STATE OF GEORGIA EXHIBIT 10.30
COUNTY OF ▇▇▇▇▇▇
LEASE AGREEMENT
THIS LEASE, made this 14day ofApril, 1998 between ▇▇▇▇▇▇▇ OVERLOOK 200,
LLC, a Georgia limited liability company having his principal office at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, telephone no. (770)
▇▇▇-▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇ (herein called "Landlord") and, Advanced
Technical Products, Inc. a Delaware Corporation, having its principal
Pre-Commencement office at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
and the Post-Commencement office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, telephone, __________, facsimile_________(herein called "Tenant").
PREMISES AND TERM
1. Landlord hereby leases to Tenant and Tenant hereby rents and leases from
Landlord the following described space (herein called the "Premises") being
approximately 4,445 square rentable feet (which is 2.73% of the Building) Suite
# 505 on the Fifth Floor in ▇▇▇▇▇▇▇ Overlook Building # 200 (hereinafter
referred to as the "Building") located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as the "Property") in Land/ Lot(s) 543 of
the 1st District 2nd Section in The City of Alpharetta. The Building and the
Property are shown on the site plan attached hereto as Exhibit A. The Premises
being more particularly shown and outlined on the plan attached hereto as
Exhibit A-1 and made a part hereof; FOR A TERM to commence on the Commencement
Date and to end at the later of 6:00 P.M. on June 30, 2003, or the last day of
the full sixtieth calendar month after the Commencement Date (herein called the
"Term"). No easement for light and air is granted hereunder.
BASE RENTAL
2. (a) Tenant shall pay to Dove Properties, Inc., as Agent for Landlord at
Suite 225, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other
places as Landlord designates in writing, without demand, deduction or set-off,
rental in the amount of $73,787.04 per year ($16.60 per rentable square foot per
annum; hereinafter called "Base Rental") payable in equal monthly installments
of $6,148.92 in advance, on the first day of each calendar month during the
Term. A pro rata monthly installment shall be due for the first and last month
of the Term should the Term begin or end on other than the first or last day of
the calendar month. Concurrent with Tenant's execution of this Lease, Tenant
will deposit with Landlord $8,278.82 representing the installment for the first
monthly Base Rental payable hereunder plus the installment for the first monthly
Adjustment payable in Paragraph 9(i). (Security deposit, if applicable, is also
due upon execution-see paragraph 29.)
(b) Landlord and Tenant hereby agree that beginning with the Base Rental
payment due on the first anniversary of the Commencement Date and every
anniversary date thereafter during the Term, the monthly Base Rental shall be
increased by the "Rental Adjustment" being an amount equal to the product of (i)
the monthly Base Rental in effect for the previous month (as such sum may have
been increased by any previous Rental Adjustment hereunder), multiplied by (ii)
three percent (3%).
DELIVERY OF POSSESSION TO TENANT BY LANDLORD
3. (a) The "Commencement Date" shall be the sooner to occur of the date of
Substantial Completion of the Premises or the date on which Tenant commences the
operation of its business in the Premises. For purposes of this Lease,
"Substantial Completion" shall occur on the first date on which all of the
following conditions have been satisfied: (i) the Premises shall be completed in
accordance with the Tenant Improvement Plans (as hereinafter defined) except for
minor punchlist items which do not materially and adversely affect the full use
and occupancy of the Premises by Tenant and do not detract from the aesthetic
appearance of the Premises; (ii) a final certificate of occupancy shall be
issued with respect to the Premises; and (iii) ten (10) days shall have expired
since Tenant shall have been given access to the Premises (with ceilings
and carpet installed) for the purposes of installing its furniture, cabling,
computer and other equipment. All furniture, computer and other equipment and
other personal property moved into the Premises shall be at Tenant's sole risk,
subject, however, to the terms of subparagraph 20(f) establishing liability on
the part of the Landlord for proven acts of negligence or willful misconduct
committed by Landlord, its agents, contractors or employees.
(b) Landlord shall notify Tenant in writing of the anticipated completion
not less than thirty (30) days prior to the Commencement Date. The taking of
possession by Tenant shall conclusively establish that said improvements have
been completed in accordance with the building plans and the plans depicting
improvements to be made to the Premises referred in paragraph 38 below (the
"Tenant Improvement Plans") and that the Premises are in good and satisfactory
condition at the time possession is taken, subject to "punch list items"
submitted to Landlord to be completed within thirty (30) days after occupancy
and latent defects discovered during the first year after the Commencement Date.
(c) Notwithstanding the provisions of paragraph 3 (a)(iii), Tenant's
contractors, consultants, vendors and suppliers shall have access to the
Premises during the thirty (30) day period prior to the Commencement Date for
the purposes of installing Tenant's cabling, telephone system and otherwise
preparing the Premises for occupancy by Tenant, except that Tenant may not move
furniture into the Premises prior to the issuance of a certificate of occupancy
unless the appropriate governmental authorities permit such furniture to be
moved into the Premises. Tenant's contractor shall also have earlier access to
the Premises for the purpose of installing computer and other cabling in the
slab of the Premises provided such installation is coordinated with the Landlord
and its contractor. Tenant agrees not to unreasonably interfere with Landlord's
contractors, subcontractors, employees and agents. Tenant acknowledges that in
the event of a conflict between the work to be performed by its contractors and
work to be performed by Landlord's contractors, Landlord's contractors shall
have priority.
(d) Landlord will use its reasonable, good faith efforts to cause the
Commencement Date to occur on or before JULY 1, 1998. If the Commencement Date
has not occurred on or before AUGUST 1, 1998, unless there were delays caused by
Tenant's failure to comply with the schedule in Exhibit "E", Tenant shall have
the right to terminate this Lease upon thirty (30) days prior written notice to
Landlord, in which event Landlord shall refund to Tenant the $8,278.82
previously paid by Tenant to Landlord pursuant to paragraph 2 (a), above. If the
delays in the completion of construction are due to Tenant's delays, then the
Commencement Date shall be the actual completion date of the Premises advanced
by the number of days Tenant delayed the schedule in "Exhibit E".
Notwithstanding anything herein to the contrary, however, the JULY 1, 1998
deadline for the occurrence of the Commencement Date set forth above shall be
extended (for a maximum period of sixty (60) days) upon the occurrence of any
force majeure. As used herein, "force majeure" shall mean strikes, lockouts,
sitdowns, material or labor restrictions by any governmental authority, unusual
transportation delays, riots, floods, washouts, explosions, earthquakes, fire,
storms, acts of the public enemy, wars, insurrections and any other cause not
reasonably within the control of Landlord and which by the exercise of due
diligence Landlord is unable, wholly or in part, to prevent or overcome.
REPAIRS BY TENANT AND REMOVAL OF IMPROVEMENTS AND ALTERATIONS UPON TERMINATION
4. (a) Subject to Landlord's repair obligations set forth in Paragraph 6(a)
below, Tenant will, at Tenant's expense, take good care of the Premises and the
fixtures and appurtenances therein, and will suffer no active or permissive
waste or injury thereof. Subject to the terms of Paragraph 22 below, Tenant
shall, at Tenant's expense, but under the direction of Landlord, promptly repair
any injury or damage to that portion of the Premises described in the first
sentence of Paragraph 20 below provided, however, that Tenant shall be entitled
to the proceeds of insurance maintained by it under Paragraph 20 below and if
such damage should occur due to Landlord's supervision or direction, Tenant
shall not be liable or responsible
2
therefore.
(b) Tenant shall not make any alterations, additions or improvements to the
core of the Building or in or about the Premises, without Landlord's prior
written consent which shall not be unreasonably withheld or delayed. Tenant
shall give Landlord prior written notice describing with reasonable specificity
any proposed alteration, addition or improvement. If the alteration, addition or
improvement in question will materially and adversely affect the marketability
of the Premises upon the expiration or earlier termination of the Term, Landlord
shall, within ten (10) days of the receipt of Tenant's notice, notify Tenant
that Landlord will require that Tenant, no later than ten (10) days following
the expiration or earlier termination of the Term, remove such alteration,
addition or improvement to the Premises and restore the Premises to the
condition that existed prior to such alteration, addition or improvement being
made (reasonable wear and tear and damaged by fire or other casualty excepted).
If Landlord timely notifies Tenant that it will require the alteration, addition
or improvement in question to be removed upon the expiration of the Term and
Tenant moves forward and installs such alteration, addition or improvement,
then, upon the expiration of the Term, Tenant shall be required to remove such
alteration, addition or improvement and restore the Premises to the condition
that existed prior to such alteration, addition or improvement being made
(reasonable wear and tear and damage by fire or other casualty excepted).
(c) All alterations, additions or improvements in or to the Premises
(including, but not limited to carpets, drapes and drape hardware) made or
installed by Tenant which were paid for by Tenant and were not part of the
Tenant Improvement Plans shall become the property of Landlord at the expiration
of the Term. Notwithstanding anything herein to the contrary, Tenant may elect
to have Landlord remove any alterations, additions or improvements to be removed
pursuant to subparagraph 4(b) above, at Tenant's expense, provided Tenant so
notifies Landlord in writing prior to the expiration of the Term and pays to
Landlord on or before the last day of the Term the funds necessary to complete
such removal and restoration, the amount of which funds shall be determined by
Landlord in its reasonable discretion. Notwithstanding the foregoing, Landlord
acknowledges that Tenant shall be allowed to remove at Tenant's expense all
business and trade fixtures, machinery and equipment, communications equipment
installed by Tenant and modular work station cubicles, and any computer
hardware, which is owned or which was purchased or leased by Tenant.
(d) Subject to the terms of subparagraphs 4(b) and (c) above, no later than
the last day of the Term, Tenant will remove all Tenant's personal property and
repair all injury done by or in connection with installation or removal of said
property and surrender the Premises (together with all keys to the Premises) in
as good a condition as they were at the beginning of the Term, reasonable wear
and tear and damage by casualty or condemnation excepted (subject, however, to
the terms of paragraph 20 below). All property of Tenant remaining on the
Premises three (3) business days after notification after Tenant has vacated the
Premises shall be deemed conclusively abandoned and may be removed by Landlord,
and Tenant shall reimburse Landlord for the reasonable cost of removing the
same, subject however, to Landlord's right to require Tenant to remove any
improvements or additions made to the Premises by Tenant and for Tenant to
restore the Premises to its original condition pursuant to the preceding
subparagraph 4(b) above, and further subject to the right of Tenant to leave
certain improvements or additions in the Premises at the end of the Term , as
provided in paragraph 4(b), above.
(e) In doing any work of any nature in, to or about the Premises, Tenant
will use contractors or workmen approved by Landlord, which approval shall not
be unreasonably withheld or delayed. If Tenant incurs any liability for work
done in or to the Building or Premises, Tenant shall promptly pay and discharge
any and all licenses, imposts, liens or other charges arising out of or in
connection with the performance of any act required of or permitted by Tenant
hereunder and shall keep the Premises free and clear from any such liens
3
or charges. In furtherance thereof, Tenant agrees to indemnify and hold Landlord
harmless from and against any and all losses, costs, damages or liabilities
resulting from or attributable to any liens or claims of lien for said work and
Tenant shall remove any such lien or claim of lien promptly upon notice from
Landlord or upon any prior notice of such lien or claim of lien.
(f) In the performance of acts required or permitted by Tenant under
Paragraph 7 or any other provisions of this Lease, Tenant shall obey and comply
with all applicable lawful requirements, rules, regulations and ordinances of
all legally constituted authorities existing at any time during the continuance
of such performance which in any way affects the Premises or the use of the
Premises by Tenant. Such compliance shall include compliance by Tenant with
requirements of the Occupational Safety and Health Act and all amendments
thereto, as the same applies to Tenant's use of the Premises. Should any such
requirement, rule, regulation or ordinance which does not apply to the Building
generally, but which instead applies by virtue of Tenant's or any tenant's
specific manner of use of its premises, require any alteration or addition to
its premises, Landlord shall perform same at Tenant's or at such tenant's
expense. Landlord shall, at Landlord's expense but subject to inclusion in
Adjustments pursuant to paragraph 9 below [subject, however, to the limitations
set forth in subparagraphs 9(j) and (l)], perform any alterations or additions
to the Premises required by any law or act which are not required by virtue of
Tenant's specific manner of use of the Premises.
TENANT RISK
5. Landlord shall not be liable to Tenant for any theft of or damage to any
personal property brought into the Building or the Premises by Tenant, its
employees, agents, contractors, licensees and invitees, except where such theft
or damage results from proven acts of negligence or willful misconduct for which
Landlord or its agents, contractors or employees are proven to be responsible.
REPAIRS AND MAINTENANCE
6. (a) Tenant shall be responsible for its pro rata share of the cost of
all maintenance and repair required in connection with the Premises and the
Building to the extent such costs fall within the scope of the Adjustments in
accordance with Paragraphs 8 and 9. Landlord shall not be liable to Tenant,
except as expressly provided in this Lease, for any damage or inconvenience, and
Tenant shall not be entitled to any abatement or reduction of rent, by reason of
any repairs, alterations or additions made by Landlord under this Lease, except
as provided in Paragraphs 8 and 10. Landlord shall not be required to make any
repairs to the Premises except repairs necessary for safety and tenantability,
repairs to the systems (including without limitation the plumbing, electrical,
and heating, ventilating, and air conditioning systems) serving the Premises,
repairs to the roof and structural components of the Premises, and repairs
necessitated by the proven acts of negligence or willful misconduct of Landlord,
its agents, contractors or employees. Landlord shall also be responsible for
repairing and maintaining in good condition the common areas of the Building and
the parking areas, driveways, walkways and landscaped areas serving the
Building. All such costs shall be included in the Adjustments pursuant to the
terms of Paragraph 9 below.
(b) Subject to the terms of Paragraph 21 below, Tenant shall, at its own
cost and expense repair or replace any damage or injury to all or any part of
the Premises caused by Tenant, its agents, employees, invitees, licensees or
visitors; provided, however, if Tenant fails to make the repairs or replacements
within the cure period provided in ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ may, at his option,
make the repairs or replacements and Tenant shall reimburse the reasonable cost
to Landlord within 30 days of Tenant's receipt of Landlord's invoice thereof
with substantiating documentation.
(c) Tenant shall not commit or allow any waste or damage to be committed or
any hazardous materials to be stored or used on any portion of the Premises or
in the Building (except in compliance with applicable laws). The cost and
expense of any repairs and clean-up necessary to restore the condition of the
Premises to its condition existing on the
4
Commencement Date, if caused by Tenant or due to Tenant's negligent acts,
ordinary wear and tear excepted, shall be borne by Tenant, and if Landlord
undertakes to restore the Premises, it shall have the right of reimbursement
against Tenant, or as provided in Paragraph 4 above. Tenant's obligation to
remove alterations, additions, or improvements shall be as set forth in
Paragraph 4 above.
USAGE
7. (a) Tenant shall use and occupy the Premises as general executive,
sales, and administrative offices and uses ancillary thereto (including, without
limitation an employee break room) and for no other purpose. Tenant's use of the
Premises shall not violate any ordinance, law or regulations of any governmental
body applicable to the Premises and Tenant's use thereof or the "Rules and
Regulations" of Landlord as made a part hereof. In case of breach of this
covenant, Tenant agrees that Landlord may declare Tenant to be in Default of
this Lease as defined in Paragraph 12 below (if such breach is not cured within
the applicable cure period) and may terminate either this Lease or Tenant's
right to possession in accordance with the provisions of ▇▇▇▇▇▇▇▇▇ ▇▇ . ▇▇▇▇▇▇▇▇
represents that Tenant's permitted use of the Premises set forth in first
sentence of this Paragraph 7 shall be in full compliance with all applicable
zoning, land use and development laws and that if Tenant uses the Premises as
permitted herein, its use shall not cause any increase in the existing rates
payable with respect to any fire or other insurance policies relating to the
Building. The Premises shall be used for purposes otherwise in keeping with the
Class A nature of the Building.
(b) In addition to complying with the Rules and Regulations set forth on
EXHIBIT "C" attached hereto and made a part of this Lease and the other terms of
this Lease, Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything herein which is not within the permitted use
of the Premises which will in any way increase the existing rate or affect any
fire or other insurance upon the Building or any of its contents or cause a
cancellation of any insurance policy covering said Building or any part thereof
or any of its contents. In the event that Tenant's actions, omissions or
occupancy of the Premises shall cause the rate of fire or other insurance on the
Building and/or the Premises to be increased, Tenant shall pay, as additional
rent, the amount of any such increase promptly upon demand by Landlord. Landlord
shall give Tenant written notice of and reasonable evidence of the proposed
voiding, suspensions, or increase in the premium of, such insurance, and an
opportunity to cease any conduct causing same, prior to Tenant's incurring the
cost of such increased premium. Tenant shall have the right to pay any such
increased premium cost in lieu of ceasing such conduct, as long as such conduct
is not otherwise prohibited in the Lease. The foregoing to the contrary
notwithstanding, Tenant shall not use or permit the Premises to be used in
violation of the prohibitions of Paragraph 4 of the "Rules and Regulations"
attached hereto.
SERVICES, ELEVATOR, WATER CLEANING & ELECTRICITY
8. (a) Landlord shall furnish, at Tenant's pro rata cost and expense as
provided in Paragraph 9, the following services: (i) elevator service; (ii)
heating and air conditioning in accordance with the standards set forth in
Exhibit B(9) for HVAC; (iii) hot and cold domestic water and common use of
restrooms; (iv) cleaning services; (v) security services consisting of
electronic keyed access to the Building and after-hours on-site guard service;
and (vi) exterior window washing. The services described in clauses (i), (iii)
and (v) shall be provided each day during the Term of this Lease. The services
described in clause (iv) shall be provided on each normal business day except
Holidays. The services described in clause (ii) shall be available from 8:00
a.m. until 6:00 p.m. Monday through Friday inclusive, and 8:30 a.m. until 1:00
p.m. on Saturdays, except Holidays, (herein referred to as "Normal Business
Hours"). As used herein, the term "Holidays" shall mean New Year's Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day and other
holidays generally observed by the owners of comparable buildings in the Georgia
400 at ▇▇▇▇▇▇▇ Road and ▇▇▇▇▇▇ Bridge Road Office Market (the "Market").
Heating, air conditioning and electric service shall also be available at
Tenant's expense during hours after normal Business Hours at rates not in excess
of the lowest rate charged to other tenants of the Building for comparable
service (hereinafter referred to as the "After Hours Cost"). The After Hours
Cost shall be equal
5
to the sum of: (1) the actual cost of all electricity consumed in the operation
of the Premises (as recorded on electric submeters installed by Landlord at
Tenant's expense); (2) the cost of all water consumed for air conditioning and
restroom facilities; (3) the actual cost of Landlord's maintenance personnel or
contractors needed to serve Tenant's after hours requirements, if any; and (4)
the product of (i) the number of hours the Premises are occupied by Tenant above
the normal Business Hours, multiplied by (ii) the "After Hours Rate" (as
hereinafter defined). The After Hours Rate shall be an hourly rate equal to the
sum of (1) the increased maintenance cost, if any, per hour resulting from
Tenant's after hours use of all building and Premises systems; (2) the
incremental hourly cost of all water and electricity consumed by the Building
systems (e.g., cooling tower, fresh air fans, elevator, lobby, lighting, etc.)
which is attributable to Tenant's occupancy of the Premises during times other
than the Normal Business Hours; and (3) if the heating and air conditioning
system was used, the hourly replacement cost of the Building and Premises
heating and air conditioning systems computed by dividing the installed
replacement costs of such systems by the operating life (in hours) of such
systems. Landlord may charge Tenant for administering the After Hours Cost the
lesser of $35.00 per usage beyond the Normal Business Hours, $200.00 per month
or $2,400.00 per calendar year. The charges for After Hours Cost plus the
administrative charges shall be invoiced to Tenant by the twentieth (20th) of
each month and paid by Tenant to Landlord by the first of the succeeding month.
Paragraph 9(k) of the Lease shall govern the After Hours Cost.
(b) As provided in ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ shall also furnish, at Tenant's
pro rata cost and expense pursuant to Paragraph 9 below, electric current on the
Premises for lighting and for small business machinery only (e.g., desk top
computers, fax machines, printers, kitchen appliances in Tenant's employee
breakroom and other small office equipment) using 110 volt, 20 AMP circuits.
Tenant will not use any electrical equipment which in Landlord's reasonable
opinion will overload the wiring installations or interfere with the reasonable
use thereof by other tenants in the Building. If Tenant shall use any equipment
which would result in subparagraph 8(e) below being applicable, Tenant shall
notify Landlord within ten (10) business days after installing such equipment.
Tenant shall not, without Landlord's prior written consent, in each instance,
make any alteration to the electrical system. All additional circuits or
equipment required shall be provided by Landlord and the reasonable cost of
installation and the power consumption thereof shall be paid by Tenant Within 30
days of Tenant's receipt of Landlord's invoice with substantiating
documentation. Landlord to provide minimum 6 ▇▇▇▇▇ per usable square foot demand
load for receptacles, lighting and miscellaneous uses.
(c) If Tenant uses any of the services or electric current enumerated in
this paragraph in an amount or for a period in excess of that provided for
herein, then Landlord reserves the right to charge Tenant as additional rent a
reasonable sum as reimbursement for the direct cost of such added services. In
the event of disagreement as to reasonableness of such charge, the opinion of
the appropriate local utility company or local independent professional engineer
shall prevail.
(d) Subject to the terms of subparagraph 19(f) below, Landlord shall in no
way be liable for cessation of any of the above services caused by strike,
accident or breakdown, nor shall Landlord be liable for damages from the
stopping of elevator nor elevator service, or any of the fixtures or equipment
in the Building being out of repair, or for injury to person or property, caused
by any defects in the electrical equipment, heating, ventilating and air
conditioning system, elevators or water apparatus, or for any damages arising
out of failure to furnish the services enumerated in this paragraph.
Notwithstanding the foregoing, in the event that (i) Landlord fails to provide
services in Paragraph 8(a)and 8 (b) to Tenant or to make any repair as required
by this Lease for a continuous period in excess of five (5) calendar days
following written notice from Tenant of such failure (which notice shall specify
the date on which such failure first occurred) and such failure is not caused by
the failure of any public utility to provide service to the Premises or the
Building, and (ii) such failure results in all or a substantial portion of the
Premises being untenantable for the conduct of Tenant's business,
6
Landlord shall provide Tenant an offset against rents next owing, in an amount
equal to the Base Rental and Adjustments due under this Lease (with the amount
of such offset of rent being prorated based on the portion of the Premises which
is rendered untenantable in the event such failure does not render the entire
Premises untenantable) from and after the expiration of such five (5) calendar
day period and until such time as Landlord resumes providing such service or
services to Tenant or makes the repair in question. If such service or services
are not reinstated or if a repair is not completed within twenty days (20) of
the date such services were first interrupted, so that Tenant's Premises resumes
being tenantable, Tenant may cancel this Lease upon ten (10) days prior written
notice t o Landlord. The following are examples of conditions that the parties
agree will result in all or a portion of the Premises being untenantable: the
unavailability of air conditioning during hot summer months; the unavailability
of heating during cold winter months; the absence of janitorial services; and
the absence of electrical service to the Premises (unless such absence is due to
the failure of a public utility to provide service).
(e) In the event that Tenant uses equipment which consumes electricity in
excess of the electricity consumed by equipment typically used in the operation
of a business office (e.g., typewriters, copy machines, personal computers,
printers fax machines, and other customary office equipment) or in the event
Tenant consistently operates its business in all or a substantial portion of the
Premises for hours in excess of hours specified in subparagraph 8(a), Landlord,
at Tenant's expense, may separately meter the electrical consumption of the
Premises or a substantial portion of the Premises. In such event, Tenant agrees
to pay Landlord Tenant's pro rata share of such cost derived from Tenant's floor
area of the Premises as a ratio of the total floor area of the Building or any
smaller component thereof having a separate utility and/or service measuring
device (e.g., meter) to determine such cost. Such payment by Tenant to Landlord
shall be paid in the same manner and time as Base Rental in Paragraph 2, above.
Landlord agrees to include a provision such as this in the leases relating to
other space in the Building and enforce its provisions as to any tenant which
uses any disproportionately large amounts of utilities and/or services. Any
costs paid by Tenant pursuant to the terms of this subparagraph 8(e) shall not
be included in Adjustments pursuant to Paragraph 9 below. In the event that all
or a substantial portion of the Premises are separately metered, then an
appropriate adjustment to the amount of Adjustments shall be made (e.g., in the
event that the entire Premises are separately metered, then the only cost of
electricity included in Adjustments shall be electricity consumed in connection
with the common areas of the Building).
ADJUSTMENTS
9. In addition to the Base Rental provided in Paragraph 2 hereinabove,
Tenant shall pay to Landlord the following expenses of operating the Premises
and Tenant's pro rata share of the following expenses of operating the Building,
such expenses are herein called "Adjustments" (for purposes of this provision,
Tenant's pro rata share shall be computed by dividing the total floor area of
the Premises by the total rentable area of the Building, which pro rata share is
hereby agreed to be 2.73%):
(a) All real estate taxes on the Building and the Premises, including
land, the Building and improvements thereon. Said real estate taxes shall
include all real estate taxes and assessments that are levied upon and/or
assessed against the Premises, including any taxes, excluding income taxes,
which may be levied on rents and/or any reasonable cost incurred by
Landlord in contesting or mitigating same which results in lowering same.
(b) All insurance on the Building and the Premises including all
insurance premiums for fire, extended coverage, liability, and any other
insurance that Landlord deems necessary in its reasonable judgment on the
Building and the Premises.
(c) All costs to maintain, repair and, subject to Paragraph 9(l),
replace common areas, parking lots, sidewalks, driveways and other areas,
facilities and equipment used in common by the tenants of the Building.
7
(d) Any parking charges, utility surcharges, or any other costs
levied, assessed or imposed by, or at the direction of, or resulting from
statutes or regulations, or interpretations thereof, promulgated by any
governmental authority in connection with Tenant's use or occupancy of the
Premises or the parking facilities serving the Premises.
(e) The cost of providing the services enumerated in Paragraph 8
above.
(f) The costs of maintaining and repairing the Building, its
mechanical, electrical, plumbing and heating, ventilating and air
conditioning systems, and exterior, including the roof system and glass.
(g) The cost of maintaining and repairing the Premises.
(h) The cost of property management, not to exceed four percent (4%)
of gross rentals and revenues collected from Tenant, and the cost of
Landlord's general and administrative expenses (not to exceed one percent
(1%) of Landlord's gross rentals from the Premises).
(i) Tenant is hereby notified that the estimated monthly installments
of "Adjustments" are payable per month in the amount of $2,129.90 and at
the rate of $5.75 per square foot (rentable) per year beginning on the
Commencement Date, and continuing each month in advance on the first day
thereof. Tenant shall continue to make said monthly payments until notified
by Landlord of a change thereof. By April 1st of each year Landlord shall
give Tenant a statement showing the total Adjustments for the Building for
the prior calendar year and Tenant's allocable share thereof, prorated from
the Commencement Date. Landlord's statement, prepared in accordance with
GAAP, shall show a breakdown of Adjustments into at least the following
categories: real estate taxes, insurance, common area maintenance, building
maintenance, utilities and garbage and property management fee. In the
event the total of the monthly payments which Tenant has made for the prior
calendar year are less than the Tenant's actual pro rata share of such
Adjustments, then Tenant shall pay the difference in a lump sum with the
next installment of Base Rental but no less than thirty (30) business days
after receipt of such statement from Landlord and shall concurrently pay
the difference between the revised monthly payments for the then current
calendar year versus the amount actually paid. In the event the total of
the monthly payments which Tenant has made for the prior calendar year are
greater than Tenant's actual pro rata share of such Adjustments, then the
amount of such overpayment shall be credited towards the monthly Base
Rental or Adjustments next coming due or reimbursed as appropriate. The
projected actual Adjustments for the current year shall be used for the
purposes of calculating the anticipated monthly Adjustments for the then
current year with actual determination of such Adjustments after each
calendar year as above provided. Even though the Term has expired and
Tenant has vacated the Premises, when the fi nal determination is made of
Tenant's share of said Adjustments for the year in which this Lease
terminates, Tenant shall immediately pay any increase due over the
estimated Adjustments previously paid and, conversely, any overpayment made
shall be immediately rebated by Landlord to Tenant.
(j) Notwithstanding anything to the contrary contained in this Lease,
the following items shall be excluded (or, as applicable, deducted) by
Landlord in determining or calculating Adjustments: (i) the cost of repairs
or other work occasioned by fire, windstorm or other casualty or loss, or
by the exercise of eminent domain, to the extent that same are covered or
would have been covered by Landlord's compliance with its covenant to
insure by proceeds of insurance or condemnation awards; (ii) rental
concessions or lease buy-outs; the costs of renovating or otherwise
improving or decorating, painting or redecorating other premises for
tenants of the Building or any other costs related to procuring new leases
or renewals, expansions or extensions of existing leases; or relocating the
premises of any tenants; (iii)
8
depreciation; (iv) amounts paid to Landlord, subsidiaries or affiliates of
Landlord, for services to the Building if and to the extent the cost
therefor exceeds competitive costs for such ser vices in comparable
projects or buildings located within the Market were they not so rendered
by Landlord, or a subsidiary or affiliate of Landlord; (v) payments of
principal, interest or other payments or any kind on any deeds to secure
debt, mortgages, ground or underlying lease(s), or other hypothecations for
security of all or any part of the Project or the Building by Landlord;
(vi) any compensation paid to clerks, attendants, or other persons or
entities in any commercial concessions operated by Land lord; (vii) all
items and services and goods for which Tenant or any other tenant,
occupant, person or other party is obligated to reimburse Landlord or to
pay third parties; (viii) wages, salaries and other compensation paid to
employees of the Landlord at the Building who are above the grade of
Building superintendent or manager; (ix) brokerage, legal and professional
fees expended by Landlord in connection with negotiating and entering into
any leases and any related instruments (including w ithout limitation,
guaranties, surrender agreements, leasing amendments and consents to
assignment or subletting) with any tenant or other occupant of any portion
of the Project or the Building and the enforcement of any such instruments;
(x) estate, inheritance, gift, transfer, net worth, intangibles, franchise,
personal property taxes (except such personal property as required to
operate the Building) and income taxes of Landlord (but in no event shall
this subparagraph exclude rent taxes or any net worth, franchise or income
tax assessment in lieu of and in substitution for real estate taxes); (xi)
all other items for which Tenant or any other tenant, occupant or other
party compensates Landlord under this Lease so that no duplication of
payments by Tenant to Landlord shall occur; (xii) any costs, fines or
penalties incurred due to violations by Landlord of any law; (xiii) the
cost of the initial construction of the Building or any subsequent
additions thereto and the cost of correcting any defects in such
construction; (xiv) expenses for the replacement of any item covered under
warranty to the extent of proceeds or payments actually received by
Landlord under such warranty; (xv) Landlord's general corporate overhead
and administrative expenses except as permitted in Paragraph 9 (h); (xvi)
any expenses related to the removal of hazardous substances as defined in
any presently existing applicable environmental law or regulation brought
on the Premises by Landlord, its agents, contractors or employees or other
tenants; (xvii) costs and expenses incurred in connection with financing,
refinancing or syndication of the Building; (xviii) any cost or expense
which is specific to Buildings 10, 20, 30, 70 or any other building which
is hereafter part of the project of which the Building is a part (the
"Adjacent Buildings"); (xix) other items not customarily included as
operating expenses for comparable buildings in the Market; (xx) costs or
expenditures resulting from Landlord's default or from proven acts of
negligence or willful misconduct committed by Landlord, its agents,
contractors or employees; (xxi) late fees due to Landlord's failure to pay
any invoices in a timely manner; and (xxii) consulting fees except those
enhancing the operation of the Building or Premises. Any cost or expense
which benefits one or more of the Adjacent Buildings in addition to the
Building shall be allocated among the benefited buildings in proportion to
the square footage of the benefited buildings.
(k) Within 180 days of Tenant's receipt of a statement from Landlord
showing computation of the Adjustments (or at any time if Landlord fails to
provide such a statement), Tenant may, upon thirty (30) days' written
notice to Landlord and at Tenant's sole cost and expense, conduct an audit
of Landlord's books and records with respect to Adjustments. Officers or
agents of Tenant shall conduct such audit during regular business hours at
Landlord's offices. If such audit shall disclose an error in Landlord's
calculation of Adjustments for such year, proper adjustment shall forthwith
be made between Landlord and Tenant to correct any overpayment or
underpayment of Adjustments by Tenant (with any adjustment by Landlord in
favor of Tenant to be in the form of a credit against future rent) or
reimbursement if appropriate. In the event such audit discloses an
overstatement of Adjustments by Landlord of more than ten (10) percent,
Landlord shall pay the cost of such audit.
(l) Any costs which would be capitalized in accordance with generally
accepted accounting principles ("Capital Costs") shall be amortized on a
straight line basis over the useful
9
life expectancy of same. The amortized cost allocable to a particular year
shall be includable in Adjustments for such year in accordance with the
following: (i) any costs incurred in acquiring and installing any device or
equipment reasonably believed by Landlord to improve the operating
efficiency of any system within the Building shall be included in
Adjustments in its entirety; (ii) any costs incurred in making an
improvement to the Building in order to comply with any law enacted or
reinterpreted by court decision subsequent to the Commencement Date shall
likewise be included in Adjustments in its entirety; Landlord will be
solely responsible for the compliance of the Building (including all Common
Areas which includes bathrooms), all exterior facilities of the Building
and the Property with applicable laws, including, without limitation, the
Americans with Disabilities Act. (iii) otherwise, the amount included in
Adjustments on account of such Capital Costs (exclusive of the costs
described in clauses (i) and (ii) which shall be included in their
entireties) in any year shall not exceed the Capital Costs Cap. The term
"Capital Cost Cap" shall mean (i)$.30 per square foot during the first year
of the Term and (ii)during each succeeding year an amount equal to the
product of $.30 per square foot and a fraction, the numerator of which is
the Index most recently published prior to the first day of the year in
question and the denominator of which is the Index most recently published
prior to the Commencement Date. As used herein, the Index shall mean the
Bureau of Labor Statistics Consumer Price Index (All Urban Consumers - U.S.
City Average 1982-84 = 100). In the event the Index ceases being published,
Landlord shall select a replacement index which will result in comparable
adjustments.
DESTRUCTION TO PREMISES
10. If the Building is totally destroyed (or so substantially damaged as to
be unable to be restored or repaired within 270 days of the fire or other
casualty as determined by Landlord's Insurance adjuster) by storm, fire,
earthquake, or other casualty, the Lease, shall at the option of either party,
by giving notice within thirty (30) days of such destruction or damage,
terminate as of the date of such destruction or damage, and rental shall be
accounted for as between Landlord and Tenant as of the date of such destruction
or damage. If the Premises, but not the entire Building, are damaged or are
rendered partially or wholly untenantable by any such casualty, rental shall
▇▇▇▇▇ from the date of such destruction or damage in proportion to the area of
the Premises which cannot be used or occupied by Tenant as a result of such
casualty and Landlord shall restore the Premises within 120 days of the date of
such casualty unless prevented from doing so for reasons beyond Landlord's
control, in which event such restoration period shall be so extended for up to
60 days. If the Premises are not restored within the period of time specified in
the preceding sentence, Tenant shall be entitled to terminate this Lease by
written notice to Landlord.
RULES AND REGULATIONS
11. Tenant will observe and comply with the "Rules and Regulations"
attached hereto as EXHIBIT C and made a part hereof and such further reasonable
rules and regulations as Landlord may prescribe, on written notice to Tenant,
for the safety, care and cleanliness of the Building, and the comfort, quietness
and convenience of other occupants of the Building. Landlord shall have the
exclusive right to regulate and control parking areas and Tenant hereby agrees
to conform to such rules and regulations as Landlord may establish. Tenant shall
have the non-exclusive use of 17 automobile spaces for free parking on the
Property shown in Exhibit A-1 for its employees, vendors, and business invitees.
Twelve (12) of said spaces shall be located in the structured parking deck of
the Building. Tenant shall not allow more than seventeen (17) cars to be parked
on the Property for any employee, visitor, contractor, vendor, or other business
invitee. In no event shall Landlord adopt any rule or regulation which does not
apply to all tenants, including rules and regulations providing for reserved
parking. Landlord shall not enforce any of the rules and regulations in a manner
which is discriminatory against Tenant or inconsistent with the other provisions
of this Lease.
TENANT'S DEFAULT
12. The following constitute a Default: Any failure to pay rent or other
charges due hereunder as and when the same shall be due and payable (provided,
however, that no more than twice during any calendar year, a Default shall not
have occurred unless Tenant has failed to cure any such failure within three (3)
business days following written notice thereof from
10
Landlord) or if Tenant defaults in performing any other of Tenant's non-monetary
obligations hereunder and fails to cure such default within thirty (30) days
after written notice from Landlord (or such longer period as may reasonably
necessary to cure such default if such default is not reasonably susceptible of
being cured within thirty (30) days, provided Tenant promptly commences its
efforts to cure such default within thirty (30) days and proceeds with due
diligence and good faith thereafter); or if Tenant files for or is adjudicated a
bankrupt; or if a permanent receiver is appointed for Tenant's property,
including Tenant's interest in the Premises, and such receiver is not removed
within sixty (60) days after written notice from Landlord to Tenant to obtain
such removal; or if whether voluntarily or involuntarily, Tenant takes advantage
of any debtor relief proceedings under any present or future law, whereby the
rent or any part thereof is, or is proposed to be reduced or payment thereof
deferred; or is proposed to be reduced or payment should be levied upon or
attached under process against Tenant, not satisfied or dissolved within thirty
(30) days after written notice from Landlord to Tenant to obtain satisfaction
thereof.
Upon the occurrence of any of the aforesaid events of Default, without further
notice or demand of Tenant in any instance, Landlord shall have the option to
pursue any one or more of the following remedies:
(a) Terminate this Lease by giving Tenant notice of termination, in
which event this Lease shall expire and terminate on the date specified in
such notice of termination, with the same force and effect as though the
date so specified were the date herein originally fixed as the termination
date of the Term of this Lease, and all rights of Tenant under this Lease
and in and to the Premises shall expire and terminate, and Tenant shall
remain liable for all obligations under this Lease arising up to the date
of such termination, and Tenant shall surrender the Premises to Landlord on
the date specified in such notice and if Tenant fails to do so, Landlord
may without prejudice to any other remedy which it may have for possession
or arrearage in rent, enter upon and take possession using lawful means of
the Premises and expel or remove Tenant and any other person who may be
occupying the Premises or any portion thereof.
(b) Terminate this Lease as provided in clause (a) above and recover
from Tenant all losses and damages Landlord may suffer or incur by reason
of Tenant's default, including, without limitation, a sum which, at the
date of such termination, is equal to the then present value (to be
computed as set forth below) of the excess, if any, of (i) the Base Monthly
Rental, Additional Rent and all other sums which would have been payable
hereunder by Tenant for the period commencing with the date following the
date of such termination and ending with the date hereinbefore set forth
for the expiration of the full Term hereby granted, over (ii) the aggregate
reasonable rental value of the Premises for the same period. Tenant hereby
agrees to pay to Landlord on demand the amount of all such losses and
damages which Landlord actually suffer by reason of such Tenant default.
(c) Without terminating this Lease, terminate Tenant's right of
possession and enter into and upon and take possession of the Premises or
any part thereof, and at Landlord's option, expel and remove persons and
property therefrom by entry using lawful means, dispossessing suit or
lawful means , without thereby releasing Tenant form any liability
hereunder, without terminating this Lease, and without being liable to
prosecution or any claim for damages therefor except for damages due to
Landlord's negligent acts or willful misconduct. Such property, if any, may
be removed and stored in a warehouse or elsewhere at the costs of, and for
the account of Tenant, all without being deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned thereby, to
Landlord's negligent acts or willful misconduct and may, but shall be under
no obligation to do so, relet the Premises in Landlord's name, but for the
account of Tenant, with or without advertisement, and by private
negotiations, and receive the rent therefore, and for any term and upon
such terms and conditions as Landlord may reasonably deem necessary or
desirable. Landlord shall in no way be responsible or liable for any rental
concessions or any failure to
11
lease the Premises or any part thereof, or for any failure to lease the
Premises or any part thereof, or for any failure to collect any rent due
upon such reletting. Upon each such reletting, all rentals received by
Landlord from such reletting shall be applied as follows: first, to the
payment of any indebtedness (other than any amounts due hereunder) from
Tenant to Landlord; second, to the payment of any costs and expenses of
such reletting, including, without limitation, reasonable and necessary
brokerage fees and attorneys' fees and costs of alterations and repairs
(Tenant agreeing that Landlord shall have the right to make such
alterations and repairs as, in Landlord's reasonable judgment, may be
necessary to relet the Premises); third, to the paymen t of rental and
other charges then due and unpaid hereunder; and the residue, if any, shall
be held by Landlord to the extent of and for application in payment of
future amounts due hereunder as the same may become due and payable
hereunder. In reletting the Premises as aforesaid, Landlord may grant
market rent concessions and Tenant shall not be credited therefor. If such
rentals received from such reletting shall at any time or from time to time
be less than sufficient to pay to Landlord the entire sums then due from
Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall, at Landlord's option, be calculated and paid monthly. No
such reletting shall be construed as an election by Landlord to terminate
this Lease unless a written notice of such election has been given to
Tenant by Landlord. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease for any
such previous event of default provided same has not been cured.
Notwithstanding anything contained herein to the contrary, no termination
of Tenant's right of possession of the Premises by dispossessory action or
otherwise shall release Tenant from the performance of Tenant's obligations
under this Lease, including, without limitation, the timely payment of all
rent reserved hereunder for the balance of the Term of this Lease following
such termination of Tenant's right of possession, and Tenant agrees to so
perform said obligations.
(d) Without liability to Tenant or any other party and without
constituting a constructive or actual eviction, suspend, or discontinue
furnishing or rendering to Tenant any property, material, labor, utilities
or other service, wherever Landlord is obligated to furnish or render the
same, so long as Tenant is in default under this Lease.
(e) Allow the Premises to remain unoccupied and collect Base Monthly
rental and other charges due hereunder from Tenant as they come due.
Notwithstanding the forgoing, Landlord shall use commercially reasonable
efforts to mitigate Tenant's damages hereunder.
(f) Landlord may perform, as agent for and at the expense of Tenant,
any obligation of Tenant under this Lease which Tenant has failed to
perform and of which Landlord shall have given Tenant notice and
opportunity to cure as provided herein, the cost of which performance by
Landlord together with interest thereon at the default rate from the date
of such expenditure, shall be deemed additional rental and shall be payable
by Tenant to Landlord upon demand, and Tenant agrees that Landlord shall
not be liable for any damages resulting to Tenant from such action,
provided such action does not constitute gross negligence or willful
misconduct on the part of landlord.
(g) Landlord may exercise any other legal or equitable right or remedy
which it may have, including, but not limited to Landlord's right
judicially to obtain possession pursuant to Georgia statutory law.
Notwithstanding the provisions of clause (g) above and regardless of whether a
"Default" shall have occurred, Landlord may exercise the remedy described in
clause (g) without any prior notice to Tenant if Landlord, in its reasonable
judgment, believes it would be materially injured by failure to take rapid
action and if the unperformed obligation of Tenant constitutes an emergency. The
Tenant shall be notified within ten (10) business days after such
12
emergency. Any costs and expenses incurred by Landlord (including, without
limitation, reasonable attorneys' fees) in enforcing any of its rights or
remedies under this Lease shall be deemed additional rent and shall be repaid to
Landlord by Tenant within three days after demand.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any other
remedy herein provided or any other remedy thereby excluding the later election
of an alternate remedy, or a forfeiture or waiver of any Base Rental, Additional
Rent or other charges and assessments payable by Tenant and due to Landlord
hereunder or of any damage accruing to Landlord by reason or violation of any of
the terms, covenants, warranties and provisions herein contained. No course of
dealing between Landlord or Tenant under Paragraph 15, or under any other
provisions of this Lease, shall operate as a waiver of any rights of Landlord or
Tenant hereunder any other provisions of this Lease, nor shall any waiver of an
event of default on one occasion operate as a waiver of any subsequent event of
default or any other event of default. No express waiver shall effect any
condition, covenant, rule, or regulation other than the one specified in such
waiver and that one only for the time and in the manner specifically stated.
If this Lease is terminated by Landlord pursuant to clause (b) above, "present
value" shall be computed by discounting the amount of such excess to present
worth at a discount rate equal to one percent (1%) above the discount rate then
in effect at the Federal Reserve Bank of Atlanta, Georgia. Neither the
commencement of any action or proceeding, any sum or sums then due be a bar to
the maintenance of any subsequent actions or proceedings for the recovery of
such sums or sums so omitted. Landlord's pursuit of any remedy or remedies,
including, without limitation, any one or more of the remedies stated above
shall not (i) constitute an election of remedies or preclude pursuit of any
other remedy or remedies provided in this Lease or separately or concurrently or
in any combination, or (ii) serve as the basis for any claim of constructive
eviction, or allow Tenant to withhold any payments under this Lease.
Landlord hereby waives, releases and relinquishes any and all claims, rights,
interests, liens upon and rights of distraint, levy, attachment or recourse
(whether arising by virtue of statute, common law or otherwise) to equipment or
trade fixtures which Tenant may lease, and to equipment, trade fixtures and
other personal property owned by Tenant (the "Owned Property"). Owned Property
shall include, without limitation, specialized equipment unique to the nature of
Tenant's business, including, with limitation, computer software, computer
tapes, computer program tapes, computer program disks, computer program
documentation and manuals, computer program codes, customer lists or other such
inventory or proprietary information which may belong to Tenant or be in the
possession of Tenant, which is located upon the Premises during the Term, or any
renewal or extension thereof. The foregoing waiver, release and relinquishment
is self-operative and does not require the necessity for any further instrument
or document. Notwithstanding the foregoing, Landlord hereby agrees to furnish,
upon written request, waivers of Landlord's rights and liens as described herein
and shall exempt the same from distraint, levy, attachment, or recourse."
The failure of Landlord to insist upon strict performance of any of the terms,
condition and covenants herein shall not be deemed to be a waiver of any
subsequent breach or default in the terms, conditions, and covenants except as
may be expressly waived in writing.
Notwithstanding the foregoing, Landlord shall not be responsible for any
consequential, indirect, speculative or punitive damages of Tenant.
EARLY TERMINATION
13. No termination of this Lease prior to the normal ending thereof by the
lapse of time or otherwise shall affect Landlord's right to collect rent and
other charges due at the time of such termination.
13
ASSIGNMENT SUBLETTING
14. (a) Tenant may assign this Lease and any interest hereunder, or sublet
the Premises or any part thereof, or permit the use of the Premises to or by any
affiliate of Tenant without the approval of Landlord. Tenant may not assign this
Lease and any interest hereunder or sublet the Premises or any part thereof or
permit the use of the Premises by any party other than an affiliate of Tenant
without the prior written consent of Landlord, such consent to be in conformance
with Paragraph 39 hereof. The term "affiliate" shall mean any entity now or
hereafter directly or indirectly in control of, controlled by or under common
control with Tenant or its principals; or into which or with which Tenant
intends to merge or consolidate; or which agrees to acquire all or substantially
all of Tenant's outstanding stock, partnership interests or assets. The terms
"control", "controlled by" and "under common control with" shall mean, with
respect to any entity, the possession of the power to direct or cause the
direction of the management and policy of such entity, whether through the
ownership of voting securities or contracts. Tenant agrees to provide to
Landlord notice of any such assignment or sublease to an affiliate of Tenant.
(b) In the event Tenant subleases or assigns any part of the Premises to a
party other than an affiliate at a rental rate exceeding the Base Rental due
Landlord herein, fifty percent (50%) of the excess rental received by Tenant,
less the cost of subleasing or assigning the Premises, shall be due to Landlord
within ten (10) days after receipt of such excess by Tenant. If Tenant has
vacated or discontinued operation in all or substantially all of the Premises
and subleases or assigns the Premises to another tenant, then, in addition to
other requirements of this paragraph 29, the Lease shall be amended by adding a
Damage Deposit of $8,278.82 in paragraph 29, and Landlord shall receive 50% of
the excess rental received by Tenant, less the cost of subleasing and assigning
the Premises. If Landlord approves Tenant's sublease or assignment, Landlord, as
a condition of its approval, shall (1) be paid $500.00 to reimburse Landlord for
its administrative review of the sublease or assignment; (2) receive a fully
executed copy of the sublease or assignment; (3) hold Tenant liable under this
Lease as if there were no sublease or assignment. Notwithstanding the foregoing,
if Tenant desires to sublease or assign substantially all of the Premises,
Landlord may cancel this Lease and enter into a new lease with Tenant's proposed
sublessee or assignee.
EMINENT DOMAIN
15. If all or any substantial part of the Premises, the land on which the
Building stands, any portion of the common areas necessary for the use and
enjoyment of the Premises or any estate therein is taken by virtue of eminent
domain or is conveyed or leased in lieu of such taking, the Lease shall expire
on the date when title shall vest, or the term of such lease shall commence, and
any rent paid for any period beyond said date shall be repaid to Tenant.
Widening of streets abutting the land on which the Building stands and/or loss
of less than 10% of the total Parking Spaces shall not affect this Lease,
provided no part of the Building is taken and there is no material and adverse
impact on Tenant's ability to park on the Property or any substituted property,
(hereinafter referred to as "Tenant's Parking Impact"). Tenant shall not be
entitled to any part of any condemnation award granted to Landlord or to any
payment in lieu thereof unless condemning authority pays Landlord's and Tenant's
compensation in a lump sum payment, but Tenant shall be entitled to file its own
claim for damages with the condemning authority. If less than substantially all
of the Premises, the land on which the Building stands, or the common areas
necessary for the use and enjoyment of the Premises is so taken and such taking
renders a portion of the Premises untenantable and Tenant could reasonably be
expected to operate within the remaining Premises, Landlord shall conduct such
repair work, if any, as may be necessary to restore the premises to a
self-contained rental unit and provide Tenant an offset against the Base Rental
and Adjustments next owing under this Lease (with the amount of such offset
being determined prorata based on the portion of the Premises rendered
untenantable) from and after the date of such taking until such time as said
portion of the Premises, the land on which the Building stands, or said common
area so taken is restored by Landlord. Any partial taking of the Premises th at
renders the Premises untenantable as defined in Paragraph 8(d) and a loss of
parking causing a Tenant Parking Impact (as herein before defined) shall give
Tenant the option to cancel this Lease upon forty-five (45) days prior written
14
notice to Landlord.
ENTRY
16. Landlord may enter the Premises at reasonable hours and upon reasonable
verbal request to show the Premises to mortgagees, or prospective purchasers, or
prospective tenants only during the last twelve (12) months of the term, or to
inspect the Premises, or to make repairs required of Landlord under the terms
hereof or repairs to adjoining space within the Building. Such entry by Landlord
shall not entitle Tenant to any rent abatement, unless such entry by Landlord
deprives Tenant of the use of all or a substantial portion of the Premises for
the conduct of Tenant's business during operating hours of the Building as
specified in Paragraph 8(a). Landlord agrees to exercise its rights pursuant to
this paragraph 16 in a manner so as not to unreasonably interfere with Tenant's
use and enjoyment of the Premises or unreasonably interfere with Tenant's
business operations or occupancy. A representative of Tenant shall accompany
Landlord when in the Premises, unless said entry is for routine janitorial
service or emergency repairs.
TRANSFER OF TENANTS
17. OMITTED
SUBORDINATION
18. (a) This Lease shall be subject and subordinate to all security deeds
which may now or hereafter affect this Lease or the real property of which the
Premises form a part, and also to all renewals, modifications, extensions,
consolidations and replacements of such underlying security deeds. In
confirmation of the subordination set forth in this ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ shall,
within fifteen (15) business days after written request of Landlord or the
holder of any security deed, execute and deliver such further instruments as may
be reasonably requested by any holder of an underlying security deed.
Notwithstanding the provisions of this Paragraph 18, Tenant shall, at the
request of any holder of a security deed, mortgage or other lien affecting this
Lease of the real property of which the Premises form a part, be bound to any
such holder which succeeds to Landlord's interest through foreclosure or
otherwise under all the terms, covenants and conditions of this Lease for the
term remaining, and Tenant shall promptly attorn to such succeeding party as its
Landlord under this Lease, providing that such successor to Landlord shall have
executed a subordination, non-disturbance, and attornment agreement similar to
Exhibit "D". Tenant agrees that should any succeeding party require a separate
attornment agreement regarding matters covered by this Lease, then Tenant shall
enter into any such attornment agreement, provided it does not otherwise modify
this Lease and has no adverse effect upon Tenant's continued occupancy of the
Premises. Landlord hereby advises Tenant that as of the date of execution
hereof, the real property of which the Premises is a part is encumbered by and
subject to a deed to secure debt. Landlord agrees to cause the document similar
to Exhibit "D" to be signed by Landlord's lender within sixty (60) days after
the date of this Lease. Notwithstanding any provisions to the contrary contained
in this paragraph 18, in no event sha ll this Lease be subject and sub ordinate
to any future security deed, mortgage or lien unless the holder thereof provides
an agreement, in form and substance reasonably satisfactory to Tenant, agreeing
to recognize this Lease and Tenant's rights thereunder in the event of a
foreclosure.
(b) If Tenant shall not be in default beyond any applicable notice or grace
period, Tenant shall have the right to peaceably and quietly occupy and enjoy
the full possession and use of the Premises, subject, however, to the terms of
this Lease. Landlord agrees to take reasonable steps to cause any noises, odors
or other similar occurrences originating in portions of the Building other than
the Premises from disturbing Tenant's use and enjoyment of the Premises. Tenant
acknowledges that certain levels of noise and certain odors are unavoidable
consequences of occupying space in a multi-tenant office building. Tenant
acknowledges further that the construction of improvements on floors adjacent to
the Premises will occur from time to time during the Term and that such
construction will result in noise which Tenant may
15
find unpleasant. Landlord nevertheless agrees to take such actions as are taken
by the owners of comparable buildings in the Market to cause construction
activities to be conducted in such a way as to minimize the disruption of
Tenant's use and occupancy of the Premises.
INDEMNITY/ HOLD HARMLESS
19. Tenant hereby on behalf of itself and any party holding by, through or
under Tenant agrees to indemnify and hold harmless Landlord, its agents,
contractors and employees in the following manner:
(a) Against any default under this Lease by Tenant or any party
holding by, through or under Tenant for any and all damages, costs, claims
of liabilities of whatsoever nature sustained by Landlord or any party
holding by, through or under Landlord as a result of such default or
failure.
(b) Against any and all claims, damages, losses and liabilities,
whatsoever their nature, cause or origin, attributable in any manner to the
negligence of Tenant, or Tenant's agents, contractors, employees or to the
use and occupancy of the Premises or the Building by Tenant, its agents,
contractors, employees, licensees or invitees.
(c) Against any and all damage or injury to the Premises caused by
Tenant, or Tenant's agents, contractors, employees, licensees or invitees,
to Tenant's own property, to Tenant, its agents, contractors, employees,
invitees or licensees arising from any use or condition of the Premises,
and from any act or failure by Tenant with respect thereto.
(d) Against any and all damages to Tenant of whatever nature resulting
from or caused by the condition of the Premises, or the Building and/or
cessation of operations or malfunction of any equipment or apparatus
serving the Premises or the Building.
(e) Against any and all losses or damages to any person or property of
Tenant, its agents, contractors, employees, invitees or licensees
occasioned by fire, act of God, public enemy, injunction, riot, strike,
insurrection, war, court order, requisition, or order of governmental body
or authority, or other matters beyond the reasonable control of Landlord.
(f) Notwithstanding the terms of subparagraph (a) through (e) above,
the only exceptions to Tenant's full assumption of and liability for any
and all claims whatsoever their nature, cause or origin which relate to the
Premises, the Building and equipment and apparatus located therein and
walks and entryway thereto shall be only (i) those claims resulting from
Landlord's default or from acts of negligence or willful misconduct
committed by Landlord, its agents, contractors or employees, and (ii) those
claims included within the waiver of subrogation contained in Paragraph 21
below. Notwithstanding the terms of subparagraphs (a) through (e) above,
Landlord hereby and on behalf of itself and any party holding by, through
or under Landlord agrees to indemnify and hold harmless Tenant, its agents,
contractors and employees from any and all loss, damage, liability, cost
and expense (including without limitation, reasonable attorney's fees and
court costs) incurred by Tenant, its agents, contractors, employees,
invitees or licensees resulting from Landlord's default under the terms of
this Lease or from acts of negligence or willful misconduct committed by
Landlord, its agents, contractors or employees. Under no circumstances
shall Tenant or Landlord be deemed liable or responsible for and shall not
be required to indemnify the other for the acts, negligent or otherwise, of
other tenants of the Building or the Property.
(g) Tenant's obligation in Paragraph 20 shall be secured by a
$5,000,000 liability insurance policy covering this obligation issued by a
company rated "A" by Best's Rating Service with a certificate thereof
deposited with Landlord upon the execution hereof. Said policy shall name
Landlord as an additional insured and shall not be terminated or canceled
without thirty (30) days prior written notice to Landlord by carrier of
such insurance. Tenant's failure to provide and maintain said insurance
policy within the applicable notice and cure
16
period shall be a Default in Paragraph 12, above Tenant shall, at its sole
cost and expense obtain and maintain commercial general liability
insurance, including blanket contractual liability coverage, with limits of
not less than $5,000,000.00 combined single limit for personal injury and
property damage; comprehensive automobile liability insurance covering all
owned, non-owned and hired vehicles, with limits or not less than
$1,000,000.00 combined single limit for personal injury and property damage
including Tenant's personal property; and statutory workers compensation
and employers liability coverage, with limits of not less than $250,000.00,
or qualified self-insurance. Landlord will be named as an additional
insured as Landlord's interests may appear. Upon written request, Tenant
shall deliver to Landlord a certificate evidencing such coverages. Such
insurance policies shall provide for no cancellation or material adverse
alteration without 10 day's prior written notice to Landlord.
FIRE AND EXTENDED INSURANCE COVERAGE
20. Tenant shall carry fire and extended coverage insurance insuring its
interest in Tenant's improvements in the Premises and its interest in its office
furniture, equipment and supplies therein. Tenant shall, within thirty (30) days
following notice from Landlord, deposit with Landlord the policy or policies of
such insurance or a certificate or certificates thereof. The instrument or
instruments deposited with Landlord hereunder shall evidence that such insurance
is in full force and effect, that such insurance will not be terminated or
canceled without ten (10) days prior notice to Landlord by the carrier of such
insurance. Landlord covenants and agrees that it will carry a "Special Form" all
risk insurance policy with respect to the Building in an amount not less than
100% of replacement cost of the Building (subject to customary deductibles), and
that it will maintain on a continuous basis, in adequate amounts, liability
insurance on the Property. Landlord shall obtain and maintain all risk property
insurance for the Building upon a full replacement cost basis, subject to
customary deductibles, with no coinsurance requirement; commercial general
liability insurance, including blanket contractual liability coverage, with
limits of not less than $5,000,000.00 combined single limit for personal injury
and property damage; comprehensive automobile liability insurance covering all
owned, non-owned and hired vehicles, with limits of not less than $1,000,000.00
combined single limit for personal injury and property damage and statutory
works compensation and employers liability coverage, with limits of not less
that $250,000.00, or qualified self-insurance. Landlord shall deliver, upon
written request, a certificate evidencing such coverages. Such insurance
policies shall provide for no cancellation or material alteration without 30
days' prior written notice to Tenant. Landlord shall require each of the tenants
of the Building to obtain and main tain commercial general liab ility insurance,
including blanket contractual liability coverage, with limits of not less than
$5,000,000.00 combined single limit for personal injury and property damage.
WAIVER OF SUBROGATION
21. Anything in this Lease to the contrary notwithstanding, Landlord and
Tenant hereby waive and release each other, and their respective partners,
agents and employees, of and from any and all rights of recovery, claim, action
or cause of action against each other, their agents, officers and employees, for
any injury or death or any loss or damage that may occur to the Premises, the
Building or any of the contents thereof, to the extent that such loss or damage
is covered by the insurance carried by Landlord and Tenant hereunder (or if
either Landlord or Tenant defaults in its obligation to carry insurance pursuant
to the terms of paragraphs 19 or 20 above, to the extent that such loss or
damage does not result from negligence or intentional misconduct of the party
being released and such loss would have been covered under the policies required
to be carried pursuant to paragraph 19 or 20 above taking into account any
so-called "deductibles") and regardless of cause or origin, including but not
limited to negligence of Landlord or Tenant or their agents, officers and
employees. Because this paragraph will preclude the assignment of any claim
mentioned in it by way of subrogation or otherwise to an insurance company, each
party to this Lease agrees immediately to give to each insurance company which
has issued to it policies of insurance covering all risk of direct physical loss
written notice of the terms of the mutual waivers contained in this paragraph,
and to use its reasonable good faith efforts to have the insurance policies
properly endorsed, if necessary, to prevent the invalidation of the insurance
coverages by reason of the mutual waiver contained in
17
this section. If despite using its good faith efforts, either party is unable to
obtain such an endorsement, such party shall promptly provide written notice of
such failure to the other party. In such event, the waiver and release granted
above by the party unable to obtain such endorsement shall not apply unti l such
▇▇▇ e as such endorsement is provided.
Landlord and Tenant acknowledge that the waivers and releases set forth in this
paragraph are intended to result in any loss or damage which is required to be
covered by insurance pursuant to the terms of this Lease being borne by the
insurance carrier of Landlord or Tenant, as the case may be.
LANDLORD'S AND TENANT'S RIGHTS
22. The rights given to Landlord and Tenant herein are in addition to any
rights that may be given to Landlord by any statute or otherwise.
HOLDING OVER
23. If Tenant remains in possession of the Premises or any part after
expiration of the Term hereof with Landlord's acquiescence and without any
specific agreement between the parties, Tenant shall be a "Tenant at Will" and
such tenancy shall be subject to all the provisions hereof except that the
monthly portion of the Base Rental shall be increased by fifty percent (50%) for
the first month of the hold-over period then shall be doubled for the remaining
hold-over period and there shall be no renewal of this Lease by operation of
law. Nothing in this Paragraph shall be construed as consent by Landlord to the
possession of the Premises by Tenant after the expiration of the term other than
as "Tenant at Will".
NO WAIVER CHANGES
24. (a) The failure of either party to insist in any instance on strict
performance of any covenant or condition or hereof, or to exercise any option
herein contained, shall not be construed as a waiver of such covenant, condition
or option in any other instance. This Lease cannot be changed or terminated
orally.
MARGINAL NOTATIONS
25. The marginal notations in this Lease are included for convenience only
and shall not be taken into consideration in any construction or interpretation
of this Lease or any of its provisions.
NOTICE
26. Any notice by either party to the other shall be valid only if in
writing and delivered personally (including delivery by express courier), sent
by registered or certified mail addressed (1) if to Tenant, at Advanced
Technical Products, Inc. at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, and (2) if to Landlord, at Landlord's address set forth above, or at such
other address for either party as that party may designate by notice to the
other. Notice shall be deemed given, if delivered personally, upon the day of
receipt thereof, and if mailed, upon the delivery thereof or refusal to accept
delivery thereof.
SUCCESSORS ASSIGNS
27. The provisions of the Lease shall bind and inure to the benefit of
Landlord and Tenant, and their respective successors, and where permitted
assigns, it being understood that the term "Landlord", as used in this Lease,
means only the owner, or the lessee for the time being of the land and the
Building of which the Premises are a part, so that in the event of any sale or
sales of said property or of any lease thereof, the Landlord named herein shall
be and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder accruing thereafter, and it shall be deemed without further
agreement that the purchaser, or the lessee, as the case may be, has assumed and
agreed to carry out any and all covenants and obligations of Landlord hereunder
during the period such party has possession of the land and the Building. Should
the land and the entire Building be severed as to ownership by sale and or
lease, then the owner of the entire Building or lessee of the entire Building
that has the right to lease space in the Building to tenants shall be deemed the
"Landlord". Tenant shall be bound to any succeeding party Landlord for all the
terms, covenants and conditions hereof and shall
18
execute any attornment agreement not in conflict herewith at the request of any
succeeding party Landlord.
ENTIRE AGREEMENT AND ENFORCEABILITY
This Lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein shall be of any force or effect. If any term or
provision of this Lease shall be invalid or unenforceable, the remaining terms
and provisions hereof shall not be affected thereby; if the application of any
term or provisions of this Lease to any person or circumstance shall to any
extent be invalid or unenforceable, such term or provision shall remain
applicable as to those persons or circumstances to which it shall be valid and
enforceable; and each term and provision of this Lease shall be valid and
enforceable to the fullest extent permitted by Law.
19
SECURITY DEPOSIT
29. On the execution hereof, if Tenant's rating is not "A" by ▇▇▇▇▇'▇ or
equivalent, then Tenant shall deposit $8,778.82 as Security Deposit with
Landlord. Such Security Deposit shall be held by Landlord interest-free,
co-mingled with Landlord's funds and returned to Tenant within sixty (60) days
after the expiration of the Lease Term, so long as Tenant complies with the
provisions of this Lease.
ATTORNEY'S FEES AND HOMESTEAD
30. Any amounts payable hereunder by Tenant to Landlord or vice versa which
are not paid within five (5) days of the date due shall (i) incur a late fee of
five percent (5%) of the amount due and (ii) bear interest per annum at the
lesser of the rate published by the WALL STREET JOURNAL as the prime rate per
annum plus four percent (4%) or the highest legal interest rate from said due
date. If amounts owing Landlord by Tenant or Tenant by Landlord are collected by
or through an attorney at law, the party owing such sums agrees to pay the
reasonable attorney's fees actually incurred by the other party.
GENDER
31. The parties "Landlord", "Tenant" and "Agent" and pronouns relating
thereto, as used herein shall include male, female, singular and plural,
corporation, partnership or individual, as may fit the particular parties.
NO ESTATE IN LAND
32. It is understood and agreed that Tenant has only a usufruct under this
Agreement, which is not subject to levy and sale, and that no estate shall pass
out of Landlord to Tenant hereunder with Tenant's rights to the use of the
Premises being solely contractual.
ENVIRONMENTAL MATTERS
33. Subject to including the cost thereof under Paragraph 9 (l) (ii)
Landlord will cause the Building corridors, bathrooms, lobbies, and exterior
common areas to be in compliance with all laws, including without limitation,
the Americans with Disability Act. Landlord represents to Tenant that the real
property on which the Building is to be built and the Building upon construction
shall contain no Hazardous Substances. Landlord agrees to indemnify and hold
Tenant harmless from and against any and all losses, liabilities, costs and
expenses (including without limitation, reasonable attorney's fees, court costs,
inspection fees and remediation costs) suffered by Tenant on account of the
breach of the foregoing representation. Tenant agrees to indemnify and hold
Landlord harmless from and against any and all losses, liabilities, costs and
expenses (including without limitation, reasonable attorney's fees, court costs,
inspection fees and remediation costs) suffered by Landlord arising from any
Hazardous Substances introduced, released by or placed in the Premises, the
Building or the real property on which the Building is located by Tenant, its
agents, contractors or employees. As used in this Lease, the term "Hazardous
Substances" means asbestos, polychlorinated biphenyl, petroleum products and
such materials, waste, contaminates or other substances defined as toxic,
dangerous to health or otherwise hazardous by cumulative reference to the
following sources as amended from time to time: (i) the Resource Conservation
and Recovery Act of 1976, 42 USC ss.6901 et. seq. ("RCRA"); (ii) the Hazardous
Materials Transportation Act, 49 USC ss.1801, et. seq.; (iii) the Comprehensive
Environmental Response Compensation and Liability Act of 1980, 42 USC ss.9601
et. seq. ("CERCLA"); (iv) applicable laws of the jurisdiction where the Property
is located, and (v) any federal, state or local statutes, regulations,
ordinances, rules or orders issued or promulgated under or pursuant to any of
those laws or otherwise by any department, agency or other administrative,
regulatory or judicial body. " Notwithstanding the foregoing, Tenant may handle,
store, use or dispose of products containing small quantities of Hazardous
Materials (such as aerosol cans containing insecticides, toner for copiers, p
ains, paint remover and the like) to the extent customary and necessary for the
use of the Premises for general office purposes; provided that Tenant shall
always handle, store, use and dispose of any such Hazardous Materials in a safe
and lawful manner and never allow such Hazardous Materials to contaminate the
Premises, Building and appurtenant land or the environment."
TIME OF ESSENCE
34. Time is of the essence of this Agreement.
20
COMMISSION
35. Landlord and Tenant hereby acknowledge that Dove Properties, Inc.
("Dove") acted as agent for Landlord, and ▇▇▇▇▇▇ & Associates as agent for the
Tenant in this transaction. Dove and ▇▇▇▇▇▇ & Associates are hereinafter
referred to as "Agents". The Landlord, its successors and assigns shall be
responsible for Agent's commission, as specified in a separate agreement between
Landlord and Agent. Landlord and Tenant hereby respectively acknowledge that no
other party acted as agent for it in this transaction and agree to hold harmless
and indemnify each other against claims to the contrary.
ESTOPPEL CERTIFICATE
36. Tenant shall, from time to time, no more than once a year, upon the
request of Landlord, deliver to Landlord an estoppel certificate or
certificates, jointly or separately addressed to Landlord, or any holder of a
security deed, mortgage, or other lien affecting the Premises, executed by an
appropriate representative of Tenant, and stating to the extent accurate that:
(1) Tenant has accepted the Premises; (2) to the best of Tenant's knowledge,
Landlord is not in default under this Lease, (3) Tenant has not paid any rent in
advance of the date when due under this Lease; and (4) Tenant has no known
offset, charge or deduction against its rent obligations. Tenant will also
certify to any other matter reasonably required by Landlord or any such holder.
Landlord shall provide a comparable certificate to Tenant upon request from time
to time, but no more than once a year.
EXCULPATORY LANGUAGE
37. If Landlord fails to perform its obligations in accordance with any of
the provisions of this Lease, Landlord agrees that it shall, to the extent and
under the conditions provided for in this Lease, be liable to Tenant on account
of any damages caused thereby, but Tenant agrees that any money judgment
resulting from such failure shall be satisfied only out of Landlord's interest
in the Building and the land of which the Premises are a part, and the income
therefrom and no other real, personal or other property of Landlord or of the
partners comprising Landlord, or of the officers, shareholders, director,
partners, or principals of such partners comprising Landlord, shall be subject
to levy, attachment, or execution, or otherwise sued to satisfy any such
judgment. The term, "Landlord", as used in this Paragraph, shall mean only the
owner or owners at the time in question of the fee title or interest in a ground
lease of the Premises, and in the event of any transfer of such title or
interest, Landlord herein named (and in case of any subsequent transfers, the
then grantor) shall be relieved from and after the date of such transfer of all
liability as respects Landlord's obligations thereafter to be performed (but not
from previously accrued liabilities), provided that any funds in the hands of
Landlord or the then grantor at the time of such transfer, in which Tenant has
an interest, shall be delivered to the grantee and provided further that the
successor to Landlord shall assume the obligations of Landlord thereafter
arising. The obligations contained in this Lease to be performed by Landlord
shall, subject as aforesaid, be binding on Landlord's successors and assigns,
only during their respective periods of ownership. For the purposes of this
paragraph 37, "Landlord's interest in the Building" shall include the amount of
any insurance proceeds or condemnation awards received by Landlord, net of any
amounts retained by Landlord's Lender, and any net rents recei ved by Landl ord
after the occurrence of an event of default by Landlord. Nothing contained
herein shall be deemed to limit, restricut, or prohibit Tenant from exercising
any right of offset granted to Tenant pursuant to this Lease.
TENANT IMPROVEMENT ALLOWANCE
38. (a) Landlord shall spend on behalf of Tenant Eighty-Six Thousand Seven
Hundred Two and 00/100 dollars ($22.00) per usable square foot (herein referred
to as the "Tenant Improvement Allowance") for the cost of designing, permitting,
and constructing tenant improvements in the Premises according to the Tenant
Improvement Plans. This expenditure shall be in addition to Landlord's cost to
construct the Base Building Improvements as reflected on EXHIBIT B (Landlord
hereby agreeing to construct the Building so as to include the Base Building
Improvements described on EXHIBIT B), except that demising doors and walls,
excluding core bathroom walls, shall not be Base Building but shall be included
as tenant improvements. Tenant shall not be entitled to propose changes to the
elevator entrance finishes.
21
(b) Tenant agrees to approve the preliminary architectural plan of the
Tenant Improvement Plans and submit specifications for its electrical,
mechanical, and plumbing no later than SEE EXHIBIT "E". Landlord's architect
shall complete the Tenant Improvement Plans by SEE EXHIBIT "E". Tenant shall
provide Landlord with any comments and suggested revisions to the Tenant
Improvement Plans within five (5) business days of receipt thereof. In the event
Tenant fails to respond to Landlord within such five (5) business day period,
Tenant shall be deemed to have approved the Tenant Improvement Plans. If Tenant
provides Landlord comments and suggested revisions to the Tenant Improvement
Plans within such five (5) business day period, Landlord shall make revisions
within five (5) business days and provide the revised Tenant Improvement Plans
to Tenant. The deadline for approval of the final Tenant Improvement Plans SEE
EXHIBIT "E" . Landlord and Tenant agree use commercially reasonable efforts to
abide by the Schedule attached SEE EXHIBIT "E". Tenant's delay in approving
plans, pricing or other items needed by Landlord shall not delay the
Commencement Date, even though substantial completion of the Premises may be
delayed by Tenant's action.
(c) Tenant agrees to use Lyman, Davidson, ▇▇▇▇▇▇ to design the Tenant
Improvement Plans, and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ to design Mechanical, Electrical, and
Plumbing Drawings, such cost of $0.68 per square foot (usable) to be paid by
Landlord out of the Tenant Improvement Allowance. Tenant agrees that the Base
Building Architect, Lyman, Davidson, Dooly, Inc. shall be paid from the Tenant
Improvement Allowance ten cents per square foot (usable) to verify that Tenant
Improvement plans coordinate with the Base Building design.
(d) Landlord agrees to obtain bids as to the cost of construction of the
work depicted in the Tenant Improvement Plans from ▇▇▇▇ Construction, Structured
Services and Ordnor Construction. Landlord agrees to award the contract for
tenant improvements to the contractor of Tenant's choice, regardless of whether
such contractor is the lowest bidder, provided such contractor executes a
commercially reasonable construction contract consistent with Landlord's
obligations hereunder. Landlord shall not receive any construction management
fees or other compensation relating to the construction of the tenant
improvements, nor shall there be any chargebacks against the Tenant Improvement
Allowance in connection with the Base Building Work, except for demising walls
and doors as stated in paragraph 38(a), above. If the estimated cost of
constructing the work on the Tenant Improvement Plans exceed the Tenant
Improvement Allowance, Tenant shall deposit such excess (hereinafter referred to
as the "Excess Tenant Finish Deposit") with Landlord upon ten (10) days notice
from Landlord prior to start of construction of the tenant improvements.
Likewise, the cost for any changes to the Tenant Improvement Plans shall
similarly be deposited as Excess Tenant Finish Deposit upon ten (10) days notice
form Landlord. Any unused portion of the Tenant Improvement Allowance or Excess
Tenant Finish Deposit provided pursuant hereto shall be paid to Tenant in cash
upon the earlier of the final accounting or within sixty (60) days of the
Commencement Date. If not paid within such sixty (60) day period, Tenant shall
be entitled to offset any such unused portion of Tenant Improvement Allowance
against Base Rental and Adjustments owing under the Lease.
(e) Tenant agrees to reimburse Landlord by Landlord deducting from the
Tenant Improvement Allowance the cost for the following items:
(i) Install submeter for electrical consumption on
the floor. $1,000.
(ii) Purchase of capacity in Landlord's generator for
emergency lighting in lieu of purchasing battery packs-cost
per fixture $105.
(iii) If needed by Tenant, purchase capacity in Landlord's
generator for emergency power back-up to communication and
computer systems cost per KW $1,100.
(iv) If needed by Tenant, purchase extra cooling capacity
in Landlord's cooling tower-cost per ton $1,000.
39. Except in the case of exercise of remedies, Landlord and Tenant each
agree with the
22
other that at any time during the term of this Lease either Landlord or Tenant
has the right or privilege of giving approval, consent, judgment, determination
or estimate (including without limitation estimates of monetary amounts),
exercising an option or election, determining the other party's conformity with
any standard, or otherwise making a decision after taking action or an action
affecting the rights of any other tenant, all such approvals, consents,
judgments, elections and decisions by Landlord or Tenant, as the case may be,
shall be made both reasonably (and not arbitrarily) and with reasonable
promptness.
RENEWAL OPTION
40. (a ) So long as there is then no continuing Default by Tenant under
this Lease, Tenant shall have the right to lease the Premises for a renewal term
of five (5) years on the same terms and conditions as set forth herein except
that (i) Base Rental shall be at a rate of ▇▇▇▇▇▇▇ 100 & 200, and (ii) the
Rental Adjustment shall be 3% and (iii) Paragraph 38 shall not be operative.
(b) Tenant shall exercise its Renewal Options by providing written notice
to Landlord no later than one (1) year prior to the expiration of the Term.
CODE COMPLIANCE
41. The Building shall be constructed to meet the local and state building
codes and ordinances in effect as of September 1, 1996, the date when the
Building was permitted for construction. The Building shall also comply with the
most prevalent interpretations of the American Disabilities Act (ADA) by the
Building Architect, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc as of September 1, 1995. Tenant
and Landlord acknowledge that the ADA is not an explicit building code or
ordinance and is subject to various, and possibly, contradictory
interpretations. Subsequent to the Commencement Date Tenant shall be responsible
for the Premises complying with ADA.
FORCE MAJEURE
42. Neither Landlord nor Tenant shall be deemed to be in default of this
Lease if such default is due to acts of God, acts of the public enemy, acts of
governmental authority, or any other circumstances which are not within the
parties' respective control ("Force Majeure"); provided, that this provision
shall not apply to failures by either party to pay their respective monetary
obligations under this Lease.
PARTIES BOUND
43. The preparation and submission of a draft of this lease by either party
to the other party shall not constitute an offer, nor shall either party be
bound to any terms of this Lease or the entirety of this Lease, until both
parties have fully executed a final document and an original signature document
has been received by both parties. Until such time as described in the previous
sentence, either party is free to terminate negotiations without any obligation
to the other party.
LANDLORD'S DEFAULT
44. Events of Default by Landlord under this Lease shall be deemed to be
the situations where Landlord shall fail to comply with any term, provision or
covenant of this Lease and shall not commence to cure such failure within 30
days after written notice thereof and diligently and in good faith continue to
cure the default until completion. If the default cannot reasonably be cured
within such 30 days period, Landlord shall not be in default if Landlord
commences to cure the default within the 30 days period and diligently and in
good faith continues to cure the default until completion. Pursuit of any of the
remedies available to Tenant after an Event of Default by Landlord shall not
preclude pursuit of any other remedies in this Lease or applicable law, nor
shall pursuit of any remedy constitute a forfeiture or waiver of any payment due
to Tenant. No waiver by Tenant 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. Forbearance by Tenant to enforce one
or more of the remedies herein provided upon an event of Default by Landlord
shall not be deemed or construed to constitute a waiver of any other violation
or default. Notwithstanding the foregoing, Landlord shall not be responsible for
any consequential, indirect, speculative or punitive damages of Tenant.
23
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and seals,
in triplicate, the day and year first above written.
Signed, sealed and delivered in the presence of:
Witness
Print Name:
TENANT:
ADVANCED TECHNICAL PRODUCTS, INC.
A Delaware Corporation
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
Print Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
ATTEST:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Print Name:▇▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
[CORPORATE SEAL]
Signed, sealed and delivered in the presence of:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Witness
Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇
LANDLORD:
▇▇▇▇▇▇▇ OVERLOOK 200, LLC
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (SEAL)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, MANAGING MEMBER
WHEN EXECUTED, PLEASE RETURN ALL ORIGINAL COPIES OF THE LEASE TO THE LANDLORD
FOR ITS EXECUTION. THE LANDLORD WILL THEN RETURN ONE FULLY-EXECUTED COPY TO THE
TENANT.
--------------------------------------------------------------------------------
NOTE: IF TENANT IS A CORPORATION, TWO AUTHORIZED OFFICERS OF THE CORPORATION
MUST EXECUTE THIS LEASE IN THEIR APPROPRIATE CAPACITY FOR TENANT AND AFFIX THE
CORPORATE SEAL.
--------------------------------------------------------------------------------
24