Exhibit 10.1
NWI
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and
entered into by and between NWI Warehouse Group, L.P. (hereinafter
referred to as “Landlord”) and Micro Diagnostics, Inc.
(hereinafter referred to as “Tenant”) Incorporated in
the State of Tennessee dated as of the 15th day of February,
1996.
WITNESSETH:
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(a)
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DESCRIPTION
OF PREMISES: Landlord
hereby Leases to Tenant, and Tenant hereby accepts and rents from
Landlord, certain office/warehouse space of which approximately
15,420 square feet is office/laboratory space. The office and
warehouse space are hereinafter collectively referred to as the
“Premises.” The Premises contains approximately 15,420
square feet located in a building known as Airpark Business Center
III (the “Building”) located at 1400 Donelson Pike,
Suite A-15, Nashville, Tennessee 37217; together with the
nonexclusive right to use all parking areas, driveways, sidewalks
and other common facilities furnished by Landlord from time to time
in the Building. The Premises is shown on the plan attached hereto
as “Exhibit “A”.
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(b)
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The term of
this Lease shall be for five (5) years beginning on
November 1, 2000.
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Upon execution of this Lease, Tenant
shall deposit with Landlord -0- as a Security Deposit for the
performance by Tenant of the provisions of this Lease. If Tenant is
in default, Landlord may use the Security Deposit, or any portion
of it, to cure the default or to compensate Landlord for any damage
sustained by Landlord resulting from Tenant’s default. Tenant
shall immediately on demand pay to Landlord a sum equal to the
portion of the security deposit expended or applied by Landlord as
provided in this paragraph so as to maintain the Security Deposit
in the sum initially deposited with Landlord. Landlord may use the
Security Deposit to make repairs necessary to the space and
generally clean the Premises. If Tenant is not in default at the
expiration or termination of this Lease, Landlord shall return the
Security Deposit to Tenant. Upon vacation of Premises by Tenant,
Landlord may use security deposit to make any repairs as noted in
Paragraph 10 “Tenant’s Covenant to Repair,” if
Tenant has not satisfactorily followed the provisions as stipulated
in Paragraph 10. In the event Tenant has failed to comply with
requirements of Paragraph 10, Landlord may use all or a portion of
the security deposit to cure such default.
Tenant will pay Annual Net Rent of
One Hundred Thirty Eight Thousand Seven Hundred Eighty and 00/100
Dollars ($138,780.00) which is due and payable on the first day of
each year of the Lease. However, for and in consideration of the
Tenant’s faithful performance of all of its obligations
pursuant to this Lease, the Landlord hereby agrees that Tenant may
pay the Annual Net Rent in 12 equal monthly installments of Eleven
Thousand Five Hundred Sixty Five and 00/100 Dollars ($11,565.00)
due on the first day of each month. However, if Tenant fails to
perform any of its obligations under this Lease all annual rents
shall become immediately due and payable for the remaining term of
this Lease. The first month’s rent is due upon execution of
this Lease Agreement. See penalty for late payments in Paragraph 21
(d).
Payments are to be made to
Landlord’s authorized agent, BUCKLEY & COMPANY REAL
ESTATE, INC., 1410 Donelson Pike, Suite A-5, Nashville, Tennessee
37217 without demand or further notice, which is hereby expressly
waived.
All monthly installment of annual
rent shall be paid on the first of each month without the necessity
of prior demand by Landlord, written notice from Landlord and/or
set off by Tenant.
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Effective as of the beginning of
each Lease Year during the term hereof subsequent to the first
Lease Year and during any extension or renewal subsequent to the
first Lease Year, there shall be made a CPI Adjustment of the
annual rental payable hereunder based on the percentage difference
between the Index for the Anniversary Month and the Index for the
Base Month. The new annual rental shall be the product obtained by
multiplying the current Annual Net Rental by the quotient of
dividing the Index for the Anniversary Month by the Index for the
Base Month. In no event shall be the annual rental as adjusted be
less than the Annual Net Rental stated in Paragraph 3. Tenant
covenants and agrees that said adjusted rental rate shall
thereafter be payable hereunder in equal monthly installments,
until it is readjusted pursuant to the terms of this Lease. This
paragraph shall not be construed to be an option to extend the
Lease or a method to determine the rental due for holding
over.
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(i)
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For the purpose
of calculating the CPI Adjustments, the following definitions shall
apply:
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1.
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The term
“Anniversary Month” shall mean the calendar month three
(3) months prior to the calendar month that the CPI adjustment
becomes effective during the term hereof or any extension or
renewal.
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2.
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The term
“Base Month” shall mean the calendar month three
(3) months prior to the calendar month in which the term of
this Lease commences.
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3.
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The Term
“Index” shall mean the “Consumer Price Index for
All Urban Consumers” published by the Bureau of Labor
Statistics of the United States Department of Labor, U.S. City
Average, All Items (1982-84=100) or any other successor or
substitute index appropriately adjusted.
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4.
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The term
“Lease Year” shall mean a period of twelve
(12) successive calendar months commencing with the Base
Month.
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(ii)
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No adjustments
or recomputations, retroactive or otherwise, shall be made due to
any revision which may later be made in the first published figure
of the Index for any month.
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(iii)
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Any delay or
failure of Landlord, beyond July or January of any year, in
computing or billing for the rent adjustments hereinabove provided,
shall not constitute a waiver of or in any way impair the
continuing obligation of Tenant to pay such rent adjustments
hereunder.
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(b)
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TENANTS
SHARE OF TAXES:
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As additional rent Tenant shall pay
an amount equal to Tenant’s “proportionate share”
of ad valorem taxes (or any tax hereafter imposed in lieu thereof)
applicable to the Building Tenant’s share of the taxes shall
be paid as provided in subparagraph 4(e) below; provided, however,
that any increase in ad valorem taxes on the Building as a result
of alterations, additions or improvements, made by, for, or on
account of Tenant shall be reimbursed by Tenant to Landlord within
thirty (30) days after receipt of written demand therefore.
Tenant shall also pay tenant’s proportionate share of all
attorney fees incurred by Landlord as a result of any challenge by
Landlord to an increase in Real Estate Taxes which Landlord feels
is discriminatory or unreasonable or as a result of any challenge
by Landlord to the enforcement of any law, ordinance or regulation
which affects the operation of the Building.
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(c)
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TENANTS
SHARE OF INSURANCE PREMIUMS:
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Tenant shall pay as additional rent
an amount equal to Tenant’s “proportionate share”
of premiums charged for fire and extended coverage and liability
insurance with all endorsements carried by Landlord on the Building
payable for any Lease Year. Tenant’s proportionate share of
premiums shall be paid as provided in subparagraph 4(e)
below.
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(d)
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TENANT’S SHARE OF COMMON AREA MAINTENANCE
AND MANAGEMENT COSTS:
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Tenant shall pay as additional rent
an amount equal to Tenant’s “proportionate share”
of the reasonable maintenance costs and management fees for
maintaining the building’s common areas, shrub care, lawn
care and general landscaping, maintenance and repair to parking and
trucking areas, driveways, sidewalks, snow and ice removal in
parking lot as deemed necessary by Landlord, exterior lighting,
other facilities shared by the various tenants in the Building, and
the Landlord shall use good faith efforts to keep the operating and
maintenance costs and management fees in line with costs for other
similar buildings. Tenant’s proportionate share of common
area maintenance costs and management fees shall be paid as
provided in subparagraph 4(e) below, except that management fees
are calculated as a percentage of Annual Net Rents collected (not
to exceed 4%) and not prorated on a square foot basis.
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(e)
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PAYMENT OF
PROPORTIONATE SHARE:
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Landlord may, at its option, require
payment of Tenant’s proportionate share of taxes, insurance
premiums and common area maintenance and management costs in either
one of two ways:
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(i)
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By billing the
Tenant for its proportionate share of each such cost on a monthly
basis as such costs are incurred, assessed or due and payable by
the Landlord; or,
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(ii)
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By billing the
Tenant for its proportionate share of such costs in equal monthly
installments, computed on an annualized basis as
follows:
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Landlord, shall add together all of
the Tenant’s proportionate shares of taxes, insurance
premiums and all common area maintenance costs for the preceding
calendar year (the “annualized amount”) and divide the
total by twelve (12), and said amount shall be paid by the Tenant
in addition to its monthly rental installments each month. Upon
written request of Tenant, Landlord shall provide Tenant with a
written statement setting forth said amounts for the preceding
calendar year. In the event the actual costs for the year are
greater or lesser than the annualized amount based on the preceding
year, then the Tenant shall reimburse the Landlord for any
shortages under the actual amounts or the Landlord shall reimburse
the Tenant for any overages paid over the actual expenses, and the
annualized amount for the next calendar year shall be adjusted
upward or downward accordingly. For the calendar year for which
this Lease commences and the calendar year in which this Lease
expires, the proportionate share of taxes, insurance and common
area maintenance costs shall be prorated based upon the number of
days of Lease term is in effect in relation to three hundred,
sixty-five (365) days. Upon the lease expiration date,
Landlord may elect to either (1) require Tenant to pay any
unpaid estimated proportionate shares within thirty (30) days
after the expiration date, which estimate shall be made by Landlord
based upon actual and estimated costs for such year, or
(ii) elect to withhold any security deposit of Tenant until
the exact amount payable for such proportionate shares shall have
been determined, after which Landlord shall return any excess
security deposit to Tenant.
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(f)
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DEFINITION
OF PROPORTIONATE SHARE:
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The definition of the Tenant’s
“proportionate share” shall be determined by
multiplying each such amount by a fraction the numerator of which
is the total square footage in the Premises, as set forth in 1(a),
and the denominator of which is the total square footage in the
Building, (approximately 102,727 square feet).
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(a)
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Tenant shall
have the right, inside the Premises, with Landlord’s written
consent, but at its own cost and expense and in a good workmanlike
manner, to make alternations, additions, improvements or erect,
remove, or alter partitions, or erect shelves, bins, machinery and
trade fixtures as it may deem advisable and to mark, paint, drill
into any surface, bore, cut, string
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wires, lay floor coverings and
install locks and bolts, provided: (i) such acts do not
adversely affect the structure of the Building, or adversely affect
the rights of the other Tenants; (ii) Tenant restores the
Premises to its prior condition (reasonable wear and tear excepted)
at the end of the Lease; (iii) Tenant complies with all
applicable laws and government rules and regulations; and,
(iv) Tenant gives Landlord prior written notice of any
proposed change; and (v) Tenant does not create any lien which
encumbers such fixtures or improvements.
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(b)
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Notwithstanding
anything to the contrary contained in this Lease: (i) Tenant
is not required to remove any fixtures or other items installed by
Landlord on Tenant’s behalf (at the termination or expiration
of the Lease or any other time); and, (ii) Tenant shall have
the right, (at the termination or expiration of the Lease or at any
other time) to remove any trade fixtures installed by Tenant,
provided Tenant restores the Premises to its condition prior to
such installation, reasonable wear and tear excepted.
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(c)
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In the event
that Tenant does not exercise its right, as described herein, to
remove any fixtures, alterations or other items installed by
Tenant, such fixtures, alterations and all other items shall accrue
to the benefit and ownership of Landlord.
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(a)
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Tenant shall
use the Premises for general office and warehouse purposes for
general laboratory testing services and for no other use without
the prior written consent of Landlord. Tenant further agrees to
comply with all laws, ordinances, orders, code regulations,
Americans With Disabilities Act regulations, regulations and zoning
requirements of any lawful governmental authority, agency or other
public or private regulatory authority (including insurance
underwriters, municipal fire marshall or rating bureaus) having
jurisdiction over the Premises. Tenant shall save and hold Landlord
harmless from any and all penalties, fines, costs, expenses or
damages resulting from failure to so comply. Tenant shall not do
any act or follow any practice relating to the Premises which shall
constitute a nuisance or detract in any way from the reputation of
the Building as a first class real estate development.
Tenant’s duties in this regard shall include making
arrangements at Tenant’s expense for the proper storage and
timely disposal of garbage and refuse, keeping all immediately
adjacent sidewalks, parking and loading areas in a neat and orderly
condition free from rubbish, dirt, removal of snow and ice on
Tenant’s sidewalk and steps, and allowing no noxious or
offensive odors, fumes, gases, smoke, dust, steam or vapors, or any
loud or disturbing noise or vibrations to originate in or emit from
the Premises.
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(b)
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HAZARDOUS
SUBSTANCES :
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The term “Hazardous
Substances,” as used in this Lease, shall include, without
limitation, flammables, explosives, radioactive materials,
asbestos, polychlorinated biphenyls (PCBs), chemicals known to
cause cancer or reproductive toxicity, pollutants, contaminants,
hazardous wastes, toxic substances or related materials, petroleum
and petroleum products, and substances declared to be hazardous or
toxic under any law or regulation now or hereafter enacted or
promulgated by any governmental authority.
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(c)
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TENANTS
RESTRICTIONS :
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(i)
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Tenant shall
not cause or permit to occur, any violation of any federal, state,
or local law, ordinance, or regulation now or hereafter enacted,
related to environmental conditions on, under, or about the
Premises, or arising from Tenant’s use or occupancy of the
Premises, including but not limited to, soil and ground water
conditions; or
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(ii)
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Tenant shall
not use, generate, release, manufacture, refine, produce, process,
store, or dispose of any Hazardous Substance on, under, or about
the Premises, or the transportation to or from the Premises of any
Hazardous Substance except as specifically disclosed in this
Lease.
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(d)
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ENVIRONMENTAL CLEAN-UP :
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(i)
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Tenant shall,
at Tenant’s own expense, comply with all laws regulating the
use, generation, storage, transportation, or disposal of Hazardous
Substances (“Laws”).
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(ii)
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Tenant shall,
at Tenant’s own expense, make all submissions to, provide all
information required by, and comply with all requirements of all
governmental authorities (the “Authorities”) under the
laws.
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(iii)
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Should any
Authority or any third party demand that a cleanup plan be prepared
and that a clean-up be undertaken because of any deposit, spill,
discharge, or other releases of Hazardous Substances that occurs
during the term of this Lease, at or from the Premises, or which
arises at any time from Tenant’s use or occupancy of the
Premises, then Tenant shall, at Tenant’s own expense, prepare
and submit the required plans and all related bonds and other
financial assurances; and Tenant shall carry out all such cleanup
plans.
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(iv)
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Tenant shall
promptly provide all information regarding the use, generation,
storage, transportation, or disposal of Hazardous Substances that
is requested by Landlord. If Tenant fails to fulfill any duty
imposed under this Paragraph (d) within a reasonable time,
Landlord may do so; and in such case, Tenant shall cooperate with
Landlord in order to prepare all documents Landlord deems necessary
or appropriate to determine the applicability of the Laws to the
Premises and Tenant’s use thereof, and for compliance
therewith, and Tenant shall execute all documents promptly upon
Landlord’s request. No such action by Landlord and no attempt
made by Landlord to mitigate damages under any Law shall constitute
a waiver of any of Tenant’s obligations under this Paragraph
(d).
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(v)
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Tenant’s
obligations and liabilities under this Paragraph (d) shall
survive the expiration of this Lease.
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(i)
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Tenant shall
indemnify, defend, and hold harmless Landlord, the manager of the
property, and their respective officers, directors, beneficiaries,
shareholders, partners, agents and employees from all fines, suits,
procedures, claims, and actions of every kind, and all costs
associated therewith (including attorney’s and
consultants’ fees) arising out of or in any way connected
with any deposit, spill, discharge, or other release of Hazardous
Substances that occurs during the term of this Lease, at or from
the Premises, or which arises at any time from Tenant’s use
or occupancy of the Premises, or from Tenant’s failure to
provide all information, make all submission, and take all steps
required by all Authorities under the Laws and all other
environmental laws.
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(ii)
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Tenant’s
obligations and liabilities under this Paragraph (e) shall
survive the expiration of this Lease.
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Tenant shall pay any and all taxes
and assessments of any nature imposed or assessed upon its trade
fixtures, equipment, machinery, inventory, merchandise or other
personal property located on the Premises and owned by or in the
custody of Tenant as promptly as all such taxes or assessments may
become due and payable without any delinquency.
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8.
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FIRE AND
EXTENDED COVERAGE INSURANCE :
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Landlord shall procure, carry and
maintain fire insurance, with extended coverage, covering the
Building in an amount equal to ninety percent (90%) of the
insurable value (i.e., replacement cost less depreciation) thereof.
The Tenant shall pay its pro-rata share of the insurance premium on
this said insurance as per paragraph 4(c). In addition, if Tenant
uses the Premises for any purpose or in any manner which causes an
increase in Landlord’s insurance rates, Tenant shall pay such
additional premium within thirty (30) days after demand from
Landlord. Tenant further agrees to cease any activity which can
jeopardize insurance coverage for the premises, and to make any
changes needed to comply with any law, regulation or insurance
company requirement.
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9.
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LANDLORD’S LIMITED COVENANT TO REPAIR AND
REPLACE :
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During the term of the Lease,
Landlord shall be responsible for repairs and replacements to the
roof, exterior walls, and structural members, including foundation
and sub-flooring of the Premises. Landlord’s repairs and
replacements shall be made within a reasonable time, not to exceed
one hundred and twenty (120) days after written notice from
Tenant of the need for repairs. If Landlord cannot, using due
diligence, complete its repairs within 120 days after written
notice from Tenant, then either party may terminate this Lease
effective upon thirty (30) days prior written notice, without
prejudice to Landlord’s rights to receive payment from Tenant
for uninsured damages caused directly or indirectly by Tenant as
stated below, except, however, if the cause of such repairs or
replacements are the result of the negligence, misconduct or
intentional acts or omissions of Tenant, its employees, agents,
invitees or licensees, the Tenant shall not have the right to
terminate this Lease. If the cause of such repairs or replacements
is the result of the negligence, misconduct or intentional acts or
omissions of Tenant, its employees, agents, invitees or licensees,
and the expense of such repairs or replacements are not fully
covered and paid by Landlord’s insurance, the Tenant shall
pay Landlord the full amount of expenses not covered. Landlord
shall not be responsible for any vandalism to tenant’s
premises including but not limited to glass or plate glass, doors
or door frames. Landlord’s duty to repair or replace as
prescribed in this paragraph shall be Tenant’s sole remedy
and shall be in lieu of all other warranties or guaranties of
Landlord, express or implied.
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10.
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TENANTS
COVENANT TO REPAIR :
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Tenant shall be responsible for the
repair, replacement and maintenance in good order and condition of
all parts and components of the Premises, other than those
specified for maintenance by Landlord above, including, without
limitation, the plumbing, wiring, electrical systems, heating
systems, air conditioning systems, glass and plate glass,
vandalism, doors, loading docks and overhead doors, asphalt
directly in front of loading areas, sprinkler systems if any,
equipment and machinery constituting fixtures, unless such repairs
or replacements are required as a result of the negligence,
misconduct or intentional acts or omissions of Landlord, its
employees, invitees or licensees in which event Landlord shall be
responsible for such repairs. At the end of the term of Lease,
Tenant shall return the Premises to Landlord in as good a condition
as they were when received, excepting only normal wear and tear,
acts of God and repairs required to be made by Landlord hereunder.
Normal wear and tear shall not include tow motor tire skid marks in
warehouse area or damage to drywalls from forklifts. If necessary,
Landlord will have Tenant’s space cleaned at Tenant’s
expense. Tenant’s duty to maintain the heating and air
conditioning systems shall specifically include the duty to inspect
the systems seasonally by a licensed HVAC company, replace filters
monthly and to perform other recommended periodic servicing. A
final inspection, upon termination of this Lease, shall be made by
Landlord, to ascertain compliance and, if necessary, to determine
damages by Tenant’s failure to comply with required
maintenance and inspection at Tenant’s expense.
Landlord shall have the right to
enter and inspect the Premises at any time, on reasonable notice to
Tenant, during normal business hours, for the purpose of
ascertaining the condition of the Premises or in order to make such
repairs as may be required to be made by Landlord under the terms
of this Lease. During the period that is six (6) months prior
to the end of the term hereof, Landlord and Landlord’s agents
and representatives shall have the right to enter the Premises at
any time, during reasonable business hours, on reasonable notice to
Tenant for the purpose of showing the Premises and shall have the
right to erect on the Premises a suitable sign indicating the
Premises are available.
Tenant shall have the right to
install signs only when first approved in writing by Landlord, and
subject to any applicable governmental laws, ordinances,
regulations and other requirements. Tenant shall remove all such
signs at the termination of this Lease. Such installments and
removals shall be made in such manner as to avoid injury or
defacement of the Building and other improvements.
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Landlord agrees to provide water,
gas and electrical connections into the Premises in such capacity
as shall be sufficient to meet the Tenant’s requirements as
specified on Exhibit(s) A. Tenant shall pay as additional rent for
all utilities or services related to its use of the Premises
including electricity, gas, heat, water, sewer, telephone, trash
removal and janitorial services. Electricity and gas shall be
separately metered by the local utilities. The water, sewer, and
trash removal charges shall be prorated to the tenants based upon
their share of the respective bill as it relates to the occupied
area. If, (1) Landlord deems Tenant to be an excessive water
user, Landlord may install a separate sub-meter, at Tenant’s
expense, to more equitably allocate the water charges to the
Tenants; and/or (2) if Tenant uses a disproportionate share of
the trash removal service, Landlord may make special assessments to
Tenant to more equitably allocate these charges. Landlord shall not
be responsible for the stoppage or interruption of utilities
services other than as required by its limited covenant to repair
and replace as set forth above. Landlord shall not be liable for
any interruption or failure of utility services on the
Premises.
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14.
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ASSIGNMENT
AND SUBLETTING:
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Tenant shall not have the right,
directly or indirectly, to assign or encumber this Lease, or to
sublet, in whole or part without the prior written consent of
Landlord, notwithstanding the aforesaid, Tenant may assign this
Lease or sublet the whole or any part of the Premises to any of its
affiliates or subsidiaries (as defined in the Internal Revenue Code
of 1986, as amended) during the term hereof, or any extension
thereof without the consent of the Landlord, provided Tenant
notifies Landlord of such assignment or subletting. Notwithstanding
any permitted assignment or subletting, Tenant shall at all times
remain fully responsible and liable for the payment of the rent
herein specified and for compliance with all of its other
obligations under the terms, provisions and covenants of this
Lease. Upon the occurrence of an “event of default” as
hereinafter defined, if the Premises or any part thereof are then
assigned or sublet, Landlord, in addition to any other remedies
herein provided, or provided by law, may, at its option, collect
directly from such assignee or subtenant all rents becoming due to
Tenant under such assignment or sublease and apply such rent
against any sums due to it by Tenant hereunder, and no such
collection shall be construed to constitute a novation or a release
of Tenant from the further performance of its obligations
hereunder. If Tenant subleases to other than a subsidiary or
affiliate as described above, any rental, charges or fees received
by Tenant in excess of the Annual Net Rental payable to Landlord
hereunder shall be also paid to Landlord as additional rental under
this Lease. Consent to one assignment or subletting will not be
deemed a consent to any other.
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15.
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FIRE AND
CASUALTY DAMAGE:
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(a)
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If the Premises
should be damaged or destroyed by fire, tornado, or other casualty,
Tenant shall give immediate written notice thereof to Landlord.
Casualty, as stated in this Paragraph, shall include but be not
limited to sprinkler leakage caused by fire, and special extended
perils (all risks).
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(b)
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If the Premises
should be destroyed by fire, tornado or other casualty, or if it
should be so damaged that rebuilding or repairs cannot be completed
within ninety (90) days after the date upon which Landlord is
notified by Tenant of such damage, this Lease shall terminate and
the rent shall be abated during the unexpired portion of this
Lease, effective upon the date of the occurrence of such
damage.
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(c)
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If the Premises should be damaged
by fire, tornado or other casualty, but only to such extent that
rebuilding or repairs can be completed within ninety (90) days
after the date upon which Landlord is notified by Tenant of such
damage, this Lease shall not terminate, but Landlord shall, at its
sole cost and expense, proceed with reasonable diligence to rebuild
and repair the Premises to substantially the condition which
existed prior to such damage, except that Landlord shall not be
required to rebuild, repair or replace any part of the partitions,
fixtures and other improvements which may have been placed in the
Premises by the Tenant. If the Premises are untenantable in whole
or in part following such damage, the rent payable hereunder during
the period in which it is untenantable shall be reduced to such
extent as may be fair and reasonable under all the circumstances.
If the Premises are substantially damaged or rendered untreatable
by fire, tornado or other casualty, and an architect mutually
selected by Tenant and Landlord certifies, within fifteen
(15) days of such casualty, that the damage caused by such
casualty cannot be repaired within ninety (90) days of the
date of notice of
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such casualty to the Landlord,
then either party, may, within fifteen (15) days of receipt of
the architect’s certificate, terminate this Lease by
notifying the other party in writing, whereupon Tenant’s
liability for rent shall cease as of the day following such
casualty. The fees, charges and expenses of the architect relating
to the certificate shall be shared equally by Landlord and Tenant.
In the event that Landlord should fail to complete such repairs and
rebuilding within ninety (90) days after the date upon which
Landlord is notified by
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