Exhibit 10.35
SUBLEASE
0000 Xxxxxxxx Xxxxx, Xxxxxxxx XX 00000
1. PARTIES. This Sublease, dated July 30, 2001 is made by and between
Iron Mountain Records Management, Inc., successor in interest to Safesite
Records Management Corporation, a Delaware corporation (herein called
"Sublessor") and Total Office Interiors, a division of Reconditioned Systems,
Inc., an Arizona corporation (herein called "Sublessee").
2. PREMISES. Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor for the term, at the rental, and upon all of the
conditions set forth herein, that certain real property situated in Norcross,
Georgia, commonly known as 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx and described
as containing approximately 18,720 square feet. Said real property, including
all improvements thereon, is hereinafter called the "Premises". The Premises
constitute a portion of the property leased by Sublessor pursuant to the Master
Lease, as defined in Section 7.1 hereof.
3. TERM. The term of this Sublease shall commence on August 15, 2001
and end on June 30, 2004 unless sooner terminated pursuant to any provision
hereof.
4. RENT. Sublessee shall pay to the Sublessor as rent for the premises
equal monthly payments of $6,630, in advance, on the first day of each month
on the term hereof, except that the rent for the period from the commencement
date through August 31, 2001 shall by payable on the date of execution of this
Sublease by Sublessee. Rent for any period during the term hereof which is for
less than one month shall be a prorata portion of the monthly installment. Rent
shall be payable in lawful money of the United States to the Sublessor at the
address stated herein or to such other persons or at such other places as
Sublessor may designate in writing. Notwithstanding the foregoing, Sublessee
shall be entitled free rent for the final two (2) months of the initial term of
this Sublease. This is a gross lease, and Sublessee shall only be required to
pay the rental amount as set forth in this Section 4. Sublessee will not be
charged for any share of real estate taxes, property insurance, or common area
maintenance charges incurred by Sublessor for the Premises.
5. SECUTRITY DEPOSIT. Sublessee shall deposit with the Sublessor upon
execution hereof $13,260 as security for Sublessee's performance of Sublessee's
obligations hereunder. If Sublessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Sublease,
Sublessor may use, apply or retain all or any portion of said deposit for the
payment of any rent or other charge in default for the payment of any other sum
for which Sublessor may become obligated by reason of Sublessee's default, or to
compensate Sublessor for any loss or damage which Sublessor may suffer thereby.
If Sublessor so uses or applies all or any portion of said deposit, Sublessee
shall within ten (10) days after written demand therefore deposit cash with
Sublessor in an amount sufficient to restore said deposit to the full amount
hereinabove stated and Sublessee's failure to do so shall be a material breach
of this Sublease. Sublessor shall not be required to keep said deposit separate
from its general accounts. If Sublessee performs all of Sublessee's obligations
hereunder, said deposit, or such amounts thereof as has not theretofore been
applied by Sublessor (unless such applied amount has been reimbursed to
Sublessor by Sublessee), shall be returned, without payment of interest or other
increment for its use, to Sublessee (or at Sublessor's option, to the last
assignee, if any, of Sublessee's interest hereunder) at the expiration of the
term hereof, and after Sublessee has vacated the Premises. No trust relationship
is created herein between Sublessor and Sublessee with respect to said Security
Deposit.
6. USE.
6.1 Use. Sublessee shall use the Premises only for general and
executive offices and for warehousing and distribution of
non-hazardous materials ancillary to the use of Premises as
offices, all in a manner consistent with the terms of the Master
Lease.
6.2 Compliance With Law.
(a) Sublessor warrants to Sublessee that to the best of
Sublessor's knowledge, the Premises, in its existing state, but without regard
to the use for which Sublessee will use the Premises, do not violate any
applicable building code, regulation or ordinance at the time that this Sublease
is executed. In the event that it is determined that this warranty has been
violated, than it shall be the obligation of the Sublessor, after written notice
from the Sublessee, to promptly, at Sublessor's sole cost and expense take any
and all action necessary to cause the Premises to be in compliance with all such
codes, regulations and ordinances. If written notice of the violation of this
warranty is not delivered to Sublessor within six (6) months from the
commencement of the term of this Sublease, it shall be conclusively deemed that
such violation did not exist at commencement, and the correction of the same
shall be the obligation of the Sublessee or Master Lessor, if so obligated under
the terms of the Master Lease.
(b) Sublessee shall, at Sublessee's expense, comply promptly with
the Master Lease and all applicable statutes, ordinances, rules, regulations,
orders, restrictions of record, and requirements in effect during the term or
any part of the term thereof regulating the use by Sublessee of the Premises.
Sublessee shall not use or permit the use of the Premises in any manner that
will tend to create waste or a nuisance or which shall tend to disturb other
tenants of the building or violate any provision of the Master Lease.
6.3 Condition of Premises. Sublessee hereby accepts the Premises in
their condition existing as of the date of the execution hereof, subject to the
Master Lease and all applicable zoning, municipal, county and state laws,
ordinances, and regulations governing and regulating the use of the Premises,
and accepts this Sublease thereto and to all matters disclosed thereby and by
any exhibits attached hereto. Sublessee acknowledges that neither Sublessor nor
Sublessor's agents have made any representation or warranty as to the
suitability of the Premises for the conduct of Sublessee's business.
7. MASTER LEASE.
7.1 Sublessor is the lessee of the Premises by virtue of a lease
between Cabot Industrial Trust, as a successor in interest to Northwestern
Mutual Life Insurance Company as landlord ("Master Lessor") and Sublessor, as
tenant, dated November 29, 1990, a copy of which is attached hereto and marked
Exhibit A. In the event of a conflict between the terms of the Master Lease and
this Sublease, the terms of this Sublease, with regard to the Sublessee's
obligations, shall prevail to the extent the Master Lease applies to the
Premises.
7.2 This Sublease is and shall be at all times subject and
subordinate to the Master Lease.
7.3 The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and conditions of
the Master Lease except for those provisions of the Master Lease which are
directly contradicted by this Sublease in which event, as by Sublessor and
Sublessee, the terms of this Sublease shall control over the Master Lease.
Therefore, for the purposes of this Sublease, wherever in the Master Lease the
word "Lessor" is used it shall be deemed to mean the Sublessor herein and
wherever in the Master Lease the word "Lessee" is used it shall be deemed to
mean the Sublessee herein.
7.4 During the term of this Sublease and for all periods of
subsequent for obligations which have arisen prior to the expiration or
termination of this Sublease, Sublessee does hereby expressly assume and agree
to perform and comply with, for the benefit of the Sublessor and Master Lessor,
each and every obligation of Sublessor under the Master Lease except for the
following paragraphs which are excluded therefrom: Sublessor's obligations in
respect of Rent and Additional Rent; moreover, Sublessee's use shall be as
described in Section 6.1 hereof.
Without limiting the generality of the foregoing, Sublessee shall,
prior to commencement of the term, provide a certificate of insurance evidencing
liability insurance in the amount and having the attributes described in Section
5(b) of the Master Lease. Such certificate shall identify Sublessor and Master
Lessor as additional insureds.
7.5 The obligations the Sublessee has assumed under Paragraph
7.4 hereof are hereinafter referred to as the "Sublessee's Assumed Obligations".
The obligations that Sublessee has not assumed under Paragraph 7.4 hereof are
hereinafter referred to as the "Sublessor's Remaining Obligations".
7.6 Sublessee shall hold Sublessor free and harmless of and from all
liability, judgments, costs, damages, including reasonable attorney's fees,
arising out of Sublessee's failure to comply with or perform Sublessee's Assumed
Obligations.
7.7 Sublessor agrees to maintain the Master Lease during the entire
term of this Sublease, subject, however, to earlier termination of the Master
Lease without the fault of the Sublessor, and to comply with or perform
Sublessor's Remaining Obligations and to hold Sublessee free and harmless of and
from all liability, judgments, costs, damages, including reasonable attorney's
fees, arising out of Sublessee's failure to comply with or perform Sublessee's
Remaining Obligations.
7.8 Sublessor represents to Sublessee that the Master Lease is in full
force and effect and that no default exists on the part of any party to the
Master Lease.
8. ASSIGNMENT OF SUBLEASE AND DEFAULT.
8.1 Sublessor hereby assigns and transfers to Master Lease the
Sublessor's interest in this Sublease and all rentals and income arising
therefrom, subject however to terms of Paragraph 8.2 hereof.
8.2 Master Lessor, by executing this document, agrees that until a
default shall occur in the performance of Sublessor's Obligations under the
Master Lease, Sublessor may receive, collect and enjoy the rents accruing under
the Sublease. However, if Sublessor shall default in the performance of it's
obligations to Master Lessor, then Master Lessor may, at its option, recieve and
collect, directly from Sublessee, all rent owing and to be owed under this
Sublease. Master Lessor shall not, by reason of this assignment of the Sublease
nor by reason of the collection of the rents from the Sublessee, be deemed
liable to Sublessee for any failure of the Sublessor to perform and comply with
Sublessor's Remaining Obligations or Sublessor's obligations to Sublessee under
this Sublease.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee,
upon receipt of any written notice from the Master Lessor stating that a default
exists in the performance of Sublessor's obligations under the Master Lease, to
pay Master Lessor the rents due and to become due under this Sublease. Sublessor
agrees that Sublessee shall have the right to reply upon any such statement
and request from Master Lessor without any obligation or right to inquire as to
whether such default exists and notwithstanding any notice or claim against
Sublessee to the contrary and Sublessor shall have no right or claim against
Sublessee for any such rents paid by Sublessee. Sublessee agrees to pay such
rent to Master Lessor upon receipt of such notice.
9. CONSENT OF THE MASTER LESSOR.
9.1 Master Lessor's execution of this Sublease evidences its consent
hereto.
9.2 Master Lessor's consent to this Sublease is granted subject to the
following terms:
(a) Such consent will not release Sublessor of its obligations
or alter the primary liability of the Sublessor to pay the rent and perform
and comply with all of the obligations of lessor to be performed under the
Master Lease.
(b) The acceptance of rent by Master Lessor from sublessee or any
one else liable under the Master Lease shall not be deemed a waiver by Master
Lessor of any provisions of the Master Lease.
(c) Such consent will not constitute consent to any subsequent
subletting or assignment or any modification or amendment to this Sublease.
(d) In the event of any default of Sublessor under the Master
Lease, Master Lessor may proceed directly against Sublessor without first
exhausting Master Lessor's remedies against any other person or entity liable
thereon to Master Lessor.
(e) In the event Sublessor shall default in its obligations
under the Master Lease, then Master Lessor, at its option and without being
obligated to do so, may require Sublessee to attorn to Master Lessor in which
event Master Lessor shall undertake the obligations of Sublessor under this
Sublease from the time of the exercise of said option but Master Lessor shall
not be liable for any prepaid rents, any offsets or any security deposit paid by
Sublessee, nor shall Master Lessor be liable for any other defaults of the
Sublessor under this Sublease.
In the event Master Lessor requires Sublessee to attorn to Master
Lessor, no documentation other than this Sublease shall be necessary to evidence
such attornment, but Sublessee nevertheless agrees to execute any documentation
reasonably requested by Master Lessor to confirm such attornment or to otherwise
carry out the provisions of this Sublease.
9.3 Master Lessor acknowledges that, to the best of Master
Lessor's knowledge, no default presently exists under the Master Lease of
obligations to be performed by Sublessor and that the Master Lease is in full
force and effect.
9.4 In the event that Sublessor defaults under its obligations
to be performed under the Master Lease by Sublessor, Master Lessor agrees to
deliver to Sublessee a copy of any such notice of default. Sublessee shall have
the right, but not the obligation, to cure any default of Sublessor described in
any notice of default within ten days after service of such notice of default on
Sublessee. If such default is cured by Sublessee then Sublessee shall have the
right of reimbursement and offset from and against Sublessor.
10. BROKERS FEE. Upon execution hereof by all parties, Sublessor shall
pay to Atlanta Real Estate Partners, a licensed real estate broker (herein
called "Broker"), a fee as set forth in a separate agreement between Sublessor
and Broker for brokerage services rendered by Broker to Sublessor in this
transaction. Sublessor and Sublessee each represent to the other that, except as
decribed in the preceding sentence, it has not engaged, or been represented by,
a broker or finder in connection with this Sublease. Sublessor and Sublessee
agree to indemnify, defend and hold the other and the Master Lessor harmless
from any loss, liability and expense incurred by the other and/or the Master
Lessor as a result of any claim made against the other and/or the Master Lessor
for brokerage fees arising from or as a result of this Sublease, except for the
fees of the Broker described in the first sentence of this section, which will
be paid by Sublessor.
11. ATTORNEY'S FEES. If any party brings an action to enforce the terms
hereof or to declare rights hereunder, the prevailing party in any such action,
on trial and appeal, shall be entitled to its reasonable attorney's fees to be
paid by the losing party as fixed by the court.
12. NOTICES. Any notices to be sent hereunder shall be sent by
United States mail, nationwide overnight delivery service or telecopier (if
acknowledged by the recipient) addressed as follows:
If to Sublessor: Iron Mountain Records Management, Inc.
Attn: Real Estate
000 Xxxxxxxx Xxxxxx
Xxxxxx XX 00000
If to Sublessee: Reconditioned Systems, Inc./ Total Office Interiors
Attn: Xx. Xxxx Xxxxxxxx
000 X Xxxxxxxx
Xxxxx XX 00000
13. SUBLESSEE IMPROVEMENTS. Lessor and Sublessor hereby agree to allow
Sublessee to construct a paint booth and additional offices in the premises
during the term of this Sublease. At the expiration or earlier termination of
this Sublease, Sublessor shall have the option of requiring Sublessee to remove
the paint booth and Sublessee constructed offices (or either) at Sublessee's
expense, or allowing them to remain intact, and thus becoming the property of
Lessor without compensation to Sublessee. If Sublessor requires removal of the
paint booth and or Sublessee constructed offices, it shall give Sublessee at
least 60 days written notice prior to the expiration of this Sublease of such
requirement. Such construction and removal, if necessary, will be at Sublessee's
sole cost and expense. If Lessor opts for removal of the paint booth and/or
additional offices, Sublessee shall restore the premises to their condition as
of August 1, 2001, normal wear and tear excepted.
14. HVAC MAINTENANCE. Sublessor and Sublessee hereby agree that, as
between themselves, Sublessor or any extension hereof, to assign or sublet any
of its rights or obligations hereunder to any entity controlled by, under common
control with, or controlling Sublessee. Sublessee shall, at all times, during
the term hereof, remain fully liable for performance of the duties contained in
this Sublease and in the Master Lease, as applicable.
IN WITNESS WHEREOF, the parties have hereunto set their hands by
officers hereunto duly authorized.
SUBLESSOR: SUBLESSEE:
IRON MOUNTAIN RECORDS TOTAL OFFICE INTERIORS
MANAGEMENT, INC. A DIVISION OF RECONDITIONED
SYSTEMS, INC.
BY: /s/ Xxxxx Buatzke BY: /s/ Xxxx X. Xxxxxxxx
Title: Vice President Title: President & CEO
