EXHIBIT NO. 10.11
Lease Agreement dated January 10, 2000 by and between
the Registrant and Affiliated Equities Real Estate L.P.
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RIVER RIDGE
OFFICE LEASE AGREEMENT
ACCORD NETWORKS, INC.
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TABLE OF CONTENTS
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Page
PARAGRAPH 1 TERM AND POSSESSION 1
2 MONTHLY RENTAL 1
3 SECURITY DEPOSIT 4
4 OCCUPANCY AND USE 4
5 COMPLIANCE WITH LAWS 5
6 ALTERATIONS 5
7 REPAIR 6
8 LIENS 6
9 ASSIGNMENT AND SUBLETTING 6
10 INSURANCE AND INDEMNIFICATION 7
11 WAIVER OF SUBROGATION 8
12 SERVICE AND UTILITIES 8
13 ESTOPPEL CERTIFICATE 9
14 HOLDING OVER 9
15 SUBORDINATION 10
16 ENTRY BY LANDLORD 10
17 INSOLVENCY OR BANKRUPTCY 10
18 DEFAULT AND REMEDIES 11
19 DAMAGE BY FIRE 13
20 CONDEMNATION 13
21 SALE BY LANDLORD 14
22 RIGHT OF LANDLORD TO PERFORM 14
23 SURRENDER OF PREMISES 14
24 WAIVER 15
25 NOTICES 15
26 CERTAIN RIGHTS RESERVED TO LANDLORD 15
27 SUCCESSORS AND ASSIGNS 16
28 ATTORNEY'S FEES 16
29 CORPORATE AUTHORITY 16
30 MORTGAGE APPROVALS 16
31 MISCELLANEOUS 16
32 LANDLORD'S LIEN 16
33 QUIET ENJOYMENT 17
34 LANDLORD'S LIABILITY 17
35 RIGHT TO RELOCATE 17
36 NO ESTATE 17
37 LEASE EFFECTIVE DATE 17
38 RULES AND REGULATIONS 17
39 SPECIAL STIPULATIONS 17
40 GUARANTY [INTENTIONALLY OMITTED] 18
41 BROKERAGE COMMISSIONS 18
EXHIBIT A FLOOR PLAN OF DEMISED PREMISES
B LEGAL DESCRIPTION
C WORK LETTER AGREEMENT
D ESTOPPEL CERTIFICATE
E RULES AND REGULATIONS
F SPECIAL STIPULATIONS
RIVER RIDGE
OFFICE LEASE AGREEMENT
THIS LEASE is made as of the 10/th/ day of January, 2000 between AFFILIATED
EQUITIES REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership
(hereinafter called "Landlord") and ACCORD NETWORKS, INC., a Georgia corporation
(hereinafter called "Tenant").
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
those premises (hereinafter called "Premises") shown on Exhibit "A" attached
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hereto and made a part thereof, being located in River Ridge, a multistory
office building (the "Building") constructed on a parcel of land (the
"Property") located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, said Property being
more particularly described on Exhibit "B" hereto.
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Premises: River Ridge
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Square Feet: 3917 Suite Number: 430 and 450
Floor(s): Fourth(4th)
1. Term and Possession.
(a) The term of the Lease (the "Lease Term") shall begin on January 10,
2000 (the "Commencement Date") and shall expire (unless sooner terminated as
herein provided) on December 31, 2003.
(b) Landlord agrees to perform the work in the Premises to be performed by
Landlord as provided in the Work Letter Agreement attached hereto as Exhibit "C"
and made a part hereof (the "Work Letter Agreement") with diligence, subject to
Force Majeure Matters (as defined in the Work Letter Agreement).
(c) Notwithstanding any provisions herein to the contrary, Landlord and
Tenant acknowledge that Landlord's manager is currently occupying Suite 450 of
the Premises, containing approximately 584 rentable square feet, and that
Tenant's rights and obligations with respect thereto, including, but not limited
to, the right to occupy Suite 450 and the obligation to pay rent with respect to
said Suite 450, shall not commence until Landlord's manager vacates said Suite
450 and Landlord delivers written notice of the same to Tenant. Landlord agrees
to cause Landlord's manager to vacate said Suite 450 on or before March 10,
2000. The date Landlord's manager vacates Suite 450 is hereinafter referred to
as the "Suite 450 Date."
(d) The taking of possession by Tenant shall be deemed conclusively to
establish that, except for punchlist items, the Building, other improvements,
and the Premises have been completed in accordance with the plans and
specifications and are in good and satisfactory condition as of when possession
was so taken.
2. Monthly Rental.
(a) Tenant shall pay to Landlord throughout the term of this Lease annual
rental as set forth below, payable in equal monthly rental installments payable
in advance on the first day of each month during every year of the term hereby
demised in lawful money of the United States, without deduction or offset
whatsoever, to Landlord at Landlord's management office in the Building or to
such other location and/or firm as Landlord may from time to time designate in
writing. Said rental is subject to adjustments as provided hereinbelow. If this
Lease commences on a day other than the first day of a calendar month, the
monthly rental for the fractional month shall be appropriately prorated. The
annual and monthly rental, subject to adjustment as hereinafter provided, is as
follows:
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Base Rent
Lease Year $/RSF/Yr. Monthly Annual
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January 10, 2000 - Suite $0.00 $0.00 $0.00
450 Date
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Suite 450 Date - April $22.00 $1,070.67 $12,848.00
30, 2000
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May 1, 2000 - $22.00 $7,181.17 $86,174.00
December 31, 2000
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January 1, 2001 - $22.66 $7,396.60 $88,759.22
December 31, 2001
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January 1, 2002 - $23.34 $7,618.57 $91,422.78
December 31, 2002
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January 1, 2003 - $24.04 $7,847.06 $94,164.68
December 31, 2003
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(b) Tenant recognizes that late payment of any rent or other sum due
hereunder from Tenant to Landlord will result in administrative expense to
Landlord, the extent of which additional expense is extremely difficult and
economically impractical to ascertain. Tenant therefore agrees that if rent or
any other payment due hereunder from Tenant to Landlord remains unpaid five (5)
days after said amount is due, the amount of such unpaid rent or other payment
shall be increased by a late charge to be paid to Landlord by Tenant in any
amount equal to five percent (5%) of the amount of the delinquent rent or other
payment; provided, however, that with respect to the first occurrence of any
such late payment during any consecutive twelve (12) month period during the
Lease Term, such late charge shall not be due unless such payment remains unpaid
five (5) days after written notice from Landlord to Tenant of such late payment.
The amount of the late charge to be paid to Landlord by Tenant for any month
shall be computed on the aggregate amount of delinquent rents and other
payments, including all accrued late charges then outstanding, and shall be
deemed to be rental for all purposes hereunder. Tenant agrees that such amount
is a reasonable estimate of the loss and expense to be suffered by Landlord as a
result of such late payment by Tenant and may be charged by Landlord to defray
such loss and expense. The provisions of this paragraph in no way relieve Tenant
of the obligation to pay rent or other payments on or before the date on which
they are due, nor do the terms of this paragraph in any way affect Landlord's
remedies pursuant to Paragraph 18 of this Lease in the event said rent or other
payment is unpaid after the date due.
(c) The monthly rental payable hereunder shall be subject to adjustment on
January 1 of each calendar year during the term of this Lease, commencing
January 1, 2001, in the following manner:
(i) Tenant shall pay to Landlord, in accordance with paragraphs
2(c)(v) and 2 (c)(vi) of this Lease, as additional rent Tenant's proportionate
share of the amount by which the Direct Operating Expenses (as hereinafter
defined) incurred by Landlord in the operation of the Building during each
calendar year of the Lease Term exceeds the Direct Operating Expenses for the
base year 2000 (hereinafter called the "Base Year"). Tenant's Proportionate
Share of Direct Operating Expenses (as hereinafter defined) shall be prorated on
a daily basis using a 365-day calendar year, as necessary for any year during
which this Lease is in effect for less than the full twelve month calendar year.
Direct Operating Expenses shall be calculated on an accrual basis. For the
purpose of estimating the Direct Operating Expenses during each subsequent year
after the Base Year, Landlord shall reasonably estimate such expenses (assuming
ninety-five percent (95%) occupancy of the Building if the actual occupancy is
less than ninety-five percent) based on the actual Direct Operating Expenses for
the preceding year, any then-known cost changes or additional expenses which can
be reasonably anticipated to occur within the year for which such expenses are
estimated, Landlord's experience with similar office buildings, the costs of
contracts already entered, quotes obtained, representations of providers of the
services and equipment, consultation with specialists such as insurers, and
other factors a prudent lessor would use to make a fair and accurate estimate of
operating costs.
(ii) "Tenant's Proportionate Share of Direct Operating Expenses" shall
mean, for each calendar year (or portion thereof), the product of (i) the
Operating Expense Amount (defined below) multiplied by (ii) a fraction, the
numerator of which is the number of square feet contained in the Premises
(3,917) and the denominator of which is the number of rentable square feet
contained in the Building (171,725), which product equals 2.281%. As used
herein, the "Operating Expense Amount" shall mean, for each calendar year (or
portion thereof), the amount by which the Direct Operating Expenses (defined
below) exceed the Base Year's Direct Operating Expenses.
(iii) For purposes of this Lease, the term "Direct Operating Expenses"
shall consist of all "operating costs" (as hereinafter defined) for the
Building, and the Building's share of all operating costs for any parking area
serving the Building, and the Property (the Building, such parking area and the
Property being hereinafter referred to collectively as the "Project"). For
purposes of this Lease, the term "operating costs" shall mean all reasonable
expenses, costs and disbursements computed on the accrual basis, relating to or
incurred or paid in connection with the operation, maintenance and repair of the
Project, including, but not limited to the following:
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a. Building personnel costs, including, but not limited to,
salaries, wages, fringe benefits, social security taxes and other direct and
indirect costs of personnel (up to, but no higher than, the level of Building
Manager) engaged in the operation and/or maintenance of the Project and
associated overhead.
b. The cost of all supplies, tools, equipment (except that any item
of equipment exceeding $5,000.00 in cost shall be amortized as a capital
expenditure in accordance with paragraph 2(c)(iii)(h) below) and materials used
in the operation and maintenance of the Project.
c. The cost of water, sewer, gas, heating, lighting, ventilation,
electricity, air conditioning, and any other utilities supplied or paid for by
Landlord for the Project and the costs of maintaining the systems supplying the
same, including, but not limited to, any utility and service costs incurred by
Landlord.
d. The cost of all agreements for maintenance and service of the
Project and the equipment therein, including, but not limited to, agreements
relating to security service, window cleaning, elevator maintenance, chiller
maintenance, Building management, janitorial service, pest control and
landscaping maintenance.
e. The cost of maintaining sprinkler systems, fire extinguishers and
fire hoses, and systems, improvements and equipment that may be now or hereafter
required by the Americans With Disabilities Act, and the cost of all security
services and protective services or devices rendered to or in connection with
the Project or any part thereof.
f. Insurance premiums for insurance for the Project required to be
maintained by Landlord hereunder or which a prudent owner would carry,
including, but not limited to, premiums for insurance maintained by Landlord,
business interruption or rental abatement insurance, garage keeper's insurance,
and liability insurance.
g. The cost of repairs and general maintenance of the Project
(excluding repairs, alterations and general maintenance paid by proceeds of
insurance or attributable solely to tenants of the Project other than Tenant,
but including deductibles paid by Landlord), including, but not limited to: any
management fees charged by Landlord, maintenance and cleaning of common areas
and facilities; lawn mowing, gardening, landscaping, and irrigation of
landscaped areas; line painting, pavement repair and maintenance, sweeping, and
sanitary control; removal of snow, trash, rubbish, garbage, and other refuse;
the cost of personnel to implement such services, to direct parking, and to
police the common areas; the cost of exterior and interior painting of common
areas; all maintenance and repair costs; and the cost of maintenance of sewers
and utility lines.
h. The cost of any capital improvement which (i) can be reasonably
expected to reduce any component cost included within Direct Operating Expenses,
or (ii) which is necessary to keep the Property, Premises or Building in
compliance with changes to governmental laws, rules and regulations currently in
effect, all changes in interpretation of governmental laws, rules and
regulations currently in effect, and all future governmental laws, rules and
regulations applicable from time to time thereto. Costs of capital improvements
permitted to be charged as Direct Operating Expenses hereunder shall be
amortized over a reasonable period consistent with generally accepted principles
of accounting, with interest on the unamortized amount, at the rate of the
greater of eight percent (8%) per annum or two percent (2%) per annum above the
base rate of interest charged on corporate loans at large U. S. money center
commercial banks as published in the Wall Street Journal (but in no event at a
rate which is more than the highest lawful rate allowable in the State of
Georgia).
i. All taxes, assessments, and governmental or other charges,
general or special, ordinary or extraordinary, foreseen or unforeseen, which are
levied, assessed, or otherwise imposed against the Project, street lights,
personal property or rents, or on the right or privilege of leasing the Project,
collecting rents therefrom or parking vehicles thereon, by any federal, state,
county, or municipal government or by any special sanitation district or by any
other governmental or quasi-governmental entity that has taxing or assessment
authority, and any other taxes and assessments, together with any interest and
penalties thereon (unless such interest or penalties are due to Landlord's
failure to pay such taxes when due), attributable to the Project or its
operation (herein collectively called the "Impositions"), but exclusive of
federal, state and local income taxes of Landlord, inheritance taxes, estate
taxes, gift taxes, transfer taxes, excess profit taxes and any taxes imposed in
lieu of such taxes. If at any time during the Lease Term, the present method of
taxation or assessment shall be so changed that the whole or any part of the
Impositions now levied, assessed or imposed on real estate and the improvements
thereon shall be discontinued and as a substitute therefor, or in lieu of and in
addition thereof, taxes, assessments, levies, impositions or charges shall be
levied, assessed and/or imposed wholly or partially as a capital levy or
otherwise on the rents received from the Project or the rents reserved herein or
any part thereof, then such substitute or additional taxes, assessments, levies,
impositions or charges, to the extent so levied, assessed or imposed, shall be
deemed to be included within the Impositions and the operating costs. Tenant
will be responsible for ad valorem taxes on its personal property and on the
value of the leasehold improvements in the Premises to the extent the same
exceed building standard allowances.
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j. All assessments (if any) assessed against the Project during
the Lease Term pursuant to any protective covenants, easement agreements or
common area maintenance agreements now or hereafter of record against the
Project.
k. Fees of accountants, attorneys, and other consultants,
professionals or advisors incurred by Landlord with respect to the Project.
l. Promotional or seasonal expenses (but excluding leasing or
marketing expenses).
m. Any other costs or expenses incurred by Landlord in the
operation of the Building.
(iv) Nothing contained in this Section shall imply any duty on the
part of Landlord to pay any expense or provide any service not otherwise
imposed by the express terms of this Lease.
(v) During the Lease Term, Landlord may estimate the amount of
Direct Operating Expenses and Tenant's Proportionate Share of Direct Operating
Expenses for a calendar year or (if applicable) fractional part thereof and
notify Tenant in writing of such estimate. Such estimate, if any, shall be
made by Landlord in the exercise of its reasonable discretion, and shall not be
subject to dispute by Tenant. The amount of additional rent specified in such
notification shall be paid by Tenant to Landlord in equal monthly installments
in advance on the first day of each month, at the same time and in the same
manner as base rent, and shall continue until Tenant receives from Landlord a
notification to pay a different monthly amount of estimated additional rent.
(vi) Within One Hundred Eighty (180) days after December 31 of any
calendar year during the Lease Term for which additional rent is due under this
Section, Landlord shall advise Tenant in writing, of the amount of actual
Direction Operating Expenses for such calender year. If Tenant has not paid any
estimated additional rent for such calendar year, or if the actual Direct
Operating Expenses for such calendar year prove to be greater than the estimated
amount previously paid by Tenant, if any, Landlord shall invoice Tenant for the
deficiency as soon as practicable after the amount of underpayment has been
determined, and Tenant shall pay such deficiency to Landlord within thirty (30)
days following its receipt of such invoice. If, however, actual Direct
Operating Expenses for such calendar year are lower than the estimated amount
previously paid by Tenant, if any, Tenant shall receive a credit (or in the
event the term of this Lease has then expired, Tenant shall receive a cash
refund) toward the next ensuing monthly payment or payments of the estimated
amount of Tenant's Proportionate Share of Direct Operating Expenses in the
amount of such overpayment until depleted, but in no event shall Tenant's
Proportionate Share of Direct Operating Expenses be deemed to be less than zero.
(vii) Notwithstanding anything contained in this paragraph 2(c) to the
contrary, for purposes of determining Direct Operating Expenses for the Base
Year and each calendar year subsequent to the Base Year, in the event actual
occupancy of the Building is less than ninety-five percent (95%) during any
period of such calendar year, the actual Direct Operating Expenses for such
calendar year shall be increased to the amount which Landlord reasonably
estimates would have been incurred for such calendar year has the occupancy of
the Building been ninety-five percent (95%) throughout such year, and the amount
so estimated shall be deemed to be the Direct Operating Expenses for such
calendar year.
3. Security Deposit
Tenant hereby deposits with Landlord on the date hereof the sum of Seven
Thousand One Hundred Eighty-One and 17/100 Dollars ($7,181.17), which sum shall
be held by Landlord, without obligation for interest, as security for the full,
timely and faithful performance of Tenant's covenants and obligations under this
Lease. It is understood and agreed that such deposit is not an advance rental
deposit or a measure of Landlord's damages in case of Tenant's default. Upon the
occurrence of any default or event of default by Tenant, Landlord may, from time
to time, without prejudice to any other remedy provided herein or provided by
law, use such funds to the extent necessary to make good any arrears of rent or
other payments due Landlord hereunder, and any other damage, injury, expense or
liability caused by any event of Tenant's default; and Tenant shall pay to
Landlord on demand the amount so applied in order to restore the security
deposit to its original amount. Although the security deposit shall be deemed
the property of Landlord, any remaining balance of such deposit shall be
returned by Landlord to Tenant or Tenant's last permitted assignee within thirty
(30) days after termination of this Lease. Landlord shall not be required to
keep any security deposit separate from its general funds. Subject to the other
terms and conditions contained in this Lease, if the Building is conveyed by
Landlord, said deposit shall be turned over or credited to Landlord's grantee,
and if so, Tenant hereby releases Landlord from any and all liability with
respect to said deposit and its application or return.
4. Occupancy and Use
(a) Tenant shall use and occupy the Premises for general office purposes
and for no other use or purpose without the prior written consent of Landlord.
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(b) Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building or injure or annoy them, nor use or allow
the Premises to be used for any improper, immoral, unlawful, or objectionable
purposes or for any business, use or purpose deemed to be disreputable or
inconsistent with the operation of a first class office building, nor shall
Tenant cause or maintain or permit any nuisance in, on, or about the Premises.
Tenant shall not commit or suffer the commission of any waste in, on, or about
the Premises.
(c) Tenant shall have access to the Premises and the common areas of the
Property twenty-four (24) hours per day, seven (7) days a week, subject only to
(i) Landlord performing maintenance and other obligations of Landlord under this
Lease, and (ii) reasonable after-hours security regulations.
(d) Landlord shall provide to Tenant and Tenant's employees, agents and
business invitees the non-exclusive use of at least four (4) parking spaces per
one thousand (1,000) square feet of rentable area occupied by Tenant. Landlord
reserves the right to limit parking in and restrict access to portions of the
parking areas upon the Property in Landlord's discretion; provided, however,
that Tenant shall continue to have access to at least four (4) parking spaces
per one thousand square feet of rentable area occupied by Tenant.
5. Compliance with Laws.
(a) Tenant shall not use the Premises or permit anything to be done in or
about the Premises which will in any way conflict with any law, statute,
ordinance, or governmental rule, regulation or requirement now in force or which
may hereafter be enacted or promulgated. Tenant shall not do or permit anything
to be done on or about the Premises or bring or keep anything therein which will
in any way increase the rate of any insurance upon the Building in which the
Premises are situated or any of its contents or cause a cancellation of said
insurance or otherwise affect said insurance in any manner, and Tenant shall at
its sole cost and expense promptly comply with all laws, statutes, ordinances,
and governmental rules, regulations, or requirements now in force or which may
hereafter be in force and with the requirements of any board of fire
underwriters or other similar body now or hereafter constituted relating to or
affecting the condition, use, or occupancy of the Premises.
(b) Tenant shall not use, handle, store, deal in, discharge, or fabricate
any Hazardous Materials (as herein defined) on or about the Premises, except for
customary office and cleaning supplies which are used in business offices
similar to Tenant's and which are stored, used and disposed of by Tenant in
compliance with all applicable laws, rules and regulations. Tenant shall
indemnify Landlord (and anybody claiming by, through, or under Landlord) from
and against any and all claims, damages, losses, costs, and expenses (including
reasonable attorney's fees and court costs) incurred by Landlord or anybody
claiming by, through, or under Landlord as a result of the existence of (i) any
Hazardous Materials on or about the Premises or (ii) any environmental problems
relating to the Premises, which are caused by or related to the delivery,
deposit or creation of Hazardous Materials on or about the Premises during the
term of this Lease by Tenant or Tenant's agents, employees, contractors,
invitees or licensees. As used herein, "Hazardous Materials" means any petroleum
or chemical liquids or solids, liquid or gaseous products, contaminants, oils,
radioactive materials, asbestos, PCB's, urea-formaldehyde, or any toxic or
hazardous waste or hazardous substances, as those terms are used in (A) the
Resources Conservation Recovery Act, as amended by the Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. (S)(S) 6901 et seq.; (B) the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. (S)(S) 9601
et seq.; (C) the Clean Water Act, 33 U.S.C. (S)(S) 1251 et seq.; (D) the Toxic
Substances and Control Act, 15 U.S.C. (S)(S) 2601 et seq.; (E) the Clean Air
Act, 42 U.S.C. (S)(S) 7401 et seq,; (F) any and all applicable environmental
laws and regulations of the State of Georgia; and (G) any and all other
applicable federal, state or local law or regulation governing hazardous
substances or workplace health or safety, as such laws may be amended from time
to time.
6. Alterations
Tenant shall not make or suffer to be made any alterations, additions, or
improvements in, on, or to the Premises or any part thereof without the prior
written consent of Landlord, and no such alterations, additions or improvements
shall be made without the supervision of Landlord's designated agent or
representative. Notwithstanding anything contained herein to the contrary,
Tenant, without Landlord's consent, shall have the right to recarpet, repaint,
and make other similar decorative alterations to the Premises provided the cost
of such alterations does not exceed Five Thousand and No/100 Dollars
($5,000.00), such alterations do not involve or tie into the electrical,
plumbing, HVAC or other systems of the Building, and Tenant provides to Landlord
at least five (5) business days' prior written notice of such alterations. All
such alterations, additions, or improvements in, on, or to said Premises, except
for Tenant's movable furniture and equipment, shall immediately become
Landlord's property and, at the end of the term hereof, shall remain on the
Premises without compensation to Tenant. In the event Landlord consents to the
making of such alterations, additions, or improvements by Tenant, the same shall
be made by Tenant, at Tenant's sole cost and expense, in accordance with all
applicable laws, ordinances, and regulations and all requirements of Landlord's
and Tenant's insurance policies, and in accordance with plans and specifications
approved by Landlord, and any contractor or person selected by Tenant to make
the same, and all subcontractors, must first be approved in writing by Landlord,
or, at Landlord's option,
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the alteration, addition or improvement shall be made by Landlord for Tenant's
account and Tenant shall reimburse Landlord for the cost thereof upon demand.
Upon the expiration or sooner termination of the term herein provided, Tenant
shall, upon demand by Landlord, at Tenant's sole cost and expense, forthwith and
with all due diligence remove any or all alterations, additions, or improvements
made by or for the account of Tenant, designated by Landlord to be removed
(provided, however, that Landlord made such removal a condition of Landlord's
consent at the time Tenant requested and Landlord granted Landlord's prior
written approval of same), and Tenant shall forthwith and with all due
diligence, at its sole cost and expense, repair and restore the Premises to
their condition prior to such alteration, addition or improvements, reasonable
wear and tear, unrepaired casualty and condemnation expected. Tenant agrees that
Landlord shall have the right to charge a fee for any and all construction
supervision provided by Landlord's designated agents or representatives in
connection with any alterations, additions, or improvements to the Premises by
Tenant. Such fee, at Landlord's option, shall be either a fixed fee or a fee
calculated on an hourly basis, considering the time expended by Landlord's
agents or representatives in supervising Tenant's construction.
7. Repair.
By taking possession of the Premises, Tenant accepts the Premises as being
in the condition in which Landlord is obligated to deliver them and otherwise in
good order, condition and repair, except for punchlist items. Tenant shall, at
all times during the term hereof at Tenant's sole cost and expense, keep the
Premises and every part thereof in good order, condition and repair, excepting
ordinary wear and tear, damage thereto by fire, earthquake, act of God or the
elements. Tenant shall upon the expiration or sooner surrender to Landlord the
Premises and all repairs, changes, alterations, additions and improvements
thereto in the same condition as when received, or when first installed,
ordinary wear and tear, damage by fire, earthquake, act of God, or the elements
expected. It is hereby understood and agreed that Landlord has no obligation to
alter, remodel, improve, repair, decorate, or paint the Premises or any part
thereof except as specified in the Work Letter Agreement, and that no
representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant, except as specifically herein set forth.
8. Liens.
Tenant shall keep the Premises free from any liens arising out of any work
performed, material furnished, or obligations incurred by Tenant. In the event
that Tenant shall not, within ten (10) days following the recordation of any
such lien, cause the same to be released of record by payment or posting of a
proper bond, Landlord shall have, in addition to all other remedies provided
herein and by law, the right, but not the obligation, to cause the same to be
released by such means as it shall deem proper, including payment of the claim
giving rise to such lien. All such sums paid by Landlord and all expenses
incurred by it in connection therewith shall be considered additional rent and
shall be payable to Landlord by Tenant on demand and with interest at the rate
of four percentage points higher than the prime commercial lending rate from
time to time of Bank of America in Atlanta, Georgia, provided, however, that if
such rate exceeds the maximum rate permitted by law, the maximum lawful rate
shall apply; the interest rate so determined is hereinafter called the "Agreed
Interest Rate". Landlord shall have the right at all times to post and keep
posted on the Premises any notices permitted or required by law, or which
Landlord shall deem proper, for the protection of Landlord, the Premises, the
Building, and any other party having an interest therein, from mechanics' and
materialmen's liens, and Tenant shall give to Landlord at least five (5)
business days prior notice of commencement of any construction on the Premises.
9. Assignment and Subletting.
(a) Tenant shall not sell, assign, encumber or otherwise transfer by
operation of law or otherwise this Lease or any interest herein, sublet the
Premises or any portion thereof, or suffer any other person to occupy or use the
Premises or any portion thereof, without the prior written consent of Landlord
as provided herein, which consent shall not be unreasonably withheld, delayed or
conditioned, nor shall Tenant permit any lien to be placed on the Tenant's
interest by operation of law. Tenant shall, by written notice, advise Landlord
of its desire from and after a stated date (which shall not be less than thirty
(30) days nor more than ninety (90) days after the date of Tenant's notice) to
sublet the Premises or any portion thereof for any part of the term hereof; and
supply Landlord with such information, financial statements, verifications and
related materials as Landlord may request or desire to evaluate the written
request to sublet; and in such event Landlord shall within thirty (30) days from
Landlord's receipt of such notice and all said information, financial
statements, verifications and related materials requested by Landlord (i)
consent to such proposed subletting or (ii) deny such consent giving reasons for
denying such consent at the time of denial. Said notice by Tenant shall state
the name and address of the proposed subtenant, and Tenant shall deliver to
Landlord a true and complete copy of the proposed sublease with said notice.
Tenant shall, at Tenant's own cost and expense, discharge in full any
outstanding commission obligation on the part of Landlord with respect to this
lease, and any commissions which may be due and owing as a result of any
proposed assignment or subletting. Tenant agrees to pay to Landlord, promptly
after request therefor, the amount of all reasonable attorneys' fees and
expenses incurred by Landlord in connection with any assignment or subletting
issues or review of documentation relating thereto.
(b) Any subletting or assignment hereunder by Tenant shall not result in
Tenant being released or discharged from any liability under this Lease. As a
condition to Landlord's prior written
6
consent as provided for in this paragraph, the assignee or subtenant shall agree
in writing to comply with and be bound by all of the terms, covenants,
conditions, provisions and agreements of this Lease, and Tenant shall deliver to
Landlord promptly after execution, an executed copy of each sublease or
assignment and an agreement of said compliance by each sublessee or assignee.
(c) Landlord's consent to any sale, assignment, encumbrance, subletting,
occupation, lien or other transfer shall not release Tenant from any of Tenant's
obligations hereunder or be deemed to be a consent to any subsequent occurrence.
Any sale, assignment, encumbrance, subletting, occupation, lien or other
transfer of this Lease which does not comply with the provisions of this
Paragraph 9 shall be void.
(d) For purposes of this Section, an assignment of stock or other direct
or indirect ownership interest in Tenant which constitutes a controlling
interest in Tenant shall be deemed an assignment within the meaning of and be
governed by this Section.
(e) Notwithstanding any provision contained herein, Tenant agrees that it
shall not sell, assign, encumber or otherwise transfer by operation of law or
otherwise this Lease or any interest herein, or sublet the Premises or any
portion thereof, to any tenant who currently leases space in the Building.
(f) Landlord's consent to a proposed assignment or subletting pursuant to
this Paragraph 9 shall not be unreasonably withheld, delayed or conditioned,
but, in addition to any other grounds for denial, Landlord's consent shall be
deemed reasonably withheld if, in Landlord's reasonable judgment, any of the
following conditions exist:
(i) the proposed assignee or subtenant intends to use any part of the
Premises for the operation of a retail business or for a purpose not
permitted under this Lease; or
(ii) the use of the Premises or the Building by the proposed assignee
or subtenant would, in Landlord's reasonable judgment, significantly
increase the pedestrian traffic in and out of the Building, or would
require material or substantial alterations to the Building, Premises or
Property in order to comply with applicable laws; or
(iii) the proposed use by such subtenant or assignee would result in a
violation of an exclusive right granted to another tenant in the Building,
or require rezoning or a zoning variance; or
(iv) the proposed subtenant or assignee is a governmental agency; or
(v) the business and operations of the proposed assignee or subtenant
are inconsistent with the tenancy of a comparable building, and/or would be
incompatible with the businesses and operations being conducted by other
tenants in the Building, or
(vi) the proposed use by such subtenant or assignee could create a
condition that is dangerous to persons or property (e.g. a foreign
consulate) or could create an atmosphere or condition that could be
disruptive to the operation of the Building (e.g. an abortion or methadone
clinic); or
(vii) as a result of the number of people to be officed in the space
proposed for sublease or assignment, the efficiency of the Premises' HVAC
system would be materially diminished; or
(viii) with respect to a sublease, Tenant proposes to demise the
sublease space in a commercially unreasonable manner (e.g. in a
configuration that would not be readily leaseable at the end of the Lease
Term) and does not provide Landlord with additional security in an amount
equal to all reasonably anticipated restoration costs.
10. Insurance and Indemnification.
(a) Landlord shall not be liable to Tenant and Tenant hereby waives all
claims against Landlord for any injury or damages to any person or property in
or about the Premises by or from any cause whatsoever, without limiting the
generality of the foregoing, whether caused by water leakage of any character
from the roof, walls, basement, or other portion of the Premises or the
Building, or caused by gas, fire, or explosion of the Building or the complex of
which it is a part or any part thereof, except to the extent caused by the gross
negligence or willful misconduct of Landlord.
(b) Tenant shall hold Landlord harmless from and defend and indemnify
Landlord against any and all claims or liability for any injury or damage to any
person or property whatsoever: (i) occurring in, on or about the Premises or any
part thereof, (ii) occurring in, on, or about any facilities (including, without
limitation, elevators, stairways, passageways or hallways), the use of which
Tenant may have in conjunction with other tenants of the Building, when such
injury or damage shall be caused in part or in whole by the act, neglect, fault
of, or ommission of any duty with respect to the same by Tenant, its agents,
servants, employees, or invitees. Tenant further agrees to indemnify, defend and
save harmless Landlord against and from any and all claims in any manner
relating to any work or thing whatsoever done by Tenant in or about, or any
transactions of Tenant concerning, the Premises, and will further indemnify,
defend and save Landlord harmless against and from any and all claims arising
from any breach or default
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on the part of Tenant in the performance of any covenant or agreement on the
part of Tenant to be performed pursuant to the terms of this Lease, or arising
from any act or negligence of Tenant, or any of its agents, contractors,
servants, employees and licensees, and from and against all costs, counsel fees,
expenses and liabilities incurred in connection with any such claim or action or
proceeding brought thereon. Furthermore, in case any action or proceeding be
brought against Landlord by reason of any claims or liability, Tenant agrees to
defend such action or proceeding at Tenant's sole expense by counsel reasonably
satisfactory to Landlord. The provisions of this Lease with respect to any
claims or liability occurring prior to the termination or expiration of this
Lease shall expressly survive such termination or expiration of this Lease.
(c) Tenant agrees to purchase at its own expense and to keep in force
during the term of this lease a policy or policies of worker's compensation and
comprehensive general liability insurance, including personal injury and
property damage, with contractual liability endorsement, in the amount of Two
Million Dollars ($2,000,000.00) for property damage and Three Million Dollars
($3,000,000.00) per occurrence for personal injuries or deaths of persons
occurring in or about the Premises. Said policies shall: (i) name Landlord and
Landlord's management company as additional insureds and insure Landlord's
contingent liability under this Lease (except for the worker's compensation
policy, which shall instead include a waiver of subrogation endorsement in favor
of Landlord and Landlord's management company), (ii) be issued by an insurance
company which is acceptable to Landlord and licensed to do business in the State
of Georgia, and (iii) provide that said insurance shall not be canceled unless
thirty (30) days prior written notice shall have been given to Landlord. Said
policy or policies or certificates thereof shall be delivered to Landlord by
Tenant upon commencement of the term of the Lease and upon each renewal of said
insurance.
(d) At all times after the Commencement Date, Landlord shall maintain in
force, at its sole cost and expense (but subject to reimbursement as Direct
Operating Expenses), "All Risk" (sometimes known as "Special Causes of Loss")
property insurance covering the Building and all permanent alterations,
additions and improvements constituting part of the Premises, for not less than
their full replacement cost. Such insurance shall contain a waiver of
subrogation rights and may include such other coverages, such as rental
interruption insurance, as Landlord may deem reasonably necessary, and may
contain an endorsement naming Landlord's mortgagee as loss payee, as its
interests may appear.
(e) At all times after the Commencement Date, Landlord shall maintain in
force, at its sole cost and expense (but subject to reimbursement as Direct
Operating Expenses), a policy or policies of comprehensive general liability
insurance, including personal injury and property damage, in the amount of Two
Million and No/100 Dollars ($2,000,000.00) for property damage and Three Million
and No/100 Dollars ($3,000,000.00) for personal injuries or deaths of persons
occurring or about the Property.
11. Waiver of Subrogation.
Each of Landlord and Tenant hereby releases the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of insurance covering
such property, even if such loss or damage shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible, including any other tenants or occupants of the remainder of the
Building in which the Premises are located. Each of Landlord and Tenant agrees
that it will request its insurance carriers to include in its policies a clause
or endorsement to the effect that any such release shall not adversely affect or
impair said policies or prejudice the right of the releasor to coverage
thereunder.
12. Service and Utilities.
(a) Landlord shall maintain the public and common areas of the Building,
including lobbies, stairs, elevators, parking areas, sidewalks, landscaping,
corridors and restrooms, the windows in the Building, the mechanical, plumbing
and electrical equipment serving the Building, and the structure itself, in good
order and condition consistent with comparable first class office buildings in
the immediate market area, except for damage occasioned by the act of Tenant,
which damage shall be repaired by Landlord at Tenant's expense. In the event
Tenant requires or needs to have one or more separate systems of either heating,
ventilating, air conditioning or other similar system over and above that
provided by Landlord, the installation, care, expenses and maintenance of each
such system shall be borne by and paid for by Tenant.
(b) Provided the Tenant shall not be in default hereunder, and subject to
the provisions elsewhere herein contained and to the rules and regulations of
the Building, Landlord agrees to furnish to the Premises during ordinary
business hours (being 8:00 a.m. to 6:00 p.m. Monday through Friday, and 8:00
a.m. to 1:00 p.m. on Saturday) of generally recognized business days, to be
determined by Landlord (but exclusive, in any event, of Sundays and legal
holidays), heat and air-conditioning which are, in Landlord's reasonable
judgment, consistent with comparable first class office buildings in the
immediate market area, replacement of bulbs for building standard fluorescent
lights and non-building standard lights, provided Tenant stocks the bulbs for
all of Tenant's non-building standard lights, janitorial services during the
times and in the manner that such services are, in Landlord's reasonable
judgement, customarily furnished in comparable first class office buildings in
the immediate market area, and elevator service.
8
Landlord shall use reasonable efforts to provide additional or after-hours
heating or air-conditioning, but if Landlord elects to provide such series at
Tenant's request, Tenant shall pay to Landlord a reasonable charge for such
services as determined from time to time by Landlord. Tenant also agrees at all
times to cooperate fully with Landlord and to abide by all the regulations and
requirements which Landlord may reasonably prescribe for the proper functioning
and protection of said heating, ventilating, and air-conditioning system and to
comply with all laws, ordinances and regulations respecting the conservation of
energy. Wherever heat-generating machines, excess lighting or equipment are used
in the Premises which affect the temperature otherwise maintained by the air-
conditioning system, Landlord reserves the right to install supplementary air
conditioning units in the Premises, and the cost thereof, including the cost of
electricity and/or water therefor, shall be paid by Tenant to Landlord upon
demand by Landlord. Landlord agrees to furnish to the Premises electricity for
general office purposes and water for lavatory and drinking purposes, subject to
the provisions of subparagraph 12(c) below. Landlord shall in no event be liable
for any interruption or failure of utility services on the Premises, but
Landlord will exercise due diligence to furnish uninterrupted service.
(c) Tenant will not without the written consent of Landlord use any
apparatus or device in the Premises, including without limitation, electronic
data processing machines, computers, and machines using excess lighting or
current which will in any way increase the amount of electricity or water
usually furnished or supplied for use of the Premises as general office space;
nor connect with electric current, except through existing electrical outlets in
the Premises, or water pipes, any apparatus or device for the purpose of using
electricity current or water. If Tenant in Landlord's judgment shall require
water or electric current or any other resource in excess of that usually
furnished or supplied for use of the Premises as general office space (it being
understood that such an excess may result from the number of fixtures, apparatus
and devices in use, the nature of such fixtures, apparatus and devices, the
hours of use, or any combination of such factors), Tenant shall first procure
the consent of Landlord, which Landlord may refuse, to the use thereof, and
Landlord may cause a special meter to be installed in the Premises so as to
measure the amount of water, electric current or other resource consumed for any
such other use. The cost of any such meters, and of installation, maintenance,
and repair thereof shall be paid for by Tenant, and Tenant agrees to pay
Landlord promptly upon demand by Landlord for all such water, electric current
or resource consumed, as shown by said meters, as the rates charged for such
resource, plus any additional expense incurred in keeping account of the water,
electric current or other resource so consumed. Landlord shall not be in default
hereunder or be liable for any damages directly or indirectly resulting from,
not shall the rental herein reserved be abated by reason of (i) the
installation, use or interruption of use of any equipment in connection with the
furnishing of any of the foregoing utilities and services, (ii) failure to
furnish or delay in furnishing any such utilities or services when such failure
or delay is caused by acts of God or the elements, labor disturbances of any
character, any other accidents or other conditions beyond the reasonable control
of Landlord, or by the making of repairs or improvements to the Premises or to
the Building, (iii) the limitation, curtailment, rationing or restriction on use
of water or electricity, gas or any other form of energy or any other service
utility whatsoever serving the Premise or the Building. Furthermore, Landlord
shall be entitled to cooperate voluntarily in a reasonable manner with the
efforts of national, state or local governmental agencies or utilities suppliers
in reducing energy or other resources consumption.
(d) Any sums payable under this Paragraph 12 shall be considered additional
rent and may be added to any installment of rent thereafter becoming due, and
Landlord shall have the same remedies for a default in payment of such sums as
for a default in the payment of rent.
(e) Tenant shall not provide any janitorial services without Landlord's
written consent and then only subject to supervision of Landlord and by a
janitorial contractor or employees at all times satisfactory to Landlord. Any
such services provided by Tenant shall be at Tenant's sole risk and
responsibility.
13. Estoppel Certificate.
Within ten (10) days following the Commencement Date or any written request
which Landlord may make from time to time, Tenant shall execute and deliver to
Landlord a certificate substantially in the form attached hereto as Exhibit "D"
-----------
and made a part thereof, indicating thereon any exceptions thereto which may
exist at that time. Failure of Tenant to execute and deliver such certificate
shall at Landlord's option constitute a default hereunder or constitute an
acceptance of the Premises and acknowledgement by Tenant that the statements
included in Exhibit "D" are true and correct without exception. Landlord and
-----------
Tenant intend that any statement delivered pursuant to this paragraph may be
relied upon by Landlord or by any mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or any interest therein or anyone to whom
Landlord may provide said certificate.
14. Holding Over.
Tenant will, at the termination of this Lease by lapse or time or otherwise,
yield up immediate possession to Landlord. If Tenant retains possession of the
Premises or any part thereof after such termination, then Landlord may, at its
option, serve written notice upon Tenant that such holding over constitutes any
one of (i) creation of a month to month tenancy, upon the terms and conditions
set forth in this Lease, or (ii) creation of a tenancy of sufferance, in any
case upon the terms and conditions set forth in
9
this Lease; provided, however, that the monthly rental (or daily rental under
(ii)) shall, in addition to all other sums are to be paid by Tenant hereunder,
whether or not as additional rent, be equal to one hundred fifty percent (150%)
of the rental being paid monthly to Landlord under this Lease immediately prior
to such termination (prorated in the case of (ii) on the basis of a 365 day year
for each day Tenant remains in possession). If no such notice is served, then a
tenancy at sufferance shall be deemed to be created at the rent in the preceding
sentence. Tenant shall also pay to Landlord all damages sustained by Landlord
resulting from retention of possession by Tenant, including the loss of any
proposed subsequent tenant for any portion of the Premises. The provisions of
this paragraph shall not constitute a waiver by Landlord of any right of reentry
as herein set forth; nor shall receipt of any rent or any other act in apparent
affirmance of the tenancy operate as a waiver of the right to terminate this
Lease for a breach of any of the terms, covenants, or obligations herein on
Tenant's part to be performed.
15. Subordination.
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, this Lease shall be subject and
subordinate at all times to the lien or interest of any mortgage or deed to
secure debt which may now exist or hereafter be executed in any amount for which
said Building, land, or Landlord's interest or estate in any of said items is
specified as security. Notwithstanding the foregoing, Landlord shall have the
right to subordinate or cause to be subordinated any such liens or interests of
mortgages or deeds to secure debt to this Lease. In the event that any mortgage
or deed to secure debt is foreclosed or a conveyance in lieu of foreclosure is
made for any reason, Tenant shall, notwithstanding any subordination, attorn to
and become the Tenant of the successor in interest to Landlord at the option of
such successor in interest. Tenant agrees to execute such non-disturbance and
attornment agreements as the holder of any mortgage or deed to secure debt on
the Building may reasonably require. Tenant covenants and agrees to execute and
deliver, upon demand by Landlord and in the form requested by Landlord, any
additional documents evidencing the priority or subordination of this Lease with
respect to the lien of any such mortgage or deed to secure debt.
16. Entry By Landlord.
Landlord reserves and shall at all times have the right, after delivering
verbal notice to Tenant (which shall be given by direct conversation or message
to Tenant's chief financial officer or corporate counsel provided they maintain
offices within the Premises) at least twenty-four (24) hours in advance of
Landlord's entry (except in the case of an emergency or the supplying by
Landlord of janitorial and other routine services, in which case no advance
notice shall be necessary), to enter the Premises to inspect the same, to supply
janitor service and any other service to be provided by Landlord to Tenant
hereunder, to show said Premises to prospective purchasers, mortgagees or
tenants (but only during the last nine (9) months of the Lease Term as to
prospective tenants), to post notices of nonresponsibility, and to alter,
improve, or repair the Premises and any portion of the Building of which the
Premises are a part or to which access is conveniently made through the
Premises, without abatement of rent, and may for that purpose erect, use, and
maintain scaffolding, pipes, conduits, and other necessary structures in and
through the Premises where reasonably required by the character of the work to
be performed, provided that entrance to the Premises shall not be blocked
thereby, and further provided that the business of Tenant shall not be
interfered with unreasonably. Tenant hereby waves any claim for damages for any
injury or inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss occasioned
thereby. For each of the aforesaid purposes, Landlord shall at all times have
and retain a key with which to unlock all of the doors, in, upon, and about the
Premises, and Landlord shall have the right to use any and all means which
Landlord may deem necessary or proper to open said doors in an emergency, in
order to obtain entry to any portion of the Premises, and any entry to the
Premises, or portions thereof obtained by Landlord by any of said means, or
otherwise, shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into, or a detainer of, the Premises, or an eviction,
actual or constructive, of Tenant from the Premises or any portions thereof.
Landlord shall also have the right at any time, without the same constituting an
actual or constructive eviction and without incurring any liability to Tenant
therefor, to change the arrangement and/or location of entrances or passage
ways, doors and doorways, and corridors, elevators, stairs, toilets, or other
public parts of the Building and to change the name, number or designation by
which the Building is commonly known.
17. Insolvency or Bankruptcy.
The appointment of a receiver to take possession of all or substantially all
of the assets of Tenant, or an assignment of Tenant for the benefit of
creditors, or any action taken or suffered by Tenant under any insolvency,
bankruptcy, or reorganization act, shall at Landlord's option constitute a
breach of this Lease by Tenant. Upon the happening of any such event or at any
time thereafter, this Lease shall terminate five (5) days after written notice
of termination from Landlord to Tenant. In no event shall this Lease be assigned
or assignable by operation of law or by voluntary or involuntary bankruptcy
proceedings or otherwise and in no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency, or
reorganization proceedings.
10
18. Default and Remedies.
The following events shall be deemed to be events of default by Tenant
under this Lease:
(a) Tenant shall fail to pay when due any sum of money becoming due to be
paid to Landlord hereunder, whether such sum be any installment of the rent
herein reserved, any other amount treated as additional rent hereunder, or any
other payment or reimbursement to Landlord required herein, whether or not
treated as additional rent hereunder, and such failure shall continue for a
period of five (5) days from the date such payment was due; provided, however,
that with respect to the first occurrence of a failure to pay during any
consecutive twelve (12) month period during the Lease Term, such failure shall
not constitute an event of default under this Lease unless such failure shall
continue for a period of five (5) days after written notice from Landlord to
Tenant of such failure; or
(b) Tenant shall fail to comply with any term, provision or covenant of
this Lease other than by failing to pay when or before due any sum of money
becoming due to be paid to Landlord hereunder, and shall not cure such failure
within (i) twelve (12) hours after written notice to Tenant if the failure
involves a condition hazardous or dangerous to life or property or (ii) twenty
(20) days after written notice to Tenant in the case of any other failure (or,
in the event the failure cannot reasonably be cured within said twenty (20)-day
period, and provided Tenant commences such cure within said twenty (20)-day
period and thereafter diligently pursues such cure to completion, within such
reasonable period of time (not to exceed ninety (90) days) necessary to cure
such failure); or
(c) Tenant shall abandon or vacate any substantial portion of the Premises
for at least thirty (30) consecutive days; or
(d) Tenant shall create or allow to be created in or about the demised
Premises any condition or circumstance constituting a hazard to people or
property, a nuisance, a trespass, or other condition offensive to Landlord or
others, whether or not such condition or circumstance rises to the level of a
civil or criminal law violation or action; or
(e) Tenant shall fail to vacate the Premises immediately upon termination
of this Lease, by lapse of time or otherwise, or upon termination of Tenant's
right to possession only;
(f) If, in spite of the provisions hereof, the interest of Tenant shall be
levied upon under execution or be attached by process of law or Tenant shall
fail to contest diligently the validity of any lien or claimed lien and give
sufficient security to Landlord to insure payment thereof or shall fail to
satisfy any judgment rendered thereon and have the same released, and such
default shall continue for ten (10) days after written notice thereof to Tenant;
or
(g) Tenant shall assign, sublet or transfer its interest hereunder in
violation of this Agreement.
Upon the occurrence of any such events of default described in this
paragraph or elsewhere in this Lease, Landlord shall have the option to pursue
any one or more of the following remedies without any notice or demand
whatsoever:
(aa) Landlord may, at its election, terminate this Lease or terminate
Tenant's right to possession only, without terminating the Lease.
(bb) Upon any termination of this lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease, Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free license to enter into and upon the
Premises in such event with or without process of law and to repossess the
Premises and to expel or remove Tenant and any others who may be occupying or
within the Premises and to remove any and all property therefrom, without being
deemed in any manner guilty of trespass, eviction or forcible entry or detainer,
and without incurring any liability for any damage resulting therefrom; Tenant
hereby waiving any right to claim damage for such reentry and expulsion, and
without relinquishing Landlord's right to rent or any other right given to
Landlord hereunder or by operation of law.
(cc) Upon termination of this Lease, whether by lapse of time, by or in
connection with a dispossessory proceeding or otherwise, Landlord shall be
entitled to recover as Landlord's actual accrued damages, all rent, including
any amount treated as additional rent hereunder, and other sums due and payable
by Tenant on the date of termination, plus, as Landlord's liquidated damages for
the balance of the stated term hereof and not as a forfeiture or penalty, the
sum of: (i) an amount equal to the then present value of the rent, including any
amounts treated as additional rent hereunder, and other sums provided herein to
be paid by Tenant for the residue of the stated term hereof, less the fair
rental value of the Premises for such residue (taking into account the time and
expenses necessary to obtain a replacement tenant or tenants, including expenses
hereinafter described in subparagraph (dd)(ii) relating to recovery of the
Premises, preparation for reletting and for reletting itself), and (ii) the cost
of performing any other covenants which would have otherwise been performed by
Tenant.
11
(dd) (i) Upon termination of the Lease or Tenant's right to
possession of the demised Premises, regardless of whether such termination
occurs as a result of a dispossessory proceeding, distraint proceeding, exercise
of right of termination, re-entry, lease expiration or otherwise, Tenant shall
remain liable for payment of all rent thereafter accruing and for performance of
all obligations thereafter performable under this Lease. Landlord may, at
Landlord's option, enter the Premises, remove Tenant's signs and other evidences
of tenancy, and take and hold possession thereof as provided in subparagraph
(bb) above, without such entry and possession releasing Tenant from any
obligation, including Tenant's obligation to pay rent, including any amounts
treated as additional rent, hereunder for the full term of the Lease.
(ii) Landlord may, but need not, relet the Premises or any part
thereof for such rent and upon such terms as Landlord in its sole discretion
shall determine (including the right to relet the Premises for a greater or
lesser term than that remaining under this Lease, the right to relet the
Premises as a part of a larger area, and the right to change the character and
use made of the Premises) and Landlord shall not be required to accept any
tenant offered by Tenant or to observe any instructions given by Tenant about
such reletting. In any such case, Landlord may make repairs, alterations and
additions in or to the Premises, and redecorate the same to the extent Landlord
deems necessary or desirable, and Tenant shall, upon demand, pay the cost
thereof, together with Landlord's expenses for reletting, including, without
limitation, any broker's commission incurred by Landlord. If the consideration
collected by Landlord upon any such reletting plus any sums previously collected
from Tenant are not sufficient to pay the full amount of all rent, including any
amounts treated as additional rent hereunder and other sums reserved in this
Lease for the remaining term hereof, together with the costs of repairs,
alterations, additions, redecorating, and Lessor's expenses of reletting and the
collection of the rent accruing therefrom (including attorneys' fees and
broker's commissions), Tenant shall pay to Landlord, as Landlord's liquidated
damages and not as a forfeiture or penalty, the amount of such deficiency upon
demand and Tenant agrees that Landlord may file suit to recover any sums falling
due under this section from time to time.
(ee) Landlord may, at Landlord's option, enter into and upon the
Premises, with or without process of law, if Landlord determines in its sole
discretion that Tenant is not acting within a commercially reasonable time to
maintain, repair or replace anything for which Tenant is responsible hereunder,
and correct the same, without being deemed in any manner guilty of trespass,
eviction or forcible entry and detainer and without incurring any liability for
any damage resulting therefrom, and Tenant agrees to reimburse Landlord, on
demand, as additional rent, for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease.
(ff) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of the Lease or of law, to which Tenant is or
may be entitled, may be handled, removed and stored, as the case may be, by or
at the direction of Landlord at the risk, cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a ▇▇▇▇ of sale
without further payment or credit by Landlord to Tenant.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law or
available in equity (all such remedies being cumulative), nor shall pursuit of
any remedy herein provided constitute a forfeiture or waiver of any rent due to
Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained. No act
or thing done by Landlord or its agents during the term hereby granted shall be
deemed a termination of this Lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this Lease or accept a surrender of said
Premises shall be valid unless in writing signed by Landlord. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants herein contained shall be deemed or construed to constitute a waiver
of any other violation or breach of any of the terms, provisions and covenants
herein contained. Landlord's acceptance of the payment of rental or other
payments hereunder after the occurrence of an event of default shall not be
construed as a waiver of such default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord in enforcing one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
a waiver of such default or of Landlord's right to enforce any such remedies
with respect to such default or any subsequent default. If, on account of any
breach or default by Tenant in Tenant's obligations under the terms and
conditions of this Lease, it shall become necessary or appropriate for Landlord
to employ or consult with an attorney concerning or to enforce or defend any of
Landlord's rights or remedies hereunder, Tenant agrees to pay reasonable
attorneys' fees so incurred.
Without limiting the foregoing, to the extent permitted by law, Tenant
hereby: (i) appoints and designates the Premises as a proper place for service
of process upon Tenant, and agrees that service of process upon any person in
a managerial capacity employed by Tenant upon the Premises shall constitute
personal service of such process upon Tenant (provided, however, Landlord does
not hereby waive the right to serve Tenant with process by any other lawful
means); (ii) expressly waives any right to trial by jury; and (iii) expressly
waives the service of any notice under any existing or future law of the State
of Georgia applicable to landlords and tenants.
12
19. Damage by Fire, Etc.
(a) If the Building, improvements, or Premises are rendered partially or
wholly untenantable by fire or other casualty, and if such damage cannot, in
Landlord's reasonable estimation, be materially restored within ninety (90) days
of such damage, then Landlord may, at its sole option, terminate this Lease as
of the date of such fire or casualty. Landlord shall exercise its option
provided herein by written notice to Tenant within sixty (60) days of such fire
or other casualty. For purposes hereof, the Building, improvements, or Premises
shall be deemed "materially restored" if they are in such condition as would not
prevent or materially interfere with Tenant's use of the Premises for the
purpose for which it was then being used.
(b) If this Lease is not terminated pursuant to Paragraph 19(a), then to
the extent of available insurance proceeds, Landlord shall proceed with all due
diligence to repair and restore the Building, improvements or Premises, as the
case may be (except that Landlord may elect not to rebuild if such damage occurs
during the last year of the term of this Lease exclusive of any option which is
unexercised at the date of such damage).
(c) If this Lease shall be terminated pursuant to this Paragraph 19, the
term of this Lease shall end on the date of such damage as if that date had been
originally fixed in this Lease for the expiration of the term hereof. If this
Lease shall not be terminated by Landlord pursuant to this Paragraph 19 and if
the Premises is untenantable in whole or in part following such damage, the rent
payable during the period in which the Premises is untenantable shall ▇▇▇▇▇ with
respect to the untenantable portion of the Premises from the date of the
casualty until the date of restoration. In the event that (a) Landlord shall
fail to complete such repairs and material restoration within one hundred fifty
(150) days after the date of such damage, or (b) Landlord notifies Tenant, after
Tenant's request, that such repairs and restoration cannot, in Landlord's
determination, be materially restored within one hundred fifty (150) days after
the date of such damage, Tenant may at its option and as its sole remedy
terminate this Lease by delivering written notice to Landlord, whereupon the
Lease shall end on the date of such notice as if the date of such notice were
the date originally fixed in this Lease for the expiration of the term hereof;
provided, however, that if construction is delayed because of changes,
deletions, or additions in construction requested by Tenant, strikes, lockouts,
casualties, acts of God, war, material or labor shortage, governmental
regulation or control or other causes beyond the reasonable control of Landlord,
the period for restoration, repair or rebuilding shall be extended for the
amount of time Landlord is so delayed.
In no event shall Landlord be required to rebuild, repair or replace any
part of the partitions, fixtures, additions or other improvements which may have
been placed in or about the Premises by Tenant. Any insurance which may be
carried by Landlord or Tenant against loss or damage to the Building or Premises
shall be for the sole benefit of the party carrying such insurance and under its
sole control except that Landlord's insurance may be subject to control by (i)
the holder or holders of any indebtedness secured by a mortgage or deed to
secure debt covering any interest of Landlord in the Premises, the Building, or
the Property, and/or (ii) the ground lessor of any portion of the Property.
(d) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed to secure debt covering
the Premises, Building or Property, or the ground lessor of the Property,
requires that any insurance proceeds be paid to it, then Landlord shall have the
right to terminate this Lease by delivering written notice of termination to
Tenant within fifteen (15) days after such requirement is made by any such
person, whereupon the Lease shall end on the date of such damage as if the date
of such damage were the date originally fixed in this Lease for the expiration
of the term.
(e) In the event of any damage or destruction to the Building or the
Premises by any peril covered by the provisions of this Paragraph 19, Tenant
shall, upon notice from Landlord, remove forthwith, at its sole cost and
expense, such portion or all of the property belonging to Tenant or its
licensees from such portion or all of the Building or the Premises as Landlord
shall request and Tenant hereby indemnifies, defends and holds Landlord harmless
from any loss, liability, costs, and expenses, including attorneys' fees,
arising out of any claim of damage or injury as a result of such removal and any
alleged failure to properly secure the Premises prior to such removal.
20. Condemnation.
(a) If any substantial part of the Premises should be taken for any public
or quasi-public use under governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and the taking
would prevent or materially interfere with the use of the Premises for the
purpose for which it is then being used, this Lease shall terminate effective
when the physical taking shall occur in the same manner as if the date of such
taking were the date originally fixed in this Lease for the expiration of the
term hereof. As used herein, "substantial part" shall mean more than twenty
percent (20%).
(b) If part of the Premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu
13
thereof, and this Lease is not terminated as provided in the subparagraph above,
this Lease shall not terminate but the rent payable hereunder during the
unexpired portion of this Lease shall be reduced in proportion to the square
feet of the Premises taken and Landlord shall undertake to restore the Premises
to a condition suitable for Tenant's use, as near to the condition thereof
immediately prior to such taking as is reasonably feasible under all
circumstances.
(c) Tenant shall not share in any condemnation award or payment in lieu
thereof or in any award for damages resulting from any grade change of adjacent
streets, the same being hereby assigned to Landlord by Tenant; provided,
however, that Tenant may separately claim and receive from the condemning
authority, if legally payable, compensation for Tenant's removal and relocation
costs and for Tenant's loss of business and/or business interruption.
(d) Notwithstanding anything to the contrary contained in this paragraph,
if the temporary use or occupancy of any part of the Premises shall be taken or
appropriated under power of eminent domain during the term of this Lease, this
Lease shall be and remain unaffected by such taking or appropriation and Tenant
shall continue to pay in full all rent payable hereunder by Tenant during the
term of this Lease; in the event of any such temporary appropriation or taking,
Tenant shall be entitled to receive that portion of any award which represents
compensation for the use of or occupancy of the Premises during the term of this
Lease, and Landlord shall be entitled to receive that portion of any award which
represents the cost of restoration of the Premises and the use and occupancy of
the Premises after the end of the term of this Lease.
21. Sale by Landlord.
In the event of a sale or conveyance by Landlord of the building, the same
shall operate to release Landlord from any future liability upon any of the
covenants or conditions, express or implied, herein contained in favor of
Tenant, and in such event Tenant agrees to look solely to the responsibility of
the successor in interest of Landlord in and to this Lease. Tenant agrees to
attorn to the purchaser or assignee in any such sale.
22. Right of Landlord to Perform.
All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If Tenant shall fail to perform any
acts, covenants or agreements to be performed by Tenant under any of the terms
of this Lease or to pay any sum of money, other than rent, required to be paid
by it hereunder, and such failure shall continue for (10) days after notice
thereof by Landlord, Landlord may, but shall not be obligated so to do, and
without waiving or releasing Tenant from any obligations of Tenant, make any
such payment or perform any such act, covenant or agreement on Tenant's part to
be made or performed as in this Lease provided. All sums so paid by Landlord or
costs related to Landlord's performance of such acts, covenants or agreements
and all necessary incidental costs, together with interest thereon at the Agreed
Interest Rate as defined in Paragraph 8 hereof from the date of such payment by
Landlord, shall be payable as additional rent to Landlord on demand, and Tenant
covenants to pay any such sums, and Landlord shall have, in addition to any
other right or remedy of the Landlord, the same rights and remedies in the event
of nonpayment thereof by Tenant as in the case of default by Tenant in the
payment of the rent.
23. Surrender of Premises.
(a) At the end of the Lease Term or any renewal thereof or other sooner
termination of this Lease, the Tenant will peaceably deliver up to the Landlord
possession of the Premises, together with all improvements, alterations or
additions upon or belonging to the same, by whomsoever made, in the same
condition as received, or first installed, ordinary wear and tear, damage by
fire, earthquake, act of God, or the elements alone expected. Tenant shall, upon
the termination of this Lease, remove all movable furniture, equipment and
computer and telephone cables belonging to Tenant, at Tenant's sole cost, title
to which shall be in name of Tenant until such termination, repairing any damage
caused by such removal. Property not so removed shall be deemed abandoned by the
Tenant, and title to the same shall thereupon pass to Landlord. Unless otherwise
agreed to in writing by Landlord, Tenant shall remove, at Tenant's sole cost,
any or all permanent improvements or additions to the Premises installed by or
at the expenses of Tenant (provided, however, that Landlord made such removal a
condition of Landlord's consent at the time Tenant requested and Landlord
granted Landlord's prior written approval of same), and all movable furniture,
equipment and computer and telephone cables belonging to Tenant which may be
left by Tenant and repair any damage resulting from such removal.
(b) The voluntary or other surrender of this lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of the
Landlord, terminate all or any existing subleases or subtenancies, or may, at
the option of Landlord, operate as an assignment to it or any or all such
subleases or subtenancies.
14
24. Waiver.
If either Landlord or Tenant waives the performance of any term, covenant
or condition contained in this Lease, such waiver shall not be deemed to be a
waiver of any subsequent breach of the same or any other term, covenant or
condition contained herein. Furthermore, the acceptance of rent by Landlord
shall not constitute a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, regardless of Landlord's knowledge of such
preceding breach at the time Landlord accepted such rent. Failure by Landlord to
enforce any of the terms, covenants or conditions of this Lease for any length
of time shall not be deemed to waive or to decrease the right of Landlord to
insist thereafter upon strict performance by Tenant. Waiver by Landlord of any
term, covenant or condition contained in this Lease may only be made by a
written document signed by Landlord.
25. Notices.
Whenever any notice, demand or request is required or permitted hereunder,
such notice, demand or request shall be hand-delivered in person, by reputable
courier service or sent by United States Mail, registered, postage prepaid, to
the addresses set forth below:
If to Landlord: Affiliated Equities Real Estate Limited
Partnership
c/o GMH Management, Inc.
River Ridge
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Tenant: Accord Networks, Inc.
River Ridge
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Any notice, demand or request which shall be served upon either of the
parties in the manner aforesaid shall be deemed sufficiently given for all
purposes hereunder (i) at the time such notices, demands or requests are
hand-delivered in person or (ii) on the third day after the mailing of such
notices, demands or requests in accordance with the preceding portion of this
paragraph.
Either Landlord or Tenant shall have the right from time to time to
designate by written notice to the other party such other places in the United
States as Landlord or Tenant may desire written notice to be delivered or sent
in accordance herewith; provided, however, at no time shall either party be
required to send more than an original and two copies of any such notice, demand
or request required or permitted hereunder.
26. Certain Rights Reserved to the Landlord.
Landlord reserves and may exercise the following rights without affecting
Tenant's obligations hereunder:
(a) To change the name of the Building;
(b) To designate all sources furnishing sign painting and lettering, ice,
drinking water, towels, coffee cart service and toilet supplies, lamps and bulbs
used in the Premises;
(c) To retain at all times pass keys to the Premises;
(d) To grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building;
(e) To close the Building after regular working hours and on legal
holidays subject, however, to Tenant's right to admittance, under such
reasonable regulations as Landlord may prescribe from time to time, which may
include by way of example but not of limitation, that persons entering or
leaving the Building register and provide sufficient forms of identification to
a watchman and that said persons establish their right to enter or leave the
Building; and
(f) To take any and all measures, including inspections, repairs,
alterations, decorations, additions and improvements to the Premises or the
Building, and identification and admittance procedures for access to the
Building as may be necessary or desirable for the safety, protection,
preservation or security of the Premises or the Building or Landlord's interest,
or as may be necessary or desirable in the operation of the Building.
Landlord may enter upon the Premises and may exercise any or all of the
foregoing rights hereby reserved without being deemed guilty of an eviction or
disturbance of Tenant's use or possession and
15
without being liable in any manner to Tenant and without abatement of rent or
affecting any of Tenant's obligations hereunder.
27. Successors and Assigns.
Subject to the provisions of Paragraph 9 hereof, the terms, covenants, and
conditions contained herein shall be binding upon and inure to the benefit of
the heirs, successors, executors, administrators and assigns of the parties
hereto.
28. Attorney's.
In the event that any action or proceeding is brought to enforce any term,
covenant or condition of this Lease on the Part of Landlord or Tenant, the
prevailing party in such litigation shall be entitled to reasonable attorneys'
fees to be fixed by the Court in such action or proceeding.
29. Authority.
If Tenant signs a corporation, partnership, limited liability company or
limited liability partnership, each of the persons executing this Lease on
behalf of Tenant does hereby covenant and warrant that Tenant is a duly
authorized and existing entity, that Tenant has and is qualified to do business
in Georgia, that Tenant has full right and authority to enter into this Lease,
and that each both of the persons signing on behalf of Tenant were authorized to
do so. Upon Landlord's request, Tenant shall provide Landlord with evidence
reasonably satisfactory to Landlord confirming the foregoing covenants and
warranties.
30. Mortgage Approvals.
Any provisions of this Lease requiring the approval or consent of Landlord
shall not be deemed to have been unreasonably withheld if any mortgagee (which
shall include the holder of any deed to secure debt) of the Premises, Building
or Property or any portion thereof shall refuse or withhold its approval or
consent thereto. Any requirement of Landlord pursuant to this Lease which is
imposed pursuant to the direction of any such mortgagee shall be deemed to have
been reasonably imposed by Landlord if made in good faith.
31. Miscellaneous.
(a) The paragraph headings herein are for convenience of reference and
shall in no way define, increase, limit, or describe the scope or intent of any
provision of this Lease. The term "Landlord" as used in this Lease shall include
the Landlord, its successors and assigns. In any case where this Lease is signed
by more than one person, the obligations hereunder shall be joint and several.
The term "Tenant" or any pronoun used in place thereof shall indicate and
include the masculine or feminine, the singular or plural number, individuals,
firms or corporations, and their and each of their respective successors,
executors, administrators, and permitted assigns, according to the context
hereof.
(b) Time is of the essence of this Lease and all of its provisions. This
Lease shall in all respects be governed by the laws of the State of Georgia.
This Lease, together with its exhibits, contains all the agreements of the
parties hereto and supersedes any previous negotiations. There have been no
representations made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its exhibits. This Lease may not be
modified except by a written instrument by the parties hereto.
(c) All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term at this Lease shall survive the
expiration or earlier termination of the term hereof.
(d) If any clause, phrase, provision or portion of this Lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not effect, impair or
render invalid or unenforceable the remainder of this Lease or any other clause,
phrase, provision or portion hereof, nor shall it affect the application of any
clause, phrase, provision or portion hereof to other persons or circumstances,
and it is also the intention of the parties to this Lease that in lieu of each
such clause, phrase, provision or portion of this Lease that is invalid or
unenforceable, there be added as a part of this Lease a clause, phrase,
provision or portion as similar in terms to such invalid or unenforceable
clause, phrase, provision or portion as may be possible and be valid and
enforceable.
(e) Whenever a period of time is herein prescribed for action to be taken
by Landlord, the Landlord shall not be liable or responsible for, and there
shall be excluded from the computation for any such period of time, any delays
due to Force Majeure Matters.
32. Landlord's Lien.
[INTENTIONALLY OMITTED]
16
33. Quiet Enjoyment.
Landlord represents and warrants that it has full right and authority to
enter into this Lease and that Tenant, while paying the rental and performing
its other covenants and agreements herein set forth, shall peaceably and quietly
have, hold and enjoy the Premises for the term hereof without hindrance or
molestation from Landlord subject to the terms and provisions of this Lease. In
the event this Lease is a sublease, then Tenant agrees to take the Premises
subject to the provisions of the prior leases. Landlord shall not be liable for
any interference, nuisance or disturbance by other tenants or third persons, nor
shall Tenant be released from any of the obligations of this Lease because of
such interference, nuisance or disturbance.
34. Landlord's Liability.
In no event shall Landlord's liability for any breach of this Lease exceed
the amount of rental then remaining unpaid for the then current term (exclusive
of any renewal periods which have not then actually commenced). This provision
is not intended to be a measure or agreed amount of Landlord's liability with
respect to any particular breach, and shall not be utilized by any court or
otherwise for the purpose of determining any liability of Landlord hereunder,
except only as a maximum amount not to be exceeded in any event. Furthermore,
any liability of Landlord hereunder shall be enforceable only out of the
interest of Landlord in the Building and the Property and in no event out of the
separate assets of Landlord or any shareholder or partner of Landlord.
35. Right to Relocate.
Landlord reserves the right to relocate Tenant during the term of this
Lease or any renewal hereof, to similar quality office space within the
Building; provided, however, that in any such relocation, Landlord shall be
required to also relocate Tenant from any other space on the fourth floor of the
Building occupied by Tenant, so that the Premises and such other space continue
to be continguous. If Landlord exercise this right to relocate Tenant, then any
and all costs incident to said relocation shall be the responsibility of the
Landlord; said costs to be determined prior to the relocation of Tenant.
36. No Estate.
This contract shall create the relationship of Landlord and Tenant, and no
estate shall pass out of Landlord. Tenant has only a usufruct, not subject to
levy and sale and not assignable by Tenant, except as provided for herein and in
compliance herewith.
37. Lease Effective Date.
Submission of this instrument for examination or signature by Tenant does
not constitute a reservation of or option for lease, and is not effective as a
lease or otherwise until execution and delivery by both Landlord and Tenant.
38. Rules and Regulations.
(a) Tenant shall faithfully observe and comply with the rules and
regulations printed on or annexed to this Lease as Exhibit "E" which is attached
-----------
hereto and made a part hereof and all reasonable modifications thereof and
additions thereto from time to time put into effect by Landlord. Landlord shall
supply Tenant with any changes or amendments to said rules. Landlord shall not
be responsible for the nonperformance by any other tenant or occupant of the
Building of any said rules and regulations. Tenant will be responsible for
causing its employees, customers, subtenants, licensees, invitees, agents,
concessionaires and contractors to comply with all such rules and regulations.
Landlord shall not enforce such rules and regulations in a discriminatory
manner.
(b) Tenant acknowledges and agrees that Landlord may insist upon
compliance with and enforce the rules and regulations as well as any laws,
statues, ordinances or governmental rules or regulations as mentioned in
Paragraph 5 above, and may, pursuant to the Georgia Criminal Trespass Statue
(Official Code of Georgia Annotated, Section 16-7-21), prohibit any person
including any of Tenant's employees, agents, customers, licensees, guests,
invitees, concessionaires, or contractors from entering or remaining upon all or
any portion of the Building, including the Premises, or any other portion of the
Project, if Landlord determines in its sole discretion that said person has not
complied with any law, ordinance, rule or regulation or poses a threat to the
safety, welfare or health of any person or to the maintenance or orderliness of
the administration of the Building. Tenant further agrees that it shall not
interfere with or object to Landlord's enforcement of any such laws, ordinances,
rules and regulations including Official Code of Georgia Annotated, Section
16-7-21 or any similar statue.
39. Special Stipulations.
Special Stipulations to this Lease are set forth on Exhibit "F" attached
-----------
hereto and made a part hereof. In the event of any conflict between any
provision set forth set forth in Exhibit "F" and any provision contained
-----------
elsewhere in this Lease, the former in all events shall supersede, prevail and
control.
17
40. Guaranty.
[INTENTIONALLY OMITTED]
41. Brokerage Commissions.
Tenant represents that Tenant has not engaged or worked with any real
estate brokers or agents other than The ▇▇▇▇▇▇ Company and ICON Commercial
Interests (collectively, "Broker") in connection with this Lease for the
Premises. Tenant shall indemnify and hold harmless Landlord and Landlord's
agents from and against any and all claims for commissions or other
compensation, and any liabilities, damages and costs relating thereto, that may
be asserted by any person or entity other than Broker to the extent that Tenant
has engaged such person or such claim results from any action of Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year
first above written.
LANDLORD:
AFFILIATED EQUITITES REAL ESTATE
LIMITED PARTNERSHIP, a Delaware limited
partnership
By: GH Equities, Inc., a Delaware corporation,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: ASST SEC.
------------------------------
TENANT:
ACCORD NETWORKS, INC., a Georgia
corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Title: CEO
------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Corporate Counsel
------------------------------
(CORPORATE SEAL)
EXHIBIT "A"
----------
[Floor plan of leased premises in ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ office
building, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ appears here.]
EXHIBIT "B"
LEGAL DESCRIPTION
-----------------
All that tract, or parcel, of land in land lots 367, 368, 371, and ▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ being more particularly described as follows:
Beginning at the corner common to land lots 367, 368, 371, and 372, proceed in
an easterly direction along the southern boundary lines of L.L. 372 plus or
minus 417.0 feet to a point. Said point on the western right of way of U.S.
Highway 19 (Roswell Road) being the true of beginning.
Thence from said point of beginning S 02 degrees 20 feet 28 inches W, 516.95
feet to a point; Thence N 86 degrees 17 feet 25 inches W, 15.00 feet to a point;
thence S 04 degrees 38 feet 38 inches W, 351.98 feet to a point; thence S 84
degrees 29 feet 19 inches E, 15.00 feet to a point; thence S 05 degrees 40 feet
27 inches W, 38.50 feet to a point; thence S 05 degrees 40 feet 27 inches W,
254.86 feet to a point; thence N 72 degrees 07 feet 57 inches W 222.72 feet to a
point; thence N 53 degrees 48 feet 02 inches W, 599.45 feet to a point; thence N
42 degrees 38 feet 02 inches W, 188.30 feet to a point; thence N 02 degrees 18
feet 02 inches W, 671.72 feet to a point; thence N 79 degrees 28 feet 17 inches
E, 258.92 feet to a point; thence N 70 degrees 03 feet 05 inches E, 490.35 feet
to a point; thence N 87 degrees 41 feet 44 inches E, 220.01 feet to a point;
thence S 01 degrees 15 feet 07 inches W, 295.85 feet to a point, said point
being the true point of beginning. That tract thus described consists of 23.07
Acres.
EXHIBIT "C"
WORK LETTER AGREEMENT
---------------------
1. IMPROVEMENTS
Landlord shall furnish and install substantially in accordance with the
plans and specifications approved by Landlord and Tenant as hereinafter
provided, partitions, doors, lighting fixtures, acoustical ceiling floor
coverings, electrical outlets, telephone outlets, air conditioning, fire
sprinklers, life safety devices, signage, wall finishes, and construction clean
up. Landlord shall cause to be prepared all architectural plans and
specifications and other structural, mechanical and electrical engineering plans
and specifications (the "Plans"), as it deems necessary to accomplish the work
described in this paragraph and which is normally performed by the construction
trades. The cost of such improvements and Plans shall be borne as provided
below.
2. IMPROVEMENT COSTS TO BE PAID BY LANDLORD
Landlord shall provide to Tenant a "Tenant Allowance" to undertake all or
part of the improvements which Tenant desires to have made to the Premises. The
Tenant Allowance shall be the actual cost of said improvements to a limit of
(not to exceed) Five Thousand and No/100 Dollars ($5,000.00).
3. IMPROVEMENTS COSTS TO BE PAID BY TENANT
Any improvement costs in excess of the Tenant Allowance provided by
Landlord in Paragraph 2 above, including but not limited to design fees,
architectural and engineering fees, construction costs, permit fees, changes in
the work due to unforeseen conditions, or changes directed by any governmental
officials or authorities, shall be paid by Tenant to Landlord ("Tenant's
Share"), one half (1/2) upon commencement of the construction and one half (1/2)
upon completion of the construction. Landlord agrees to disburse the Tenant
Allowance and the Tenant's Share (to the extent deposited by Tenant with
Landlord) to pay the improvement costs as and when the same become due and
payable. Landlord shall be entitled to rely on the accuracy of any and all
invoices and fee statements for labor and materials performed on or furnished to
the Premises in connection with the tenant improvement and rely, to the extent
submitted, on any and all certifications as to tenant improvement costs
submitted by Landlord's contractor and/or Landlord's architect. Tenant does
hereby release Landlord from any claims which may result from Landlord's paying
an inaccurate invoice, fee statement or the like, provided that such payment is
made in good faith and in reliance upon fee statements received by Landlord with
respect to the improvements. Should Tenant request any modifications to the work
which has already been completed under this agreement, Tenant shall pay one half
(1/2) upon commencement of the modifications and one half (1/2) upon completion
of the modifications. Any delay in Landlord's delivery of possession of the
Premises to Tenant as a result of any changes by Tenant to the Plans agreed upon
pursuant to paragraph 4 below shall not serve to extend the Commencement Date of
the Lease or relieve Tenant of any obligations under the Lease (including the
obligation to pay rent beginning on the Commencement Date). Failure by Tenant to
pay its share of the improvement costs hereunder will constitute an event of
default by Tenant under the Lease, and Landlord shall have all of the remedies
available to it under the Lease and at law or in equity.
4. PLANNING SCHEDULE AND APPROVAL OF COST
(a) Landlord and Tenant shall diligently pursue the preparation of the
plans and specifications (the "Plans"). Tenant, at its expense, shall
provide Landlord or Landlord's architect with instructions sufficient
for preparation of the Plans no later than January 14, 2000. Failure
of Tenant to provide said instructions by the date specified above
shall not serve to extend the Commencement Date of the Lease.
(b) After receipt of Tenant's instructions, Landlord shall cause the Plans
to be prepared in conformance with Landlord's requirements and all
applicable codes, ordinances and laws. The Plans shall specify
materials and details of equal or better quality to Landlord's
building standard. The Plans shall be subject to the approval of
Landlord and any governmental officials or authorities having
jurisdiction. Landlord shall submit said Plans to Tenant for approval
within ten (10) business days after receiving all required information
from Tenant, and Tenant shall have five (5) calendar days after
Tenant's receipt of the Plans to resubmit said Plans to Landlord with
Tenant's approval or comments. Failure of Tenant to respond to the
Plans within five (5) calendar days of receipt shall not serve to
extend the Commencement Date of the Lease.
(c) After the Plans are approved by Landlord and Tenant, Landlord shall
obtain from Landlord's contractor a price quotation for the tenant
improvements, and shall submit the same to Tenant for approval. Upon
written approval of such price by Tenant, Landlord and Tenant shall be
deemed to have given final approval to the Plans on the basis of which
the quotation was made, and Landlord shall be authorized to proceed
with the improvements of the Premises in accordance with such Plans.
If Tenant disapproves such price, or fails to approve or disapprove
such price within five (5) calendar days after submission thereof by
Landlord, Landlord shall not be obligated to proceed with any
improvement of the Premises until such time as Landlord and Tenant
approve a price for Tenant's work.
(d) Tenant shall bear the cost of any changes in the work requested by
Tenant after final approval of Plans under Paragraph 4(c) above.
5. FORCE MAJEURE
Landlord and Tenant agree that Landlord may be delayed in the completion of
construction of improvements to the Premises due to acts of God, civil strife,
riots, strike, governmental action (not caused by Tenant or Landlord) shortages
of equipment or supplies, or other matters beyond the reasonable control of
Landlord (a "Force Majeure Matter"), and Landlord shall not be in default
hereunder or liable to Tenant in the event of a delay in the completion of
improvements to the Premises due to a Force Majeure matter.
6. TENANT'S WORK
All work within the scope of the normal construction trades employed in the
Building, including, but not limited to, furnishing and installing of telephones
cable, data equipment and cable, furniture, and office equipment, shall be
furnished and installed by Tenant at Tenant's expense. Tenant shall adopt a work
schedule in conformance with the schedule of Landlord's contractors and conduct
its work in such a manner as to maintain harmonious labor relations and as not
to interfere unreasonably with or delay the work of Landlord's contractors.
Tenant's contractors, subcontractors, and labor shall be acceptable to and
approved by Landlord and shall be subject to the administrative supervision of
the Landlord as it may require to maintain building standard quality or
construction schedule. Tenant shall use its best efforts to ensure that Tenant's
contractors, subcontractors, and laborers follow the administrative supervision
of Landlord and conform in all ways to the Landlord's Rules and Regulations. If
Tenant's contractors fail to conform to Landlord's administrative supervision or
Landlord's Rules and Regulations and in doing so damage the Premises or the
common areas of the building, Tenant shall be responsible for the cost to repair
such damage. Landlord shall give access and entry to the Premises to Tenant and
its contractors and reasonable opportunity and time and reasonable use of
facilities to enable Tenant to adapt the Premises for Tenant's use; provided,
however, that if such entry is prior to the Commencement Date, such entry shall
be subject to all terms and conditions of the Lease except the payment of rent.
EXHIBIT "D"
TENANT LEASE ESTOPPEL CERTIFICATE
---------------------------------
Landlord: Affiliated Equities Real Estate Limited Partnership
--------
Tenant:
------ _____________________________________________
Premises:
-------- _____________________________________________
Area:
---- _________________________Sq.Ft. Lease Date:_______
The undersigned Tenant under the above-referenced lease (the "Lease")
hereby ratifies the Lease and certifies to Affiliated Equities Real Estate
Limited Partnership ("Landlord") as owner of the real property of which the
premises demised under the Lease (the "Premises") is a part, as follows:
1. That the term of the Lease commenced on _________, 20__ and the Tenant
is in full and complete possession of the Premises demised under the Lease and
has commenced full occupancy and use of the Premises, such possession having
been delivered by Landlord and having been accepted by the Tenant.
2. That the Lease calls for monthly rent installments of $___________ to
date and that the Tenant is paying monthly installments of rent of $___________
which commenced to accrue on the _____ day of _________, 20__.
3. That no advance rental or other payment has been made in connection
with the Lease, except rental for the current month. There is no "free rent" or
other concession under the remaining term of the Lease, and the rent has been
paid to and including ______________, 20__.
4. That a security deposit in the amount of $____________ is being held
by Landlord, which amount is not subject to any set off or reduction or to any
increase for interest or other credit due to Tenant.
5. That all obligations and conditions under said Lease to be performed
to date by Landlord or Tenant have been satisfied, free of defenses and set-offs
including all construction work in the Premises.
6. That the Lease is a valid lease and in full force and effect and
represents the entire agreement between the parties; that there is no existing
default on the part of Landlord or the Tenant in any of the terms and conditions
thereof and no event has occurred which, with the passing of time or giving of
notice or both, would constitute an event of default; and that said Lease has:
(Initial One)
( ) not been amended, modified, supplemented, extended,
renewed or assigned.
( ) been amended, modified, supplemented, extended, renewed
or assigned as follows by the following described
agreements:
________________________________________________
________________________________________________
________________________________________________
________________________________________________
7. That the Lease provides for a primary term of ______ months; the term
of the Lease expires on the ____ day of ____________, 20__; and that: (Initial
One)
( ) neither the Lease nor any of the documents listed in
Paragraph 6 (if any), contain an option for any
additional term or terms.
( ) the Lease and/or the documents listed under Paragraph
6, above, contain an option for _____________
additional term(s) of _______ year(s) and _____________
month(s) (each) at a rent to be determined as follows:
________________________________________________
________________________________________________
________________________________________________
8. That Landlord has not rebated, reduced or waived any amounts due from
Tenant under the Lease, either orally or in writing, nor has Landlord provided
financing for, made loans or advances to, or invested in the business of Tenant.
9. That, to the best of Tenant's knowledge, there is no apparent or
likely contamination of the real property or the Premises by hazardous
materials, and Tenant does not use, nor has Tenant disposed of, hazardous
materials in violation of environmental laws on the real property or the
Premises.
10. That there are no actions, voluntary or involuntary, pending against
the Tenant under the bankruptcy laws of the United States or any state thereof.
11. That this certification is made knowing that Landlord is relying upon
the representations herein made.
Tenant:
___________________________________
Dated: ____________________ By: ______________________________
Typed Name:___________________
Title:________________________
EXHIBIT "E"
RULES AND REGULATIONS
---------------------
1. Sidewalks, halls, passages, exits, entrances, elevators, escalators and
stairways shall not be obstructed by Tenants or used by them for any
purpose other than for ingress and egress from their respective Premises.
The halls, passages, exits, entrances, elevators, and stairways are not for
the use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose presence,
in the judgment of Landlord, shall be prejudicial to the safety, character,
reputation and interests of the Building and its Tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any Tenant normally deals in the ordinary course of such
Tenant's business unless such persons are engaged in illegal activities. No
Tenant, and no employees or invitees of any Tenant, shall go upon the roof
of the Building, except as authorized by the Landlord.
2. No sign, placard, picture, name, advertisement, notice or other such item
visible from the exterior of Premises shall be inscribed, painted,
illuminated, affixed, installed or otherwise displayed by any Tenant either
on its Premises or any part of the Building without the prior written
consent of Landlord, and Landlord shall have the right to remove any such
sign, placard, picture, name, advertisement, notice or other such item
without notice to and at the expense of Tenant. All approved signs or
lettering on doors and walls shall be printed, painted, affixed and
inscribed at the expense of the Tenant by a person approved by Landlord.
3. The directory of the Building will be provided exclusively for the display
of the name and location of Tenants only.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on any Premises
without the prior written consent of Landlord. In any event with the prior
written consent of Landlord, all such items shall be installed inboard of
Landlord's standard window covering and shall in no way be visible from the
exterior of the Building. No articles shall be placed or kept on the window
▇▇▇▇▇ so as to be visible from the exterior of the Building. No articles
shall be placed or kept on the window ▇▇▇▇▇ so as to be visible from the
exterior of the Building. No articles shall be placed against glass
partitions or doors which might appear unsightly from outside Tenant's
Premises.
5. Landlord reserves the right to exclude from the Building between the hours
of 6 pm and 8 am on Monday through Friday and at all hours on Saturdays,
Sundays, and holidays all persons who are not Tenants or their accompanied
guests in the Building. Each Tenant shall be responsible for all persons
for whom it allows to enter the Building and shall be liable to Landlord
for all acts of such persons.
Landlord shall in no case be liable for damages for error with regard to
the admission to or exclusion from the Building of any person.
During the continuance of any invasion, mob, riot, public excitement or
other circumstances rendering such action advisable in Landlord's opinion,
Landlord reserves the right to prevent access to the Building by closing
and/or locking the doors, or otherwise, for the safety of Tenants and
protection of the Building and property in the Building.
6. No Tenant shall employ any person or persons for the purpose of cleaning
Premises unless otherwise agreed to by Landlord in writing. Except with the
written consent of Landlord no person or persons other than those approved
by Landlord shall be permitted to enter the Building for the purpose of
cleaning same. No Tenant shall cause any unnecessary labor by reason of
such Tenant's carelessness or indifference in the preservation of good
order and cleanliness of the Premises. Landlord shall in no way be
responsible to any tenant for any loss of property on the Premises,
however occurring, or for any damage done to the effects of any Tenant by
the janitor or any other employee or any other person.
7. No Tenant shall obtain or maintain for use upon its Premises or the
Building coin-operated or other vending machines in its Premises or in the
Building except from persons authorized by Landlord.
8. Each Tenant shall see that all doors of its Premises are closed and
securely locked and must observe strict care and caution that all water
faucets, water apparatus, coffee makers and any other electrical appliances
or equipment are entirely shut off before the Tenant or its employees leave
such Premises, and that all utilities shall likewise be carefully shut off
so as to prevent waste or damage, and for any default or carelessness the
Tenant shall make good all injuries sustained by other Tenants or occupants
of the Building of Landlord. On multiple tenancy floors, all Tenants shall
keep the door or doors to the Building corridors closed at all times except
for ingress and egress.
9. As more specifically provided in the Tenant's Lease of the Premises, Tenant
shall not waste electricity, water or air-conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air-conditioning, and shall refrain from attempting
to adjust any controls.
10. No Tenant shall alter any lock or access device or install a new or
additional lock or access device or any bolt on any door of its Premises
without the prior written consent of Landlord. If Landlord shall give its
consent, Tenant shall in each case furnish Landlord with a key for any such
lock.
11. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever, including, but not limited
to, coffee grounds shall be thrown therein, and the expense of any
breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the Tenant, who, or whose employees or invitees, shall
have caused it.
12. No Tenant shall use or keep in its Premises or the Building any keorsene,
gasoline or inflammable or combustible fluid or material other than limited
quantities necessary for the operation or maintenance of office equipment.
No tenant shall use any method of heating or air-conditioning other than
that supplied by Landlord. In the event flammable or combustible fluids or
materials are permitted by Landlord in the Premises, these materials must
be maintained and secured so as to comply with all laws, rules and
regulations governing such materials, including but not limited to, all
fire codes.
13. No Tenant shall use, keep or permit to be used or kept in its Premises any
foul or noxious gas or substance or permit or suffer such Premises to be
occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, orders and/or
vibrations or interfere in any way with other Tenants or those having
business therein, nor shall any animals or birds be brought or kept in or
about any Premises of the Building.
14. No cooking shall be done or permitted by any Tenant on its Premises without
the consent of Landlord (except that use by the Tenant of Underwriters'
Laboratory approved microwave ovens and equipment for the preparation of
coffee, tee, hot chocolate and similar beverages for Tenants and their
employees shall be permitted, provided that such equipment and use is in
accordance with applicable federal, state and city laws, codes, ordinances,
rules and regulations) nor shall Premises be used for lodging.
15. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
in their installation.
16. Landlord will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call boxes or other
office equipment affixed to all Premises shall be subject to the written
approval of Landlord. In no event shall Tenant install or modify any wires,
equipment or other facilities in telephone or electrical rooms or in other
areas outside of the Premises without the prior written approval of
Landlord.
17. No Tenant shall install any radio or television antenna, loudspeaker or any
other device on the exterior walls or the roof of the Building. Tenant
shall not interfere with radio or television broadcasting or reception from
or in the Building or elsewhere.
18. No furniture, freight, equipment, material, supplies, packages, merchandise
or other property will be received in the Building or carried up or down
the elevators except between such hours and in such elevators as shall be
designated by Landlord. In the event Landlord permits use of the Building's
loading dock and/or elevators after normal Building hours, then Landlord
shall have the right to impose reasonable charges on Tenant for such use.
Landlord shall have the right to prescribe the weight, size and position of
all safes, furniture, files, bookcases or other heavy equipment brought
into the Building. Safes or other heavy objects shall, if considered
necessary by Landlord, stand on wood strips of such thickness as determined
by Landlord to be necessary to properly distribute the weight thereof.
Landlord will not be responsible for loss of or damage to any such safe,
equipment or property from any cause, and all damage done to the Building
by moving or maintaining any such safe, equipment or other property shall
be repaired at the expense of Tenant.
Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the Building shall be placed and maintained
by Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed to move
such equipment in or out of the Building must be acceptable to Landlord.
19. No Tenant shall place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law.
20. There shall not be used in any space, or in the public areas of the
Building, either by Tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material-handling equipment
as Landlord may approve. No other vehicles of any kind shall be brought by
any Tenant into or kept in or about the Premises.
21. Each Tenant shall store all its trash and garbage within the interior of
its Premises. No materials shall be placed in the trash boxes or
receptacles if such material is of such nature that it may not be disposed
of in the ordinary and customary manner of removing and disposing of trash
and garbage in this area without violation of any law or ordinance
governing such disposal. All trash, garbage and refuse disposal shall be
made only through entryways and elevators provided for such purposes and at
such times as Landlord may designate. Tenant shall comply with all
recycling programs or requirements imposed by applicable governmental
entities or reasonably imposed by Landlord.
22. Canvassing, soliciting, distributing of handbills or any other written
material, and peddling in the Building are prohibited and each tenant shall
cooperate to prevent the same. No Tenant shall make room-to-room
solicitation of business from other tenants in the Building.
23. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of alcohol or drugs or who is in violation of any of the rules and
regulations of the Building.
24. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building in connection with or in promoting or advertising the
business of Tenant except a Tenant's address.
25. Tenant shall comply with all energy conservation, safety, fire protection
and evacuation procedures and regulations established by Landlord or any
governmental agency.
26. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
27. The requirements of Tenants will be attended to only upon application at
the office of the Building by an authorized individual. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless given special instructions from Landlord, and no employees
will admit any person (Tenant or otherwise) to any office without specific
instructions from Landlord.
28. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular Tenant or Tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other Tenant or Tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all Tenants of the Building.
29. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order therein. Tenant agrees to abide by all such
Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted.
30. Tenant shall provide and maintain hard surface protective mats under all
desk chairs which are equipped with casters to avoid excessive wear and
tear to carpeting. If Tenant fails to provide such mats, the cost of carpet
repair or replacement made necessary by such excessive wear and tear shall
be charged to and paid for by Tenant.
31. All work proposed by Tenant in the Premises must be pre-approved by
Landlord. Tenant will refer all contractors, contractors representatives
and installation technicians, rendering any service to Tenant, to Landlord
for Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in
the Premises and other portions of the Building, including installations of
telephones, telegraph equipment, electrical devices and attachments and
installations of any nature affecting floors, walls woodwork, trim,
windows, ceilings, equipment or any other physical portion of the Building.
32. Tenant shall give prompt notice to Landlord of any accidents to or defects
in plumbing, electrical fixtures, or heating apparatus so that such
accidents or defects may be attended to properly.
33. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invitees and guests.
34. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any Lease of Premises in the
Building.
35. Smoking of tobacco products (including, but not limited to, cigarettes,
cigars, pipes or similar utensils) is expressly prohibited in the lobby,
hallways, elevators, building entrances, restrooms, stairwells and common
areas in and around the Building. Tenant shall not permit any of its
employees, agents, servants, licensees, contractors or invitees to smoke in
those areas specified in the immediately preceding sentence. Tenant further
agrees either (i) to prohibit smoking within the Premises, or (ii) if
smoking is permitted by Tenant within the Premises, to take, at Tenant's
sole expense, such steps (which steps may included, but not by limited to,
installing exhaust equipment to supplement the Building's heating,
ventilation and air conditioning system) as shall be required by Landlord
to avoid any infiltration of smoke from the Premises into the space of
other tenants or the common areas in the Building. Tenant further agrees
that if Tenant shall have
taken steps to reduce or eliminate infiltration of smoke into the space of other
tenants, and, notwithstanding these steps, smoke from the Premises continues to
be a nuisance to other tenants in the Building, then Landlord shall have the
right to prohibit smoking in the Premises altogether. Tenant acknowledges and
agrees that (a) Landlord has the right under this paragraph to restrict and/or
prohibit smoking in the Premises, (b) smoking in the Premises is not an absolute
or inherent right of Tenant and (c) Landlord's determination that smoking in the
Premises must be abated shall be final. To enable smokers to have an area
outside of the Building in which to smoke, the Landlord shall designate from
time to time specific areas where smoking is permitted, to the extent permitted
by applicable laws and regulations. Smokers are required to keep all designated
smoking areas clean, attractive and free of litter. In order to comply with
present or future laws, regulations or guidelines of governmental entities
relation to workplace health and safety, Landlord retains the right to further
alter, move or eliminate such smoking areas from time to time and to establish
regulations relating thereto as Landlord reasonably deems necessary or
appropriate.
EXHIBIT "F"
SPECIAL STIPULATIONS
--------------------
1. Right of First Offer. For so long as Tenant has at least twelve (12)
months remaining on its primary Lease Term, and provided Tenant is not in
default under this Lease, at such time as Landlord desires to lease any or all
of the remaining space on the fourth (4th) floor of the Building or any space on
the second (2nd) floor of the Building, Landlord shall notify Tenant that
Landlord intends to lease such space and shall outline the market terms upon
which Landlord intends to offer such identified space for lease. Tenant shall
have ten (10) days following Landlord's notice in which to lease said space,
under the market terms contained in Landlord's notification (but in no event at
a rental rate less than the then current rental rate under this Lease for the
Premises). In the event Tenant does not choose to lease such space, or fails to
notify Landlord of its desire to lease such space within such ten (10) day
notification period, Landlord will have the right to lease the space, or any
portion thereof, to any other party, and the rights of Tenant hereunder with
respect to such space shall terminate. Notwithstanding any provisions herein to
the contrary, Tenant's rights hereunder shall be subject and subordinate to all
existing rights of existing tenants in the Building with respect to any such
space.
2. Entrance Sign. Tenant shall have the right to place Tenant's name on
the main entrance pylon sign for the Building, at Tenant's sole cost and
expense. All such signage is subject to the prior written approval of Landlord,
and must comply with all applicable laws, codes and regulations.