, as holder thereof, may rely upon same. Tenant shall at least thirty (30) days prior to the expiration of such policies, furnish Landlord with evidence of renewals or "insurance binders" evidencing renewal thereof, or Landlord may order such insurance and charge the cost thereof to Tenant, which amount shall be payable by Tenant to Landlord upon demand as additional rent.

8.6 Waiver of Subrogation. Landlord and Tenant shall each have included in all policies of property and damage insurance required to be carried hereunder, a_ waiver by the insurer of all right of subrogation against the other in connection with any loss or damage thereby insured against. So long as both Landlord's and Tenant's policies then in force include such mutual waiver of subrogation, Landlord and Tenant, to the fullest extent permitted by law, each waive all right of recovery against the other for and agree to release the other from liability for, loss or damage to the extent such loss or damage is covered by valid and collectible insurance in effect at the time of such loss or damage ; provided, however, no such limitation to the foregoing waiver shall apply in the event Tenant has failed to insure its personal property and the Leasehold Improvements for their full replacement cost.

 

 

(e) "Hazardous Substance Condition" shall mean the occurrence or discovery of a condition involving the presence of, or a contamination by, a Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the Industrial Center.

9.2 Premises Partial Damage - Insured Loss. If Premises Partial Damage that is an Insured Loss occurs, then Landlord shall, at Landlord's expense, repair such damage (other than the Leasehold Improvements) as soon as reasonably possible and this Lease shall continue in full force and effect. In the event, however, that there is a shortage of insurance proceeds and such shortage is due to the fact that, by reason of the unique nature of the Improvements in the Premises, full replacement cost insurance coverage was not commercially reasonable and available or due to any requirement of any Lender, Landlord shall have no obligation to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the Premises unless Tenant provides Landlord with the funds to cover same, or adequate assurance thereof, within ten (10) days following receipt of written notice of such shortage and request therefor. If Landlord receives said funds or adequate assurance thereof within said ten (10) day period, Landlord shall complete them as soon as reasonably possible and this Lease shall remain in full force and effect. If Landlord does not receive such funds or assurance within said period, Landlord may nevertheless elect by written notice to Tenant within ten (10) days thereafter to make such restoration and repair as is commercially reasonable with Landlord paying any shortage in proceeds, in which case this Lease shall remain in full force and effect. If Landlord does not receive such funds or assurance within such ten (10) day period, and if Landlord does not so elect to restore and repair, then this Lease shall terminate sixty (60) days following the occurrence of the damage or destruction. U nless otherwise agreed, Tenant shall in no event have any right to reimbursement from Landlord for any funds contributed by Tenant to repair any such damage or destruction. Premises Partial Damage due to flood or earthquake shall be subject to Paragraph 9.3 rather than Paragraph 9.2, notwithstanding that there may be some insurance coverage, but the net proceeds of any such insurance shall be made available for the repairs if made by either Party.

 

9.3 Partial Damage - Uninsured Loss. If Premises Partial Damage that is not an Insured Loss occurs, unless caused by a negligent or willful act of Tenant or any member of the Tenant Group (in which event Tenant shall make or pay Landlord for the repairs, at Landlord's election, and this Lease shall continue in full force and effect), Landlord may at Landlord's option, either (i) repair such damage as soon as reasonably possible at Landlord's expense, in which event this Lease shall continue in full force and effect, or (ii) give written notice to Tenant within sixty (60) days after receipt by Landlord of knowledge of the occurrence of such damage of Landlord's desire to terminate this Lease, Tenant shall have the right within five (5) days after the receipt of such notice to give written notice to Landlord of Tenant's commitment to pay for the repair of such damage totally at Tenant's expense and without reimbursement from Landlord. Tenant shall provide Landlord with the required funds or satisfactory assurance thereof within fifteen (15) days following such commitment from Tenant. In such event this Lease shall continue in full force and effect, and Landlord shall proceed to make such repairs as soon as reasonably possible after the required funds are available. If Tenant does not give such notice and provide the funds or assurance thereof within the time specified above, this Lease shall terminate as of the date specified in Landlord's notice of termination.

 

9.4 Total Destruction. Notwithstanding any other provision hereof, if Premises Total Destruction occurs (including any destruction required by any authorized public authority), this Lease shall terminate sixty (60) days following the date of such Premises Total Destruction, whether or not the damage or destruction is an Insured Loss or was caused by a negligent or willful act of Tenant or any member of the Tenant Group. In the event, however, that the damage or destruction was so caused by Tenant, Landlord shall have the right to recover Landlord's damages from Tenant.

(a) In the event of (i) Premises Partial Damage or (ii) Hazardous Substance Condition in the Premises for which Tenant is not legally responsible, the Base Rent; and Common Area Operating Expenses payable by Tenant hereunder for the period during which such damage or condition, its repair, remediation or restoration continues, shall be abated in proportion to the degree to which Tenant's use of the Premises is impaired, but not in excess of proceeds from insurance carried by Landlord as required in Paragraph 8.3(b). All other obligations of Tenant hereunder shall be performed by Tenant, and Tenant shall have no claim against Landlord for any damage suffered by reason of any such damage, destruc tion, repair, remediation or restoration.

 

(b) If Landlord shall be obligated to repair or restore the Premises under the provisions of this Paragraph 9 and shall not commence the repair or restoration of the Premises within ninety (90) days after such obligation shall accrue, Tenant may, at any time prior to the commencement of such repair or restoration, give written notice to Landlord and to any Lenders of which Tenant has actual notice of Tenant's election to terminate this Lease on a date not less than sixty (60) days following the giving of such notice. If Tenant gives such notice to Landlord and such Lenders and such repair or restoration is not commenced within thirty (30) days after receipt of such notice, this Lease shall term inate as of the date specified in said notice. If Landlord or a Lender commences the repair or restoration of the Premises within thirty (30) days after the receipt of such notice, this Lease shall continue in full force and effect. "Commence" as used in this Paragraph 9.6(b) shall mean either the authorization of the preparation of the required plans, or the beginning of the actual work on the Premises, whichever occurs first.

 

(c) Notwithstanding anything herein to the contrary, (i) Landlord shall have no repair obligations hereunder and (ii) Tenant shall have no termination rights hereunder, during the occurrence and continuation of a Default hereunder by Tenant.

9.7 Hazardous Substance Conditions. If a Hazardous Substance Condition occurs, unless Tenant is legally responsible therefor (in which case Tenant shall make or at Landlord's election, reimburse Landlord for the costs of, the investigation and remediation thereof required by Applicable Requirements and this Lease shall continue in full force and effect), Landlord may at Landlord's option either (i) investigate and remediate such Hazardous Substance Condition, if required, as soon as reasonably possible at Landlord's expense, in which event this Lease shall continue in full force and effect, or (ii) if the estimated cost to inv estigate and remediate such condition exceeds twelve (12) times the then monthly Base Rent or $100,000.00, whichever is less, give written notice to Tenant within sixty (60) days after receipt by Landlord of knowledge of the occurrence of such Hazardous Substance Condition of Landlord's desire to terminate this Lease as of the date specified in such notice. In the event Landlord elects to give such notice of Landlord's intention to terminate this Lease, Tenant shall have the right within ten (10) days after the receipt of such notice to give written notice to Landlord of Tenant's commitment to pay for the excess costs of (a) investigation and remediation of such Hazardous Substance Condition to the extent required by Applicable Requirements, over (b) an amount equal to twelve (12) times the then monthly Base Rent or $100,000.00, whichever is less. Tenant shall provide Landlord with the funds required of Tenant or satisfactory assurance thereof within fifteen (15) days following said commitment by Tenant. In such event this Lease shall continue in full force and effect, and Landlord shall proceed to make such investigation and remediation as soon as reasonably possible after the required funds are available. If Tenant does not give such notice and provide the required funds or assurance thereof within the time period specified above, this Lease shall terminate as of the date specified in Landlord's notice of termination.

 

9.8 Termination - Advance Payments. Upon termination of this Lease pursuant to this Paragraph 9, Landlord shall return to Tenant any unearned payment made by Tenant to Landlord and so much of Tenant's Security Deposit as has not been, or is not then required to be, used by Landlord under the terms of this Lease.

 

9.9 Waiver of Statutes. Landlord and Tenant agree that the terms of this Lease shall govern the effect of any damage to or destruction of the Premises and the Building with respect to the termination of this Lease and hereby waive the provisions of any present or future statute to the extent it is inconsistent herewith.

 

 

10.1 Payment of Taxes. Landlord shall pay the Real Property Taxes, as defined in Paragraph 10.2(a), applicable to the Industrial Center, and except as otherwise provided in Paragraph 10.3, Real Property Taxes shall be included in the calculation of Common Area Operating Expenses in accordance with the provisions of Paragraph 4.2.

 

10.2 Real Property Tax Definitions. As used herein, the term "Real Property Taxes" shall include any form of real estate tax or assessment, general, special, ordinary or extraordinary, and any license fee, rental tax, improvement bond or bonds, levy or tax (other than Landlord's inheritance, personal Income or estate taxes which are not imposed in substitution for Real Property Taxes) imposed upon the Industrial Center by any authority havi ng the direct or indirect power to tax, including any city, state or federal government, or any school, agricultural, sanitary, fire, street, drainage, or other improvement district thereof, levied against any legal or equitable interest of Landlord in the Industrial Center or any portion thereof, Landlord's right to rent or other income therefrom, and/or Landlord's business of leasing the Premises. The term "Real Property Taxes" shall also include any tax, fee, levy, assessment or charge, or any increase therein, imposed by reason of events occurring, or changes in Applicable Requirements taking effect, during the term of this Lease, including but not limited to, a change in the ownership of the Industrial Center or in the improvements thereon, the execution of this Lease, or any modification, amendment or transfer thereof, and whether or not contemplated by the Parties.

 

10.3 Additional Improvements. Notwithstanding Paragraph 10.1 hereof, Tenant shall pay to Landlord at the time Common Area Operating Expenses are payable under Paragraph 4.2, the entirety of any increase In Real Property Taxes if assessed solely by reason of Leasehold Improvements placed upon the Premises by Tenant or at Tenant's request.

 

10.4 Tenant's Property Taxes. Tenant shall pay prior to delinquency all taxes assessed against and levied upon Tenant Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Tenant contained in the Premises or stored within the Industrial Center. When possible, Tenant shall cause its Tenant Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Landlord. If any of Tenant's said property shall be assessed with Landlord's real property, Tenant shall pay Landlord the taxes attributable to Tenant's pr operty within ten (10) days after receipt of a written statement setting forth the taxes applicable to Tenant's property.

 

11. Utilities and Services. Tenant shall pay directly for all utilities and services supplied to the Premises, including but not limited to electricity, telephone, security services (if any), gas and cleaning of the Premises, together with any taxes thereon. If any such utilities or services are not separately metered to the Premises or separately billed to the Premises, Tenant shall pay to Landlord a reasonable proportion to be determined by Landlord of all such charges jointly metered or billed with other premises in the Building, in the manner and within the time periods set forth in Parag raph 4.2(d).

 

12.1 Landlord's Consent Required.

 

(a) Tenant shall not voluntarily or by operation of law assign, transfer, mortgage, grant any concession or license within the Premises, or otherwise transfer or encumber or sublet all or any part of Tenant's interest in this Lease or in the Premises without Landlord's prior written consent given under and subject to the terms of Paragraph 36.

 

(b) If Tenant is not an individual, a change in the control of Tenant or a change in the ability to direct the management and policies of Tenant (by contract or otherwise) shall constitute an assignment requiring Landlord's consent, which shall not be unreasonably withheld, unless the stock or interests in Tenant are publicly traded over a national stock exchange. The transfer, on a cumulative basis, of Fifty percent (50%) or more of the voting control of Tenant, or of the stock, membership interests or partnership interests of Tenant, shall constitute a change In control for this purpose.

 

(c) The involvement of Tenant or substantially all of its assets, stock, membership, partnership or other ownership interests in any transaction, or series of transactions (by way of merger, sale, acquisition, financing, refinancing, transfer, leveraged buy-out or otherwise), whether or not a formal assignment or hypothecation of this Lease or Tenant's assets occurs shall constitute and assignment requiring Landlord's consent hereunder. Landlord consent not unreasonably withheld.

 

(d) An assignment or subletting of Tenant's interest in this Lease without Lan prior written consent, which shall not be unreasonably withheld, shall be Default hereunder witho necessity of any notice and grace period, unless waived in writing by Landlord. In such event, Landlord shall have the right to either: (i) pursue all of its rights and remedies hereunder and at law or in equity or (ii) upon thirty (30) days' written notice, increase the monthly Base Rent for the Premises to one hundred fifteen percent (115%) of the Base Rent then in effect. Further, in the event of such Default and rental adjustment, any option to purchase the Premises or renew or extend the term hereof held by Tenant shall thereupon terminate. Tenant's remedy for any breach of this Paragraph 12.1 by Landlord shall be limited to injunctive relief.

 

12.2 Terms and Conditions Applicable to Assignment and Subletting.

 

(a) Regardless of Landlord's consent, any assignment or subletting shall not (i) be effective without the express written assumption by such assignee or subtenant of the obligations of Tenant under this Lease or without providing Landlord with evidence of insurance as required hereunder, (ii) release Tenant of any obligation hereunder, (iii) alter the primary liability of Tenant for the payment of rent and other sums due Landlord hereunder or for the performance of any other obligations to be performed by Tenant under this Lease.

 

(b) Landlord may accept any rent or performance of Tenant's obligations from any person other than Tenant pending approval or disapproval of an assignment. Neither a delay in the approval or disapproval of such assignment nor the acceptance of any rent for performance shall constitute a waiver or estoppel of Landlord's right to exercise its remedies for the Default by Tenant of any of the terms, covenants or conditions of this Lease.

 

(c) The consent of Landlord to any assignment or subletting shall not constitute consent to any subsequent assignment or subletting by Tenant or to any subsequent or successive assignment or subletting by the assignee or subtenant. However, Landlord may consent to subsequent sublettings and assignments of the sublease or any amendments or modifications thereto without notifying Tenant or anyone else liable under this Lease or the sublease and without obtaining their consent, and such action shall not relieve such persons from liability under this Lease or the sublease.

 

(e) Each request for consent to an assignment or subletting shall be in writing, accompanied by information relevant to Landlord's determination as to the financial and operational responsibility and appropriateness of the proposed assignee or subtenant, including but not limited to the intended use and/or required modification of the Premises, if any, together with a non-refundable deposit of $250.00 as reasonable consideration for Landlord's considering and processing the request for consent. Tenant agrees to provide Landlord with such other or additional information and/or documentation as may be reasonably requested by Landlord.

 

(f) Any assignee of, or subtenant under, this Lease shall, by reason of accepting such assignment or entering into such sublease, be deemed, for the benefit of Landlord, to have assumed and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Tenant during the term of said assignment or sublease.

 

(g) Landlord may require that the Security Deposit be increased by an amount equal to two (2) times the then monthly Base Rent, and Landlord may make the actual receipt by Landlord of the Security Deposit increase a condition to Landlord's consent to such transaction.

 

(h) Landlord, as a condition to giving its consent to any assignment or subletting, may require that the amount and adjustment schedule of the rent payable under this Lease be adjusted to what is then the market value and/or adjustment schedule for property similar to the Premises as then constituted, as determined by Landlord.

12.3 Additional Terms and Conditions Applicable to Subletting. The following terms and conditions shall apply to any subletting by Tenant of all or any part of the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein:

 

(a) Tenant hereby assigns and transfers to Landlord all of Tenant's interest in all rentals and income arising from any sublease of all or a portion of the Premises heretofore or hereafter made by Tenant, and Landlord may collect such rent and income and apply same toward Tenant's obligations under this Lease; provided, however, that until a Default shall occur in the performance of Tenant's obligations under this Lease, Tenant may, except as otherwise provided in this Lease, receive, collect and enjoy the rents accruing under such sublease. Landlord shall not, by reason of the foregoing provision or any other assignment of such sublease to Landlord, or by reason of the collection of the rents from a subtenant, be deemed liable to the subtenant for any failure of Tenant to perform and comply with any of Tenant's obligations to such subtenant under such Sublease. Tenant hereby irrevocably authorizes and directs any such subtenant, upon receipt of a written notice from Landlord stating that Tenant is in Default, to pay to Landlord the rents and other charges due and to become due under the sublease. Subtenant shall rely upon any such statement and request from Landlord and shall pay such rents and other charges to Landlord without any obligation or right to inquire as to whether such Default exists and notwithstanding any notice from or claim from Tenant to the contrary. Tenant shall have no right or claim against such subtenant, or, until the Default has been cured, against Landlord, for any such rents and other charges so paid by said subtenant to Landlord.

 

(b) In the event of a Default by Tenant in the performance of its obligations under this Lease, Landlord, at its option and without any obligation to do so, may require any subtenant to attorn to Landlord, in which event Landlord shall undertake the obligations of the Tenant under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Landlord shall not be liable for any prepaid rents or security deposit paid by such subtena nt to such sublessor or for any other prior defaults or breaches of such sublessor under such sublease.

13.1Default. A "Default" by Tenant is a failure by Tenant to observe, comply with or perform any of the terms, covenants, conditions or rules applicable to Tenant under this Lease prior to the expiration of any applicable grace period, including without limitation the following:

 

(a) The vacating of the Premises without the intention to reoccupy same, or the abandonment of the Premises.

 

(b) The failure by Tenant to make any payment of Base Rent, Tenant's Share of Common Area Operating Expenses, or any other monetary payment required to be made by Tenant hereunder as and when due if Tenant shall fail to cure such default within ten (10) business days after written notice to Tenant at the Premises of such Default; provided, however, landlord shall not be required to give any such notice of Default more than two (2) times in any consecutive twelve month period and such third (3rd) Default within such twelve month period shall be an immediate Default hereunder without a notice or grace period and Landlord shall not be obligated to give any further notice of Default.

 

(c) The failure by Tenant to provide Landlord with reasonable evidence of insurance or surety bond required under this Lease, or the failure of Tenant to fulfill any obligation under this Lease which endangers or threatens life or property or a Tenancy Statement as provided herein.

 

(d) The failure by Tenant to provide Landlord with reasonable written evidence (in duly executed original form, if applicable) of (i) compliance with Applicable Requirements per Paragraph 6.3, (ii) the inspection, maintenance and service contracts required under Paragraph 7.1(b), (iii) the rescission of an unauthorized assignment or subletting per Paragraph 12.1, (iv) the subordination or non-subordination of this Lease per Paragraph 30, (v) the guaranty of the performance of Tenant's obligations under this Lease if required under Paragraphs 1.11, (vi) the execution of any document requested under Paragraph 41, or (vii) any other documentation or information which Landlord may reasonably require of Tenant under t he terms of this Lease, where any such failure continues for a period of ten (10) days following written notice by or on behalf of Landlord to Tenant.

 

(e) A breach or default by Tenant as to the terms, covenants, conditions or provisions of this Lease, or of the Rules and Regulations that are to be observed, complied with or performed by Tenant, other than those described in Paragraphs 13.1(a), (b), (c), or (d) above, where such Default continues for a period of fifteen (15) days after written notice thereof by or on behalf of Landlord to Tenant; provided, however, that if the nature of Tenant's Default is such that more than fifteen (15) days are reasonably required for its cure, then it shall not be deemed to be a Default of this Lease by Tenant if Tenant commences such cure within said fifteen (15) day period and thereafter diligently prosecutes such cure to completion (but in no event shall any additional cure period exceed forty-five (45) days).

(a) Terminate Tenant's right to possession of the Premises by any lawful means, in which case this Lease and the term hereof shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all damages Landlord may incur by reason of Tenant's default, including, without limitation, a sum which, at the date of such termination represents the present value (discounted at a rate equal to the then average rate for Moody's "AAA" rated corporate bonds) with maturities equal to the Remaining Term (as hereinafter defined) of the excess, if any, of (i) the Base Rent, additional rent, and all other charges and sums which would have been payable hereunder by Tenant for the period commencing with the day following the date of such termination and ending with the expiration date of the Lease Term, as extended, over (ii) the aggregate reasonable rental value of the Premises for the same period, all of which present value of such excess sum shall be deemed immediately due and payable. In determining the aggregate reasonable rental value pursuant to item (ii) above, the parties hereby agree that all relevant factors shall be considered as of the time Landlord seeks to enforce such remedy, including, but not limited to, (A) the length of time remaining in the Term of this Lease, (B) the then-current market conditions in the general area in which the Premises are located, (C) the likelihood of reletting the Premises for a period of time equal to the remainder of the Term of this Lease, (D) the net effective rental rates (taking into account all concessions) then being obtained for space of similar type and size in similar type buildings in the general area in which the Premis es are located, (E) the vacancy levels in comparable quality buildings in the general area in which the Industrial Center is located, (F) the anticipated duration of the period the Premises will be unoccupied prior to reletting, _(G) the anticipated cost of reletting, and (H) the current levels of new construction that will be completed during the remainder of the Term of this Lease and the degree to which such new construction will likely affect vacancy rates and rental rates in comparable quality buildings in the general area in which the Premises are located. Such payment shall be and constitute Landlord's liquidated damages, Landlord and Tenant acknowledging and agreeing that it is difficult to determine the actual damages Landlord would suffer from Tenant's default and that the agreed upon liquidated damages are not punitive or penalties and are just, fair and reasonable; or

 

13.3 Inducement Recapture in Event of Default. Any agreement by Landlord for free or abated rent or other charges applicable to the Premises, or for the giving or paying by Landlord to or for Tenant of any cash or other bonus, buildout or improvement allowance, inducement or consideration for Tenant's entering into this Lease, all of which concessions are hereinafter referred to as "Inducement Provisions" shall be deemed conditioned upon Tenant's full and faithful performance of all of the terms, covenants and conditions of this Lease to be performed or observed by Tenant duri ng the term hereof as the same may be extended. Upon the occurrence of a Default by Tenant, any such Inducement Provision shall automatically be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or consideration theretofore abated, given or paid by Landlord under such an Inducement Provision shall be immediately due and payable by Tenant to Landlord, and recoverable by Landlord, as additional rent due under this Lease, notwithstanding any subsequent cure of said Default of Tenant. The acceptance by Landlord of rent or the cure of the Default which initiated the operation of this Paragraph 13.3 shall not be deemed a waiver by Landlord of the provisions of this Paragraph 13.3 unless specifically so stated in writing by Landlord at the time of such acceptance.

 

13.4 Late Charges. Tenant hereby acknowledges that late payment by Tenant to Landlord of rent and other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Landlord by the terms of any ground lease, mortgage or security deed covering the Premises. Accordingly, if any installment of rent or other sum due from Tenant shall not be actually received by Landlord or Landlord's designee for deposit in Landlord's account within seven (7) business days after such amount shall be due, then, without any requirement for notice to Tenant, Tenant shall pay to Landlord a late charge equal to five percent (5%) of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant's Default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for three (3) consecutive installments of Base Rent, then notwithstanding Paragraph 4.1 or any other provision of this Lease to the contrary, Base Rent and all other rent payable hereunder shall, at Landlord's option, become due and payable quarterly in advance.

 

13.5 Breach of Landlord. Landlord shall not be deemed in breach of this Lease unless Landlord fails within a reasonable time to perform an obligation required to be performed by Landlord. For purposes of this Paragraph 13.5, a reasonable time shall in no event be less than thirty (30) days after receipt by Landlord, and by any Lender(s) whose name and address shall have been furnished to Tenant in writing for such purpose, of written notice specifying wherein such obligation of Landlord has not been performed; provided, however, that if the nature of Landlord's obligation is su ch that more than thirty (30) days after such notice are reasonably required for its performance, then Landlord shall not be in breach of this Lease if performance is commenced within such thirty (30) day period and thereafter diligently pursued to completion.

15. Brokers' Fees. Tenant and Landlord each represent and warrant to the other that it has had no dealings with any person, firm, broker or finder other than as named in Paragraph 1.10(a) in connection with the negotiation of this Lease and/or the consummation of the transaction contemplated hereby, and that no broker or other person, firm or entity other than said name Broker(s) is entitled to any commission or finder's fee in connection with said transaction. Tenant and Landlord do each hereby agree to indemnify, protect, defend and hold the other harmless from and against liability for com pensation or charges which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings or actions of the indemnifying Party, including any costs, expenses, and/or attorneys' fees reasonably incurred with respect thereto.

16.1Tenancy Statement. At any time and from time to time, Tenant on or before the date specified in a request made by Landlord, which date shall not be earlier than ten (10) days from the making of such request, shall execute, acknowledge and deliver to Landlord a certificate (the "Tenancy Statement") evidencing whether or not: (a) this Lease is in full force and effect; (b) this Lease has been amended in any way; (c) there are any existing defaults hereunder to the knowledge of Tenant and spec ifying the nature of such default, if any; and (d) the date to which rent has been paid. Each Tenancy nanco, or sell the Premises or the Statement may be relied on by any prospective purchaser or transferee of the Premises or of Landlord's Interest hereunder or by any Lender or by any assignee of any such Lender.

17. Landlord's Liability. The term "Landlord" as used herein shall mean own time in question of the fee title to the Premises. In the event of a transfer of Landlord's title or interes in the Premises or in this Lease, Landlord shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Landlord, at the time of such transfer or assignment. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Landlord shall be relieved of all liability with respect to the obligations and/or covenants under this Lease thereafter to be performed by the Landlord. Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Landlord shall be binding only upon the Landlord as hereinabove defined. Landlord's obligations and liability to Tenant with respect to this Lease shall be limited solely to Landlord's interest in the Industrial Center and Landlord shall not have any personal liability whatsoever with respect to this Lease.

18. Severability. The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.

 

19. Interest on Past-Due Obligations; Security Interest. Any monetary payment due Landlord hereunder, including unpaid late charges which shall be added to and constitute past due rent, not received by Landlord within seven (7) business days following the date on which it was due, shall bear interest from the date due at the greater of ten percent (10%) per annum or the maximum rate allowed by law. To secure the payment of all Rent and its performance of this Lease, Tenant grants to Landlord an express first and prior contractual lien and security interest on all of Tenant's property, including without limitation, account s receivable, fixtures, equipment, chattels and merchandise and the proceeds thereof (collectively, the "Collateral"), and also upon all proceeds of any insurance that may accrue to Tenant by reason of the destruction or damage of that property. Tenant will not remove that property from the Premises (except in the ordinary course of business) without the written consent of Landlord until all arrearages in rent have been paid. Tenant waives the benefit of all exemption laws in favor of this lien and security interest. This lien and security interest is given in addition to Landlord's statutory lien and is cumulative with it. Upon the occurrence of an event of Default, these liens may be foreclosed with or without court proceedings by public or private sale, so long as Landlord gives Tenant at least fifteen (15) days' notice of the time and place of the sale. Landlord will have the right to become the purchaser if it is the highest bidder at the sale. Thi s Lease constitutes a security agreement, within the meaning of and pursuant to the Uniform Commercial Code of the State of Georgia as to the Collateral which shall be security for all of Tenant's obligations hereunder. Landlord is hereby permitted to file Uniform Commercial Code financing and continuation statements to evidence Landlord's security interest in the Collateral. Tenant hereby irrevocably appoints Landlord its agent for the purpose of executing and filing such financing statements on Tenant's behalf as Landlord shall deem necessary. For the avoidance of doubt, the above paragraph #19 shall only be in effect in the event that Brainy Baby is in default "Notwithstanding anything herein to the contrary, no subsequent lien interest in favor of Landlord shall take priority over any pre-existing lien or UCC-1 filed against Tenant and Tenant make no warranty granting priority lien status to Landlord hereunder."

 

20. Time of Essence. Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease.

 

21. Rent Defined. All monetary obligations of Tenant to Landlord under the terms of this Lease are deemed to be rent, whether denoted as Base Rent, additional rent or otherwise.

22. No Prior or other Agreements. This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective.

 

23. Notices.

 

23.1 Notice Requirements. All notices required or permitted by this Lease shall be in writing and shall be delivered in person (by hand or by messenger or courier service) or by certified or registered mail or U.S. Postal Service Express Mail or other nationally recognized overnight courier, with postage prepaid, or by facsimile transmission during normal business hours, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mail ing of notice purposes. Either Party may by written notice to the other specify a different address for notice purposes, except that upon Tenant's taking possession of the Premises, the Premises shall constitute Tenant's address for the purpose of mailing or delivering notices to Tenant. A copy of all notices required or permitted to be given to Landlord hereunder shall be concurrently transmitted to such party or parties at such addresses as Landlord may from time to time hereafter designate by written notice to Tenant. Any notice, demand or lawsuit delivered upon a registered agent of Tenant shall constitute personal notice and service of Tenant.

 

23.2 Date of Notice. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given twenty-four (24) hours after delivery of the same to the United States Postal Service or courier. If any notice is transmitted by facsimile transmission or similar means, the same shall be deemed served or delivered upon telephone or facsimile confirmation of receipt of the transmission thereof, provided a copy is also d elivered via hand delivery or mail. If notice is deemed received on a Saturday or a Sunday or a legal holiday, it shall be deemed received on the next business day.

 

24. Waivers. No waiver by Landlord of the Default of any term, covenant or condition hereof by Tenant, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default by Tenant of the same or any other term, covenant or condition hereof. Landlord's consent to, or approval of, any such act shall not be deemed to render unnecessary the obtaining of Landlord's consent to, or approval of, any subsequent or similar act by Tenant, or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such con sent. Regardless of Landlord's knowledge of a Default at the time of accepting rent, the acceptance of rent by Landlord shall not be a waiver of any Default by Tenant of any provision hereof. Any payment given Landlord by Tenant may be accepted by Landlord on account of moneys or damages due Landlord, notwithstanding any qualifying statements or conditions made by Tenant in connection therewith, which such statements and/or conditions shall be of no force or effect whatsoever unless specifically agreed to in writing by Landlord at or before the time of deposit of such payment

 

25. Recording. Tenant shall not record this Lease or any memorandum of this Lease.

 

26. No Right to Holdover. Tenant has no right to retain possession of the Premises or any part thereof beyond the expiration of earlier termination of this Lease. In the event that Tenant holds over in violation of this Paragraph 26, then Tenant shall be a Tenant at sufferance and shall owe Landlord a hold over fee equal to one hundred & Fifty percent (150%) of the rent applicable during the month immediately preceding such expiration or earlier termination. Nothing contained herein shall be construed as consent by Landlord to any holding over by Tenant.

 

27. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.

28. Covenants and Conditions. All provisions of this Lease to be observed or performed by Tenant are both covenants and conditions.

 

29. Binding Effect; Choice of Law. The Lease shall be binding upon the Parties, their personal representatives, successors and assigns and be governed by the laws of the State of Georgia. Any litigation or other legal proceeding instituted by Landlord against Tenant or any Guarantor and concerning this Lease, may be initiated in the county in which the Premises are located and Tenant and any Guarantor(s) hereby irrevocably submit to said jurisdiction and waive any claim that any such suit, action or proceeding brought in said county has been brought in an incorrect forum.

 

30. Subordination and Attornment.

 

30.1 Subordination. This Lease and all rights hereunder shall be subject and subordinate to any ground lease, mortgage, security deed, or other hypothecation or security device (collectively, "Security Device"), now or hereafter placed by Landlord upon the real property of which the Premises are a part, to any and all advances made on the security thereof, and to all renewals, modifications, consolidations, replacements and extensions thereof. Tenant agrees that the Lenders holding any such Security Device shall have no duty, liability or obligation to perform any of the obligat ions of Landlord under this Lease, but that in the event of Landlord's default with respect to any such obligation, Tenant will give any Lender whose name and address have been furnished Tenant in writing for such purpose notice of Landlord's default pursuant to paragraph 13.5. If any Lender shall elect to have this Lease superior to the lien of its Security Device and shall give written notice thereof to Tenant, this Lease and such Options shall be deemed prior to such Security Device, notwithstanding the relative dates of the documentation or recordation thereof.

 

30.2 Attornment. Tenant agrees to attorn to a Lender or any other party who acquires ownership of the Premises by reason of a foreclosure of a Security Device, and that in the event of such foreclosure, such new owner shall not: (i) be liable for any act or omission of any prior Landlord or with respect to events occurring prior to acquisition of ownership, (ii) be subject to any offsets or defenses which Tenant might have against any prior Landlord, or (iii) be bound by prepayment of more than one month's rent.

 

30.3 Self-Executing. The agreements contained in this Paragraph 30 shall be effective without the execution of any further documents; provided, however, that upon written request from Landlord or a Lender in connection with a sale, financing or refinancing of Premises, Tenant and Landlord shall execute such further writings as may be reasonably required to separately document any such subordination or non-subordination and/or attomment agreement as is provided for herein.

 

31. Attorney's Fees. In addition to all other costs and expenses Landlord shall be entitled to recover under this Lease, Landlord shall also be entitled to recover (i) the cost of performing any other covenants which would have otherwise been performed by Tenant and (ii) all costs and expenses incurred by Landlord in connection with the exercise of Landlord's remedies for an event of default, including without limitation attorneys' fees equal to fifteen percent (15%) of the aggregate amount sought to be collected by or through an attorney at law. Landlord shall be entitled to attorneys' fees, costs and expenses incurred in preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced In connection with a Default.

 

32. Landlord's Access; Showing Premises; Repairs. Landlord and Landlord's agents shall have the right to enter the Premises at any time, in the case of an emergency, and otherwise at reasonable times for the purpose of showing the same to prospective purchasers, lenders, or Tenants, and making such alterations, repairs, improvements or additions to the Premises or to the Building, as Landlord may reasonably deem necessary. Landlord may at any time place on or about the Premises or building any "For Sale" signs and Landlord may at any time during the last one hundred eighty (180) days of the t erm hereof place on or about the Premises any "For Lease" signs. All such activities of Landlord shall be without abatement of rent or liability to Tenant.

 

33. Auctions. Tenant shall not conduct, nor permit to be conducted, either voluntarily or involuntarily, any auction upon the Premises without first having obtained Landlord's prior written consent.

 

34. Signs. Tenant shall not place any sign upon the exterior of the Premises or the Building, except that Tenant may, with Landlord's prior written consent, install (but not on the roof) such signs as are reasonably required to advertise Tenant's own business so long as such signs are in a location designated by Landlord and comply with Applicable Requirements and the signage criteria established for the Industrial Center by Landlord. The installation of any sign on the Premises by or for Tenant shall be subject to the provisions of Paragraph 7 (Maintenance, Repairs, Utility Installations, Trade Fixtures and Alterations). Unless otherwise expressly agreed herein, Landlord reserves all rights to the use of the roof of the Building.

 

35. Termination; Merger. Unless specifically stated otherwise in writing by Landlord, the voluntary or other surrender of this Lease by Tenant, the mutual termination or cancellation hereof, or a termination hereof by Landlord for Default by Tenant, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, Landlord shall, in the event of any such surrender, termination or cancellation, have the option to continue any one or all of any existing subtenancies. Landlord's failure within ten (10) days following any such event to make a written election to the contrary by written notice to the holder of any such lesser interest, shall constitute Landlord's election to have such event constitute the termination of such interest.

 

36. Consents. Landlord's actual reasonable costs and expenses (including but not limited to architects', attorneys', engineers' and other consultants' fees) incurred in the consideration of, or response to, a request by Tenant for any Landlord consent pertaining to this Lease or the Premises, including but not limited to consents to an assignment, a subletting or the presence or use of a Hazardous Substance, shall be paid by Tenant to Landlord upon receipt of an invoice therefor. In addition to the deposit described in Paragraph 12.2(e), Landlord may, as a condition to considering any such request by Tenant, require that Tenant deposit with Landlord an amount of money (in addition to the Security Deposit held under Paragraph 5) reasonably calculated by Landlord to represent the cost Landlord will incur in considering and responding to Tenant's request. Any unused portion of said deposit shall be refunded to Tenant without interest. Landlord's consent to any act, assignment of this Lease or subletting of the Premises by Tenant shall not constitute an acknowledgment that no Default by Tenant of this Lease exists, nor shall such consent be deemed a waiver of any then existing Default, except as may be otherwise specifically stated in writing by Landlord at the time of such consent. All conditions to Landlord's consent authorized by this Lease are acknowledged by Tenant as being reasonable. The failure to specify herein any particular condition to Landlord's consent shall not preclude the impositions by Landlord at the time of consent of such further or other conditions as are then determined reasonable by Landlord with referenc e to the particular matter for which consent is being given.

 

37. Guarantor. It shall constitute a Default of the Tenant under this Lease if any Guarantor fails or refuses, upon reasonable request by Landlord to give: (a) evidence of the due execution of the guaranty called for by this lease, including the authority of the Guarantor (and of the party signing on Guarantor's behalf) to obligate such Guarantor on said guaranty, and resolution of its board of directors authorizing the making of such guaranty, together with a certificate of Incumbency showing the signatures of the persons authorized to sign on its behalf, (b) current financial statements of Guarantor as may from time to time be requested by Landlord, (c) a Tenancy Statement, or (d) written confirmation that the guaranty is still in effect.

 

38. Quiet Possession. Upon payment by Tenant of the rent for the Premises and the performance of all of the covenants, conditions and provisions on Tenant's part to be observed and performed under this Lease, Tenant shall have quiet possession of the Premises from Landlord for the entire term hereof subject to all of the provisions of this Lease, zoning ordinances, acts of third parties and all other matters of public record.