EXHIBIT 10.6
LEASE AGREEMENT
BY AND BETWEEN
DATREK PROFESSIONAL BAGS, INC.
("Landlord")
and
DATREK ACQUISITION INC.
("Tenant")
For
835 Bill Jones Industrial Way
Springfield, Tennessee 37172
Leased Premises
LEASE AGREEMENT
Table Of Contents
1. Leased Premises 3
2. Term 3
3. Tenant's Use of Premises 3
4. Fixed Annual Rent, Additional Rent and Other Sums to be Paid by Tenant 3
5. Condition, Repair, Replacement and Maintenance of the Premises 6
6. Insurance 7
7. Compliance with Laws and Insurance Requirements 8
8. Alterations, Additions and Improvements 10
9. Fire and Other Casualty Affecting the Premises 10
10. Assignment and Subletting 11
11. Landlord's Right to Inspect and Repair 11
12. Landlord's Right to Exhibit Premises 12
13. Signs 12
14. Landlord not Liable 12
15. Force Majeure 12
16. Indemnification and Waiver of Liability 12
17. Subordination; Attornment 13
18. Condemnation 15
19. Landlord's Right to Re-Enter 16
20. Default by Tenant and Landlord's Remedies 16
21. Tenant's Trade Fixtures and Removal 18
22. Estoppel Certificate 18
23. Limitations on Landlord's Liability 18
24. Services and Utilities 19
25. Security
26. Qualification in Tennessee 19
27. Notices 19
28. Broker 20
29. Tenant's Right to Quiet Enjoyment 20
30. Miscellaneous 20
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LEASE AGREEMENT
THIS LEASE AGREEMENT is made effective as of the 15th day of October, 2004 (the
"Effective Date"), by and between DATREK PROFESSIONAL BAGS, INC., a Tennessee
corporation ("Landlord"), and DATREK ACQUISITION INC., a Florida corporation
("Tenant").
1. Leased Premises. Landlord does hereby lease and demise to Tenant and Tenant
does hereby lease and take from Landlord, in accordance with the provisions of
this Lease, that certain land containing approximately 14.06 acres, located at
835 Bill Jones Industrial Way, Springfield, Tennessee, being more particularly
described in Exhibit A attached hereto and incorporated herein by this reference
(the "Land'), including a 2-story commercial building located thereon (the
"Building") (the Land and the Building are collectively referred to herein as
the "Premises").
2. Term. Subject to and upon the terms and conditions set forth herein, the term
of this Lease shall commence on October 15, 2004, and shall expire at midnight
on October 14, 2011, unless sooner terminated as hereinafter provided (the
"Term").
3. Tenant's Use of the Premises. Tenant shall use and occupy the Premises only
as and for its current use as a manufacturing and shipping facility for golf
bags and related products. Tenant shall not occupy nor use all or any part of
the Premises nor permit or suffer the Premises to be occupied or used for any
purpose other than as provided for in this Lease, nor for any unlawful or
disreputable purpose. Tenant shall not commit any nuisance, permit the emission
of any objectionable noise or odor, suffer any waste, make any use of the
Premises which is contrary to any law or ordinance or which will invalidate or
increase the premiums for any of Landlord's insurance.
4. Fixed Annual Rent, Additional Rent and Other Sums to be Paid by Tenant.
(a) Fixed Annual Rent. During the first year of the Term, Tenant shall pay
Landlord fixed annual rent in the amount of Five Hundred Ninety-Two Thousand
Nine Hundred Forty-Nine and 50/100 Dollars ($592,949.50), which amount shall be
payable in twelve (12) equal consecutive monthly installments of Forty-Nine
Thousand Four Hundred Twelve and 46/100 Dollars ($49,412.46) each, on the first
day of each month, in advance. The amount of fixed annual rent due hereunder
during each subsequent year of the Term shall increase by that amount determined
by multiplying the fixed annual rent payable hereunder during the immediately
preceding year by a multiplier equal to the number one plus a fraction, the
numerator of which shall be the difference in the Consumer Price Index ("CPI"),
now known as the "United States Department of Labor, Bureau of Labor Statistics,
Consumer Price Index, U.S. City Average for all Urban Consumers, Seasonably
Adjusted All items, (1982-84=100)", between the Effective Date and October 1
each year and the denominator of which shall be the CPI as in effect on October
1, 2004.
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(b) Additional Rent Based Upon Real Estate Taxes. As additional rent, Tenant
shall pay Landlord the annual real estate taxes and assessments assessed and
levied against the Premises, on the first (1st) day of each month, in advance,
in a sum equal to 1/12th of the annual real estate taxes and assessments due and
payable for the then calendar year. If at a time a payment is required the
amount of the real estate taxes and assessments for the then calendar year shall
not be known, Tenant shall pay Landlord, as additional rent, 1/12th of the real
estate taxes and assessments for the preceding calendar year; and upon
ascertaining the real estate taxes and assessments for the current calendar
year, Tenant shall pay Landlord any difference upon demand, or if Tenant shall
be entitled to a credit, Landlord shall credit the excess against the next
monthly installment(s) of additional rent falling due. Additional rent based
upon real estate taxes and assessments payable for the first and last years of
the lease term shall be adjusted and pro rated, so that Landlord shall be
responsible for Landlord's pro rated share for the period prior to and
subsequent to the Term and Tenant shall pay Landlord its pro rated share for the
Term. Provided this Lease is not previously cancelled or terminated, and there
shall be no Event of Default, or an event that with the giving of notice or the
lapse of time, or both, would constitute an Event of Default, then Tenant shall
have the right to contest the amount or validity of any real estate tax or
assessment assessed and levied against the Premises, or to seek a reduction in
the valuation of the Building assessed for real estate tax purposes, by
appropriate proceedings diligently conducted in good faith (the "Tax Appeal"),
but only after payment of such taxes and assessments. Except as set forth below,
Landlord shall not be required to join in any Tax Appeal. If required by law,
Landlord shall, upon written request of Tenant, join in the Tax Appeal or permit
the Tax Appeal to be brought in Landlord's name, and Landlord shall reasonably
cooperate with Tenant, at the cost and expense of Tenant. Tenant shall pay any
increase that may result in real estate taxes or assessments as a consequence of
the Tax Appeal, which payment obligations shall survive the expiration or
earlier termination of this Lease.
(c) Additional Rent Based Upon Assessments for Public Improvements. As
additional rent, upon demand, Tenant shall pay Landlord all assessments for
public improvements assessed and levied against the Premises. If any assessment
for public improvements shall be payable in installments, Landlord shall pay
such assessment in the maximum number of installments permitted by law, and
Tenant's obligation to pay additional rent shall be limited to each installment
or pro rated share thereof due and payable during the Term.
(d) Additional Rent Based Upon Other Sums. Tenant shall pay Landlord, as
additional rent, all other sums of money on Tenant's part to be paid pursuant to
the terms, covenants and conditions of this Lease.
(e) Additional Rent Based Upon Reimbursement to Landlord. If Tenant shall fail
to comply with or to perform any of the terms, conditions and covenants of this
Lease, Landlord may (but with no obligation to do so) carry out and perform such
terms, conditions and covenants, at the expense of Tenant, which expense shall
be payable by Tenant, as additional rent, upon the demand of Landlord, together
with interest at the maximum lawful rate of interest allowed pursuant to
Tennessee law (the "Default Rate"), which interest shall accrue from the date of
Landlord's demand.
(f) Additional Rent Based Upon Late Payment. If Tenant defaults, for more than
five (5) days in the payment of any monthly installment of fixed annual rent,
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additional rent or any of the sums required of Tenant under the Lease, or if
Tenant, within five (5) days after demand from Landlord, fails to reimburse
Landlord for any expenses incurred by Landlord pursuant to the Lease, together
with interest, then Tenant shall pay Landlord, as additional rent, a late charge
of five (5%) percent of the rent or expense.
(g) Additional Rent Based Upon Landlord's Legal Expenses in Enforcing Lease. As
additional rent, Tenant shall pay Landlord all reasonable attorneys' fees that
may be incurred by Landlord in enforcing Tenant's obligations under this Lease
or in relation to any dispute relating hereto; provided, however, that in the
event Landlord commences a suit against Tenant to enforce Tenant's obligations
under this Lease, and such suit is tried to conclusion and judgment is entered
in favor of Tenant, then in that event Tenant shall not be under any obligation
to pay Landlord the attorneys' fees that Landlord may have incurred.
(h) Additional Rent Based Upon Taxes Based on Rent. If at any time during the
Term a tax or charge shall be imposed by the State of Tennessee or the county or
municipality in which the Premises is located, pursuant to any future law, which
tax or charge shall be based upon the rent due or paid by Tenant to Landlord,
then Tenant shall pay Landlord, as additional rent, such tax or charge. The
foregoing shall not require payment by Tenant of any income taxes assessed
against Landlord or of any capital levy, franchise, estate, succession,
inheritance or transfer tax due from Landlord.
(i) Net Lease, No Setoff and Application.
(i) Net Lease. It is the intention of the parties that this Lease is a "triple
net lease" and Landlord shall receive the fixed annual rent, additional rent and
other sums required of Tenant under the Lease, undiminished from all costs,
expenses and obligations of every kind relating to the Premises, which shall
arise or become due during the Term, all of which shall be paid by Tenant.
(ii) No Setoff. Tenant shall pay Landlord all fixed annual rent, additional rent
and other sums required of Tenant under the Lease, without abatement, deduction
or setoff, and irrespective of any claim Tenant may have against Landlord; and
this covenant shall be deemed independent of any other terms, conditions or
covenants of this Lease.
(iii) Application. No payment by Tenant or receipt by Landlord of an amount less
than the full fixed annual rent, additional rent, or other sums required of
Tenant under the Lease, shall be deemed anything other than a payment on account
of the earliest fixed annual rent, additional rent, or other sum due from Tenant
under the Lease. No endorsements or statements on any check or any letter
accompanying any check or payment of fixed annual rent, additional rent, or
other sum due from Tenant under the Lease, shall be deemed an accord and
satisfaction of Landlord. Landlord may accept any check for payment from Tenant
without prejudice to Landlord's right to recover the balance of fixed annual
rent, additional rent, or other sum due from Tenant under the Lease, or to
pursue any other right or remedy provided under this Lease or by Requirements.
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(j) Place of Payment of Rent. The fixed annual rent, additional rent and other
sums required of Tenant under this Lease, shall be paid by Tenant to Landlord at
its address set forth in the first paragraph above, or to such other place as
Landlord may notify Tenant.
5. Condition, Repair, Replacement and Maintenance of the Premises.
(a) Condition of the Premises. Tenant acknowledges examining the Premises prior
to the commencement of the Term, that Tenant is fully familiar with the
condition of the Premises and that Tenant accepts the Premises "As-Is." Except
as expressly set forth in this Section 5(a), Tenant enters into the Lease
without any representations or warranties on the part of Landlord, express or
implied, as to the condition of the Premises, including, but not limited to, the
cost of operations and the condition of its fixtures, improvements and Building
Systems (as such term is defined below). Landlord represents that to its actual
knowledge the Premises are not in material violation of the Americans with
Disabilities Act or any Environmental Laws, except that the Premises may not be
wheelchair accessible.
(b) Tenant's Obligations.
(i) Tenant's Maintenance. Tenant shall, at Tenant's own expense, maintain, keep
in good condition, repair and make replacements, foreseen and unforeseen,
ordinary and extraordinary, structural and non-structural, to the exterior of
the Building (including, but not limited to, the roof, roof system, windows and
doors) and interior of the Building (including, but not limited to, the plumbing
system, the sprinkler system (if any), the heating, ventilation and air
conditioning system, the electric system and any other system of the Building,
such systems being collectively referred to herein as the "Building Systems"),
and the driveways, parking areas, shrubbery and lawn, on the Premises, and at
the expiration or other sooner termination of the Term, deliver them up in good
order and condition and broom clean.
(ii) Damage Caused by Tenant. Notwithstanding any contrary provisions set forth
in this Lease, any damage to the Premises, including, but not limited to, the
Building or any of the Building Systems, or the improvements, caused by Tenant
or a "Tenant Representative" (as defined below), shall be promptly repaired or
replaced to its former condition by Tenant, as required by Landlord, at Tenant's
own expense. The term "Tenant Representative" shall mean any shareholder,
officer, director, member, partner, employee, agent, licensee, assignee,
sublessee or invitee of Tenant, or any third party other than Landlord.
(iii) Tenant to Keep Premises Clean. In addition to the foregoing, and not in
limitation of it, Tenant shall also, at Tenant's own expense, undertake all
replacement of all plate glass and light bulbs, florescent tubes and ballasts,
and decorating, redecorating and cleaning of the interior of the Premises, and
shall keep and maintain the Premises in a clean condition, free from debris,
trash, refuse, snow and ice.
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(iv) Tenant's Negative Covenants. Tenant shall not injure, deface, permit waste
nor otherwise harm any part of the Premises, permit any nuisance at the
Premises, permit the emission of any objectionable noise or odor from the
Premises, place a load on the floor on the Premises exceeding the floor load per
square foot the floor was designed to carry, or install, operate or maintain any
electrical equipment in the Premises that shall not bear an underwriters
approval.
6. Insurance.
(a) Insurance Coverage. Tenant shall, during the Term, at Tenant's own expense,
obtain and keep in force, the following insurance:
(i) Fire Insurance.An All-Risk Insurance policy covering the Premises and all
improvements located therein in an amount of one hundred (100%) percent of the
replacement value of the Building and all improvements on the Premises other
than foundations, and with such deductible as Landlord considers appropriate in
Landlord's sole discretion. This insurance shall (A) name only Landlord and
Landlord's mortgagees, if any, as their respective interests may appear; (B)
provide that no act of Tenant shall impede the right of Landlord or Landlord's
mortgagees, if any, to receive and collect the insurance proceeds; and (C)
provide that the right of Landlord and Landlord's mortgagees, if any, to the
insurance proceeds shall not be diminished because of any insurance carried by
Tenant for Tenant's own account. Tenant acknowledges that it has no right to
receive any proceeds from such insurance policy. Landlord shall not have to
carry insurance of any kind on the Premises or on Tenant's furniture or
furnishings, or on any of Tenant's fixtures, equipment, improvements, or
appurtenances under this Lease; and Landlord shall not be obligated to repair
any damage thereto or replace the same.
(ii) Rental Interruption Insurance. Rental interruption insurance with a limit
of liability representing loss of at least six (6) months of rental income.
(iii) Liability Insurance. Comprehensive general liability insurance coverage
(either primary and/or umbrella policies), which shall include personal injury,
bodily injury, broad form property damage, operations hazard, owner's protective
coverage, contractual liability and products and completed operations liability,
in limits not less than Five Million and No/100 Dollars ($5,000,000.00)
inclusive. This insurance shall insure Landlord and "Landlord's Indemnitees" (as
defined below) and Tenant, and such other parties as Landlord may designate,
naming each as the insured. Notwithstanding any contrary provisions contained in
this paragraph, if any liability insurance policy excludes coverage of any claim
made by one insured against another, or any action or suit filed by one insured
against another, then Tenant shall deliver to Landlord a separate liability
insurance policy, which insures only Landlord and Landlord's Indemnitees and
such other parties as Landlord may designate, in accordance with the provisions
of this paragraph, and a certificate of insurance evidencing a separate
liability insurance policy insuring Tenant in accordance with the provisions of
this paragraph. The term "Landlord's Indemnitees" shall mean Landlord's
affiliates, mortgagees, if any, and their respective officers, shareholders,
directors, employees, agents and representatives, as well as the officers,
shareholders, directors, employees, agents and representatives of Landlord.
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(iv) Worker's Compensation and Employer's Liability Insurance.Worker's
Compensation and Employer's Liability insurance, in a form and in an amount as
required to comply with state law and which shall contain a waiver of
subrogation against Landlord.
(v) Additional Insurance. Any other form or forms of insurance as Landlord or
Landlord's mortgagees may reasonably require from time to time, in form and
amounts, and for insurance risks against which a prudent tenant of a comparable
size and in a comparable business would protect itself.
(b) Insurance Requirements Generally. All policies shall be obtained from
insurers that are licensed to do business in the State of Tennessee and are
acceptable to Landlord, and shall be in form satisfactory to Landlord. Tenant
agrees that certificates of insurance, or, if required by Landlord or the
mortgagees of Landlord, certified copies of each such insurance policy, shall be
delivered to Landlord as soon as practicable after the placing of the required
insurance. Tenant shall, contemporaneously with the execution of this Lease,
provide Landlord with a certificate of insurance as written evidence of the
insurance in force, and renewals thereof shall be delivered to Landlord at least
thirty (30) days prior to the expiration of the respective policy terms. All
policies shall contain an undertaking by the insurers to notify Landlord and the
mortgagees of Landlord in writing not less than thirty (30) days before any
material change, reduction in coverage, cancellation, or other termination
thereof.
(c) Waiver of Subrogation. To the extent that the parties may legally so agree,
neither Landlord nor Tenant shall be liable by way of subrogation or otherwise
to the other party, or to any insurance company insuring the other party for any
loss or damage to any of the property of Landlord or Tenant, as the case may be,
which loss or damage is covered by any insurance policies carried by the parties
and in force at the time of any such damage, even though such loss or damage
might have been occasioned by the negligence of Landlord or Tenant, and the
party hereto sustaining such loss or damage so protected by insurance waives its
rights, if any, of recovery against the other party hereto to the extent and
amount that such loss is covered by such insurance. This release shall be in
effect only so long as the applicable insurance policies shall contain a clause
or endorsement to the effect that the aforementioned waiver shall not affect the
right of the insured to recover under such policies; Tenant shall use its best
efforts (including payment of any additional premium) to have its insurance
policies contain the standard waiver of subrogation clause. In the event
Tenant's insurance carrier declines to include in such carrier's policy the
standard waiver of subrogation clause, Tenant shall promptly notify Landlord in
writing.
7. Compliance with Laws and Insurance Requirements.
(a) General Compliance with Laws and Requirements. Tenant shall, at Tenant's own
expense, promptly comply with: (i) each and every federal, state, county and
municipal statute, ordinance, code, rule, regulation, order, directive or
requirement, currently or hereafter existing, including, but not limited to, the
Americans with Disabilities Act of 1990 and all environmental laws, together
with all amending and successor federal, state, county and municipal statutes,
ordinances, codes, rules, regulations, orders, directives or requirements, and
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the common law, regardless of whether such laws are foreseen or unforeseen,
ordinary or extraordinary, applicable to the Premises, Tenant, Tenant's use of
or operations at the Premises, or all of them, (the "Requirements"); (ii) the
requirements of any regulatory insurance body; or (iii) the requirements of any
insurance carrier insuring the Premises; regardless of whether compliance (X)
results from any condition, event or circumstance existing on or after the
commencement of the Term; (Y) interferes with Tenant's use or enjoyment of the
Premises; or (Z) requires structural or non-structural repairs or replacements.
The failure to mention any specific statute, ordinance, rule, code, regulation,
order, directive or requirement shall not be construed to mean that Tenant was
not intended to comply with such statute, ordinance, rule, code, regulation,
order, directive or requirement.
(b) Environmental Law. Tenant shall comply, at its sole expense, with all laws,
ordinances, orders, rules and regulations of all state, federal, municipal and
other governmental or judicial agencies or bodies relating to the protection of
public health, safety, welfare or the environment (collectively, "Environmental
Laws") in the use, occupancy and operation of the Premises. Tenant agrees that
no Hazardous Substances shall be used, located, stored or processed on the
Premises by Tenant or any of its agents, employees, contractors, assigns,
subtenants, guest or invitees, and no Hazardous Substances will be generated,
released or discharged from the Premises. The term "Hazardous Substances" shall
mean and include all hazardous and toxic substances, waste or materials, any
pollutant or contaminant, including, without limitation, PCB's, asbestos and raw
materials that include hazardous constituents or any other similar substances or
materials that are now or hereafter included under or regulated by any
Environmental Laws or that would pose a health, safety or environmental hazard.
Tenant hereby agrees to indemnify, defend and hold harmless Landlord and
Landlord's Indemnitees from and against any and all claims, causes of action,
demands, liens, losses, liabilities (including, but not limited to, strict
liability), damages, injuries, fines, costs and expenses (including, but not
limited to, court costs, litigation expenses, reasonable attorney's fees and
costs of settlement or judgment), of any and every kind whatsoever paid,
incurred or suffered by, or asserted against, Landlord by any person, entity or
governmental agency for, with respect to, or as a direct or indirect result of
(i) the presence in or the escape, leakage, spillage, discharge, emission or
release from the Premises of any Hazardous Substances or the presence of any
Hazardous Substances placed on or discharged from the Premises by Tenant or any
of its agents, employees, contractors, assigns, subtenants, guest or invitees,
or (ii) any violation or alleged violation of any Environmental Laws by Tenant
or any of its agents, employees, contractors, assigns, subtenants, guests or
invitees in relation to the Premises. In the event of the release of Hazardous
Substances in or about the Premises by Tenant or any of its agents, employees,
contractors, assigns, subtenants, guests or invitees, Tenant shall immediately
notify Landlord about such release and advise Landlord of the procedures being
taken for remediation. Landlord reserves the right to reenter the Premises
should Tenant fail to respond to the release and/or to remediate the Premises.
Tenant shall be responsible for any costs assessed the Landlord in connection to
such release and/or remediation, including attorney's fees. Landlord shall have
the right to require that Tenant deliver periodic environmental audits of the
Premises evidencing that no violations have occurred. This paragraph 7(b) shall
survive the expiration or earlier termination of this Lease. Without limiting
any other remedy available to Landlord under this Lease or by Requirements,
Tenant's failure to abide by the terms of this paragraph 7 shall be restrainable
or enforceable, as the case may be, by injunction.
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8. Alterations, Additions and Improvements. Except for non-structural changes
costing Twenty Thousand and No/100 Dollars ($20,000.00), or less, no
alterations, additions or improvements shall be made by Tenant to the Building
and improvements on the Premises, nor to any of the Building Systems, nor shall
antennas or fixtures be installed in or on the Building or improvements to the
Premises, without the prior written consent of Landlord, which consent may be
granted or withheld by Landlord, in Landlord's sole and absolute discretion. All
alterations, additions or improvements erected by Tenant shall be and remain the
property of Tenant during the Term and Tenant shall remove all alterations,
additions or improvements erected by Tenant and restore the Premises to its
original condition, reasonable wear and tear excepted, by the date of
termination of this Lease. Tenant shall not use or penetrate the roof of the
Building for any purpose whatsoever without the prior written consent of
Landlord, which consent may be granted or withheld by Landlord, in Landlord's
sole and absolute discretion. All alterations, additions or improvements
consented to by Landlord shall be performed by Tenant in a good and workmanlike
manner, in compliance with all Requirements.
9. Fire and Other Casualty Affecting the Premises. If the Premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall give prompt
written notice thereof to Landlord, and Landlord shall forthwith repair, rebuild
and restore the same, provided that the following conditions are satisfied (the
"Reconstruction Conditions"): (i) such repairs and rebuilding can be
substantially completed within one hundred eighty (180) days after the date of
such damage and the Premises restored to tenantable condition under the laws and
regulations of the federal, state and local government authorities having
jurisdiction thereof, and (ii) the amount of insurance proceeds available to
Landlord for the purpose of such repairs, rebuilding and restoration is
sufficient to pay for the completion of same. Within thirty (30) days after the
date of such damage, Landlord shall notify Tenant (the "Casualty Notice")
whether or not the Reconstruction Conditions can be satisfied. If the Casualty
Notice provides that the Reconstruction Conditions cannot be satisfied, either
party shall have the option to terminate this Lease as of a date specified in
such notice, and rent shall be abated as of the date of such damage. Upon such
termination of this Lease, and subject to any rights or claims of any mortgagee
of Landlord, Landlord shall pay to Tenant from Landlord's insurance proceeds,
the amount of such proceeds attributable to the unamortized value of Tenant's
leasehold interest in any improvements to the Premises made by Tenant at
Tenant's expense.
Landlord shall not be required to rebuild, repair or replace any part of
Tenant's furniture or furnishings or fixtures and equipment removable by Tenant
under the provisions of this Lease. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or the disregard of the repair thereof,
unless resulting from Landlord's gross negligence or willful misconduct. Tenant
shall make all payments of rent and other amounts due under the Lease while such
repairs to the Building are being made.
In case of fire or other casualty occurring after October 1, 2010, and more than
half of the tenantable area of the Building shall be so damaged by fire or other
casualty, as determined in Tenant's reasonable opinion, Tenant may, in its sole
discretion, terminate this Lease by notifying
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Landlord in writing of such termination within thirty (30) days after the date
of such damage, in which event the rent hereunder shall be abated as of the date
of such damage.
10. Assignment and Subletting.
(a) Landlord's Consent Required. Tenant shall not voluntarily or by operation of
law assign, sublet, mortgage or otherwise transfer or encumber all or any part
of Tenant's interest in this Lease or in the Premises without Landlord's prior
written consent, which consent may be granted or withheld in Landlord's sole and
absolute discretion. Any attempted assignment, subletting, mortgage, transfer or
encumbrance without such consent shall be void as against Landlord, and shall
constitute an Event of Default by Tenant under this Lease. Any sale of ownership
rights in Tenant shall be deemed an assignment in violation of this Lease.
(b) No Release of Tenant. Regardless of Landlord's consent or the need under
subparagraph (a) to obtain Landlord's consent, no assignment or subletting shall
release Tenant from this Lease. Acceptance of fixed annual rent and additional
rent from any other person shall not be deemed a waiver by Landlord of any
provision of this Lease. Consent to one assignment or subletting shall not be
deemed a consent to any subsequent assignment or subletting. In the event of a
consent by Landlord to an assignment or subletting, Tenant shall deliver to
Landlord a duplicate original of the assignment by Tenant and assumption by
Tenant's assignee of Tenant's obligations under this Lease, or a duplicate
original of the sublease, as the case may be.
(c) Participation by Landlord. In the event of any assignment or sublease
involving rent in excess of the fixed annual rent or additional rent required
under this Lease ("Excess Rent"), Landlord shall participate in the Excess Rent.
Tenant shall promptly pay to Landlord, as additional rent, fifty (50%) percent
of all such Excess Rent collected from the assignee or subtenant, and shall
supply Landlord with a true copy of each assignment or sublease, and in the case
of the former, an originally executed assumption by the assignee of all of
Tenant's obligations under this Lease.
11. Landlord's Right to Inspect and Repair. Landlord or Landlord's agents,
employees or representatives, shall have the right to enter into and upon all or
any part of the Premises during the Term at all reasonable hours, upon
reasonable notice, if practical, for the purpose of: (a) examination; (b)
determination whether Tenant is in compliance with its obligations under this
Lease; or (c) making repairs, alterations, additions or improvements to the
Premises, as may be necessary by reason of Tenant's failure to make same after
notice to Tenant to do so, except in an emergency. This paragraph shall not be
deemed nor construed to create an obligation on the part of Landlord to make any
inspection of the Premises or to make any repairs, alterations, additions or
improvements to the Premises for its safety or preservation.
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12. Landlord's Right to Exhibit Premises. Landlord or Landlord's agents,
employees or representatives shall have the right to show the Premises during
the Term to persons wishing to purchase or grant fee mortgages on the Premises.
Landlord or Landlord's agents, employees or other representatives shall have the
right within the last six (6) months of the Term to place notices on any parts
of the Premises, offering the Premises for lease and at any time during the
Term, offering the Premises for sale, and Tenant shall permit the signs to
remain without hindrance or molestation.
13. Signs. Tenant shall not cause any signs to be placed at the Premises, except
of a design and structure and at such places as Landlord shall consent to in
writing prior to the installation. If Landlord or Landlord's agents, employees
or other representatives wish to remove any such signs in order to make any
repairs, alterations, additions or improvements to the Premises, such signs may
be removed, but shall be replaced, at Tenant's expense, when the repairs,
additions, alterations or improvements shall be completed; however, such
provision shall not create an obligation on the part of Landlord to make any
repairs, alterations, additions or improvements to the Premises. All signs of
Tenant at the Premises shall conform with all municipal ordinances or other laws
and regulations applicable to such signs.
14. Landlord not Liable. Landlord shall not be liable for any damage or injury
to any person or any property as a consequence of the failure, breakage, leakage
or obstruction of water, well, plumbing, septic tank, sewer, waste or soil
pipes, roof, drains, leaders, gutters, down spouts or the like, or of any of the
Building Systems, or by reason of the elements, or resulting from any act or
failure to act on the part of Landlord, or Landlord's agents, employees,
invitees or representatives, assignees or successors, or attributable to any
interference with, interruption of or failure beyond the control of Landlord,
except to the extent the same are the sole and direct result of Landlord's gross
negligence or willful misconduct.
15. Force Majeure. Whenever a period of time is herein prescribed for the taking
of any action by Landlord or Tenant (other than Tenant's obligations to pay any
rent, additional rent, or other amounts hereunder, or to comply with the
provisions of Section 6 hereof), neither Landlord nor Tenant shall be liable or
responsible for, and there shall be excluded from the computation of such period
of time, any delays due to strikes, lockouts, riots, acts of God, shortages of
labor or materials, war, civil commotion, fire or other casualty, catastrophic
weather conditions, a court order that causes a delay, governmental laws,
regulations, or restrictions, or any other cause whatsoever beyond the control
of Landlord or Tenant, as the case may be (any of the foregoing being referred
to an "Unavoidable Delay"). Landlord shall use reasonable efforts to notify
Tenant not later than ten (10) business days after such party knows of the
occurrence of an Unavoidable Delay; provided, however, that such party's failure
to notify the other party of the occurrence of an event constituting an
Unavoidable Delay shall not alter, detract from, or negate its character as an
Unavoidable Delay or otherwise result in the loss of any benefit or right
granted to Landlord or Tenant under this Lease.
16. Indemnification and Waiver of Liability. (a) Neither Landlord nor Landlord's
Indemnitees shall be liable for and Tenant shall indemnify and save harmless
Landlord and Landlord's Indemnitees from and against any and all liabilities,
damages, claims, suits, costs (including costs of suit, attorneys' fees and
costs of investigation) and actions of any kind,
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foreseen or unforeseen, arising or alleged to arise by reason of injury to or
death of any person or damage to or loss of property, occurring on, in, or about
the Premises, or by reason of any other claim whatsoever of any person or party,
occasioned, directly or indirectly, wholly or partly: (a) by any act or omission
on the part of Tenant or any Tenant Representative; (b) by any breach, violation
or non-performance of any covenant of Tenant under this Lease; or (c) by a
Discharge of Contaminants during the Term; regardless of whether such liability,
claim, suit, cost, injury, death or damage arises from or is attributable to the
concurrent negligence, willful misconduct or gross negligence of Landlord or any
Landlord Indemnitee. If any action or proceeding shall be brought by or against
Landlord or any Landlord Indemnitee in connection with any such liability,
claim, suit, cost, injury, death or damage, Tenant, on notice from Landlord or
any Landlord Indemnitee, shall defend such action or proceeding, at Tenant's
expense, by or through attorneys reasonably satisfactory to Landlord or the
Landlord Indemnitee. The provisions of this paragraph shall apply to all
activities of Tenant or any Tenant Representative with respect to the Premises,
whether occurring before or after execution of this Lease. Tenant's obligations
under this paragraph shall not be limited to the coverage of insurance
maintained or required to be maintained by Tenant under this Lease. Neither
Landlord nor any Landlord Indemnitee shall be liable in any manner to Tenant or
any Tenant Representative for any injury to or death of persons or for any loss
of or damage to property, regardless of whether such loss or damage is
occasioned by casualty, theft or any other cause of whatsoever nature, including
loss or damage caused solely by the negligent, willful misconduct or gross
negligence of Landlord or any Landlord Indemnitee. In no event shall Landlord or
any Landlord Indemnitee be liable in any manner to Tenant or any Tenant
Representative as the result of the acts or omissions of Tenant or a Tenant
Representative and all liability therefore shall rest with Tenant. All personal
property upon the Premises shall be at the risk of Tenant only, and neither
Landlord nor any Landlord Indemnitee shall be liable for any damage thereto or
theft thereof, whether or not due in whole or in part to the negligence, willful
misconduct or gross negligence of Landlord or any Landlord Indemnitee.
(b) Landlord shall and hereby does indemnify and hold Tenant harmless from and
against any and all claims arising from Landlord's, or Landlord's agents',
contractors', employees' or guests' (but specifically excluding claims arising
from the negligence or willful misconduct of Tenant, its agents, contractors,
employees or guests) grossly negligent acts or omissions or willful misconduct.
17. Subordination; Attornment.
(a) Subordination. This Lease shall be subject and subordinate to any mortgage,
deed of trust, trust indenture, assignment of leases or rents or both, or other
instrument evidencing a security interest, which may now or hereafter affect any
portion of the Premises, or be created as security for the repayment of any loan
or any advance made pursuant to such an instrument or in connection with any
sale-leaseback or other form of financing transaction and all renewals,
extensions, supplements, consolidations, and other amendments, modifications,
and replacements of any of the foregoing instruments ("Mortgage"). Tenant shall,
at the request of any successor-in-interest to Landlord claiming by, through, or
under any Mortgage, attorn to such person or entity as described below. The
foregoing provisions of this subparagraph (a) shall be self-operative and no
further instrument of subordination shall be required to make the interest of
any mortgagee, trustee or other holder of or beneficiary under a Mortgage (a
"Mortgagee")
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superior to the interest of Tenant hereunder; provided, however, Tenant shall
execute and deliver promptly any certificate or instrument, in recordable form,
that Landlord, any Mortgagee may request in confirmation of such subordination.
At Tenant's request, Landlord shall secure a non-disturbance agreement in form
reasonably acceptable to Tenant, Mortgagee and Landlord recognizing Tenant's
rights under this Lease.
(b) Rights of Mortgagee. Any Mortgagee may elect that this Lease shall have
priority over the Mortgage that it holds and, upon notification to Tenant by
such Mortgagee, this Lease shall be deemed to have priority over such Mortgage,
whether this Lease is dated prior to or subsequent to the date of such Mortgage.
If, in connection with the financing of the Premises, any Mortgagee shall
request reasonable modifications of this Lease that do not increase the monetary
obligations of Tenant under this Lease, materially increase Tenant's other
obligations, or materially and adversely affect the rights of Tenant under this
Lease, then Tenant shall make such modifications.
(c) Attornment. If at any time prior to the expiration of the Term any Mortgagee
comes into possession of the Premises, Tenant shall, at the election and upon
the demand of any owner of the Premises, or of any Mortgagee-in-possession of
the Premises, attorn, from time to time, to any such owner or Mortgagee, or any
person or entity acquiring the interest of Landlord as a result of any such
termination, or as a result of a foreclosure of the Mortgage or the granting of
a deed in lieu of foreclosure, upon the then-executory terms and conditions of
this Lease, for the remainder of the term. In addition, in no event shall any
such owner or Mortgagee, or any person or entity acquiring the interest of
Landlord be bound by (i) any payment of rent or additional rent for more than
one (1) month in advance, or (ii) any security deposit or the like not actually
received by such successor, or (iii) any amendment or modification in this Lease
made without the consent of the applicable Mortgagee (except to the extent
allowed pursuant to the applicable loan documents between Landlord and
Mortgagee), or (iv) any construction obligation, free rent, or other concession
or monetary allowance, or (v) any set-off, counterclaim, or the like otherwise
available against any prior landlord (including Landlord), or (vi) any act or
omission of any prior landlord (including Landlord).
(d) Rights Accruing Automatically. The provisions of this paragraph 17 shall
inure to the benefit of any such successor-in-interest to Landlord, and shall be
self-operative upon any such demand, and no further instrument shall be required
to give effect to such provisions. Tenant, however, upon demand of any such
successor-in-interest to Landlord, shall execute, from time to time, instruments
in confirmation of the foregoing provisions of this paragraph, reasonably
satisfactory to any such successor-in-interest to Landlord, acknowledging such
attornment and setting forth the terms and conditions of its tenancy.
(e) Limitation on Rights of Tenant. As long as any Mortgage shall exist, Tenant
shall not seek to terminate this Lease by reason of any act or omission of
Landlord until Tenant shall have given written notice of such act or omission to
all Mortgagees at such addresses as shall have been furnished to Tenant by such
Mortgagees and, if any such Mortgagee, as the case may be, shall have notified
Tenant within ten (10) business days following receipt of such notice of its
intention to remedy such act or omission, until a reasonable period of time
shall have elapsed following the giving of such notice (but not to
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exceed sixty (60) days), during which period such Mortgagees shall have the
right, but not the obligation, to remedy such act or omission. The foregoing
shall not, however, be deemed to impose upon Landlord any obligations not
otherwise expressly set forth in this Lease.
18. Condemnation.
(a) Permanent Condemnation.
(i) Lease Termination. If all or any portion of the Premises is taken under the
power of eminent domain, or sold under the threat of the exercise of the power
(both called "Condemnation"), this Lease shall terminate as to the part taken as
of the first date the condemning authority takes either title or possession. If
more than twenty-five (25%) percent of the leasable area of the Premises is
taken or the balance of the Premises is unfit for Tenant's use, Tenant has the
option to terminate this Lease as of the date the condemning authority takes
possession. The option shall be exercised in writing as follows:
(A) Notice of Taking.within thirty (30) days after Landlord or the condemning
authority has given Tenant written notice of the taking; or
(B) Possession. absent notice, within ten (10) days after the condemning
authority has taken possession. If Tenant does not terminate, this Lease shall
remain in full force and effect as to the portion of the Premises remaining. The
fixed annual rent and additional rent shall be reduced in the same proportion as
the area of the Premises taken bears to the entire area leased hereunder.
(ii) Award.Landlord shall be entitled to any award for Condemnation, whether the
award is made as compensation for diminution in value of the leasehold or for
the taking of the fee, or as severance damages. Tenant shall be entitled to
pursue its own separate claim against any condemning authority for the loss of
Tenant's leasehold interest, provided the same does not diminish Landlord's
award. If this Lease is not terminated, Landlord shall diligently repair any
damage to the Premises caused by such Condemnation, subject to delays due to
Force Majeure, as provided in paragraph 15.
(b) Temporary Condemnation. Upon condemnation of all or any portion of the
Premises for temporary use, this Lease shall continue without change or
abatement in Tenant's obligations, as between Landlord and Tenant. Tenant is
entitled to the award made for the use. If the Condemnation extends beyond the
term of the Lease, the award shall be prorated between Landlord and Tenant as of
the expiration date of the term. Tenant is responsible, at its sole cost and
expense, for performing any restoration work required to place the Premises in
the condition it was in prior to Condemnation, unless the release of the
Premises occurs after termination. In such case, Tenant shall assign to Landlord
any claim it may have against the condemning authority for the cost of
restoration, and if Tenant has received restoration funds, it shall give the
funds to Landlord within ten (10) days after demand.
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19. Landlord's Right to Re-Enter. If Tenant shall default in any of the terms,
conditions or covenants of this Lease, then it shall be lawful for Landlord to
re-enter the Premises and to again possess and enjoy the Premises.
20. Default by Tenant and Landlord's Remedies.
(a) Event of Default. If any one or more of the following events shall occur and
be continuing beyond the period set forth in any default notice provided to be
given, an Event or Events of Default shall have occurred under this Lease:
(i) Non-Payment. If Tenant shall fail to pay any installment of fixed annual
rent, additional rent or other sums due from Tenant to Landlord under this
Lease; or
(ii) Non-Performance. If Tenant shall fail to comply with any of the other
terms, covenants, conditions or obligations of this Lease and such failure in
compliance shall continue for thirty (30) days after delivery of notice from
Landlord to Tenant specifying the failure, or, if such failure cannot with due
diligence be remedied within thirty (30) days, Tenant shall not, in good faith
have commenced within said thirty (30) day period to remedy such failure and
continued diligently and continuously thereafter to prosecute the same to
completion; or
(iii) Bankruptcy; Appointment of Receiver. If there shall be filed by or against
Tenant in any court pursuant to any statute either of the United States or of
any state (and the same is not dismissed with sixty (60) days), a petition (i)
in bankruptcy, (ii) alleging insolvency, (iii) for reorganization, or (iv) for
the appointment of a trustee or receiver, or (v) for an assignment for benefit
of creditors, or if a similar type of proceeding shall be filed by or against
Tenant; or
(iv) Subletting or Assignment Without Permission. If Tenant subleases the
Premises, or any portion thereof, or assigns this Lease, whether by operation of
law or otherwise, without the written permission of Landlord; or
(v) Vacation or Abandonment. If Tenant shall vacate or abandon the Premises; or
(vi) Sale of Tenant's Interest. If Tenant's interest in the Premises is sold
under attachment, execution, or other legal process.
(b) Right to Terminate Lease and Re-Enter. Landlord may, in addition to any
other remedy available to Landlord under this Lease or available under
Requirements, at Landlord's option, on 10 (ten) days' notice to Tenant, declare
this Lease terminated at the expiration of such 10 day period and Tenant shall
quit and surrender possession of the Premises, but Tenant shall remain liable to
Landlord as hereinafter provided, and upon Tenant's failure to surrender of
possession, Landlord may re-enter the Premises by summary proceeding or
otherwise free from any estate or interest of Tenant therein.
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(c) Landlord's Right to Restore and Re-Let, and Tenant's Liability for Expenses.
In the event that Landlord shall obtain possession by re-entry, legal or
equitable actions or proceedings or other lawful means as a result of an Event
of Default by Tenant, Landlord shall have the right, without the obligation, to
make renovations, alterations and repairs to the Premises required to restore
them to the condition the same should be during the term of the Lease, and to
re-let the Premises or any part thereof for a term or terms that may be less or
more than the full term of the Lease had Landlord not re-entered and
re-possessed or terminated the Lease, and Landlord may grant reasonable
concessions in the re-renting to a new tenant, without affecting the liability
of Tenant under the Lease. Landlord shall in no way be responsible for any
failure to re-let all or any part of the Premises or for any failure to collect
any rent due after any re-letting, and in no event shall Tenant be entitled to
any surplus rents collected. Any of the foregoing action taken or not taken by
Landlord shall be without waiving any rights that Landlord may otherwise have
under Requirements or pursuant to the terms of this Lease. Tenant shall pay
Landlord all legal and other expenses incurred by Landlord in terminating this
Lease by reason of an Event of Default, in obtaining possession of the Premises,
in making all alterations, renovations and repairs and in paying the usual and
ordinary commissions for re-letting the same, together with interest thereof at
the Default Rate, which interest shall accrue from the date of Landlord's
demand.
(d) Survival Covenant - Liability of Tenant after Re-Entry and Possession or
Termination.
(i) Survival of Obligations. If any Event of Default occurs (whether or not this
Lease shall be terminated as a result of an Event of Default), Tenant shall
remain liable to Landlord for all fixed annual rent and additional rent herein
reserved (including, but not limited to, the expenses to be paid by Tenant
pursuant to the provisions of this Lease); less the net amount of rent, if any,
that shall be collected and received by Landlord from the Premises, for and
during the remainder of the Term. In addition, Landlord may, from time to time,
without terminating this Lease, as agent for Tenant, re-let the Premises or any
part thereof for such term or terms, at such rental or rentals, and upon such
other terms and conditions as Landlord may deem advisable, in accordance with
the provisions of subparagraph (c) above. The failure or refusal of Landlord to
re-let the Premises or any part thereof shall not release Tenant or affect
Tenant's liability for damages. Landlord shall have the right, without the
obligation, following re-entry and possession or termination, to apply any
rentals received by Landlord in the following order: (i) to the payment of
indebtedness or costs other than rent or damages; (ii) to the payment of any
cost of re-letting; (iii) to the payment of any cost of altering or repairing
the Premises; (iv) to the payment of fixed annual rent and additional rent, or
damages, as the case may be, due and unpaid hereunder; and (v) the residue, if
any, shall be held by landlord and applied for the payment of future fixed
annual rent and additional rent, or damages, as the case may be, as the same may
become due and payable hereunder. Landlord may sue periodically for and collect
the amount that may be due pursuant to the provisions of this paragraph, and
Tenant expressly agrees that any such suit shall not bar or in any way prejudice
the rights of Landlord to enforce the collection or the amount due at the end of
any subsequent period by a like or similar proceeding. The words "re-entry" and
"re-enter," as used herein, shall not be construed as limited to their strict
legal meaning.
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(ii) Rights on Termination. Should Landlord terminate this Lease by reason of an
Event of Default, then Landlord shall thereupon have the right, without the
obligation, as an alternative to suing Tenant periodically pursuant to the
provisions of subparagraph (i) above, to recover from Tenant the difference, if
any, at the time of such termination, between the amount of fixed annual rent
and additional rent reserved herein for the remainder of the term over the then
reasonable rental value of the Premises for the same period both discounted to
present value at the then prime rate as published in the Wall Street Journal.
Landlord shall not, by any re-entry or other act, be deemed to have terminated
this Lease, unless Landlord shall notify Tenant in writing, that Landlord has
elected to terminate the same.
(iii) Remedies Cumulative. The remedies of Landlord specified herein shall be
cumulative as to each other and as to all such allowed by Requirements.
(e) Right to Injunction. In the event of a breach or threatened breach by Tenant
of any of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity as if
re-entry, summary proceedings and other remedies were not herein provided for.
Mention in this Lease of any particular remedy shall not preclude Landlord from
any other remedy, in law or in equity. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future laws in the
event of Tenant being evicted or dispossessed for any cause, or in the event of
Landlord obtaining possession of the Premises, by reason of the violation by
Tenant of any of the covenants and conditions of this Lease, or otherwise.
21. Tenant's Trade Fixtures and Removal. Any trade equipment, trade fixtures,
goods or other property of Tenant shall be removed by Tenant on or before the
expiration of the Term or sooner termination of the Term. Any trade equipment,
trade fixtures, goods or other property of Tenant not removed by Tenant on the
expiration of the Term or sooner termination of the Term, or upon any deserting,
vacating or abandonment of the Premises by Tenant, or upon Tenant's eviction,
shall, at Landlord's discretion, be considered as abandoned and Landlord shall
have the right (without any obligation to do so), without notice to Tenant, to
sell or otherwise dispose of Tenant's property, at the expense of Tenant, and
Landlord shall not be accountable to Tenant for any proceeds of the sale, or for
any damage or loss to Tenant's property.
22. Estoppel Certificate. Within ten (10) days of request from Landlord, Tenant
shall execute, acknowledge and deliver to Landlord, a written instrument
certifying (i) that this Lease has not been modified and is in full force and
effect, or if there has been a modification, that the Lease is in full force and
effect as modified, stating the modification; (ii) specifying the dates to which
rent and other sums due from Tenant under this Lease have been paid; (iii)
stating whether or not to the knowledge of Tenant, Landlord is in default, and
if so, the reasons for the default; and (iv) stating the commencement date of
the Term.
23. Limitations on Landlord's Liability. Notwithstanding any provision of this
Lease to the contrary, Tenant agrees that it shall look only to the Premises
(which includes all of Landlord's equity or interest therein, including proceeds
of sale, insurance and condemnation) in seeking to enforce any obligations or
liabilities whatsoever of Landlord under this Lease or to satisfy a judgment (or
any other charge, directive or order) of any kind against Landlord; and
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Tenant shall not look to the property or assets of any of the any officers,
directors, shareholders (or principal or partner of any non-corporate Landlord),
employees, agents, or legal representatives of Landlord in seeking to enforce
any obligations or liabilities whatsoever of Landlord under this Lease or to
satisfy a judgment (or any other charge, directive or order) of any kind against
Landlord, and in no event shall any deficiency judgment be sought or obtained
against Landlord. No person who is an officer, director, shareholder (or
principal or partner of any non-corporate Landlord), employee, agent, or legal
representative of Landlord shall be personally liable for any obligations or
liabilities of Landlord under this Lease.
24. Services and Utilities. Tenant shall, at Tenant's own expense, obtain all
utility services supplying the Premises, including but not limited to
electricity, water, sewer, standby water for sprinkler, gas, telephone and all
other utilities and other communication services, in its own name, effective as
of the commencement of the Lease, and shall pay the cost directly to the
applicable utility, including any fine, penalty, interest or cost that may be
added thereto for non-payment thereof.
25. Qualification in Tennessee. Tenant represents and warrants to Landlord that
it has qualified with the Secretary of State of Tennessee to do business in the
State of Tennessee.
26. Notices. All notices herein required shall be in writing. Whenever any
notice, demand or request is required or permitted hereunder, such notice,
demand or request shall be (i) hand-delivered personally, (ii) sent by express
mail or courier service, (iii) sent by United States mail registered or
certified, postage prepaid, or (iv) sent by confirmed facsimile transmission,
addressed as follows:
If to Landlord: Datrek Professional Bags, Inc.
Attention: _________________
Facsimile: __________________
If to Tenant: Datrek Acquisition Inc.
Attention: _________________
Facsimile: _________________
Any notice or demand to be given hereunder shall be deemed sufficiently given
for all purposes hereunder (a) at the time such notices or demands are
hand-delivered, (b) one (1) day after depositing any such notice or demand with
any express mail or other overnight courier service, (c) three (3) days after
depositing any such notice or demand in the United States mail with the proper
postage affixed thereto, certified, return receipt requested, or (d) if sent by
facsimile, upon receipt by the sender of an acknowledgment or transmission
report generated by the machine from which the facsimile was sent indicating
that the facsimile was sent in its entirety to the recipient's facsimile number;
provided that if a notice, request or other communication is served by hand or
is received by facsimile on a day which is not a business day, or after 5:00
P.M. on
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any business day at the addressee's location, such notice or communication shall
be deemed to be duly received by the recipient at 9:00 a.m. on the first
business day thereafter. Any party hereto may change its address by notice in
writing to the other parties in the manner herein provided.
27. Broker. Landlord and Tenant each hereby acknowledges, represents and
warrants to the other that it employed no broker or agent in connection with the
negotiation and execution of this Lease. Each party shall indemnify the other
party against, and hold it harmless from, any liability for the breach of such
representation and warranty on its part and shall pay any compensation to any
other broker, finder or other person who may be deemed or held entitled thereto
because of a relationship with such party.
28. Tenant's Right to Quiet Enjoyment. Upon paying the rents and other sums
required of Tenant under the Lease and faithfully and fully performing the
terms, conditions and covenants of the Lease on Tenant's part to be performed,
Tenant shall peaceably and quietly have, hold and enjoy the Premises for the
Term.
29. Miscellaneous.
(a) Validity of Lease. The provisions of this Lease are severable. If any
provision of the Lease is adjudged to be invalid or unenforceable by a court of
competent jurisdiction, it shall not affect the validity of any other provision
of this Lease.
(b) Non-Waiver by Landlord. The rights, remedies, options or elections of
Landlord in this Lease are cumulative, and the failure of Landlord to enforce
performance by Tenant of any provision of this Lease applicable to Tenant, or to
exercise any right, remedy, option or election, or the acceptance by Landlord of
the annual fixed rent or additional rent from Tenant after any default by
Tenant, in any one or more instances, shall not act as a waiver or a
relinquishment at the time or in the future, of Landlord of such provisions of
this Lease, or of such rights, remedies, options or elections, and they shall
continue in full force and effect.
(c) Entire Agreement. This Lease contains the entire agreement between the
parties. No representative, agent or employee of Landlord has been authorized to
make any representations, warranties or promises with respect to the letting, or
to vary, alter or modify the provisions of this Lease. No additions, changes,
modifications, renewals or extensions of this Lease, shall be binding unless
reduced to writing and signed by both parties.
(d) Effective Law. This Lease shall be governed by, construed and enforced in
accordance with the laws of the State of Tennessee without giving effect to its
principles of conflicts of law. Landlord and Tenant waive their right to trial
by jury in any action, proceeding or counterclaim brought by either of the
parties against the other, or with respect to any issue or defense raised
therein, on any matters whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant, Tenant's use and occupancy
of the Premises, including summary proceedings and possession actions, and any
emergency statutory or other statutory remedy.
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(e) Captions. The captions of the paragraphs in this Lease and the Table of
Contents are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Lease.
(f) Obligations Joint and Several. If there is more than one party tenant, their
obligations under this Lease are joint and several. If Tenant is a partnership,
the obligations of Tenant under this Lease are joint and several obligations of
each of the partners and of the partnership.
(g) Counterparts. This Lease may be executed in one or more counterparts, each
of which shall be an original, and all of which constitutes one and the same
Lease.
(h) Landlord's Performance of Tenant's Obligations. The performance by Landlord
of any obligation required of Tenant under this Lease shall not be construed to
modify this Lease, nor shall it create any obligation on the part of Landlord
with respect to any performance required of Tenant under this Lease, whether
Landlord's performance was undertaken with the knowledge that Tenant was
obligated to perform, or whether Landlord's performance was undertaken as a
result of mistake or inadvertence.
(i) Remedies and Rights Not Exclusive. No right or remedy conferred upon
Landlord shall be considered exclusive of any other right or remedy, but shall
be in addition to every other right or remedy available to Landlord under this
Lease or by law. Any right or remedy of Landlord, may be exercised from time to
time, and as often as the occasion may arise. The granting of any right, remedy,
option or election to Landlord under this Lease shall not impose any obligation
on Landlord to exercise the right, remedy, option or election.
(j) Signature and Delivery by Landlord. This Lease is of no force and effect
unless it is signed by Landlord and Tenant, and a signed copy of this Lease
delivered by Landlord to Tenant. The mailing, delivery or negotiation of this
Lease by Landlord or Tenant or any agent or attorney of Landlord or Tenant prior
to the execution and delivery of this Lease as set forth in this subparagraph
shall not be deemed an offer by Landlord or Tenant to enter into this Lease,
whether on the terms contained in this Lease or on any other terms. Until the
execution and delivery of this Lease as set forth in this subparagraph, Landlord
or Tenant may terminate all negotiations and discussions of the subject matter
of this Lease, without cause and for any reason, without recourse or liability.
(k) Inspection, Length of Time of Tenant's Default. Nothing in this Lease
requires Landlord at any time, to inspect the Premises to determine whether
Tenant is in default of Tenant's obligations under this Lease. Any default by
Tenant of the provisions of this Lease for any length of time, and whether
Landlord has direct or indirect knowledge or notice of the default, is not a
waiver of Tenant's default by Landlord, and Landlord has the right to declare
Tenant in default, notwithstanding the length of time the default exists.
(l) No Offer. The submission of the Lease to Tenant shall not be deemed an offer
by Landlord to rent the Premises to Tenant, such an offer only being made by the
delivery to Tenant of a Lease signed by Landlord.
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(m) Surrender. Neither the acceptance of keys to the Premises nor any other act
or thing done by Landlord or any agent, employee or representative of Landlord
shall be deemed to be an acceptance of a surrender of the Premises, excepting
only an agreement in writing, signed by Landlord, accepting or agreeing to
accept a surrender of the Premises.
(n) Drafting Ambiguities; Interpretation. In interpreting any provision of this
Lease, no weight shall be given to nor shall any construction or interpretation
by influenced by the fact that counsel for one of the parties drafted this
Lease, each party recognizing that it and it's counsel have had an opportunity
to review this Lease and have contributed to the final form of this Lease.
Unless otherwise specified, the words "include" and "including" and words of
similar import shall be deemed to be followed by the words "but not limited to"
and the word "or" shall be "and/or."
(o) References. In all references to any persons, entities or corporations, the
use of any particular gender or the plural or singular number is intended to
include the appropriate gender or number as the text of this Lease may require.
(p) Binding Effect. This Lease is binding upon and shall inure to the benefit of
the parties, their legal representatives, successors and permitted assigns.
(q) Landlord Defined. The term "Landlord" in this Lease means and includes only
the owner at the time in question of the Premises and, in the event of the sale
or transfer of the Premises, Landlord shall be released and discharged from the
provisions of this Lease thereafter accruing, but such provisions shall be
binding upon each new owner of the Premises while such party is an owner.
(r) Time of the Essence. Time is of the essence of this Lease.
(s) No Recordation. Neither this Lease, nor any memorandum, affidavit or other
writing with respect to this Lease, shall be recorded by Tenant or by anyone
acting through, under or on behalf of Tenant, and the recording thereof in
violation of this provision shall make this Lease voidable at Landlord's
election.
(Signatures on Following Page)
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IN WITNESS WHEREOF, the parties hereunto have set their hands on the day and
year first above written.
LANDLORD:
DATREK PROFESSIONAL BAGS, INC.
By: /S/ DEBORAHRYAN
Title: President
TENANT:
DATREK ACQUISITION INC.
By: /S/ MICHAEL S. HEDGE
Title: President
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EXHIBIT A
Legal Description of the Land
1
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