Lease Agreement
STATE OF GEORGIA
COUNTY OF XXXXXX
This Lease Agreement, made and entered into by and between
MARIETTA BLVD. WAREHOUSE
hereinafter referred to as "Landlord," and
STIMSONITE CORPORATION (A DELAWARE CORPORATION)
hereinafter referred to as "Tenant";
W I T N E S S E T H :
1. Premises and Term. In consideration of the obligation of Tenant to pay
rent as herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby takes from Landlord certain premises situated within the County of
Xxxxxx, State of Georgia, more particularly described as follows:
A one-story masonry industrial building containing approximately 35,500
square feet the total of which approximately 2,200 square feet is finished
office space and more commonly known as 0000 Xxxxxxxx Xxxx., Xxxx xx
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx and further described by the attached
survey - Exhibit A and building plan - Exhibit B.
together with all rights, privileges, easements, appurtenances and immunities
belonging to or in any way pertaining to the said premises and together with the
buildings and other improvements erected upon said premises (the said real
property and the buildings and improvements thereon being hereinafter referred
to as the "premises").
To Have and to Hold the same for a term commencing on April 1, 1998 and
ending March 31, 2003, 60 months thereafter. Tenant may occupy the premises
early at any time on or after February 15, 1998 at no additional rent, as
specified in Paragraph 25A.Tenant acknowledges that it has inspected the
premises and accepts the premises, and the buildings and improvements thereon,
in their present condition as suitable for the purpose for which the premises
are leased and further acknowledges that no representations as to the repair of
the premises nor promises to alter, remodel or improve the premises have been
made by Landlord, unless such are expressly set forth in this lease. If this
lease is executed before the premises become vacant or otherwise available and
ready for occupancy, or if any present tenant or occupant of the premises holds
over, and Landlord cannot acquire possession of the premises prior to the date
above recited as the commencement date of this lease, Landlord shall not be
deemed to be in default hereunder, and Tenant agrees to accept possession of the
premises at such time as Landlord is able to tender the same; and Landlord
hereby waives payment of rent covering any period prior to the tendering of
possession to Tenant hereunder.
2. Rent. Tenant agrees to pay to Landlord rent, without deduction or set
off, for the entire term hereof for said premises at the rate of See Xxxxxxxxx
00X Xxxxxxx (xXxx Xxxxxxxxx 00X) per month. One such monthly installment shall
be due and payable on the commencement date recited above, and a like monthly
installment shall be due and payable without demand on or before the same day of
each succeeding month during the hereby demised term; provided that if the said
commencement date should be a date other than the first day of a calendar month,
there shall be due and payable on the said commencement date as rent for the
balance of the calendar month during which the said commencement date shall fall
a sum equal to that proportion of the rent for a full month as herein provided
which the number of days from the said commencement date to the end of the
calendar month during which the said commencement date shall fall bears to the
total number of days in such month, and all succeeding installments of rent
shall be payable on or before the first day of each succeeding calendar month
during the hereby demised term as first above provided. In addition, Tenant
agrees to deposit with Landlord on the date hereof the sum of See Paragraph 25E
Dollars ($See Paragraph 25E), which sum shall be held by Landlord, without
obligation for interest, as security for the performance of Tenant's covenants
and obligations under this lease, it being expressly understood and agreed that
such deposit is not an advance rental deposit or a measure of Landlord's damages
in case of Tenant's default. Upon the occurrence of any event of default by
Tenant, Landlord may, from time to time, without prejudice to any other remedy
provided herein or provided by law, use such fund to the extent necessary to
make good any arrears of rent and any other damage, injury, expense or liability
caused by such event of default; and Tenant shall pay to Landlord on demand the
amount so applied in order to restore the security deposit to its original
amount. If Tenant is not then in default hereunder, any remaining balance of
such deposit shall be returned by Landlord to Tenant upon termination of this
lease.
3. Use. The demised premises shall be used only for fabrication and related
light manufacturing, plastics extrusion and assembly and the purpose of
receiving, storing, shipping and selling (other than retail) products, materials
and merchandise made and/or distributed by Tenant and for such other lawful
purposes as may be incidental thereto. Tenant shall at its own cost and expense
obtain any and all licenses and permits necessary for any such use. Tenant shall
comply with all governmental laws, ordinances and regulations applicable to the
use of the premises, and shall promptly comply with all governmental orders and
directives for the correction, prevention and abatement of nuisances in, upon,
or connected with the premises, all at Tenant's sole expense. Without Landlord's
prior written consent, Tenant shall not receive, store or otherwise handle any
product, material or merchandise which is explosive or highly flammable other
than solvents and other chemicals used in Tenant's operations. Tenant will not
permit the premises to be used for any purpose which would render the insurance
thereon void or the insurance risk more hazardous.
4. Taxes.
A. Subject to the provisions of subparagraph B below, Landlord agrees to
pay before they become delinquent all taxes (both general and special),
assessments or governmental charges (hereinafter collectively referred to as
"taxes") lawfully levied or assessed against the premises or any part thereof;
provided, however, Landlord may, at its sole cost and expense (in its own name
or in the name of both, as it may deem appropriate) dispute and contest the
same, and in such case, such disputed item need not be paid until finally
adjudged to be valid. At the conclusion of such contest, Landlord shall pay the
items contested to the extent that they are held valid, together with all items,
courts costs, interest and penalties relating thereto.
B. The maximum amount of taxes levied or assessed against the premises
during any one real estate tax year to be paid by Landlord shall be $12,412.55
relating to the entire 35,500 s.f. building which is the total property taxes
paid for 1997 and further described by tax xxxx marked Exhibit C. If in any real
estate tax year during the term hereof or any renewal or extension the taxes
levied or assessed against the premises for such tax year shall exceed the sum
as calculated in the preceding sentence, Tenant shall pay to Landlord upon
demand the amount of such excess. In the event the premises constitute a portion
of a multiple occupancy building, Tenant agrees to pay to Landlord upon demand
the amount of Tenant's proportionate share of such excess (with respect to taxes
lawfully levied or assessed against the building and the grounds, parking areas,
driveways and alleys around the said building), such share to be calculated on
the basis of space occupied by Tenant as compared to the entire space contained
in the building. The failure to pay such excess or proportionate share thereof,
as the case may be, upon demand shall be treated hereunder in the same manner as
a default in the payment of rent hereunder when due. Any payment to be made
pursuant to this subparagraph B with respect to the real estate tax year in
which this lease commences or terminates shall bear the same ratio to the
payment which would be required to be made for the full tax year as that part of
such tax covered by the term of this lease bears to a full tax year.
C. If at any time during the term of this lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments, levies or charges levied, assessed or imposed on real estate and
the improvements thereon there shall be levied, assessed or imposed on Landlord
a capital levy or other tax directly on the rents received therefrom and/or a
franchise tax, assessment, levy or charge measured by or based, in whole or in
part, upon such rents for the present or any future building or buildings on the
premises, then all such taxes, assessments, levies or charges, or the part
thereof so measured or based, shall be deemed to be included within the term
"taxes" for the purposes hereof.
5. Landlord's Repairs. Landlord shall at his expense maintain only the
roof, foundation and the structural soundness of the exterior walls of the
building in good repair, reasonable wear and tear excepted. Tenant shall repair
and pay for any damaged caused by the negligence of Tenant, or Tenant's
employees, agents or invitees, or caused by Tenant's default hereunder. The term
"walls" as used herein shall not include windows, glass or plate glass, doors or
special store fronts. Tenant shall immediately give Landlord written notice of
defect or need for repairs, after which Landlord shall have reasonable
opportunity to repair same or cure such defect. Landlord's liability hereunder
shall be limited to the cost of such repairs or curing such defect. In the event
the premises have air-conditioning installed therein on the date of this lease,
then Landlord represents that on the commencement date of this lease such
air-conditioning system shall be in good operating condition; provided, however,
that during the term of this lease Tenant shall at its own cost and expense
maintain such system in good operating condition, shall make all necessary
repairs and replacements and upon termination of this lease shall deliver such
system to Landlord in good operating condition; provided that Landlord and
Tenant shall share equally (50%each) the cost of major repairs and replacement
of existing heating, ventilation or air-conditioning systems provided systems
have not failed due to any type of corrosive nature from Tenant manufacturing.
Periodic maintenance of HVAC systems such as changing of filters, lubrication,
etc. is the responsibility of Tenant.
6. Tenant's Repairs. Tenant shall at its own cost and expense keep all
other parts of the premises, including but not limited to, windows, glass and
plate glass, doors, any special store front, interior walls and finish work,
floors and floor covering, gutters, heating and air-conditioning systems, dock
boards, plumbing work and fixtures, and shall take good care of the premises and
its fixtures and suffer no waste. Tenant shall at its own cost and expense care
for the grounds around the buildings on the premises, including the mowing of
grass, care of shrubs and general landscaping and will keep the parking areas,
driveways and alleys and the whole of the premises in a clean and sanitary
condition. Tenant shall not be obligated to repair any damage caused by fire,
tornado or other casualty covered by items set forth under the extended coverage
provisions of Landlord's fire insurance policy. In the event the premises are
served by rail track or spur track, then the Tenant, notwithstanding the
provisions of any rail track agreements to the contrary, shall be liable and
responsible for maintaining, or reimbursing the rail carrier for the maintenance
of the portion of the track and related facilities adjacent to the premises.
7. Alterations. Tenant shall not make any alterations, additions or
improvements to the premises without the prior written consent of Landlord.
Tenant may, without the consent of Landlord, but at its own cost and expense and
in a good workmanlike manner make such minor alterations, additions or
improvements or erect, remove or alter such partitions, or erect such shelves,
bins, machinery and trade fixtures as it may deem advisable, without altering
the basic character of the building or improvements and without overloading or
damaging such building or improvements, and in each case complying with all
applicable governmental laws, ordinances, regulations, and other requirements.
At the termination of this lease, Tenant shall, if Landlord so elects, remove
all alterations, additions, improvements and partitions erected by Tenant and
restore the premises to their original condition; otherwise such improvements
shall be delivered up to the Landlord with the premises. All shelves, bins,
machinery and trade fixtures installed by Tenant may be removed by Tenant at the
termination of this lease if Tenant so elects, and shall be removed if required
by Landlord. All such removals and restoration shall be accomplished in a good
workmanlike manner so as not to damage the primary structure or structural
qualities of the buildings and other improvements situated on the premises.
8. Signs. Tenant shall have the right to install signs upon the exterior of
said buildings 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 installations and removals shall be made in such manner as to avoid
injury or defacement of the building and other improvements.
9. Inspection. Landlord and Landlord's agents and representatives shall
have the right to enter and inspect the premises at any time with notice during
reasonable business hours, for the purpose of ascertaining the condition of the
premises or in order to make sure 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 term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the premises at any time during
reasonable business hours 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.
10. Utilities. Landlord agrees to provide at its cost water, electricity
and telephone service connections into the premises; but Tenant shall pay all
charges incurred for any utility services used on or from the premises and any
maintenance charges for utilities and shall furnish all electric light bulbs and
tubes. Landlord shall in no event be liable for any interruption or failure of
utility services on the premises.
11. Assignment and Subletting. Tenant shall not have the right to assign
this lease or to sublet the whole or any part of the premises without the prior
written consent of Landlord, not unreasonably withheld; 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. Landlord shall have the right
to assign any of its rights under this lease.
12. Fire and Casualty Damage.
A. If the buildings situated on the premises should be damaged or destroyed
by fire, tornado, or other casualty, Tenant shall give immediate written notice
thereof to Landlord.
B. If the buildings situated on the premises should be totally destroyed by
fire, tornado or other casualty, or if they should be so damaged that rebuilding
or repairs cannot be completed within One hundred twenty (120) 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.
C. If the buildings situated on the premises should be damaged by fire,
tornado or other casualty, but only to such extent that rebuilding or repairs
can be completed within One hundred twenty (120) 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 such buildings, to substantially the condition
in which they 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 on the premises by Tenant. If the
premises are untenantable in whole or in part following such damage, the rent
payable hereunder during the period in which they are untenantable shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances. In the event that Landlord should fail to complete such repairs
and rebuilding within two hundred (200) days after the date upon which Landlord
is notified by Tenant of such damage, Tenant may at its option terminate this
lease by delivering written notice of termination to Landlord as Tenant's
exclusive remedy, whereupon all rights and obligations hereunder shall cease and
determine. One hundred twenty (120) D. Notwithstanding anything herein to the
contrary, in the event the holder of any indebtedness secured by a mortgage or
deed of trust covering the premises requires that the insurance proceeds be
applied to such indebtedness, then Landlord shall have the right to terminate
this lease by delivering written notice of termination to Tenant, whereupon all
rights and obligations hereunder shall cease and determine.
E. Any insurance which may be carried by Landlord or Tenant against loss or
damage to the buildings and other improvements situated on the premises shall be
for the sole benefit of the party carrying such insurance and under its sole
control.
F. Each of Landlord and Tenant hereby releases the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any of the extended coverage casualties covered by the
insurance maintained hereunder, even if such fire or other casualty shall have
been caused by the fault or negligence of the other party, or anyone for whom
such party may be responsible; provided, however, that this release shall be
applicable and in force and effect only with respect to loss or damage occurring
during such times as the releasor's policies shall contain a clause or
endorsement to the effect that any release shall not adversely affect or impair
said policies or prejudice the right of the releasor to recover thereunder. Each
of Landlord and Tenant agrees that it will request its insurance carriers to
include in its policies such a clause or endorsement. If extra cost shall be
charged therefor, each party shall advise the other thereof and of the amount of
the extra cost, and the other party, at its election, may pay the same, but
shall not be obligated to do so.
G. Landlord covenants and agrees to maintain standard fire and extended
coverage insurance covering the building on the premises in an amount
not less than eighty percent (80%) of the replacement cost thereof. If
during the second full lease year after the commencement date of this
lease, or during any subsequent year of the primary term or any renewal
or extension, the insurance premiums for the fire and extended
insurance carried by Landlord shall exceed the premium for such
insurance for the first full lease year of the term hereof, Tenant
shall pay to Landlord on demand the amount of such excess; and the
failure to pay such excess upon demand shall be treated in the same
manner as a default in the payment or rent hereunder when due.
13. Liability. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the premises, caused by
the negligence or misconduct of Tenant, its agents, servants or employees, or of
any other person entering upon the premises under express or implied invitation
of Tenant, or caused by the buildings and improvements located on the premises
becoming out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the premises, or due to any cause whatsoever, and
Tenant agrees to indemnify Landlord and hold it harmless from any loss, expense
or claims, including attorneys' fees, arising out of any such damage or injury;
except that any injury to person or damage to property caused by the negligence
of Landlord or by the failure of Landlord to repair and maintain that part of
the premises which Landlord is obligated to repair and maintain after the
receipt of written notice from Tenant of needed repairs or of defects shall be
the liability of Landlord and not of Tenant, and Landlord agrees to indemnify
Tenant and hold it harmless from any and all loss, expense or claims, including
attorneys' fees, arising out of such damage or injury. Tenant shall procure and
maintain throughout the term of this lease a policy or policies of insurance, at
its sole cost and expense, insuring both Landlord and Tenant against all claims,
demands or actions arising out of or in connection with Tenant's use or
occupancy of the premises, or by the condition of the premises, the limits of
such policy or policies to be in an amount not less than $100,000 in respect of
injuries to or death of any one person, an in an amount not less than $300,000
in respect of any one accident or disaster, and in an amount not less than
$50,000 in respect of property damaged or destroyed, and to be written by
insurance companies qualified to do business in the state in which the premises
are located. Such policies or duly executed certificates of insurance shall be
promptly delivered to Landlord and renewals thereof as required shall be
delivered to Landlord at least ten (10) days prior to the expiration of the
respective policy terms.
14. Condemnation.
A. If the whole or any substantial part of the premises should be taken for
any public or quasi-public use under governmental law, ordinance or regulation,
or by right of eminent domain, or by private purchase in lieu thereof, this
lease shall terminate and the rent shall be terminated during the unexpired
portion of this lease, effective when the physical taking of said premises shall
occur.
B. If less than a substantial part of the premises shall be taken for any
public or quasi-public use under any governmental law, ordinance or regulation,
or by right of eminent domain, or by private purchase in lieu thereof, this
lease shall not terminate, but the rent payable hereunder during the unexpired
portion of this lease shall be reduced to such extent as may be fair and
reasonable under all of the circumstances.
C. In the event of any such taking or private purchase in lieu thereof,
Landlord and Tenant shall each be entitled to receive and retain such separate
awards and/or portion of lump sum awards as may be allocated to their respective
interests in any condemnation proceedings.
15. Holding Over. Should Tenant, or any of its successors in interest, hold
over the premises, or any part thereof, after the expiration of the term of this
lease, unless otherwise agreed in writing, such holding over shall constitute
and be construed as tenancy from month to month only, at a rental equal to the
rental payable for the last month of the term of this lease plus twenty percent
(20%) of such amount. The inclusion of the preceding sentence shall not be
construed as Landlord's permission for Tenant to hold over.
16. Quiet Enjoyment. Landlord covenants that it now has, or will acquire
before Tenant takes possession of the premises, good title to the premises, free
and clear of all liens and encumbrances, excepting only the lien for current
taxes not yet due, such mortgage or mortgages as are permitted by the terms of
this lease, zoning ordinances and other building and fire ordinances and
governmental regulations relating to the use of such property, and easements,
restrictions and other conditions of record. In the event this lease is a
sublease, then Tenant agrees to take the premises subject to the provisions of
the prior leases. Landlord represents and warrants that it has full right and
authority to enter into this lease and that Tenant, upon paying the rental
herein set forth and performing its other covenants and agreements herein set
forth, shall peaceably and quietly have, hold and enjoy the premises for the
term hereof without hindrance or molestation from Landlord subject to the terms
and provisions of this lease.
17. Events of Default. The following events shall be deemed to be events of
default by Tenant under this lease:
(a) Tenant shall fail to pay any installment of the rent hereby
reserved when due, and such failure shall continue for a period of five
(5) days after notice from Landlord.
(b) Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make a general assignment for the benefit of
creditors.
(c) Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute
of the United States or any State thereof; or Tenant shall be adjudged
bankrupt or insolvent in proceedings filed against Tenant thereunder.
(d) A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant.
(e) Tenant shall desert any substantial portion of the premises.
(f) Tenant shall fail to comply with any term, provision or covenant of
this lease (other than the foregoing in this Paragraph 17), and shall not
cure such failure within ten (10) days after written notice thereof from
Landlord to Tenant. Twenty (20)
18. Remedies. Upon the occurrence of any of such events of default in
Paragraph 17 hereof, Landlord shall have the option to pursue any one or more of
the following remedies without any notice or demand whatsoever:
(a) Terminate this lease, in which event Tenant shall immediately
surrender the premises to Landlord, and if Tenant fails so to do, Landlord
may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the
premises and expel or remove Tenant and any other person who may be
occupying such premises or any part thereof, by force if necessary,
without being liable for prosecution or any claim of damages therefor; and
Tenant agrees to pay to Landlord on demand the amount of all loss and
damage which Landlord may suffer by reason of such termination, whether
through inability to relet the premises on satisfactory terms or
otherwise.
(b) Enter upon and take possession of the premises and expel or remove
Tenant and any other person who may be occupying such premises or any part
thereof, by force if necessary, without being liable for prosecution or
any claim for damages therefor, and relet the premises and receive the
rent therefor; and Tenant agrees to pay to the Landlord on demand any
deficiency that may arise by reason of such reletting.
(c) Enter upon the premises by force if necessary without being liable
for prosecution or any claim for damages therefor, and do whatever Tenant
is obligated to do under the terms of this lease; and Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in
thus effecting compliance with Tenant's obligations under this lease, and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to the Tenant from such action, whether caused by the negligence
of Landlord or otherwise.
In the event Tenant fails to pay any installment of rent hereunder as and when
such installment is due, Tenant shall pay to Landlord on demand a late charge in
an amount equal to five percent (5%) of such installment; and the failure to pay
such amount within ten (10) days after demand therefor shall be an event of
default hereunder. The provision for such late charge shall be in addition to
all of Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law, nor
shall pursuit of any remedy herein provided constitute a forfeiture or waiver of
any rent due to Landlord hereunder or of any damages accruing to Landlord by
reason of the violation of any of the terms, provisions and covenants herein
contained. No waiver by Landlord of any violation or breach of any of the terms,
provisions and covenants herein contained shall be deemed or construed to
constitute a waiver of any other violation or breach of any of the terms,
provisions and covenants herein contained. Landlord's acceptance of the payment
of rental or other payments hereunder after the occurrence of an event of
default shall not be construed as a waiver of such default, unless Landlord so
notifies Tenant in writing. Forbearance by Landlord to enforce one or more of
the remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default. If, on account of any breach
or default by Tenant in Tenant's obligations under the terms and conditions of
this lease, it shall become necessary or appropriate for Landlord to employ or
consult with an attorney concerning or to enforce or defend any of Landlord's
rights or remedies hereunder. Tenant agrees to pay any reasonable attorney's
fees. No act or thing done by the Landlord or its agents during the term hereby
granted shall be deemed an acceptance of the surrender of the premises, and no
agreement to accept a surrender of said premises shall be valid unless in
writing signed by Landlord. The receipt by Landlord of rent with knowledge of
the breach of any covenant or other provision contained in this lease shall not
be deemed or construed to constitute a waiver of any other violation or breach
of any of the terms, provisions and covenants contained herein.
19. Landlord's Lien. In addition to any statutory lien for rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest in all rentals and other sums of money becoming due
hereunder from Tenant, upon all goods, wares, equipment, fixtures, furniture,
inventory, accounts, contract rights, chattel paper and other personal property
of Tenant situated on the premises, and such property shall not be removed
therefrom without the consent of Landlord until all arrearages in rent as well
as any and all other sums of money then due to Landlord hereunder shall first
have been paid and discharged. In the event of a default under this lease,
Landlord shall have in addition to any other remedies herein or by law, all
rights and remedies under the Uniform Commercial Code, including without
limitation the right to sell the property described in this Paragraph 19 at
public or private sale upon five (5) days' notice to Tenant. Tenant hereby
agrees to execute such financing statements and other instruments necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created. Any statutory lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary thereto.
20. Mortgages. This lease shall be superior to any mortgage, deed to secure
debt or similar security instrument hereafter executed by Landlord and
constituting a lien or charge upon the premises or the improvements situated
thereon; provided, however, that if any mortgagee or holder of any such security
instrument shall so require, Tenant will, at any time hereafter, on demand
execute and deliver any instruments, releases or other documents which may be
required by any mortgagee or security instrument holder for the purpose of
subjecting and subordinating this lease to the lien and/or security title of any
such mortgage, deed to secure debt or similar security instrument, provided
Tenant receives a normal and reasonable non-disturbance agreement from
Landlord's mortgagee or security instrument holder.
21. Landlord's Default. In the event Landlord should become in default in
any payments due on any such mortgage described in Paragraph 20 hereof or in the
payment of taxes or any other items which might become a lien upon the premises
and which Tenant is not obligated to pay under the terms and provisions of this
lease, Tenant is authorized and empowered after giving Landlord five (5) days'
prior written notice of such default and Landlord fails to cure such default, to
pay any such items for and on behalf of Landlord, and the amount of any item so
paid by Tenant for or on behalf of Landlord, together with any interest or
penalty required to be paid in connection therewith, shall be payable on demand
by Landlord to Tenant; provided, however, that Tenant shall not be authorized
and empowered to make any payment under the terms of this Paragraph 21, unless
the item paid shall be superior to Tenant's interest hereunder. In the event
Tenant pays any mortgage debt in full, in accordance with this paragraph, it
shall, at its election, be entitled to the mortgage security by assignment or
subrogation.
22. Mechanic's Liens. Tenant shall have no authority, express or implied,
to create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of Landlord in the premises or to
charge the rentals payable hereunder for any claim in favor of any person
dealing with Tenant, including those who may furnish materials or perform labor
for any construction or repairs, and each such claim shall affect and each such
lien shall attach to, if at all, only the leasehold interest granted to Tenant
by this instrument. Tenant covenants and agrees that it will pay or cause to be
paid all sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the premises on
which any lien is or can be validly and legally asserted against its leasehold
interest in the premises or the improvements thereon and that it will save and
hold Landlord harmless from any and all loss, cost or expense based on or
arising out of asserted claims or liens against the leasehold estate or against
the rights, titles and interest of the Landlord in the premises or under the
terms of this lease.
23. Notices. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivery of any notice or the making of any payment
by Landlord to Tenant or with reference to the sending, mailing or delivery of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
A. All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address hereinbelow
set forth or at such other address as Landlord may specify from time to
time by written notice delivered in accordance herewith.
B. All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address hereinbelow set forth, or at
such other address within the continental United States as Tenant may
specify from time to time by written notice delivered in accordance
herewith.
C. Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or not
when deposited in the United States Mail, postage prepaid, Certified or
Registered Mail, addressed to the parties hereto at the respective
addresses set out opposite their names below, or at such other address as
they have theretofore specified by written notice delivered in accordance
herewith:
Landlord: Tenant: With a copy to:
MARIETTA BLVD. WAREHOUSE STIMSONITE CORPORATION STIMSONITE CORPORATION
C/0 Xxxxxx, Xxxx & Xxxx
Real Estate 0000 Xxxxx Xxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxx., XX
0000 Xxxxxxxxx Xxxxx, XX Xxxxx, XX 00000-0000 Xxxxxxx, XX 00000
Xxxxx 000
Xxxxxxx, XX 00000
If and when included within the term "Landlord," as used in this instrument,
there are more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specified address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant," as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant," respectively, shall be bound
by notices given in accordance with the provisions of this paragraph to the same
effect as if each had received such notice.
24. Miscellaneous.
A. Words of any gender used in this lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless context otherwise requires.
B. The terms, provisions and covenants and conditions contained in this
lease shall apply to, inure to the benefit of, and be binding upon, the parties
hereto and upon their respective heirs, legal representatives, successors and
permitted assigns, except as otherwise herein expressly provided.
C. The captions are inserted in this lease for convenience only and in no
way define, limit, or describe the scope or intent of this lease, or any
provision hereof, nor in any way affect the interpretation of this lease.
D. Tenant agrees, within ten (10) days after request of Landlord, to
deliver to Landlord, or Landlord's designee, an estoppel certificate stating
that this lease is in full force and effect, the date to which rent has been
paid, the unexpired term of this lease and such other matters pertaining to this
lease as may be reasonably requested by Landlord.
E. This lease may not be altered, changed or amended except by an
instrument in writing signed by Landlord and Tenant.
25. Special Provisions.
EXECUTED the __________ day of February 1998.
(LANDLORD)
MARIETTA BLVD. WAREHOUSE
-----------------------------------
Xxxxxxx X. Xxxxxx, Partner
--------------------------------- -----------------------------------
Witness Xxxxx X. Xxxxxx, Xx., Partner
-----------------------------------
W. Xxxx Xxxx, Jr., General Partner
(TENANT)
STIMSONITE CORPORATION
(A DELAWARE CORPORATION)
Witness/Attest
__________________________________ By: ______________________________
Title: _____________________________ Title: ___________________________
(These Special Stipulations prevail if there is
any conflict with the printed form)
SPECIAL STIPULATIONS
25A. Rent is payable to:
Marietta Blvd Warehouse
c/o Wilson, Xxxx & Xxxx
0000 Xxxxxxxxx Xxxxx, XX
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
and is $0.00 per month from February 15, 1998 through March 31, 1998.
and is $8,875.00 from April 1, 1998 through March 31, 2001.
and is $9,319.00 from April 1, 2001 through March 31, 2003.
25B. Landlord will pay the base fire and extended coverage insurance
premiums on the premises which are now $4,122.00 annually for the
entire 35,500 square foot building. Any increases in insurance premiums
above $4,122.00 will be paid by the Tenant, provided the insurance
coverage and the premiums charged for said insurance are competitive by
industry standards.
Tenant agrees to immediately install the appropriate number and type of
fire extinguishers recommended and/or required by the fire department
and/or Landlord and/or Tenant's insurance company. Tenant agrees to
comply with reasonable loss prevention recommendations of Landlord
and/or Tenant's insurance companies.
25C. With the execution of this lease, Tenant will pay Marietta Blvd.
Warehouse $18,194.00 which represents the first month's rental and
Security Deposit per paragraph 2.
25D. Notwithstanding paragraphs 5 and 6 above, Landlord will furnish to
Tenant the existing electrical, mechanical, plumbing, etc., of the
building in good operative condition until November 1, 1998. After
November 1, 1998, any service, and/or maintenance shall be the
responsibility of the Tenant. Termite protection, if any, after
November 1, 1998 is the responsibility of the Tenant.
25E. Landlord will pay Tenant up to $15,000.00 relating to Tenant's cost of
moving and Tenant's construction of lockers, etc. relating to the
occupancy of the premises. Prior to June 1, 1998 Tenant will provide
Landlord with invoices relative to the above and Landlord will
immediately pay Tenant.
25F. Provided this Lease is not in default and provided Tenant has notified
Landlord in writing of his intent to renew prior to December 31, 2002,
Tenant has the right to renew this lease for an additional term of five
(5) years beginning April 1, 2003 and ending March 31, 2008 under the
same conditions except the rental is $10,413.00 per month from April 1,
2003 through March 31, 2008.
25G. CB Commercial represents the Tenant in this transaction and is being
paid by Landlord per separate agreement.
25H. Environmental Liability. Landlord and Tenant recognize the potential
for liability and damage (including penalties, fines, demands, losses,
liens, lawsuits, other proceedings, costs, expenses and reasonable
attorney's fee) resulting from the release, discharge, disposal, or
emission of Hazardous Substances into the environment (which is defined
to include, but not limited to, air, ground, surface water and ground
water) at, from, onto, under or affecting the premises (hereinafter
collectively referred to as "Environmental Contamination") and
therefore, as between Landlord and Tenant, Landlord and Tenant provide
as follows:
a) Landlord shall remain liable after the date of this lease for all
Environmental Contamination (including damages, fines and
penalties related thereto) which existed or occurred prior to the
date of this lease, or which existed or occurred prior to the date
of this lease and continues to exist after the date of this lease,
and Landlord shall be responsible for compliance with all
applicable governmental laws, regulations, requirements or orders
which may apply to said Environmental Contamination. In addition,
Landlord shall liable as between Landlord and Tenant for any
Environmental Contamination caused by any adjoining tenant of
Landlord at any time.
b) Tenant shall be liable for all Environmental Contamination caused
by Tenant (including damages, fines, and penalties related
thereto) which occurred during the term of this lease, except to
the extent such Environmental Contamination is attributable to
activities conducted by Landlord and Landlord's other tenants, and
Tenant is responsible for compliance with all applicable
governmental laws, regulation, requirements or orders which may
apply to said Environmental Contamination.
