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EXHIBIT 10.6
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (THIS "SUBLEASE") is made and entered into this ______
day of October 1998, by and between ▇▇▇▇▇ MANAGEMENT CORPORATION, a California
corporation (the "Sublessee") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a Delaware corporation,
(the Sublessor").
WHEREAS, Lincoln P.C. Associates ("Landlord") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("Tenant")
entered into a lease dated September 1, 1991 (the "Lease") whereby Landlord
leased to Tenant certain premises consisting of approximately one hundred ten
thousand one hundred eight (110,108) rentable square feet of space (the
"Premises") in the building located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Building") commencing September 1, 1991 and expiring August
31, 2001: and
WHEREAS, the Lease was amended by First Amendment to Lease dated August 5, 1994
by and between Atlanta U.K. Partners, Ltd., a Georgia limited partnership (the
"Landlord"), successor to Lincoln P.C. Associates and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a
Delaware corporation to reflect Tenant's relocation of certain suites within
the Premises: and
WHEREAS, the Lease, as amended, was amended by Second Amendment to Lease dated
September 24, 1994 to expand the Premises: and
WHEREAS, the Lease, as amended, was amended by Third Amendment to Lease dated
January 26, 1995 to expand the Premises: and
WHEREAS, the Lease, First Amendment to Lease, Second Amendment to Lease and
Third Amendment to Lease shall hereby be referred to as the "Lease": and
WHEREAS, Glenborough Properties, L.P. is the successor in interest to Atlanta
U.K. Partners, Ltd.
WHEREAS, Sublessor has agreed to sublease Suite 505 consisting of approximately
Three Thousand Six Hundred Seventy-one (3,671) rentable square feet of the
Premises (3,165 usable square feet) as depicted on Exhibit "A" (the Subleased
Premises") to Sublessee on the terms and conditions hereinafter set forth. The
total square footage of the Subleased Premises is hereby stipulated by Sublessor
and Sublessee to be three Thousand Six Hundred Seventy-one (3,671) rentable
square feet.
NOW THEREFORE, in consideration of the rents, covenants, agreements,
stipulations and provisions contained herein to be paid, kept and performed by
both Sublessee and Sublessor, the parties do hereby agree as follows:
1. TERM: Sublessor does hereby sublease the Subleased Premises to Sublessee
and Sublessee does hereby sublease from the Sublessor Suite 505 of the
Subleased Premises commencing on the later of the 1st day of December, 1998 or
upon delivery of the certificate of occupancy (the "Commencement Date"). The
Sublease shall expire on the 31st day of August, 2001 (the "Term").
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2. USE: The Subleases Premises shall be used for Sublessee's office use, and
for no other use whatsoever.
3. RENT: Sublessee covenants and agrees to pay to Sublessor, without
deduction or set off, minimum monthly rental (the "Minimum Monthly Rent") due
and payable on the first day of each month ("Due Date") for the Term beginning
on the Commencement Date according to the following rent schedule:
LEASE YEAR RENT/RSF MINIMUM MONTHLY RENT
---------- -------- --------------------
12/01/98 -- 12/31/99 $17.00 $5,200.58
01/01/00 -- 12/31/00 $17.50 $5,333.54
01/01/01 -- 08/31/01 $18.00 $5,506.50
4. ADDITIONAL RENT: In addition to the Minimum Monthly Rent Sublessee
covenants and agrees to pay to Sublessor with the payment of the Minimum Monthly
Rent additional rent (the ""Additional Rent") based upon the then current
rentable square footage of the Subleased Premises in the amount of $0.25 Dollars
per rentable square foot per annum on the first day of each month. The
Additional Rent for the Subleased Premises shall be Seventy-six and 48/100
Dollars ($76.48) per month to include all operating expenses defined in the
Lease which shall include utilities, janitorial services, taxes and insurance
(excluding taxes and insurance which are required by Sublessee), except that
Sublessee shall be responsible for the procurement and payment of any HVAC
charges in excess of those provided during the standard building hours.
5. SECURITY DEPOSIT: Sublessee hereby deposits with Sublessor on the date
hereof the sum of one months Minimum Monthly Rental of Five Thousand Two
Hundred and 58/100 Dollars ($5,200.58), which sum shall be held by Sublessor,
without obligation for interest, as security for the fully, timely and faithful
performance of Sublessee's covenants and obligations under this Sublease. It is
understood and agreed that such deposit is not an advance rental deposit or a
measure of Sublessor's damages in case of Sublessee's default. Upon the
occurrence of any default or event of default by Sublessee. Sublessor 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 Sublessor hereunder, and any other damage, injury,
expense or liability caused by an event of sublessee's default. Sublessee shall
pay to Sublessor 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 Sublessor, any remaining balance of such deposit shall
be returned by Sublessor to Sublessee or Sublessee's last permitted assignee at
such time after termination of this Sublease when Sublessor shall have
determined that all Sublessee's obligations under this Sublease have been
fulfilled. Sublessor shall not be required to keep any security deposit
separate from its general funds. Upon the occurrence of any events of default
or default as described in this Sublease, said security deposit shall become
due and payable to Sublessor.
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6. TIME AND PLACE OF PAYMENT: With the exception of the payment of the first
month's Minimum Monthly Rent which shall be delivered by Sublessee to Sublessor
upon Sublessee's execution of this Sublease, all payments of Minimum Monthly
Rent shall be made, in advance, without notice, on the first (1st) day of each
month during the Term, payable to the order of "▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇" and
addressed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ATTN: LEASE ADMINISTRATION or to such other person or at such other
place as Sublessor may from time to time designate in writing.
7. BUSINESS PRIVILEGE TAXES, BUSINESS USE TAXES AND OCCUPANCY TAXES:
Sublessee agrees to pay any revenue tax or charge, occupancy tax, business
privilege tax, business use tax or any other tax that may be levied against the
Subleases Premises or Sublessee's specific use or occupancy thereof during the
Term.
8. RIGHT OF ENTRY: Following the date of this Sublease and prior to the
Commencement Date, Sublessee shall have access to the Subleased Premises, upon
reasonable prior notice to Sublessor, for the purpose of evaluating what
alterations, repairs or improvements are needed to modify the Subleased
Premises for its use. Sublessee may not commence any such alteration, repair
or improvement until Sublessor and Landlord shall have consented thereto
pursuant to Paragraph 10 and Landlord shall have consented to this Sublease.
sublessee's access to the Subleases Premises prior to the Commencement Dates
shall be subject to all of the terms and conditions of this Sublease, except
for the payment of Rent. Sublessee hereby agrees to indemnify and hold harmless
Sublessor and Landlord from any and all liability, claims, demands, expenses,
damages and judgments arising as a result of Sublessee's access to the
Subleased Premises pursuant to this Paragraph 8.
9. ACCEPTANCE AND SURRENDER OF SUBLEASED PREMISES:
Sublessee shall accept the Subleased Premises in its "as is" condition.
Sublessor shall provide a Tenant Improvement Allowance, as herein defined, up
to $8.30 per rentable square foot of the original Subleased Premises, up to a
maximum of Thirty Thousand Four Hundred Sixty-nine and 30/100 ($30,469.30) for
design, construction, demising (including fire rating of the demising walls),
for improvements to the Subleased Premises. All costs of improvements shall be
an expense chargeable against the Tenant Improvement Allowance. Sublessor shall
complete all improvements to the Premises in accordance with the Work Letter
and Space Plan, as made a part hereto as Exhibit "B". Sublessor's general
contractor shall provide a bid sheet ("Bid Sheet") to include all costs for
construction and the alternatives to Sublessee prior to commencement of the
Tenant Improvements. All costs and alternatives selected by Sublessee in excess
of the Tenant Improvement Allowance shall be approved by and paid for by
Sublessee to Sublessor prior to commencement of improvements.
10. ALTERATIONS AND MODIFICATIONS: Sublessee agrees to obtain Sublessor's and
Landlord's prior written approval for those alterations, modifications, repairs
or renovations to be made to the Subleased Premises after installation of the
initial Tenant Improvements covered by the Work Letter. Sublessor agrees that
it shall
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promptly review plans and drawings submitted and that it will not unreasonably
delay or deny approval with respect to non-structural alterations.
Notwithstanding the foregoing, Sublessor's consent to such alterations shall be
subject to Landlord's consent thereto. Any alterations, modifications or
renovations of or to the Subleased Premises, except for those alterations,
modifications or renovations pursuant to the Work Letter, shall be limited to
partition changes (non-bearing walls), electrical and telephone relocations, and
decorating. The structural integrity of the Building will not be disturbed in
any way. Sublessee shall provide Sublessor with a waiver of liens prior to the
commencement of any alterations or modifications to the Subleased Premises and a
release of liens at the completion of any alterations or modifications to the
Subleased Premises executed by all contractors who performed such alterations or
modifications. In addition, Sublessee agrees that all work performed upon the
Subleased Premises shall be done in a good and workmanlike manner and shall be
in accordance with all applicable law. All alterations, modifications and
renovations, upon completion of construction thereof, shall become part of the
Subleased Premises and the property of Sublessor without payment therefore by
Sublessor and shall be surrendered to Sublessor at the end of the Term or upon
sooner termination of this Sublease pursuant to the terms hereof, provided
however, that, if requested by Sublessor, at the same time Sublessor gives its
consent for the alterations, modifications and renovations, Sublessee shall, at
Sublessee's sole cost and expense, remove all such alterations, modifications
and renovations, or any part or parts thereof specified by Sublessor, from the
Subleased Premises and shall repair all damage caused by installation and
removal.
11. REPAIRS/MAINTENANCE: The Sublease Agreement and the Lease are intended to
be full service in which the Landlord provides all services provided for in the
Lease and includes all operating expenses as outlined in the Lease, however
Sublessee shall, throughout the Term, at its sole cost and expense, keep the
Subleased Premises clean, keep waste and drain pipes open and generally
maintain the Subleased Premises and the improvements now or hereafter
comprising all or any part of the Subleased Premises and the fixtures and
appurtenances thereto in good order, repair and condition reasonable wear and
tear only excepted. If caused by Sublessee's negligence, Sublessee shall
promptly, at Sublessee's own cost and expense, make all repairs necessary to
maintain such good order, repair and condition. In addition, Sublessee shall,
at its sole cost and expense, promptly repair all damage or injury to the
Subleased Premises, making replacements, if necessary, caused by (a) the
negligence or willful misconduct of Sublessee or its employees, agents,
invitees, licensees, subtenants or contractors; (b) the act of moving in or out
of the Subleased Premises; and/or (c) the installation and/or removal of any
furniture, fixtures or other property.
12. LEASE CONTROLLING: Except as herein provided, Sublessee agrees to comply
with all of the terms and conditions set forth in the Lease, a copy of which is
attached hereto as Exhibit "C" and made a part hereof as the same relates to
the Subleased Premises (excluding the payments of Sublessor's Rent) and as are
to be performed by Sublessor as Tenant thereunder. All of the terms and
conditions of the Lease shall apply in the same manner to Sublessee as they are
expressed therein to apply to Sublessor as Tenant thereunder except as modified
or deleted pursuant to the terms of this Sublease.
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13. LEASE IN EFFECT: Sublessor warrants and represents, to the best of
Sublessor's knowledge, information and belief, that the Lease is subsisting and
is in full force and effect. Sublessor is not in default thereunder, and all
rents, additional rents and charges due thereunder are and will be paid.
14. SUBLETTING OR ASSIGNMENT: Sublessee covenants that it will not assign its
interest in this Sublease, in whole or in part, or permit the subletting of the
Subleased Premises or any part thereof without the prior written consent of
Sublessor whose consent shall not be unreasonably withheld or delayed, provided
that Sublessor may withhold consent if Landlord fails to consent, even if such
failure to consent is unreasonable. Sublessee shall collect no monies from any
sub-sublessee in excess of the rent and additional rent hereunder. In the event
Sublessee elects to sub-sublease the Subleased Premises. Sublessor may, at
Sublessor's sole option, terminate this Sublease and enter into a direct
Sublease with the identified sub-subtenant. If Sublessor elects to terminate
this Sublease agreement, Sublessee shall pay to sublessor a penalty of any
broker's commissions due to sub-sublessee's procuring broker and the Minimum
Monthly Rent and Additional Rent until the commencement date of the
sub-sublessee's sublease agreement.
15. INSURANCE AND INDEMNITY: Sublessee agrees to indemnify and hold harmless
both sublessor and Landlord from and against all liability, claims, demands,
expenses, damages and judgments arising from property damage or injury to third
parties (including wrongful death) upon the Subleased Premises during the Term
or any extension thereof, unless due to the gross negligence or willful
misconduct of Sublessor. Sublessee agrees, at its own cost and expense, to keep
the Subleased Premises insured under a public liability policy against claims
for property damage and personal injury to third parties (including wrongful
death). The minimum amounts of such insurance coverage shall not be less than
the amounts required by the Lease. Upon execution of this Sublease by Sublessee
and at least thirty (30) days prior to the expiration date of such policies,
Sublessee shall furnish to Landlord and Sublessor a certificate or certificates
of insurance confirming that the required insurance is in full force and effect
with all premiums paid current. Sublessee further agrees to indemnify and hold
harmless Sublessor and Landlord from all liability arising out of the filing of
any mechanic's or materialman's lien against the Subleased Premises by reason of
any act or omission of Sublessee.
16. PERSONAL PROPERTY: Sublessee agrees to assume full responsibility for its
personal property located at the Subleased Premises, and to indemnify and hold
harmless Sublessor and Landlord against damage sustained by fire, theft or other
casualty loss.
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17. NOTICES: All notices required shall be given by registered or certified
mail, postage prepaid, return receipt requested or via a commercial overnight
delivery service.
Notice to the Sublessee shall be addressed to:
Landacorp
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Notice to Sublessor shall be addressed to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Real Estate Administration
All notices shall be deemed received two (2) days after mailing or upon the next
business if sent via a commercial overnight delivery service.
19. HOLD OVER. Notwithstanding any provision of law or any judicial decision to
the contrary, no notice shall be required to terminate the Term on the date
herein specified as the end of the Term, and the Term shall expire on the date
herein mentioned without notice being required from either party. In the event
that Sublessee remains beyond the expiration date of the Term, it is the
intention of the parties and it is hereby agreed that a tenancy at sufferance
shall arise at a monthly rent equal to twice the monthly Minimum Rent in effect
at the expiration of the Term plus any amounts charged against Sublessor as
Tenant under the Lease for holdover rent or penalty. It is further agreed that
Sublessee shall indemnify and hold harmless Sublessor from and against any and
all liability, claims, demands, expenses, damages and judgments incurred by
Sublessor as a result of Sublessee's retaining possession.
20. SUBLESSEE DEFAULT: The occurrence of any one or more of the following
events shall constitute a default under this Sublease by Sublessee:
a. The vacation or abandonment of the Subleased Premises by Sublessee
without the payment of Minimum Monthly Rent.
b. The failure by Sublessee to make any payment of Minimum Rent or any
other payment required to be made by Sublessee hereunder on the date due where
such failure shall continue for a period of five (5) business days after the
same shall become due and payable.
c. The failure by Sublessee to observe or perform any of the covenants,
conditions or provisions of this Sublease other than as described in the
immediately preceding paragraph and/or the failure by Sublessee to observe or
perform any of the covenants, conditions or provisions of the Lease to which
Sublessee has agreed to be
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bound pursuant to the terms of this Sublease, where such failure continue for a
period of fifteen (15) days after written notice thereof from Sublessor to
Sublessee.
d. The making by Sublessee of any general arrangement of assignment for
the benefit of creditors: Sublessee becomes a 'debtor' as defined in 11 U.S.C.
101 or any successor statue thereto (unless, in the case of a petition filed
against Sublessee, the same be dismissed within sixty (60) days): the
appointment of a trustee or receiver to take possession of all or substantially
all of Sublessee's assets or of Sublessee's interest in this Sublease, where
possession is not restored to Sublessee within thirty (30) days: or the
attachment, execution or other judicial seizure of all or substantially all of
Sublessee's assets or of Sublessee's interest in this Sublease, where such
seizure is not discharged within thirty (30) days.
21. REMEDIES: In the event of any such default by Sublessee, Sublessor may
at any time thereafter, without limiting Sublessor in the exercise of any right
or remedy which Sublessor may have by reason of such default or breach:
a. Terminate Sublessee's right to possession of the Subleased Premises
by any lawful means, in which case this Sublease shall terminate and Sublessee
shall immediately surrender possession of the Subleased Premises to Sublessor.
In such event, Sublessor shall be entitled to recover from Sublessee all damages
permitted to be recovered by a landlord pursuant to the laws of the jurisdiction
where the Subleased Premises are located, together with all damages incurred by
Sublessor by reason of Sublessee's default, including, but not limited to, the
cost of recovering possession of the Subleased Premises, reasonable attorneys
fees, and any real estate commission actually paid.
b. Maintain Sublessee's right to possession in which case this Sublease
shall continue in effect whether or not Sublessee shall have vacated or
abandoned the Subleased Premises. In such event, sublessor shall be entitled to
enforce all of sublessor's rights and remedies under this Sublease, under the
laws of the jurisdiction where the Subleased Premises are located at law and
equity, including the right to recover the Minimum Monthly Rent and all other
sums due hereunder as the same become due.
c. Declare the entire balance of Minimum Rent and all other sums
payable hereunder during the remaining Term of this Sublease to be immediately
due, payable and in arrears as if by the terms and provisions of this Sublease
said balance of Minimum Rent and other sums were on that date payable in
advance. Any such acceleration by Sublessor shall not constitute a waiver of any
right or remedy of Sublessor.
d. Pursue any other remedy now or hereafter available to Sublessor
under the laws of the jurisdiction where the Subleased Premises are located or
in equity.
e. Pursue any remedy enforceable by Landlord under the Lease.
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All remedies available to Sublessor hereunder shall be cumulative and
concurrent. No waiver or delay in enforcement by Sublessor of any breach of
Sublessee's obligations hereunder shall constitute a waiver of any such breach
or any subsequent breach.
22. INTEREST: In the event that any sums due and payable to Sublessor
pursuant to the terms of this Sublease are not paid when due, other than the
Minimum Monthly Rent and Additional Rent which shall begin bearing interest on
the sixth (6th) business day following the Due Date, such sums shall bear
interest at the rate of twelve percent (12%) per year, from the due date until
actually paid, unless that rate is usurious as applied to Sublessee in which
event the rate shall be reduced to the highest non-usurious rate. Neither the
accrual nor the payment of interest shall cure any default by Sublessee under
this Sublease.
23. BROKERS: Sublessor and Sublessee represent, warrant and agree that each
has not dealt with any broker, agent, finder or other intermediary in
connection with the subletting of the Subleased Premises except ▇▇▇▇▇▇▇▇ & Co.
(the "Listing Broker") and ▇▇▇▇▇ & ▇▇▇▇▇ (the "Participating Broker").
Sublessor shall be solely liable for any commission due to the Listing Broker.
The Listing Broker shall be solely liable for any commission due to the
Participating Broker. Sublessor and Sublessee agree to indemnify, defend and
hold the other harmless from and against any claims against the other resulting
from a breach or inaccuracy of the foregoing representation, warranty and
agreement which shall survive expiration, cancellation or other termination of
this Sublease.
24. PARKING: Sublessor shall provide fifteen (15) unreserved parking spaces
and access cards to Sublessee for the use of its employees in the building
parking lot. Additional access cards may be purchased from the Landlord at
Sublessee's sole cost and expense.
25. COMPLIANCE WITH LAWS: Sublessee shall, throughout the Term of this
Sublease, observe and comply with all statutes, laws, ordinances, notices,
orders, rules, regulations and requirements of all federal, state and municipal
governments and appropriate departments, commissions, boards and officers
thereof, and notices, orders, rules and regulations of the National Board of
Fire Underwriters, or any other body now or hereafter constituted exercising
similar functions, relating to the Subleased Premises, foreseen or unforeseen,
ordinary as well as extraordinary, or to the use or manner of use of the
Subleased Premises, or to the fixtures and equipment thereof.
25. AUTHORITY: The parties executing this Sublease represent and warrant
that they have the full right and lawful authority to execute this Sublease for
the Term, in the manner and upon the conditions and provisions herein contained.
26. FURTHER DOCUMENTS: Each party agrees to execute and deliver to the
other all instruments which may reasonably be required to carry out all terms
and provisions of this Sublease.
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27. RECOVERY OF FEES: If either party is successful in enforcing against the
other any legal or equitable remedy for a breach of any provision of this
Sublease, the successful party shall be entitled to recover its expenses and
reasonable attorney's fees as determined by the court as part of the judgement
or decree.
28. BINDING EFFECT: This Sublease shall be binding upon the successors and
permitted assigns of Sublessee and Sublessor.
29. INTEGRATED DOCUMENT: This instrument embodies all of the agreements between
the parties with respect to the Subleased Premises, and no oral agreements,
prior correspondence or other prior writings shall be held to vary the
provisions hereof. Any subsequent changes or modifications shall become
effective only by a written instrument duly executed by Sublessee and Sublessor.
30. LESSOR'S CONSENT: This Sublease is contingent upon, and shall have no force
or effect until receipt of, the Landlord's written consent hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease Agreement as
of the day and year first above written.
SUBLESSEE:
▇▇▇▇▇ Management Systems Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ CALLAWIER
--------------------------------
Its: Chief Executive Officer
--------------------------------
SUBLESSOR:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. L'▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. L'Ecuyer
Corporate Director
Real Estate Operations
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EXHIBIT "B"
To the Sublease dated __________________, made between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
("Sublessor"), and ▇▇▇▇▇ Management Systems Corporation ("Sublessee"), and to
which this Exhibit is attached and made a part of.
WORKLETTER
To induce the Sublessee to enter into this Lease and without limiting either the
obligations of the Sublessor or the rights and privileges of the Sublessee set
forth in this Lease, the Sublessor and the Sublessee, in consideration of the
mutual covenants hereinafter contained, agree as follows:
1. Plans, Working Drawings and Specifications
A. Sublessor to provide 1/8" scale drawing(s) which will show the type
and location of partitions, doors, electrical and telephone outlets, cabinets,
lighting and HVAC diffusers indicating all work to be done by the Sublessor,
whether at the Sublessor's expense or the Sublessee's expense. The Sublessor
will submit a breakdown of cost for all work to be done by the Sublessor
indicating what portion will be the Sublessee's expense. Only upon written
authorization may the Sublessor proceed with the work.
B. Sublessor will provide to Sublessee samples of finish items to be
selected by Sublessee such as carpet, paint, wall coverings, etc., as
specified in schedule.
C. Sublessee will be responsible for the design cost associated with any
special requirements, e.g. non-standard wiring, HVAC, wall covering,
cabinetwork and millwork or changes to the plan due to changes in Sublessee
requirements, etc. Following the initial design planning meeting with the
Sublessee, the Sublessor will notify the Sublessee of any added design fees and
will not start that part of the design until the Sublessee has approved the
cost.
D. After receipt of the Drawings, the Sublessee shall approve or
disapprove the same. If the Sublessee does not approve the Working Drawings and
Specifications as submitted, the Sublessee shall approve those portions which
are acceptable to the Sublessee and shall disapprove those portions which are
not acceptable to it, specifying the reasons for such disapproval. The
Sublessor shall then, at its sole cost and expense, correct the Drawings and
resubmit them for the Sublessee's review and approval.
E. Sublessor shall use its best effort to ensure that the structure and
detail of the utilities and mechanical and electrical system are in accordance
with working drawings and that all of the work meets applicable federal, state
and local laws, codes, rules and regulations. Sublessee is responsible for
making the Sublessor aware of all of the Sublessee's requirements before the
working drawings are prepared.
F. The Sublessee is responsible for working with the designers to
provide approved plans and finish selections on the dates indicated. Failure
to do so will constitute a day-for-day delay to the scheduled completion
without delaying the commencement date of rent payments.
G. Special requirements, i.e. non-standard fit-up items, may have
ordering and delivery times that will require total completion of the space
after the occupancy date. In some cases, this cannot be determined until the
order is placed for the material. The Sublessor will advise the Sublessee
immediately upon becoming aware of this situation and assist the Sublessee in
providing alternate solutions. The Sublessee will be responsible for any cost
associated with working overtime required to provide special finishes before or
after the occupancy date, if the Sublessor advises the Sublessee of overtime as
part of the alternate solutions to delivery problems.
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2. Schedule
The Sublessor and the Sublessee shall comply with the following Schedule:
(All days to be considered working days.)
Party
Responsible Due Date
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a. Sublessee,
Sublessor Lease Execution
Lessor Lessor's Consent
b. Sublessee Sublessee's approval of construction
Documents and approval of any Within 5
additional cost. days of 2.a.
c. Sublessor Construction started by Sublessor. Within 5 days
of 2.b.
d. Sublessor Construction completed by Sublessor. Within 30
days of 2.c.
Sublessor agrees to provide one day's free rent for every day of delay
beyond the above occupancy date when due to no fault of the Sublessee. Delays
caused by Sublessee may delay the occupancy date but will not delay the
commencement date. The Sublessee understands that if changes are made in the
initial requirements given to the Sublessor, then a period of delay may be
incurred. If delays are incurred due to Sublessee-initiated changes or
Sublessee-required holdups to evaluate changes, the commencement date shall not
be adjusted.
NOTE: All correspondence to be sent by overnight service or local courier
as required.
3. The Work
The Sublessor shall furnish, install and perform completely all of the
work shown on the Drawings unless otherwise noted. The Sublessor shall be fully
responsible for all matters that must be accomplished to complete the work in
accordance with provisions of the Lease, filing plans and other required
documentation with the proper governmental authorities, securing all necessary
permits and monitoring all aspects of the work.
4. Sublessor's Building Standard Improvements
A. Building Standard Partitions
The Building Standard partition assembly for interior spaces extends to
the underside of the suspended ceiling. It consists of 3 5/8 metal studs 24" on
center, with one layer of 1/2" drywall prepared for painting on each side of
studs. All partitions between tenants and exit corridors shall extend to the
underside of the floor structure above with suitable openings to accommodate
air conditioning and pipework. Sublessee shall only bear the costs for one-half
of the demising wall to the Subleased Premises. Demising partitions consist of 3
5/8" metal studs 24" on center, with one layer of drywall prepared for painting
on each side of studs and sound attenuation blankets. Existing partitions as per
the Drawings shall remain.
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B. Ceilings
Building Standard ceilings provided by Sublessor are 2' x 2' suspended
acoustical ceiling tile with an exposed slotted profile grid element.
Replacement of broken or damaged ceiling tiles shall be an expense chargeable
against the Improvement Allowance.
C. Doors and Frames
Entrance Doors are full height, 3'0" wide veneer solid core wood
doors, fire rated as required. The door will be stained and finished with
polyurethane and the frame will be painted. The doors are undercut to allow
for the Building Standard carpet.
Interior doors are similar to the entrance doors, but non-rated and
installed in knockdown metal frames or welded frames as currently exists in the
Subleased Premises. Sublessor shall provide doors for the Subleased Premises
which are in reasonably the same condition as currently exists in the Subleased
Premises at no additional cost to Sublessee.
D. Hardware
The latch set is design lever handle in polished chrome. Each Sublessee
entry door shall be provided with four four-ball bearing polished chrome butt
hinges and a wall stop. On lockset, keyed to the building master key system,
shall be provided for each entrance door. Two keys will be provided for each
entrance door; additional keys may be purchased by Sublessee from the Lessor.
All entrance doors to public corridors shall have surface mounted door closers.
E. Flooring
The Sublessee has the option of selecting from the Building Standard
carpet, furnished and installed (glued down) at the Sublessor's expense. Four
inch high vinyl wall base is included along all partitioning.
F. Painting
All partitions, door frames and column enclosures shall be painted. All
non-metallic surfaces shall receive one coat of primer and one flat finish
coat, except doors which receive a stain and a coat of polyurethane. All metal
surfaces have a factory applied shop coat which shall receive an enamel primer
and an enamel semi-gloss finish coat. Colors in the Sublessee space shall be
selected by Sublessee from the Building Standard samples with no more than two
(2) color breaks in any one room.
G. Window Covering
Thin-type (1") horizontal blinds currently exist in each window.
H. Electrical Outlets
120v Duplex outlets installed in partitions shall be provided in locations
designated by the Sublessee. Under-floor electrical outlets can be provided at
the expense of the Sublessee.
I. Communications Wiring
Telephone outlets installed in partitions shall be provided in locations
designated by Sublessee. Telephone outlets have empty conduit terminating above
the suspended ceiling. Under-floor telephone outlets can be provided at the cost
of the Sublessee.
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All communications wiring shall be done by the Sublessee's communications
contractor at the direction and expense of the Sublessee. Sublessor has no
responsibility for said work which must, however, (1) meet Building Standard
criteria and local codes and not conflict with the progress of the building and
(2) be performed by installers who are licensed for the installation of
communications system. Any damage caused by Sublessee's contractor shall be the
liability of the Sublessee. Any additional communications conduit required shall
be installed by the Sublessor's contractor at the Sublessee's expense.
J. Lighting
Building Standard light fixtures currently exist in the Subleased
Premises. All lighting shall be in accordance with Building Standard as
outlined by the Architect.
K. HVAC
Provided that the allowance for interior partitioning is not exceeded, all
engineering and installation of heating and cooling systems for standard office
space will be provided by the Sublessor. If additional HVAC diffusers are
required due to partitioning quantities in excess of typical office layouts or
due to special requirements such as heat producing equipment, then provisions
will be made at the Sublessee's expense for special needs such as computer
installations served by the Building Standard HVAC.
L. Fire Protection System
The building is equipped throughout with a fire protection sprinkler
system, installed in grid pattern. Should the partition layout needed by the
Sublessee require relocation of existing sprinkler heads, then the Sublessor
will provide four relocations and four additions per 1000 square feet of usable
space. Relocations to additions in excess of the allowance will be at the
expense of the Sublessee.
5. Sublessee Improvement Costs
Sublessor shall provide all improvements as shown on the construction drawings
to be approved by Sublessee. Sublessor shall provide an allowance of up to
Thirty Thousand Four Hundred Sixty-nine and 30/100 Dollars ($30,469.30)
("Sublessor Contribution") to be applied toward cost of improvements. All costs
of improvements to Premises shall be an expense chargeable against the
improvement allowance. All working drawings shall be approved in writing by
Sublessee prior to commencement of construction. Any modifications or changes
to the working drawings or work in progress made by Sublessee that result in
additional costs shall be approved in writing by Sublessee before any change is
made, and shall be paid for by Sublessee prior to occupancy of the Premises.
Sublessee shall pay Sublessor all costs in excess of Sublessor Contribution
("Sublessee Contribution") prior to commencement of improvements.
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UNISYS SUBLEASE
ASHFORD PERIMETER BUILDING
[FIFTH FLOOR DIAGRAM]
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
15
THE LEASE
THIS LEASE AGREEMENT, hereinafter referred to as the "Lease", made and
entered into as of the 1st of September 1991, between LINCOLN P.C. ASSOCIATES
hereinafter referred to as "Landlord" and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ hereinafter
referred to as "Tenant".
WITNESSETH
1. Summary of Lease. The following is a summary of certain portions of
the Lease:
Landlord: LINCOLN P.C. ASSOCIATES
Landlord's Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tenant: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Building Address: ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Floor(s) upon which the Premises are Located: 1 - 6
Term: 10 Years and 0 Months
---- ---
Commencement Date: September 1, 1991
-----------------
Expiration Date: August 31, 2001
---------------
Rent Start Date: September 1, 1991
-----------------
Base Rent Per Year: $2,036,998.00, subject to
increase as set forth herein
----------------------------
Base Rent Per Month: $169,749.83
-----------
Approximate Rentable
Square Feet
Within Premises: 110,108
-------
Approximate Rentable
Square Feet
Within Project: 285,773
-------
Tenant's Percentage: 38.53%
------
Security Deposit: None
----
Broker: None
----
It is understood that the foregoing is intended as a summary of the Lease for
convenience only and if there is a conflict between the above summary and any
provisions of this Lease hereinafter set forth, the latter shall control.
2. Definitions.
(a) "Building" means the office building located upon certain real
property located in Land ▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, the
address of which is ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) "Premises" means the office space which is located in the Building
in accordance with the drawing attached hereto as Exhibit "A".
(c) "Base Rental" means the initial minimum sum of $2,036,998.00 per
annum, as the same may be increased from time to time as follows:
16
Lease Annual Rent Rate
Year Per Square Foot Annual Rent Monthly Rent
------------------------------------------------------------------------
1 $18.50 $?,???,???.?? $169,749.83
2 $18.50 $?,???,???.?? $169,749.83
3 $18.50 $?,???,???.?? $169,749.83
4 $19.12 $?,???,???.?? $1?2,302.00
5 $19.12 $?,???,???.?? $187,372.05
6 $20.32 $?,???,???.?? $192,356.85
7 $21.45 $2,352,233.17 $196,857.76
8 $21.39 $2,421,350.50 $201,779.21
9 $22.54 $2,481,384.27 $206,823.69
10 $23.10 $2,543,931.27 $211,994.28
(d) "Commencement Date" means September 1, 1991.
(e) "Security Deposit" has been waived by Landlord and Tenant.
(f) "Common Areas" means those areas of the Building devoted to corridors,
elevator foyers, restrooms, mechanical rooms, janitorial closets, electrical and
telephone closets, vending areas and other similar facilities provided for the
common use or benefit of tenants generally or of the public. Common Areas shall
be measured from and to the inside finished surface of exterior Building walls,
and from and to the center of any partition walls which separate Common Areas
from tenant spaces, including the Premises, and from Service Areas.
(g) "Service Areas" means those areas within the Building outside walls
used for elevator, building stairs, fire towers, elevator shafts, flues, vents,
stacks, pipe shafts and vertical ducts (but shall not include any such areas
provided or reserved for the exclusive use of a particular tenant). Service
areas shall be measured from and to the inside finished surface of exterior
Building walls, and from and to the center of any partition walls which
separate Service Areas from tenant spaces, including the Premises, and from
Common Areas.
(h) "Exterior Common Areas" means all areas not located within the
Building provided and maintained for the common use and benefit of Landlord and
tenants of the Building (or multi-building project) generally, and the
employees, invitees and licensees of Landlord and such tenants, including,
without limitation, parking areas whether enclosed or not, streets, sidewalks,
and landscaped areas.
(i) "Rentable Area" of the Premises means (1) the gross area thereof as
measured from and to the inside surface of the outer glass of the exterior
Building walls, and from and to the center of any partition walls which
separate the Premises from adjoining tenant, Common Areas, and Service Areas;
and (2) the pro rata part of the Common Areas of the Building applicable to the
Premises in the proportion that the area of the Premises as calculated by the
method described in (1) above bears to the total Rentable Area of the Building
as calculated by the same method. Rentable Area shall not include Service Areas.
(j) "Basic Costs" as used herein means all expenses, costs and
disbursements (but not repayment of debt or replacement of capital investment
items other than those elsewhere herein expressly included, nor specific costs
especially billed to and paid by other tenants of the Building) of every kind
and nature which Landlord shall pay or become obligated to pay because of, or
in connection with, the ownership and operation of the Building and the
Exterior Common Areas, including but not limited to the following: (i) Wages
and salaries, including payroll taxes, workers' compensation, insurance
premiums, and all other employment costs to Landlord of all employees engaged in
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17
operating and maintaining the Building, and that part of central accounting
costs which are applicable to the Building; (ii) cost of all supplies and
materials used in operation and maintenance of the Building; (iii) cost of all
utilities for the Building including the cost of water, sewer, gas, oil and
electric and other power (but excluding any utility costs reimbursed directly by
tenants to Landlord other than in the nature of additional rental payments
similar to those required by Tenant under this Lease); (iv) cost of all
maintenance and service agreements for the Building and the equipment therein,
including, but not limited to security service, window cleaning, janitorial
service, elevator maintenance, maintenance of heating, ventilation and
air-conditioning equipment, plumbing, controls, locks, alarms and all other
parts of the Building; (v) cost of all insurance relating to the Building or
rents therefrom including, but not limited to, the cost of casualty and
liability insurance applicable to the Building and to Landlord's personal
property used in connection with the Building; (vi) charges, whether federal,
state, county or municipal, and whether they be by taxing districts, or taxes,
and assessments, attributable to the Building, its operation, or any tax in the
nature of a gross receipts tax imposed on rentals (but excluding fines and
penalties resulting from the failure of Landlord to make timely payment of the
same); (vii) cost of repairs and general maintenance (excluding repairs and
general maintenance paid by proceeds of insurance or by Tenant or other third
parties, and alteration attributable solely to tenants of the Building, other
than Tenant); (viii) amortization of the cost of installation of capital
improvements or other capital items which are primarily for the purpose of
reducing operating costs or which may be required by governmental authority, as
reasonably amortized by Landlord and (ix) management fees. The Basic Costs of
the Building shall be computed on the accrual basis and shall be all Basic Costs
incurred by Landlord to maintain all facilities of the Building in operation
during all or part of the Base Year, together with such additional or substitute
facilities in subsequent years as may be determined by Landlord to be necessary.
In determining the amount of Basic Costs (for 1993 and any subsequent year), for
the purpose of this Paragraph, in the event that less than 95% of the Rentable
Area of the Building shall have been occupied by tenants and fully used by them
at any time during the year, Basic Costs shall be increased to an amount equal
to the like operating expense which would normally be expected to be incurred
had such occupancy been 95% of the Rentable Area and had such full utilization
been made during the entire period.
3. Lease Grant. Subject to and upon the terms herein set forth, Landlord
leases to Tenant and Tenant leases from Landlord the Premises for the Lease
Term. Tenant is hereby granted only a usufruct, not subject to levy or sale; no
estate for years nor other estate shall pass from Landlord on account thereof.
The Premises are stipulated for all purposes to contain 110,108 square feet of
Rentable Area.
4. Lease Term. This Lease Term is for a term or period of time commencing
at 12:01 a.m. on the Commencement Date, and continuing thereafter for the next
10 years thereafter.
5. Use. The Premises shall be used for office purposes, and for
demonstration, training and general storage purposes incidental thereto, and for
no other purpose. Tenant agrees not to use, or permit the use of, the Premises
for any purpose which is illegal, or which constitutes or creates a nuisance, or
which would increase the cost of insurance coverage with respect to the
Building, or which tends to reduce the value of the Building or reduce the
attractiveness of the Building to other tenants. Landlord represents to Tenant
that as of the date of this Lease, the Building is zoned under an appropriate
zoning
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classification under the zoning ordinance of DeKalb County, Georgia that allows
use of the Building for office use.
6. Base Rents.
(a) Tenant agrees to pay to Landlord, without any demand, setoff or
reduction whatsoever, the Base Rental and all such other sums of money as shall
become due hereunder as traditional rent, all of which are sometimes hereinafter
collectively called "rent". In advance in equal monthly installments on the
first day of each calendar month during the Lease Term to Landlord at
Landlord's address provided herein (or such other address as may be designated
by Landlord in writing from time to time). If the term of this Lease commences
on a day other than the first day of a month or terminates on a day other than
the last day of a month then the amount of the installments of Base Rental and
any adjustments thereto for such month or months shall be prorated, based on
the number of days the Lease is in effect during such month.
(b) All installments of rent not paid within five (5) days after the
date when due shall bear interest at the rate of one and one-half percent
(1-1/2%) per month, or the maximum rate permitted by law, whichever is lower.
7. Additional Rent.
(a) The Rentable Area in the building is stipulated to be 285,773
square feet. Tenant shall, from time to time during the term of the Lease, pay
as additional rent hereunder, an amount, per each square foot of Rentable Area
within the Premises, equal to the excess ("Excess") in actual Basic Costs, over
the actual 1993 Basic Costs per square foot of Rentable Area in the Building.
Commencing on the fourth (4th) anniversary of the date of this Lease, Tenant
shall begin paying the Excess in accordance with the provisions of this
paragraph.
(b) Landlord shall also have the right to make a good faith estimate
of the Excess for each upcoming calendar year and upon thirty (30) days' notice
to Tenant to require the monthly payment by Tenant of one-twelfth (1/12th) of
such estimated Excess, but in no event shall any such estimate be based on Basic
Costs which exceed the actual Basic Costs for the previous calendar year.
(c) By April 1 of each calendar year following the year during which
the Lease Term begins, or as soon thereafter as practical, Landlord shall
furnish to Tenant a statement of Landlord's actual Basic Costs for the previous
calendar year, and Landlord shall notify Tenant of the amount of the Excess
owing by Tenant to Landlord, showing the calculations thereof which result from
such statement. Tenant agrees to promptly pay Landlord, as additional rent, all
Excess which has not been previously paid as estimated Excess. If for any
calendar year additional rent collected for the prior year, as a result of
Landlord's estimate of Excess, is greater than the additional rent actually due
during such prior year, then Landlord shall refund to Tenant any such
overpayment.
(d) Notwithstanding the foregoing provisions of this Lease to the
contrary, for purposes of calculating the Excess under this Lease, in no event
shall Controllable Basic Costs be increased in any calendar year after 1993 by
more than five (5%) of the Controllable Basic Costs for the previous calendar
year. For purposes hereof, "Controllable Basic Costs" shall mean all Basic Costs
other than those enumerated in subsections (iii), (v), (vi) and (viii) of
paragraph 2(j) of this Lease.
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19
9. Services to be Furnished by Landlord. Landlord agrees to furnish
Tenant the following services, subject to any limitations which may be imposed
thereon from time to time by any governmental authority:
(a) Hot and cold water at those points of supply provided for
general use of other tenants in the Building, and heating and air
conditioning in season, at such temperatures, and during such business
hours as are deemed standard by Landlord from time to time; however,
heating and air-conditioning services at times other than for normal
business hours for the Building (which for purposes of this Lease shall be
7:00 o'clock a.m. to 6:00 o'clock p.m. Monday through Friday, excluding
holidays, and 8:00 o'clock a.m. to 12:00 o'clock noon on Saturday,
excluding holidays) shall be furnished only at Landlord's discretion upon
the written request of Tenant delivered to Landlord prior to 3:00 p.m. at
least three (3) days in advance of the date such usage is requested. Tenant
shall bear the entire cost of such requested additional service, but such
cost shall not exceed Landlord's actual cost, which cost shall not be
increased except as a result of the increase in the cost of utilities
supplied by the applicable utility company.
(b) Routine maintenance and electric lighting service for all Common
Areas and Service Areas of the Building in the manner and to the extent
deemed by Landlord to be standard.
(c) Janitor service, Mondays through Fridays, but exclusive of normal
business holidays substantially in accordance with Landlord's Building
Standard specifications; except that, if Tenant's floor covering or other
improvements require special treatment, Tenant shall pay the additional
cleaning cost attributable thereto as additional rent upon presentation of
a statement therefore by Landlord.
(d) Subject to the provisions of Paragraph 13, Building Standard
facilities to provide electrical current sufficient to illuminate the
Premises and for the operation of small office machines by Tenant in its
use and occupancy of the Premises.
(e) All Building Standard fluorescent bulb replacement in the
Premises and fluorescent and incandescent bulb replacement in the Common
Areas and Service Areas.
(f) Access to the Building may be regulated during other than normal
business hours in such manner as Landlord deems appropriate; however,
Tenant and its employees shall have access to the Premises 24 hours a day,
7 days a week. Landlord, however, shall have no liability to Tenant, its
employees, agents, invitees or licensees for losses due to theft or
burglary, or for damages or injuries done by unauthorized persons on the
Premises and neither shall Landlord be required to insure against any such
losses. Tenant shall cooperate fully in Landlord's efforts to regulate
access to the Building.
The failure by Landlord to any extent to furnish, or the interruption
or termination of, the above-described services in whole or in part resulting
from causes beyond the reasonable control of Landlord shall not render Landlord
liable in any respect, not be construed as an eviction of Tenant, nor cause an
abatement of rent, nor relieve Tenant from the obligation to fulfill any
covenant or agreement hereof. Should any of the equipment or machinery used in
the provision of such services for any cause cease to function properly, Tenant
shall have no claim for offset or abatement of rent or damages on account of an
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interruption in service occasioned thereby or resulting therefrom.
Notwithstanding the foregoing, in the event of any interruption or termination
or the electrical or heating and air conditioning services to be provided by
Landlord under this Lease, and as a result any portion of the Premises is
untenantable for a period of more than fifteen (15) consecutive business days,
then all Base Rent with respect to such portion of the Premises so rendered
untenantable shall ▇▇▇▇▇ until such time as such services are restored to the
extent such portion of the Premises is once again tenantable.
9. Monument Sign. Landlord shall cause to be constructed, subject to
and in accordance with applicable laws, a monument sign to be located along
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Road, the size, location and design of such monument sign to be
mutually approved by Landlord and Tenant, such approvals not to be unreasonably
withheld or delayed. In no event, however, shall Landlord be obligated to expend
more than $10,000.000 for the design, construction and installation of such
monument sign. Upon the completion of construction and installation of such
monument sign, Landlord shall be entitled to remove and dispose of the signage
of Tenant located on the exterior of the Building.
10. Graphics. Landlord shall provide and install, at Tenant's cost,
all letters or numerals on doors in the Premises, all such letters and numerals
shall be in the standard graphics for the Building and no others shall be used
or permitted on the Premises without Landlord's prior written consent, such
consent not to be unreasonably withheld.
11. Care of Premises by Tenant. Tenant agrees not to commit or allow
any waste to be committed on any portion of the Premises, and at the termination
of this Lease to deliver up the Premises to Landlord in as good condition as at
the Commencement Date, ordinary wear and tear excepted.
12. Repairs and Alterations by Tenant. Tenant covenants and agrees
with Landlord, at Tenant's own cost and expense and with prior notice from
Landlord to Tenant for the need for such repair, to repair or replace any damage
done to the Building, or any part thereof, caused by Tenant or Tenant's agents,
employees, or contractors, and such repairs shall restore the Building to as
good a condition as it was in prior to such damage, and shall be effected in
compliance with all applicable laws; provided, however, that if Tenant fails to
make such repairs or replacements promptly, the Landlord may, at its option,
make repairs or replacements, and Tenant shall pay the cost thereof to the
Landlord on demand as additional rent. Tenant agrees with Landlord not to make
or allow to be made any alterations to the Premises, install any vending
machines on Premises, or place signs on the Premises, which are visible from
outside the Premises, without first obtaining the written consent of Landlord in
each such instance, which consent may be given on such conditions as Landlord
may elect; provided, however, that Landlord shall not unreasonably withhold such
consent with respect to (i) vending machines wholly within the Premises and not
visible from public areas of the Building and (ii) alternations that do not
affect the structural components or the mechanical, plumbing or electrical
systems of the Building. Any and all alterations to the Premises shall become
the property of Landlord upon the expiration or earlier termination of this
Lease (but not for movable equipment, trade fixtures or furniture owned by
Tenant), but Landlord may, nonetheless, require Tenant to remove any and all
fixtures, equipment and other improvements installed by Tenant on the Premises
upon the expiration or earlier termination of this Lease; provided, however,
that with respect to any improvements, Landlord shall not have the right to
require Tenant to remove any improvements installed by Tenant unless such
improvements were installed without the consent of Landlord or at the time of
the consent Landlord notified Tenant that such improvements would be required to
be removed at the end
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of the Lease Term. In the event that Landlord so elects, and Tenant fails to
remove such improvements, Landlord may remove such improvements at Tenant's
cost, and Tenant shall pay Landlord on demand the cost of restoring the Premises
to Building Standard.
13. Use of Electrical Services by Tenant. Tenant's use of electrical
services furnished by Landlord shall not exceed, either in voltage, rated
capacity or overall load that which Landlord deems to be Building Standard.
Building Standard does not include electricity used to operate any item of
electrical equipment which singly consumes more than 0.25 kilowatts at rated
capacity or which requires a voltage other than 120 volts single phase. In the
event Tenant shall request that it be allowed to consume electrical services in
excess of that deemed by Landlord to be Building Standard, Landlord may refuse
to consent to such usage if the electrical systems of the Building are not
capable of sustaining such usage, or may consent upon such conditions as
Landlord reasonably elects, including the requirement that submeters be
installed at Tenant's expense, that Tenant pay the cost of the excess
electricity used, and, if the operation of such equipment requires modification
to the Building systems or additional air-conditioning capacity above that
provided by the Building Standard systems then the cost of such modifications
and any additional air-conditioning installation and operation costs shall be
paid by Tenant.
14. Parking. During the Lease Term, Tenant shall have the non-exclusive
use in common with Landlord, other tenants of the Building (or project in which
the Building is located in a multi-building project), their guests and invitees,
of the nonreserved common automobile parking areas, driveways, and footways,
subject to rules and regulations for the use thereof as prescribed from time to
time by Landlord. Notwithstanding the foregoing, fourteen (14) parking spaces
shall be designated by Landlord, at Tenant's expense, for the exclusive use of
Tenant and Tenant's invitees, in substantially the location set forth on Exhibit
"B" hereto.
15. Laws and Regulations. Tenant agrees to comply with all applicable
laws, ordinances, rules and regulations of any governmental entity or agency
having jurisdiction of Premises.
16. Building Rules. Tenant will comply with the rules of the Building as
set forth herein as adopted and amended by Landlord from time to time, and will
cause all of its agents, employees, and contractors to do so.
17. Entry by Landlord. Tenant agrees to permit Landlord or its agents or
representatives to enter into and upon any part of the Premises at all
reasonable hours upon prior reasonable notice (and in emergencies at all times)
to inspect the same, or to show the Premises to prospective purchasers,
mortgagees, tenants or insurers, to clean or make repairs, alterations, or
additions thereto, and Tenant shall not be entitled to any abatement or
reduction of rent by reason thereof.
18. Assignment and Subletting.
(a) Tenant covenants that it will not assign, sublease, transfer or
encumber this Lease or any interest therein without the prior written consent of
Landlord, which consent shall not be unreasonably withheld.
(b) Fifty percent (50%) of all cash or other proceeds of any assignment,
sale or sublease of Tenant's interest in this Lease in excess of the rent
required to be paid by Tenant hereunder (on a per square foot basis), shall be
paid to Landlord, whether consented to by Landlord or not, unless Landlord
agrees
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to the contrary in writing, and Tenant hereby assigns all rights it might have
or ever acquire in any such proceeds to Landlord. Tenant may deduct from such
proceeds (prior to calculating the split of such proceeds as provided above)
reasonable, ordinary and necessary costs and expenses incurred in connection
with the negotiation of a sublease, assignment or sale of Tenant's interest
including any reasonable leasing commission if actually incurred by Tenant and
paid to a licensed real estate broker which is unaffiliated with Tenant. The
above notwithstanding, the rent due under this lease shall in no event be
reduced.
19. Mechanic's Liens. Tenant covenants that it will not permit any
mechanic's lien or liens to be placed upon the Premises or the Building.
Nothing in this Lease shall be deemed or construed in any way as constituting
the consent or request of Landlord, express or implied, by inference or
otherwise, to any person for the performance of any labor or the furnishing of
any material to the Premises, or any part thereof, nor as giving Tenant any
right, power, or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to any
mechanic's or other liens against the Premises. In the event any such lien is
attached to the Premises and is not removed of record by payment or by bonding
in accordance with Georgia law within fifteen (15) days after the date Tenant
becomes aware of the same, then, in addition to any other right or remedy of
Landlord, Landlord may, but shall not be obligated to, discharge the same. Any
amount paid by Landlord for any of the aforesaid purposes shall be paid by
Tenant to Landlord on demand as additional rent.
20. Property Insurance. Landlord shall maintain fire and extended
coverage insurance on the Building and the Premises in such amounts as
Landlord's mortgagees shall require. Such insurance shall be maintained at the
expense of Landlord (as a part of the Basic Costs), and payments for losses
thereunder shall be made solely to Landlord or the mortgagees of Landlord as
their interests shall appear. Tenant shall maintain at its expense, in an
amount equal to full replacement cost, fire and extended coverage insurance on
all of its personal property including removable trade fixtures, located in the
Premises, in such additional amounts as are required to meet Tenant's
obligations pursuant to Paragraph 22 hereof. Tenant shall, at Landlord's
request from time to time, provide Landlord with current certificates of
insurance evidencing Tenant's compliance with this Paragraph 20 and Paragraph
21. Tenant shall obtain the agreement of Tenant's insurers to notify Landlord
that a policy is due to contain waiver of subrogation clauses as to the other
party.
21. LIABILITY INSURANCE. Tenant and Landlord shall, each at its own
expense, maintain a policy or policies of comprehensive general liability
insurance with respect to the respective activities of each in the Building,
and the Exterior Common Areas (or within the project if the Building is
located in a multi-building project) with the premiums thereto fully paid on or
before due date, issued by and binding upon some insurance company approved by
Landlord, such insurance to afford minimum protection of not less than
$1,000,000.00 combined single limit coverage for death or bodily injury, and
$100,000.00 for property damage.
22. Indemnity. Landlord shall not be liable to Tenant, or to
Tenant's agents, servants, employees, customers, or invitees for any injury to
person or damage to property caused by any act, omission, or neglect of Tenant,
its agents, servants or employees, invitees, licensees or any other person
entering the Building under the invitation of Tenant or arising out of the use
of the Premises by Tenant and Tenant hereby indemnifies and agrees to hold
Landlord harmless from all liability and claims for any such damage or injury.
Tenant shall not be liable to
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Landlord or to Landlord's agents, servants, employees, customers or invitees
for any injury to person or damage to property caused by any act, omission or
neglect of Landlord, its agents, servants or employees, and Landlord hereby
indemnifies and agrees to hold Tenant harmless from all liability and claims
for any such injury or damage; provided, however, that the foregoing
indemnification of Landlord shall not be deemed or construed to deny Landlord
the benefit of the insurance required to be carried by Tenant for the benefit
of Landlord and Tenant pursuant to Paragraph 21 above with respect to any such
claim or liability.
23. Waiver of Subrogation Rights. Anything in this Lease to the
contrary notwithstanding, Landlord and Tenant each hereby waives any and all
rights of recovery, claim, action, or cause of action, against the other, its
agents, officers, or employees, for any loss or damage that may occur to the
Premises, or any improvements thereto, or the Building of which the Premises
are a part, or any improvements thereto, or any personal property of such party
therein, by reason of fire, the elements, or any other cause(s) which are
insured against under the terms of the standard fire and extended coverage
insurance policies referred to herein, regardless of cause or origin, including
negligence of the other party hereto, its agents, officers, or employees.
24. Casualty Damage. If the Premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case the Building shall be so damaged that, in
Landlord's good faith estimation, the time required to repair and reconstruct
the Building shall exceed one hundred eighty (180) days from the date of the
casualty (whether or not the Premises shall have been damaged by such
casualty), or in the event any mortgagee of Landlord's should require that the
insurance proceeds payable as a result of a casualty be applied to the payment
of the mortgage debt, or in the event of any material loss to the Building that
would not be covered by fire and extended coverage insurance commonly carried
for commercial properties such as the Building, Landlord may, at its option,
terminate this Lease by notifying Tenant in writing of such termination within
sixty (60) days of the date of the casualty.
If Landlord does not thus elect to terminate this Lease, Landlord
shall commence and proceed with reasonable diligence to restore the Building to
substantially the same condition in which it was immediately prior to the
happening of the casualty, except that Landlord shall not be required to spend
for such work an amount in excess of the insurance proceeds actually received
by Landlord as a result of the casualty.
Landlord shall not be liable for any inconvenience or annoyance to
Tenant or injury to the business of Tenant resulting in any way from such
damage or the repair thereof, except that, subject to the provisions of the
next sentence, Landlord shall allow Tenant a proportional diminution of rent
during the time and to the extent the Premises are unfit for occupancy. If the
Premises or any other portion of the Building be damaged by fire or other
casualty resulting from the fault or negligence of Tenant or any of Tenant's
agents, employees, or invitees, the rent hereunder shall not be diminished
during the repair of such damage and Tenant shall be liable to Landlord for the
cost of the repair and restoration of the Building caused thereby to the extent
such cost and expense is not covered by insurance proceeds.
25. Condemnation. If the whole or substantially the whole of the
Building or the Premises should be taken for any public or quasi-public use, by
right of eminent domain or otherwise, or should be sold in lieu of
condemnation, then this Lease shall terminate as of the date when physical
possession of
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the Building or the Premises is taken by the condemning authority. If less than
the whole or substantially the whole of the Building or the Premises is thus
taken or sold. (Landlord whether or not the Premises are affected thereby) may
terminate this Lease by giving written notice thereof to Tenant: in which event
this Lease shall terminate as of the date when physical possession of such
portion of the Building or Premises is taken by the condemning authority. If
this Lease is not so terminated upon any such taking or sale, the Base Rental
payable hereunder shall be diminished by an equitable amount, and Landlord shall
restore the Building and the Premises as much as possible to substantially their
former condition, to the extent condemnation proceeds are made available by the
holder of any mortgage or deed to secure debt on the Building, but Landlord
shall in no event be required to spend for such work an amount in excess of the
amount received by Landlord as compensation for such damage. All amounts awarded
upon a taking of any part or all of the Building or the Premises shall belong to
Landlord, and Tenant shall not be entitled to and expressly waives all claims to
any such compensation.
26. Damages from Certain Causes. Landlord shall not be liable to Tenant
for any loss or damage to any property or person occasioned by theft, fire, act
of God, public enemy, injunction, riot, strike, insurrection, war, casualty,
water damage of whatsoever nature, vandalism, court order, requisition, or order
of governmental body or authority or by any other cause beyond the control of
Landlord, nor shall Landlord be liable for any damage or inconvenience which may
arise through repair or alteration of any part of the Building, Exterior Common
Areas, or Premises so long as Tenant continues to have access to and from the
Premises (unless such continued access during such repair would endanger persons
in the Premises).
27. Events of Default/Remedies.
(a) The following events shall be deemed to be events of default by Tenant
under this Lease: (i) Tenant shall fail to promptly pay any rent or other sum of
money due hereunder within five (5) days after receipt of written notice from
Landlord to Tenant of such failure; (ii) Tenant shall fail to comply with any
other provision of this Lease within thirty (30) days after receipt of written
notice from Landlord to Tenant of such failure or, if such failure shall be
incapable of cure within thirty (30) days, Tenant shall not commence to cure
such failure within such thirty (30) day period and continuously prosecute the
performance of the same to completion with due diligence; (iii) the leasehold
hereunder demised shall be taken on execution or other process of law in any
action against Tenant; (iv) a default or event of default shall occur under that
certain Lease dated August 29, 1984 between Landlord and Tenant, as amended by
the ten (10) amendments thereof existing as of the date of this Lease, and as
thereafter amended; (v) Tenant shall fail to promptly move into and take
possession of the Premises when the Premises are ready for occupancy, or shall
abandon any substantial portion of the Premises; (vi) Tenant shall become
insolvent or unable to pay its debts as they become due, or Tenant notifies
Landlord that it anticipates either condition; (vii) Tenant takes any action to,
or notifies Landlord that Tenant intends to file a petition under section or
chapter of the National Bankruptcy Act, as amended, or under any similar law or
statute of the United States or any State thereof; or a petition shall be filed
against Tenant under any such statute; or (viii) a receiver or trustee shall be
appointed for Tenant's leasehold interest in the Premises or for all or a
substantial part of the assets of Tenant. If Landlord shall not be permitted to
terminate this Lease as hereinabove provided because of the provisions of Title
II, of the United States Code relating to Bankruptcy as amended ("Bankruptcy
Code"), then Tenant or any trustee for Tenant agrees promptly, within no more
than sixty (60) days upon request by Landlord to the Bankruptcy Court, to assume
or reject this Lease. In such
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event. Tenant or any trustee of Tenant may assume this Lease only if it (i)
cures or provides adequate assurance that the trustee will promptly cure any
default hereunder and (ii) compensates or provides adequate assurance that
Tenant will promptly compensate Landlord for any actual pecuniary loss to
Landlord resulting from Tenant's default.
(b) Upon the occurrence of any event or events of default by Tenant,
whether enumerated in this Paragraph or not, Landlord shall have the option to
pursue any one or more of the following remedies without being deemed to have
made an election of remedies and without any further notice or demand for
possession whatsoever (and without limiting the generality of the foregoing,
Tenant hereby specifically waives notice and demand for payment of rent or other
obligations due and waives any and all other notices or demand requirements
imposed by applicable law); (i) terminate this Lease in which Tenant shall
immediately surrender the Premises to Landlord; (ii) terminate Tenant's right to
occupy the Premises (without terminating this Lease); (iii) enter upon the
Premises and do whatever Tenant is obligated to do under the terms of this
Lease; and Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in effecting compliance with Tenant's obligations under this
Lease; and (iv) exercise all other remedies available to Landlord at law or in
equity, including, without limitation, injunctive relief of all varieties.
In the event Landlord elects to reenter or take possession of the Premises
after Tenant's default, Tenant hereby waives notice of such reentry or
repossession and of Landlord's intent to reenter or retake possession, Landlord
may, without prejudice to any other remedy which he may have for possession or
arrearages in rent, expel or remove Tenant and any other person who may be
occupying said Premises or any part thereof. All Landlord's remedies shall be
cumulative and not exclusive. Forbearance to enforce one or more of the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default, or of any future defaults, or
to limit Landlord's right to require strict compliance by Tenant with the
provisions of this Lease.
(c) Tenant hereby covenants that, prior to the exercise of any such
remedies, it will give the mortgagees holding mortgages on the Building notice
and a reasonable time to cure any default by Landlord provided Tenant has been
furnished with the name and address of such mortgagees.
(d) If this Lease is terminated by Landlord pursuant to the provisions of
Paragraph 27, Tenant shall pay to Landlord as damages, either:
(i) a sum which represents the then excess, if any, of (a) the
aggregate amount of the rental due and reserved hereunder from the date of
Tenant's default to the expiration date of the fully stated term hereof
over (b) the aggregate rental value of the Premises for the same period as
reduced by the estimated cost of reletting the Premises, including attorneys'
fees, commission, alterations and repair costs; or
(ii) sums equal to the rent which would have been payable by Tenant
had this Lease not been so terminated, or had Landlord not so reentered the
Premises, payable upon the due dates therefor specified herein, provided,
however, that if Landlord shall relet the Premises during said period,
Landlord shall credit Tenant with the net rents received by Landlord from
such reletting such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such reletting the expenses
incurred or paid by Landlord in terminating this Lease and/or in
26
reentering the Premises and in securing possession thereof, as well as the
expenses of reletting, including, without limitation, altering and
preparing the Premises for new tenants, brokers' commissions, legal fees,
and all other expenses properly chargeable against the Premises and the
rental therefrom, it being understood that any such reletting may be for a
period shorter or longer than the remaining term of this lease; but in no
event shall Tenant be entitled to a credit for any net rents from a
re-letting, except to the extent set forth hereinabove.
In the event of such termination of this Lease by Landlord as set
forth above, Landlord shall make reasonable good faith efforts to mitigate its
damages, but "reasonable good faith efforts" shall be deemed to have been made
if Landlord includes the Premises within Landlord's customary marketing
activities for Landlord's other vacant space in the Building. Nothing contained
herein shall require Landlord to give priority or preference to re-letting the
Premises ahead of other vacant space (either in the Building or in other
Buildings) owned or controlled by Landlord or its affiliates.
28. Peaceful Enjoyment. Tenant shall, and may peacefully have, hold,
and enjoy the Premises, subject to the other terms hereof, provided that Tenant
pays the rent and other sums herein recited to be paid by Tenant and performs
all of Tenant's covenants and agreements herein contained. This covenant and any
and all other covenants of Landlord shall be binding upon Landlord and its
successors only with respect to breaches occurring during its or their
respective period of ownership of the Building.
29. Surrender of Premises. Upon termination of this Lease for any
reason whatsoever, Tenant shall surrender the premises and keys thereof to
Landlord in the same condition as at commencement of the term, natural wear and
tear only excepted. Should Tenant refuse or fail to surrender the Premises upon
the expiration of the lease term or earlier termination thereof, Tenant shall be
a tenant at sufferance and shall pay to Landlord on demand each month a sum
equal to 135% of the rent due hereunder during such holdover period; provided
that there shall be no renewal of this Lease by operation of law.
If Tenant remains in possession after the expiration of the term
hereof with Landlord's acquiescence and without any distinct agreement of
parties, Tenant shall be a tenant at will, and there shall be no renewal of this
Lease by operation of law. Notwithstanding the notice provision of O.C.G.A.
Section 44-7-7, as the same may be now or hereafter amended, such tenancy at
will may be terminated upon sixty (60) days notice from Landlord.
30. Subordination, Estoppel, Attornment. This Lease shall be subject
and subordinate to any mortgage, deed to secure debt or other lien presently
existing or hereafter arising upon the Premises or upon the Building, or the
exterior Common Areas, and to any renewals, refinancing and extensions thereof
(each, a "Mortgage"). At the request of any successor to the title or interests
of Landlord, Tenant shall attorn to such successor. The subordination of this
Lease to any Mortgage, and the attornment of Tenant to the holder of any
Mortgagee, is conditioned upon an express agreement contained in such Mortgage,
or in a separate instrument to be recorded, that enforcement of such Mortgage
shall not terminate this Lease or disturb Tenant in the possession and use of
the Premises (except in the case where Tenant is in default beyond the period,
if any, provided in this Lease to remedy such default), that any party
succeeding to the interest of Landlord as a result of the enforcement of any
Mortgage shall be bound to Tenant, and Tenant shall be bound to it, under all
the terms, covenants, and conditions of this Lease for the balance of the term
of this Lease with the same force and
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effect as if such party were the original Landlord under this Lease; provided,
however, that such party shall not be liable (i) for any act or omission of any
prior Landlord, or (ii) subject to any offsets or defenses which Tenant may have
had against any prior Landlord, or (iii) bound by any monies which Tenant might
have paid for more than the current month's rent or any prepaid estimates of the
excess to any prior Landlord, or (iv) bound by any amendment or modification of
this Lease made without the prior written consent of the holder of the Mortgage.
Upon the request of Landlord, Tenant agrees to execute a subordination,
nondisturbance and attornment agreement incorporating the provisions set forth
above and otherwise in form reasonably acceptable to Landlord and Tenant. Tenant
agrees that it will from time to time upon request by Landlord execute and
deliver to such persons as Landlord shall request a statement in recordable form
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as so
modified), stating the dates to which rent and other charges payable under this
Lease have been paid, stating that Landlord is not in default hereunder (or if
Tenant alleges a default stating the nature of such alleged default) and further
stating such other matters as may be reasonably requested.
31. No Implied Waiver. The failure of Landlord to insist at any time upon
the strict performance of any covenant or agreement or to exercise any option,
right, power or remedy contained in this Lease shall not be construed as a
waiver or relinquishment thereof for the future. No payment by Tenant or receipt
by Landlord of a lesser amount than the monthly installment of rent due under
this Lease shall be deemed to be other than on account of the earliest rent due
hereunder, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and satisfaction,
and Landlord's right to recover the balance of such rent or pursue any other
remedy in this lease provided.
32. Security Deposit. [INTENTIONALLY OMITTED].
33. Notice. Any notice in this Lease provided for must be in writing, and
may be given or be served either by depositing the same in the United States
mail, postpaid and certified and addressed to the party to be notified, with
return receipt requested, or by actually delivering the same addressed to the
party to be notified at the address stated below or at such other address as may
from time to time be designated by the addressee by notice given in accordance
herewith. Notice deposited in the mail in the manner hereinabove described shall
be deemed received upon the date of receipt as indicated on the return receipt.
In the event delivery by mail cannot be made or is refused, the date of mailing
shall be deemed to be the date of receipt of the notice.
34. Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each term
and provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.
35. Governing Law. This lease and the rights and obligations of the
parties hereto shall be interpreted, construed, and enforced in accordance with
the laws of the State of Georgia.
36. Force Majeure. Whenever a period of time is herein prescribed for the
taking of any action by Landlord,
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Landlord shall not be liable or responsible for, and there shall be excluded
from the computation of such period of time, any delays due to strikes, riots,
fire, acts of God, shortages of labor or materials, war, governmental laws,
regulations or restrictions, or any other cause whatsoever beyond the control of
Landlord.
37. Time of the Essence. Time is of the essence of this Lease.
38. Transfers by Landlord. Landlord shall have the right to transfer
and assign, in whole or in part, all its rights and obligations hereunder and in
the Building and property referred to herein, and in such event and upon such
transfer Landlord shall be released from any further obligations hereunder, and
Tenant agrees to look solely to such successor in interest of Landlord for the
performance of such obligations.
39. Commissions. Landlord and Tenant hereby indemnify and hold each
other harmless against any loss, claim, expense or liability with respect to any
commissions or brokerage fees claimed on account of the execution and/or renewal
of this lease due to any action of the indemnifying party.
40. Liability. Landlord shall have no personal liability with respect
to its obligations under this Lease. Tenant shall look solely to Landlord's
equity in the Building and exterior Common Areas for satisfaction of Tenant's
remedies. In no event shall Landlord's liability exceed such equity.
41. Hazardous Substances. Tenant shall not cause or permit any
hazardous, toxic or dangerous substances (as defined or described in any
applicable federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to, or imposing liability or
standards of conduct concerning hazardous, toxic or dangerous substances) to be
brought upon, kept or used in or about the Premises or the Building. Tenant
shall indemnify and hold Landlord harmless from and against any and all claims,
judgments, demands, penalties, fines, losses and costs and expenses incurred by
Landlord during or after the term of this Lease as a result of such hazardous,
toxic or dangerous substances that Tenant causes or permits to be brought upon,
kept or used in or about the Premises or the Building during the term of this
Lease. Landlord represents to Tenant, to Landlord's actual knowledge and based
solely upon Landlord's review of its existing Phase I environmental audit of the
Building prepared by BCM, dated February 1991, that no radon, asbestos or other
material defined as hazardous under any existing applicable local, state or
federal laws or regulations as of the date hereof is contained within the
Premises of the Building or upon the land on which the Building is located.
42. Option With Respect to Basement Space. Tenant shall have the
option to lease from Landlord, commencing on November 1, 1994, approximately
5,230 square feet of storage space in the basement of the Building at an annual
rent of $8.00 per square foot of space for the then remaining term of this
Lease. Such rent shall be payable in advance in equal monthly installments in
the same manner as Base Rent is paid. Such option may be exercised by Tenant's
giving written notice to Landlord at any time before October 1, 1994. In the
event Tenant so exercises the option contained in this paragraph, Tenant shall
have the right at any time after November 1, 1994, by written notice to
Landlord, to cancel Tenant's use of such basement space upon no less than ninety
(90) days prior written notice to Landlord.
43. Satellite Dish. The provisions attached hereto as Exhibit "D"
regarding Tenant's satellite dish are incorporated herein by reference.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple counterparts each of which shall be deemed an original as of the day
and year first above written.
ADDRESS: LANDLORD:
The Lincoln Property Company LINCOLN P.C. ASSOCIATES
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: Lincoln Atlanta No. 3,
Attn: Property Manager Ltd., its general partner
By /s/ [SIGNATURE ILLEGIBLE]
--------------------------
Title:
ADDRESS: TENANT:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
P.O. Box 500
Township Line & Union
Meeting Roads By: [SIGNATURE ILLEGIBLE]
Blue ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ -------------------------
Attn: Lease Administrator Title:
With a copy to: ATTEST:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇ By: [SIGNATURE ILLEGIBLE]
Township Line & Union --------------------------
Meeting Roads Title: Assistant Secretary
Blue ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Law Department (CORPORATE SEAL)
30
[SITE MAP]
(i)
31
[SITE MAP]
(ii)
32
[SITE MAP]
(iii)
33
[SITE MAP]
(iv)
34
[SITE MAP]
(v)
35
[SITE MAP]
EXHIBIT "B"
36
EXHIBIT "C"
SATELLITE DISH AGREEMENT
1. During the term of this Lease, Tenant shall have the right to use
the space currently used by Tenant on the roof of the Building (the "Satellite
Communications Space") for the continued use, operation and maintenance of the
satellite communications dish currently located thereon and the necessary
ancillary equipment for two-way satellite communication systems (all of which is
hereafter called the "System") with Tenant's operations under this Lease.
Landlord reserves the right to relocate at Landlord's expense, the Satellite
Communications Space and System within the confines of the Building upon thirty
(30) days written notice to Tenant.
2. Tenant shall pay to Landlord any costs and expenses, including
taxes, insurance and utilities incurred by Landlord as a result of Tenant's
installation of the System.
3. Landlord and/or its contractors, agents and subcontractors shall
have access to that part of the System which is located outside of Tenant's
Leased Premises upon notification to Tenant. All installation, servicing or
removal of the System shall be coordinated with Landlord's property manager. In
addition, said installation, servicing or removal of the System shall be done in
the manner approved by Landlord and Landlord's property manager and in such a
way so as to protect Landlord's property. No installation, servicing or removal
of the System which affects the roof of the Building shall be done without
Landlord's direction. Tenant's contractors shall maintain liability, ▇▇▇▇▇▇▇'▇
compensation insurance and other insurance as Landlord may reasonably require.
Said contractors shall furnish proof of same to Landlord upon request.
4. Landlord shall have the right to use or allow others to use other
roof or ground space on the Building or surrounding land for the purpose of
transmitting and receiving broadcast radio, television, cable television,
one-way and two-way communications, microwave transmission and weather radio
antenna. Tenant's System shall be installed so as not to interfere with the use
or operation of other communications equipment previously installed on the
Building by others. Landlord shall use its best efforts to cause such equipment
subsequently installed on the Building by others to be installed so as not to
interfere with the use or operation of Tenant's System.
5. Prior to installing the System, Tenant shall supply to Landlord a
detailed set of plans and specifications for Tenant's System and its
installation. The installation of the System shall be with Landlord's prior
written approval of the plans and specifications, which approval shall not be
unreasonably withheld or delayed. All costs for the installation including
costs of electrical equipment, antennas, mounting, fixtures and engineering
studies, required by Tenant hereunder or which are required to comply with
Landlord's site engineering or rival engineering standards, will be at Tenant's
sole cost and expense. All equipment or other fixtures attached to or otherwise
brought into or onto the Building shall at all times be the personal property of
the Tenant except for permanent modifications to Landlord's property which shall
become property of the Landlord upon termination of the Lease or this Lease
Agreement. Tenant assumes full responsibility for the installation, engineering
and maintenance of all equipment installed. Tenant shall indemnify and save
harmless Landlord from and against any and all loss, cost (including reasonable
attorneys' fees and expenses) damages, expenses and liability, including
statutory liability, liability under the workmen's compensation laws and
mechanics liens in connection with claims
C-1
37
or damages as a result of injury or death or any person property damage due to
any acts or negligence of Tenant. Tenant's agents, employees, customers,
invitees, contractors and subcontractors under this Agreement. Prior to the
installation of its System and at all times subsequent thereto, Tenant shall, at
its sole cost and expense, obtain and maintain any and all municipal, state or
federal permits, and/or licenses required of it for its operations, and Landlord
shall not be responsible for any signal interference or signal strain that may
result from Tenant's use of its equipment except as provided in Paragraph 4
above. Prior to the installation of its System, Tenant shall provide to
Landlord, in addition to a copy of its plans and specifications, all requisite
approvals of any municipal, state or federal governments required for its
operations. Periodically throughout the term of this Agreement upon written
request of Landlord, Tenant shall provide to Landlord a copy of its permits or
licenses.
6. During the term of this Lease, Tenant shall keep the Satellite
Communications Space in good condition and repair and allow no waste thereon.
Upon termination or expiration of this Lease, Tenant will surrender the
Satellite Communications Space to Landlord in good condition, damage by fire or
other insurable casualty excepted and shall remove all of its equipment (except
permanent modifications as provided for in Paragraph 5 above), and weather seal
any and all holes left by the removal of said equipment. In addition, in the
event that Tenant fails to occupy the Leased Premises for its business under the
Lease Agreement for more than thirty (30) days, Tenant shall remove all of its
equipment as provided for above.
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9. The Building shall be open to Tenant, its employees, and
business visitors during such business hours as are deemed standard by Landlord
from time to time on all days except Saturdays and Sundays and holidays. At all
other times every person, including Tenant, its employees and visitors entering
and leaving the Building may be questioned by a watchman as to that person's
business therein, and may be required to sign such person's name on a form
provided by Landlord for registering such person.
10. Tenant shall not employ any person other than Landlord's
contractor or employees for the purpose of cleaning and taking care of the
Premises.
11. All decoration of the Premises, including design, color
selection, and finish work of the Premises which is visible from any corridor,
elevator or other such common area, shall be made only with specific written
approval from Landlord, and in the absence of such approval Landlord may
require Tenant to remove undesirable decoration and restore the Premises to its
former condition.
12. This edition of Rules and Regulations shall be effective on and
after January 1, 1991, as from time to time later supplemented and amended by
Landlord.
13. Landlord will provide one listing in the Building Directory to
Tenant at Landlord's expense, and Landlord will provide one sign for Tenant to
identify its space at Landlord's expense. Other listings and signs must be first
approved by Landlord and obtained at Tenant's expense.
14. Smoking Policy - Lincoln Perimeter does not allow smoking in the
common areas of the building, including all restrooms, elevator lobbies,
elevator cabs or anywhere within the atrium of the building. If your company
has implemented a no smoking policy, it is requested that you provide a smoking
lounge within your suite for your employees. Anyone found smoking in the common
areas of the building will be asked by the Building Management or Security to
move or extinguish their cigarette.
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Lease Annual Rent Rate
Year Per Square Foot Annual Rent Monthly Rent
------------------------------------------------------------------
1 $18.50 $2,036,998.00 $169,749.83
2 $18.50 $2,036,998.00 $169,749.83
3 $18.50 $2,036,998.00 $169,749.83
4 $19.92 $2,193,624.05 $182,802.00
5 $20.42 $2,248,464.65 $187,372.05
6 $20.93 $2,304,676.27 $192,056.36
7 $21.45 $2,362,293.17 $196,857.76
8 $21.99 $2,421,350.50 $201,779.21
9 $22.54 $2,481,884.27 $206,823.69
10 $23.10 $2,543,931.37 $211,994.28
(d) "Commencement Date" means September 1, 1991.
(e) "Security Deposit" has been waived by Landlord and Tenant.
(f) "Common Areas" means those areas of the Building devoted to
corridors, elevator foyers, restrooms, mechanical rooms, janitorial closets,
electrical and telephone closets, vending areas and other similar facilities
provided for the common use or benefit of tenants generally or of the public.
Common Areas shall be measured from and to the inside finished surface of
exterior Building walls, and from and to the center of any partition walls
which separate Common Areas from tenant spaces, including the Premises, and
from Service Areas.
(g) "Service Areas" means those areas within the Building outside
walls used for elevator, building stairs, fire towers, elevator shafts, flues,
vents, stacks, pipe shafts and vertical ducts (but shall not include any such
areas provided or reserved for the exclusive use of a particular tenant).
Service areas shall be measured from and to the inside finished surface of
exterior Building walls, and from and to the center of any partition walls which
separate Service Areas from tenant spaces, including the Premises, and from
Common Areas.
(h) "Exterior Common Areas" means all areas not located within the
Building provided and maintained for the common use and benefit of Landlord and
tenants of the Building (or multi-building project) generally, and the
employees, invitees and licensees of Landlord and such tenants, including,
without limitation, parking areas whether enclosed or not, streets, sidewalks,
and landscaped areas.
(i) "Rentable Area" of the Premises means (1) the gross area thereof
as measured from and to the inside surface of the outer glass of the exterior
Building walls, and from and to the center of any partition walls which
separate the Premises from adjoining tenant, Common Areas, and Service Areas;
and (2) the pro rata part of the Common Areas of the Building applicable to the
Premises in the proportion that the area of the Premises as calculated by the
method described in (1) above bears to the total Rentable Area of the Building
as calculated by the same method. Rentable Area shall not include Service Areas.
(j) "Basic Costs" as used herein means all expenses, costs and
disbursements (but not repayment of debt or replacement of capital investment
items other than those elsewhere herein expressly included, nor specific costs
especially billed to and paid by other tenants of the Building) of every kind
and nature which Landlord shall pay or become obligated to pay because of, or
in connection with, the ownership and operation of the Building and the Exterior
Common Areas, including but not limited to the following: (i) Wages and
salaries, including payroll taxes, workers' compensation, insurance premiums,
and all other employment costs to Landlord of all employees engaged in
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operating and maintaining the Building, and that part of central accounting
costs which are applicable to the Building; (ii) cost of all supplies and
materials used in operation and maintenance of the Building; (iii) cost of all
utilities for the Building including the cost of water, sewer, gas, oil and
electric and other power (but excluding any utility costs reimbursed directly by
tenants to Landlord other than in the nature of additional rental payments
similar to those required of Tenant under this Lease); (iv) cost of all
maintenance and service agreements for the Building and the equipment therein,
including, but not limited to security service, window cleaning, janitorial
service, elevator maintenance, maintenance of heating, ventilation and
air-conditioning equipment, plumbing, controls, locks, alarms and all other
parts of the Building; (v) cost of all insurance relating to the Building or
rents therefrom including, but not limited to, the cost of casualty and
liability insurance applicable to the Building and to Landlord's personal
property used in connection with the Building; (vi) charges, whether federal,
state, county or municipal, and whether they be by taxing districts, or taxes,
and assessments, attributable to the Building, its operation, or any tax in the
nature of a gross receipts tax imposed on rentals (but excluding fines and
penalties resulting from the failure of Landlord to make timely payment of the
same); (vii) cost of repairs and general maintenance (excluding repairs and
general maintenance paid by proceeds of insurance or by Tenant or other third
parties, and alteration attributable solely to tenants of the Building, other
than Tenant); (viii) amortization of the cost of installation of capital
improvements or other capital items which are primarily for the purpose of
reducing operating costs or which may be required by governmental authority, as
reasonably amortized by Landlord and (ix) management fees. The Basic Costs of
the Building shall be computed on the accrual basis and shall be all Basic Costs
incurred by Landlord to maintain all facilities of the Building in operation
during all or part of the Base Year, together with such additional or substitute
facilities in subsequent years as may be determined by Landlord to be necessary.
In determining the amount of Basic Costs (for 1993 and any subsequent year), for
the purpose of this Paragraph, in the event that less than 95% of the Rentable
Area of the Building shall have been occupied by tenants and fully used by them
at any time during the year, Basic Costs shall be increased to an amount equal
to the like operating expense which would normally be expected to be incurred
had such occupancy been 95% of the Rentable Area and had such full utilization
been made during the entire period.
3. Lease Grant. Subject to and upon the terms herein set forth, Landlord
leases to Tenant and Tenant leases from Landlord the Premises for the Lease
Term. Tenant is hereby granted only a usufruct, not subject to levy or sale; no
estate for years nor other estate shall pass from Landlord on account thereof.
The Premises are stipulated for all purposes to contain 110,108 square feet of
Rentable Area.
4. Lease Term. This Lease Term is for a term or period of time commencing
at 12:01 a.m. on the Commencement Date, and continuing thereafter for the next
10 years thereafter.
5. Use. The Premises shall be used for office purposes, and for
demonstration, training and general storage purposes incidental thereto, and for
no other purpose. Tenant agrees not to use, or permit the use of, the Premises
for any purpose which is illegal, or which constitutes or creates a nuisance, or
which would increase the cost of insurance coverage with respect to the
Building, or which tends to reduce the value of the Building or reduce the
attractiveness of the Building to other tenants. Landlord represents to Tenant
that as of the date of this Lease, the Building is zoned under an appropriate
zoning
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classification under the Zoning Ordinance of DeKalb County, Georgia that allows
use of the Building for office use.
6. Base Rental.
(a) Tenant agrees to pay to Landlord, without any demand, setoff or
deduction whatsoever, the Base Rental and all such other sums of money as shall
become due hereunder as additional rent, all of which are sometimes hereinafter
collectively called "rent", in advance in equal monthly installments on the
first day of each calendar month during the Lease Term to Landlord at
Landlord's address provided herein (or such other address as may be designated
by Landlord in writing from time to time). If the term of this Lease commences
on a day other than the first day of a month or terminates on a day other than
the last day of a month then the amount of the installments of Base Rental and
any adjustments thereto for such month or months shall be prorated, based on
the number of days the Lease is in effect during such month.
(b) All installments of rent not paid within five (5) days after the date
when due shall bear interest at the rate of one and one-half percent (1- 1 1/2%)
per month, or the maximum rate permitted by law, whichever is lower.
7. Additional Rent.
(a) The Rentable Area in the Building is stipulated to be 285,773 square
feet. Tenant shall, from time to time during the term of the Lease, pay as
additional rent hereunder, an amount, per each square foot of Rentable Area
within the Premises, equal to the excess ("Excess") in actual Basic Costs, over
the actual 1993 Basic Costs per square foot of Rentable Area in the Building.
Commencing on the fourth (4th) anniversary of the date of this Lease, Tenant
shall begin paying the Excess in accordance with the provisions of this
paragraph.
(b) Landlord shall also have the right to make a good faith estimate of
the Excess for each upcoming calendar year and upon thirty (30) days' notice to
Tenant to require the monthly payment by Tenant of one-twelfth (1-12th) of such
estimated Excess, but in no event shall any such estimate be based on Basic
Costs which exceed the actual Basic Costs for the previous calendar year.
(c) By April 1 of each calendar year following the year during which the
Lease Term begins, or as soon thereafter as practical, Landlord shall furnish
to Tenant a statement of Landlord's actual Basic Costs for the previous
calendar year, and Landlord shall notify Tenant of the amount of the Excess
owing by Tenant to Landlord, showing the calculations thereof which result from
such statement. Tenant agrees to promptly pay Landlord, as additional rent, all
Excess which has not been previously paid as estimated Excess. If for any
calendar year additional rent collected for the prior year, as a result of
Landlord's estimate of Excess, is greater than the additional rent actually due
during such prior year, then Landlord shall refund to Tenant any such
overpayment.
(d) Notwithstanding the foregoing provisions of this Lease to the
contrary, for purposes of calculating the Excess under this Lease, in no event
shall Controllable Basic Costs be increased in any calendar year after 1993 by
more than five percent (5%) of the Controllable Basic Costs for the previous
calendar year. For purposes hereof, "Controllable Basic Costs" shall mean all
Basic Costs other than those enumerated in subsections (iii), (v), (vi) and
(viii) of paragraph 2(j) of this Lease.
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8. Services to be Furnished by Landlord. Landlord agrees to furnish
Tenant the following services, subject to any limitations which may be imposed
thereon from time to time by any governmental authority:
(a) Hot and cold water at those points of supply provided for general
use of other tenants in the Building, and heating and air conditioning in
season, at such temperatures, and during such business hours as are deemed
standard by Landlord from time to time; however, heating and
air-conditioning services at times other than for normal business hours for
the Building (which for purposes of this Lease shall be 7:00 o'clock a.m.
to 6:00 o'clock p.m. Monday through Friday, excluding holidays, and 8:00
o'clock a.m. to 12:00 o'clock noon on Saturday, excluding holidays) shall
be furnished only at Landlord's discretion upon the written request of
Tenant delivered to Landlord prior to 3:00 p.m. at least three (3) days in
advance of the date such usage is requested. Tenant shall bear the entire
cost of such requested additional service, but such cost shall not exceed
Landlord's actual cost, which cost shall not be increased except as a
result of the increase in the cost of utilities supplied by the applicable
utility company.
(b) Routine maintenance and electric lighting service for all Common
Areas and Service Areas of the Building in the manner and to the extent
deemed by Landlord to be standard.
(c) Janitor service, Mondays through Fridays, but exclusive of normal
business holidays substantially in accordance with Landlord's Building
Standard specifications; except that, if Tenant's floor covering or other
improvements require special treatment, Tenant shall pay the additional
cleaning cost attributable thereto as additional rent upon presentation of
a statement therefore by Landlord.
(d) Subject to the provisions of Paragraph 13, Building Standard
facilities to provide electrical current sufficient to illuminate the
Premises and for the operation of small office machines by Tenant in its
use and occupancy of the Premises.
(e) All Building Standard fluorescent bulb replacement in the
Premises and fluorescent and incandescent bulb replacement in the Common
Areas and Service Areas.
(f) Access to the Building may be regulated during other than normal
business hours in such manner as Landlord deems appropriate; however,
Tenant and its employees shall have access to the Premises 24 hours a day,
7 days a week. Landlord, however, shall have no liability to Tenant, its
employees, agents, invitees or licensees for losses due to theft or
burglary, or for damages or injuries done by unauthorized persons on the
Premises and neither shall Landlord be required to insure against any such
losses. Tenant shall cooperate fully in Landlord's efforts to regulate
access to the Building.
The failure by Landlord to any extent to furnish, or the interruption
or termination of, the above-described services in whole or in part resulting
from causes beyond the reasonable control of Landlord shall not render Landlord
liable in any respect, not be construed as an eviction of Tenant, nor an
abatement of rent, nor relieve Tenant from the obligation to fulfill any
covenant or agreement hereof. Should any of the equipment or machinery used in
the provision of such services for any cause cease to function properly, Tenant
shall have no claim for offset or abatement of rent or damages on account of an
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interruption in service occasioned thereby or resulting therefrom.
Notwithstanding the foregoing, in the event of any interruption or termination
of the electrical or heating and air conditioning services to be provided by
Landlord under this Lease, and as result any portion of the Premises is
untenantable for a period of more than fifteen (15) consecutive business days,
then all Base Rent with respect to such portion of the Premises so rendered
untenantable shall ▇▇▇▇▇ until such time as such services are restored to the
extent such portion of the Premises is once again tenantable.
9. MONUMENT SIGN. Landlord shall cause to be constructed, subject to and
in accordance with applicable laws, a monument sign to be located along
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Road, the size, location and design to such monument sign to be
mutually approved by Landlord and Tenant, such approvals not to be unreasonably
withheld or delayed. In no event, however, shall Landlord be obligated to expend
more than $10,000.00 for the design, construction and installation of such
monument sign. Upon the completion of construction and installation of such
monument sign, Landlord shall be entitled to remove and dispose of the signage
of Tenant located on the exterior of the Building.
10. GRAPHICS. Landlord shall provide and install, at Tenant's cost, all
letters or numerals on doors in the Premises, all such letters and numerals
shall be in the standard graphics for the Building and no others shall be used
or permitted on the Premises without Landlord's prior written consent, such
consent not to be unreasonably withheld.
11. CARE OF PREMISES BY TENANT. Tenant agrees not to commit or allow any
waste to be committed on any portion of the Premises, and at the termination of
this Lease to deliver up the Premises to Landlord in as good condition as at the
Commencement Date, ordinary wear and tear excepted.
12. REPAIRS AND ALTERATIONS BY TENANT. Tenant covenants and agrees with
Landlord, at Tenant's own cost and expense and with prior notice from Landlord
to Tenant for the need for such repair, to repair or replace any damage done to
the Building, or any part thereof, caused by Tenant or Tenant's agents,
employees, or contractors, and such repairs shall restore the Building to as
good a condition as it was in prior to such damage, and shall be effected in
compliance with all applicable laws; provided, however, that if Tenant fails to
make such repairs or replacements promptly, then Landlord may, at its option,
make repairs or replacements, and Tenant shall pay the cost thereof to the
Landlord on demand as additional rent. Tenant agrees with Landlord not to make
or allow to be made any alterations to the Premises, install any vending
machines on Premises, or place signs on the Premises, which are visible from
outside the Premises, without first obtaining the written consent of Landlord in
each such instance, which consent may be given on such conditions as Landlord
may elect; provided, however, that Landlord shall not unreasonably withhold such
consent with respect to (i) vending machines wholly within the Premises and not
visible from public areas of the Building and (ii) alterations that do not
affect the structural components or the mechanical, plumbing or electrical
systems of the Building. Any and all alterations to the Premises shall become
the property of Landlord upon the expiration or earlier termination of this
Lease (but not for movable equipment, trade fixtures or furniture owned by
Tenant), but Landlord may, nonetheless, require Tenant to remove any and all
fixtures, equipment and other improvements installed by Tenant on the Premises
upon the expiration or earlier termination of this Lease; provided, however,
that with respect to any improvements, Landlord shall not have the right to
require Tenant to remove any improvements installed by Tenant unless such
improvements were installed without the consent of Landlord or at the time of
the consent Landlord notified Tenant that such improvements would be required to
be removed at the end
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of the Lease Term. In the event that Landlord so elects, and Tenant fails to
remove such improvements, Landlord may remove such improvements at Tenant's
cost, and Tenant shall pay Landlord on demand the cost of restoring the
Premises to Building Standard.
13. Use of Electrical Services by Tenant. Tenant's use of electrical
services furnished by Landlord shall not exceed, either in voltage, rated
capacity or overall load that which Landlord deems to be Building Standard.
Building Standard does not include electricity used to operate any item of
electrical equipment which singly consumes more than 0.25 kilowatts at rated
capacity or which requires a voltage other than 120 volts single phase. In the
event Tenant shall request that it be allowed to consume electrical services in
excess of that deemed by Landlord to be Building Standard, Landlord may refuse
to consent to such usage if the electrical systems of the Building are not
capable of sustaining such usage, or may consent upon such conditions as
Landlord reasonably elects, including the requirement that submeters be
installed at Tenant's expense, that Tenant pay the cost of the excess
electricity used, and, if the operation of such equipment requires modification
to the Building systems or additional air-conditioning capacity above that
provided by the Building Standard systems then the cost of such modifications
and any additional air-conditioning installation and operation costs shall be
paid by Tenant.
14. Parking. During the Lease Term, Tenant shall have the non-exclusive
use in common with Landlord, other tenants of the Building (or project in which
the Building is located in a multi-building project), their guests and
invitees, of the nonreserved common automobile parking areas, driveways, and
footways, subject to rules and regulations for the use thereof as prescribed
from time to time by Landlord. Notwithstanding the foregoing, fourteen (14)
parking spaces shall be designated by Landlord, at Tenant's expense, for the
exclusive use of Tenant and Tenant's invitees, in substantially the location
set forth on Exhibit "B" hereto.
15. Laws and Regulations. Tenant agrees to comply with all applicable
laws, ordinances, rules, and regulations of any governmental entity or agency
having jurisdiction of the Premises.
16. Building Rules. Tenant will comply with the rules of the Building as
set forth herein as adopted and amended by Landlord from time to time, and will
cause all of its agents, employees, and contractors to do so.
17. Entry by Landlord. Tenant agrees to permit Landlord or its agents or
representatives to enter into and upon any part of the Premises at all
reasonable hours upon prior reasonable notice (and in emergencies at all times)
to inspect the same, or to show the Premises to prospective purchasers,
mortgagees, tenants or insurers, to clean or make repairs, alterations, or
additions thereto, and Tenant shall not be entitled to any abatement or
reduction of rent by reason thereof.
18. Assignment and Subletting.
(a) Tenant convenants that it will not assign, sublease, transfer or
encumber this Lease or any interest therein without the prior written consent
of Landlord, which consent shall not be unreasonably withheld.
(b) Fifty percent (50%) of all cash or other proceeds of any assignment,
sale or sublease of Tenant's interest in this Lease in excess of the rent
required to be paid by Tenant hereunder (on a per square foot basis) shall be
paid to Landlord, whether consented to by Landlord or not, unless Landlord
agrees
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to the contrary in writing, and Tenant hereby assigns all rights it might have
or ever acquire in any such proceeds to Landlord. Tenant may deduct from such
proceeds (prior to calculating the split of such proceeds as provided above)
reasonable, ordinary and necessary costs and expenses incurred in connection
with the negotiation of a sublease, assignment or sale of Tenant's interest
(including any reasonable leasing commission if actually incurred by Tenant and
paid to a licensed real estate broker which is unaffiliated with Tenant). The
above notwithstanding, the rent due under this Lease shall in no event be
reduced.
19. Mechanic's Liens. Tenant covenants that it will not permit any
mechanic's lien or liens to be placed upon the Premises or the Building.
Nothing in this Lease shall be deemed or construed in any way as constituting
the consent or request of Landlord, express or implied, by inference or
otherwise, to any person for the performance of any labor or the furnishing of
any materials to the Premises, or any part thereof, nor as giving Tenant any
right, power, or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to any
mechanic's or other liens against the Premises. In the event any such lien is
attached to the Premises and is not removed of record by payment or by bonding
in accordance with Georgia law within fifteen (15) days after the date Tenant
becomes aware of the same, then, in addition to any other right or remedy of
Landlord, Landlord may, but shall not be obligated to, discharge the same. Any
amount paid by Landlord for any of the aforesaid purposes shall be paid by
Tenant to Landlord on demand as additional rent.
20. Property Insurance. Landlord shall maintain fire and extended
coverage insurance on the Building and the Premises in such amounts as
Landlord's mortgagees shall require. Such insurance shall be maintained at the
expense of Landlord (as a part of the Basic Costs), and payments for losses
thereunder shall be made solely to Landlord or the mortgagees of Landlord as
their interests shall appear. Tenant shall maintain at its expense, in an
amount equal to full replacement cost, fire and extended coverage insurance on
all of its personal property, including removable trade fixtures, located in
the Premises, in such additional amounts as are required to meet Tenant's
obligations pursuant to Paragraph 22 hereof. Tenant shall, at Landlord's
request from time to time, provide Landlord with current certificates of
insurance evidencing Tenant's compliance with this Paragraph 20 and Paragraph
21. Tenant shall obtain the agreement of Tenant's insurers to notify Landlord
that a policy is due to contain waiver of subrogation clauses as to the other
party.
21. Liability Insurance. Tenant and Landlord shall, each at its own
expense, maintain a policy or policies of comprehensive general liability
insurance with respect to the respective activities of each in the Building,
and the Exterior Common Areas (or within the project if the Building is located
in a multi-building project) with the premiums thereto fully paid on or before
due date, issued by and binding upon some insurance company approved by
Landlord, such insurance to afford minimum protection of not less than
$1,000,000.00 combined single limit coverage for death or bodily injury, and
$100,000.00 for property damage.
22. Indemnity. Landlord shall not be liable to Tenant, or to Tenant's
agents, servants, employees, customers, or invitees for any injury to person or
damage to property caused by any act, omission, or neglect of Tenant, its
agents, servants or employees, invitees, licensees or any other person entering
the Building under the invitation of Tenant or arising out of the use of the
Premises by Tenant and Tenant hereby indemnifies and agrees to hold Landlord
harmless from all liability and claims for any such damage or injury. Tenant
shall not be liable to
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Landlord or to the Landlord's agents, servants, employees, customers or
invitees for any injury to person or damage to property caused by any act,
omission or neglect of Landlord, its agents, servants or employees, and
Landlord hereby indemnifies and agrees to hold Tenant harmless from all
liability and claims for any such injury or damage; provided, however, that the
foregoing indemnification of Landlord shall not be deemed or construed to deny
Landlord the benefit of the insurance required to be carried by Tenant for the
benefit of Landlord and Tenant pursuant to Paragraph 21 above with respect to
any such claim or liability.
23. Waiver of Subrogation Rights. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waives any and all rights of
recovery, claim, action, or cause of action, against the other, its agents,
officers, or employees, for any loss or damage that may occur to the Premises,
or any improvements thereto, or the Building of which the Premises are a part,
or any improvements thereto, or any personal property of such party therein, by
reason of fire, the elements, or any other cause(s) which are insured against
under the terms of the standard fire and extended coverage insurance policies
referred to herein, regardless of cause or origin, including negligence of the
other party hereto, its agents, officers, or employees.
24. Casualty Damage. If the Premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord. In case the Building shall be so damaged that, in
Landlord's good faith estimation, the time required to repair and reconstruct
the Building shall exceed one hundred eighty (180) days from the date of the
casualty (whether or not the Premises shall have been damaged by such
casualty), or in the event any mortgagee of Landlord's should require that the
insurance proceeds payable as a result of a casualty be applied to the payment
of the mortgage debt, or in the event of any material loss to the Building
that would not be covered by fire and extended coverage insurance commonly
carried for commercial properties such as the Building, Landlord may, at its
option, terminate this Lease by notifying Tenant in writing of such termination
within sixty (60) days of the date of the casualty.
If Landlord does not thus elect to terminate this Lease, Landlord shall
commence and proceed with reasonable diligence to restore the Building to
substantially the same condition in which it was immediately prior to the
happening of the casualty, except that Landlord shall not be required to spend
for such work an amount in excess of the insurance proceeds actually received
by Landlord as a result of the casualty.
Landlord shall not be liable for any inconvenience or annoyance to Tenant
or injury to the business of Tenant resulting in any way from such damage or
the repair thereof, except that, subject to the provisions of the next
sentence, Landlord shall allow Tenant a proportional diminution of rent during
the time and to the extent the Premises are unfit for occupancy. If the
Premises or any other portion of the Building be damaged by fire or other
casualty resulting from the fault or negligence of Tenant or any of Tenant's
agents, employees, or invitees, the rent hereunder shall not be diminished
during the repair of such damage and Tenant shall be liable to Landlord for the
cost of the repair and restoration of the Building caused thereby to the extent
such cost and expense is not covered by insurance proceeds.
25. Condemnation. If the whole or substantially the whole of the
Building or the Premises should be taken for any public or quasi-public use, by
right of eminent domain or otherwise, or should be sold in lieu of
condemnation, then this Lease shall terminate as of the date when physical
possession of
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the Building or the Premises is taken by the condemning authority. If less than
the whole or substantially the whole of the Building or the Premises is thus
taken or sold, Landlord (whether or not the Premises are affected thereby) may
terminate this Lease by giving written notice thereof to Tenant; in which event
this Lease shall terminate as of the date when physical possession of such
portion of the Building or Premises is taken by the condemning authority. If
this Lease is not so terminated upon any such taking or sale, the Base Rental
payable hereunder shall be diminished by an equitable amount, and Landlord
shall restore the Building and the Premises as much as possible to substantially
their former condition, to the extent condemnation proceeds are made available
by the holder of any mortgage or deed to secure debt on the Building, but
Landlord shall in no event be required to spend for such work an amount in
excess of the amount received by Landlord as compensation for such damage. All
amounts awarded upon a taking of any part or all of the Building or the
Premises shall belong to Landlord, and Tenant shall not be entitled to and
expressly waives all claims to any such compensation.
26. Damages from Certain Causes. Landlord shall not be liable to Tenant
for any loss or damage to any property or person occasioned by theft, fire,
act of God, public enemy, injunction, riot, strike, insurrection, war, casualty,
water damage of whatsoever nature, vandalism, court order, requisition, or
order of governmental body or authority or by any other cause beyond the
control of Landlord, nor shall Landlord be liable for any damage or
inconvenience which may arise through repair or alteration of any part of the
Building, Exterior Common Areas, or Premises so long as Tenant continues to
have access to and from the Premises (unless such continued access during such
repair would endanger persons in the Premises).
27. Events of Default/Remedies.
(a) The following events shall be deemed to be events of default by Tenant
under this Lease: (i) Tenant shall fail to promptly pay any rent or other sum of
money due hereunder within five (5) days after receipt of written notice from
Landlord to Tenant of such failure; (ii) Tenant shall fail to comply with any
other provision of this Lease within thirty (30) days after receipt of written
notice from Landlord to Tenant of such failure or, if such failure shall be
incapable of cure within thirty (30) days, Tenant shall not commence to cure
such failure within such thirty (30) day period and continuously prosecute the
performance of the same to completion with due diligence; (iii) the leasehold
hereunder demised shall be taken on execution or other process of law in any
action against Tenant; (iv) a default or event of default shall occur under that
certain Lease dated August 29, 1984 between Landlord and Tenant, as amended by
the ten (10) amendments thereof existing as of the date of this Lease, and as
thereafter amended; (v) Tenant shall fail to promptly move into and take
possession of the Premises when the Premises are ready for occupancy, or shall
abandon any substantial portion of the Premises; (vi) Tenant shall become
insolvent or unable to pay its debts as they become due, or Tenant notifies
Landlord that it anticipates either condition; (vii) Tenant takes any action to,
or notifies Landlord that Tenant intends to file a petition under section or
chapter of the National Bankruptcy Act, as amended, or under any similar law or
statute of the United States or any state thereof; or a petition shall be filed
against Tenant under any such statute; or (viii) a receiver or trustee shall be
appointed for Tenant's leasehold interest in the Premises or for all or a
substantial part of the assets of Tenant. If Landlord shall not be permitted to
terminate this Lease as hereinabove provided because of the provisions of Title
II, of the United States Code relating to Bankruptcy as amended ("Bankruptcy
Code"), then Tenant or any trustee for Tenant agrees promptly, within no more
than sixty (60) days upon request by Landlord to the Bankruptcy Court, to assume
or reject this Lease. In such
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48
event, Tenant or any trustee of Tenant may assume this Lease only if it (i)
cures or provides adequate assurance that the trustee will promptly cure any
default hereunder, and (ii) compensates or provides adequate assurance that
Tenant will promptly compensate Landlord for any actual pecuniary loss to
Landlord resulting from Tenant's default.
(b) Upon the occurrence of any event or events of default by Tenant,
whether enumerated in this Paragraph or not, Landlord shall have the option to
pursue any one or more of the following remedies without being deemed to have
made an election of remedies and without any further notice or demand for
possession whatsoever (and without limiting the generality of the foregoing,
Tenant hereby specifically waives notice and demand for payment of rent or
other obligations due and waives any and all other notices or demand
requirements imposed by applicable law); (i) terminate this Lease in which
Tenant shall immediately surrender the Premises to Landlord; (ii) terminate
Tenant's right to occupy the Premises (without terminating this Lease); (iii)
enter upon the Premises and do whatever Tenant is obligated to do under the
terms of this Lease; and Tenant agrees to reimburse Landlord on demand for any
expenses which Landlord may incur in effecting compliance with Tenant's
obligations under this Lease; and (iv) exercise all other remedies available to
Landlord at law or in equity, including, without limitation, injunctive relief
of all varieties.
In the event Landlord elects to reenter or take possession of the Premises
after Tenant's default, Tenant hereby waives notice of such reentry or
repossession and of Landlord's intent to reenter or retake possession, Landlord
may, without prejudice to any other remedy which he may have for possession or
arrearages in rent, expel or remove Tenant and any other person who may be
occupying said Premises or any part thereof. All Landlord's remedies shall be
cumulative and not exclusive. Forbearance to enforce one or more of the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default, or of any future defaults, or
to limit Landlord's right to require strict compliance by Tenant with the
provisions of this Lease.
(c) Tenant hereby covenants that, prior to the exercise of any such
remedies, it will give the mortgagees holding mortgages on the Building notice
and a reasonable time to cure any default by Landlord provided Tenant has been
furnished with the name and address of such mortgagees.
(d) If this Lease is terminated by Landlord pursuant to the provisions of
Paragraph 27, Tenant shall pay to Landlord as damages, either:
(i) a sum which represents the then excess, if any, of (a) the
aggregate amount of the rental due and reserved hereunder from the date of
Tenant's default to the expiration date of the fully stated term hereof
over (b) the aggregate rental value of the Premises for the same period as
reduced by the estimated cost of reletting the Premises, including
attorneys' fees, commission, alterations and repair costs; or
(ii) sums equal to the rent which would have been payable by Tenant
had this Lease not been so terminated, or had Landlord not so reentered the
Premises, payable upon the due dates therefor specified herein, provided,
however, that if Landlord shall relet the Premises during said period,
Landlord shall credit Tenant with the net rents received by Landlord from
such reletting such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such reletting the
expenses incurred or paid by Landlord in terminating this Lease and/or in
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reentering the Premises and in securing possession thereof, as well as the
expenses of reletting, including, without limitation, altering and
preparing the Premises for new tenants, brokers' commissions, legal fees,
and all other expenses properly chargeable against the Premises and the
rental therefrom, it being understood that any such reletting may be for a
period shorter or longer than the remaining term of this Lease; but in no
event shall Tenant be entitled to a credit for any net rents from a
reletting, except to the extent set forth hereinabove.
In the event of such termination of this Lease by Landlord as set forth
above, Landlord shall make reasonable good faith efforts to mitigate its
damages, but "reasonable good faith efforts" shall be deemed to have been made
if Landlord includes the Premises within Landlord's customary marketing
activities for Landlord's other vacant space in the Building. Nothing contained
herein shall require Landlord to give priority or preference to re-letting the
Premises ahead of other vacant space (either in the Building or in other
Buildings) owned or controlled by Landlord or its affiliates.
28. Peaceful Enjoyment. Tenant shall, and may peacefully have, hold, and
enjoy the Premises, subject to the other terms hereof, provided that Tenant
pays the rent and other sums herein recited to be paid by Tenant and performs
all of Tenant's covenants and agreements herein contained. This covenant and
any and all other covenants of Landlord shall be binding upon Landlord and its
successors only with respect to breaches occurring during its or their
respective period of ownership of the Building.
29. Surrender of Premises. Upon termination of this Lease for any reason
whatsoever, Tenant shall surrender the premises and keys thereof to Landlord in
the same condition as at commencement of the term, natural wear and tear only
excepted. Should Tenant refuse or fail to surrender the Premises upon the
expiration of the lease term or earlier termination thereof, Tenant shall be a
tenant at sufferance and shall pay to Landlord on demand each month a sum equal
to 135% of the rent due hereunder during such holdover period; provided that
there shall be no renewal of this Lease by operation of law.
If Tenant remains in possession after the expiration of the term hereof
with Landlord's acquiescence and without any distinct agreement of parties,
Tenant shall be a tenant at will, and there shall be no renewal of this Lease
by operation of law. Notwithstanding the notice provision of O.C.G.A. Section
44-7-7, as the same may be now or hereafter amended, such tenancy at will may
be terminated upon sixty (60) days notice from Landlord.
30. Subordination, Estoppel, Attornment. This Lease shall be subject and
subordinate to any mortgage, deed to secure debt or other lien presently
existing or hereafter arising upon the Premises or upon the Building, or the
exterior Common Areas, and to any renewals, refinancing and extensions thereof
(each, a "Mortgage"). At the request of any successor to the title or interests
of Landlord, Tenant shall attorn to such successor. The subordination of this
Lease to any Mortgage, and the attornment of Tenant to the holder of any
Mortgagee, is conditioned upon an express agreement contained in such Mortgage,
or in a separate instrument to be recorded, that enforcement of such Mortgage
shall not terminate this Lease or disturb Tenant in the possession and use of
the Premises (except in the case where Tenant is in default beyond the period,
if any, provided in this Lease to remedy such default), that any party
succeeding to the interest of Landlord as a result of the enforcement of any
Mortgage shall be bound to Tenant, and Tenant shall be bound to it, under all
the terms, covenants, and conditions of this Lease for the balance of the term
of this Lease with the same force and
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50
effect as if such party were the original Landlord under this Lease; provided,
however, that such party shall not be liable (i) for any act or omission of any
prior landlord, or (ii) subject to any offsets or defenses which Tenant may
have had against any prior landlord, or (iii) bound by any monies which Tenant
might have paid for more than the current month's rent or any prepaid estimates
of the Excess to any prior landlord, or (iv) bound by any amendment or
modification of this Lease made without the prior written consent of the holder
of the Mortgage. Upon the request of Landlord, Tenant agrees to execute a
subordination, nondisturbance and attornment agreement incorporating the
provisions set forth above and otherwise in form reasonably acceptable to
Landlord and Tenant. Tenant agrees that it will from time to time upon request
by Landlord execute and deliver to such persons as Landlord shall request a
statement in recordable form certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as so modified), stating the dates to which rent and
other charges payable under this Lease have been paid, stating that Landlord is
not in default hereunder (or if Tenant alleges a default stating the nature of
such alleged default) and further stating such other matters as may be
reasonably requested.
31. No Implied Waiver. The failure of Landlord to insist at any time upon
the strict performance of any covenant or agreement or to exercise any option,
right, power or remedy contained in this Lease shall not be construed as a
waiver or a relinquishment thereof for the future. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly installment of rent due
under this Lease shall be deemed to be other than on account of the earliest
rent due hereunder, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
in this lease provided.
32. Security Deposit. [INTENTIONALLY OMITTED].
33. Notice. Any notice in this Lease provided for must be in writing, and
may be given or be served either by depositing the same in the United States
mail, postpaid and certified and addressed to the party to be notified, with
return receipt requested, or by actually delivering the same addressed to the
party to be notified at the address stated below or at such other address as may
from time to time be designated by addressee by notice given in accordance
herewith. Notice deposited in the mail in the manner hereinabove described shall
be deemed received upon the date of receipt as indicated on the return receipt.
In the event delivery by mail cannot be made or is refused, the date of mailing
shall be deemed to be the date of receipt of the notice.
34. Severability. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
35. Governing Law. This lease and the rights and obligations of the
parties hereto shall be interpreted, construed, and enforced in accordance with
the laws of the State of Georgia.
36. Force Majeure. Whenever a period of time is herein prescribed for the
taking of any action by Landlord,
13
51
Landlord shall not be liable or responsible for, and there shall be excluded
from the computation of such period of time, any delays due to strikes, riots,
fire, acts of God, shortages of labor or materials, war, governmental laws,
regulations or restrictions, or any other cause whatsoever beyond the control
of Landlord.
37. Time Of The Essence. Time is of the essence of this Lease.
38. Transfers By Landlord. Landlord shall have the right to transfer and
assign, in whole or in part, all its rights and obligations hereunder and in the
Building and property referred to herein, and in such event and upon such
transfer Landlord shall be released from any further obligations hereunder, and
Tenant agrees to look solely to such successor in interest of Landlord for the
performance of such obligations.
39. Commissions. Landlord and Tenant hereby indemnify and hold each other
harmless against any loss, claim, expense or liability with respect to any
commissions or brokerage fees claimed on account of the execution and/or renewal
of this lease due to any action of the indemnifying party.
40. Liability. Landlord shall have no personal liability with respect to
its obligations under this Lease. Tenant shall look solely to Landlord's equity
in the Building and exterior Common Areas for satisfaction of Tenant's remedies.
In no event shall Landlord's liability exceed such equity.
41. Hazardous Substances. Tenant shall not cause or permit any hazardous,
toxic or dangerous substances (as defined or described in any applicable
federal, state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to, or imposing liability or standards of conduct
concerning hazardous, toxic or dangerous substances) to be brought upon, kept or
used in or about the Premises or the Building. Tenant shall indemnify and hold
Landlord harmless from and against any and all claims, judgments, demands,
penalties, fines, losses and costs and expenses incurred by Landlord during or
after the term of this Lease as a result of such hazardous, toxic or dangerous
substances that Tenant causes or permits to be brought upon, kept or used in or
about the Premises or the Building during the term of this Lease. Landlord
represents to Tenant, to Landlord's actual knowledge and based solely upon
Landlord's review of its existing Phase I environmental audit of the Building
prepared by BCM, dated February 1991, that no radon, asbestos or other material
defined as hazardous under any existing applicable local, state or federal laws
or regulations as of the date hereof is contained within the Premises of the
Building or upon the land on which the Building is located.
42. Option With Respect To Basement Space. Tenant shall have the option to
lease from Landlord, commencing on November 1, 1994, approximately 5,230 square
feet of storage space in the basement of the Building at an annual rent of $5.00
per square foot of space for the then remaining term of this Lease. Such rent
shall be payable in advance in equal monthly installments in the same manner as
Base Rent is paid. Such option may be exercised by Tenant's giving written
notice to Landlord at any time on or before October 1, 1994. In the event Tenant
so exercises the option contained in this paragraph, Tenant shall have the right
at any time after November 1, 1994, by written notice to Landlord, to cancel
Tenant's use of such basement space upon no less than ninety (90) days prior
written notice to Landlord.
43. Satellite Dish. The provisions attached hereto as Exhibit "D" regarding
Tenant's satellite dish are incorporated herein by reference.
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52
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple counterparts each of which shall be deemed an original as of the day
and year first above written.
ADDRESS: LANDLORD:
c/o Lincoln Property Company LINCOLN P.C. ASSOCIATES
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: Lincoln Atlanta No. 8,
Attn: Property Manager Ltd., its general partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ III
-------------------------------
Title:
ADDRESS: TENANT:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
P.O. Box 500
Township Line & Union
Meeting Roads By: /s/ [ILLEGIBLE]
Blue ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ------------------------------------
Attn: Lease Administrator Title:
with a copy to: ATTEST:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ By: /s/ [ILLEGIBLE]
▇.▇. ▇▇▇ ▇▇▇ ------------------------------------
Township Line & Union Title: [ILLEGIBLE]
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ [CORPORATE SEAL]
Attn: Law Department
53
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE the First Amendment is entered into this ??th day
of ?? 1994 by and between ATLANTA ?? PARTNERS, LTD., a Georgia limited
partnership (the "Landlord"), successor to Lincoln P.C. Associates ("Lincoln
P.C.") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a Delaware corporation (the "Tenant").
W I T N E S S E T H
WHEREAS, Lincoln P.C. and Tenant entered into that certain lease agreement dated
September 1, 1991 (the Lease) whereby Lincoln P.C. leased to Tenant certain
premises consisting of approximately One Hundred Ten Thousand, One Hundred
Eight (110,108) rentable square feet of space (the "Premises"), a portion of
which consisted of certain space commonly known as Suite 410 (the "Suite 410
Space"), in the building located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Building") for a term commencing on September 1, 1991 and
expiring on August 31, 2001 (the "Term");
WHEREAS, Tenant has vacated the Suite 410 Space and is occupying space in lieu
thereof commonly known as Suite 260 of the Building, which space is depicted on
Exhibit "A" attached hereto and incorporated herein by this reference (the
"Suite 260 Space");
WHEREAS, Landlord and Tenant mutually desire to amend the Lease to reflect
Tenant's relocation from the Suite 410 Space to the Suite 260 Space, and to
amend certain terms of the Lease, as set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Relocation of Tenant. The Lease shall be amended to delete the Suite 410
Space from the Premises and to substitute in lieu thereof the Suite 260
Space as part of the Premises. Page (iii) of Exhibit "A" shall be deleted
from the Lease, and Exhibit "A" attached to this First Amendment shall be
substituted therefor. The square footage of the Premises shall remain the
same and Tenant's rental rate, except as otherwise provided below, shall
remain the same as set forth in the Lease.
2. Expansion Option. Paragraph 42 of the Lease shall be amended to reflect
that Tenant shall have the option (the "Expansion Option") to lease up to
Five Thousand, Two Hundred Thirty (5,230) square feet of space located in
the basement of the Building (the "Basement Space"). Tenant must comply
with the provisions of Paragraph 42 of the Lease regarding notification to
the Landlord should Tenant choose to exercise the Expansion Option. Tenant
is not required to lease the entire square footage of the Basement Space,
provided that (i) Tenant may not lease an amount of square footage or a
configuration which would leave the remaining Basement Space unusable by
Landlord; (ii) Tenant's exercise of the Expansion Option shall be
contingent upon Landlord's prior written approval of the proposed
configuration of the portion of the Basement Space which will be taken by
Tenant; and (iii) all costs, including labor and material, of constructing
any demising wall or other construction required in order to delineate
Tenant's chosen portion of the Basement Space shall be borne by Tenant.
Within fifteen (15) days after Tenant exercises the Expansion Option,
Tenant and Landlord shall execute an amendment to the Lease reflecting the
addition of the Basement Space to the Premises. Once Tenant has exercised
the Expansion Option, Tenant shall have no further option to lease any
additional portion of the Basement Space. All other provisions of Paragraph
42 shall remain in full force and effect. The term of Tenant's Lease of all
or any portion of the Basement Space shall expire upon expiration of the
Term of the Lease, unless sooner terminated by Tenant in accordance with
Paragraph 42 of the Lease. If Tenant does not exercise the Expansion Option
on or before October 1, 1994, it shall expire automatically.
3. Lease of Telephone Room. Effective November 1, 1994, and ending August 31,
2001, the Premises shall be expanded to include additional space consisting
of 632 rentable square feet of space located in Suite 120 of the Building
(the "Telephone Room"). Exhibit "B" attached to this First Amendment
depicts Suite 120, the Telephone Room. The rental rate for the Telephone
Room shall be $12.00 per rentable square foot, resulting in an annual
payment of Seven Thousand, Five Hundred Eighty-four Dollars ($7,584.00)
(the "Additional Rent"), which may be paid in monthly installments of Six
Hundred Thirty-two Dollars ($632.00). The monthly installments of
Additional Rent shall be due and payable in addition to Tenant's monthly
installment of base rental, in conformance with the terms and conditions of
Paragraph 2 of the Lease. With the exception of the calculation of rent
owed by Tenant for the Telephone Room, Tenant's lease of the Telephone Room
will be subject to all terms and conditions of the Lease. Tenant accepts
the Telephone Room in its "as is" present condition.
4. Entire Agreement. This First Amendment contains the entire agreement of
Landlord and Tenant with respect to the matters addressed herein.
5. Lease in Effect. Except as provided herein, all other terms and conditions
of the Lease shall continue in full force and effect.
54
IN WITNESS WHEREOF, the parties hereto have caused their respective and
authorized representatives to execute this First Amendment as of the date first
written above.
Landlord Tenant
ATLANTA U.K. PARTNERS, LTD. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
a Georgia limited partnership A Delaware corporation
By: The Travelers Insurance Company,
a Connecticut corporation, ?????
general partner
By: /s/ [Signature Illegible] By: /s/ ▇▇▇▇▇▇▇ ▇. L'ECUYER
------------------------------ -----------------------------
▇▇▇▇▇▇▇ ▇. L'▇▇▇▇▇▇
Title: Vice President Title: Corporate Director
------------------------------ Real Estate Operations
Attest: /s/ [Signature Illegible] ----------------------
-------------------------- Attest: /s/ [Signature Illegible]
-------------------------
Title: Assistant Secretary Title: Assistant Secretary
------------------- --------------------------
[CORPORATE SEAL] [CORPORATE SEAL]
55
EXHIBIT "A"
--------------------------------------------------------------------------------
LINCOLN PROPERTY COMPANY
ASHFORD PERIMETER
FLOOR 2
[DIAGRAM]
56
EXHIBIT "B"
--------------------------------------------------------------------------------
LINCOLN PROPERTY COMPANY
ASHFORD PERIMETER
FLOOR 1
[DIAGRAM]
57
Tenant Improvements. Tenant agrees to accept delivery of the Basement Space
in its then existing as is condition on the Occupancy Date. The parties
hereby agree that Landlord shall have no obligation to make any
improvements whatsoever to the Basement Space. Any improvements to the
Basement Space which Tenant may desire to make shall be made in strict
compliance with the ?? terms and conditions of the Lease, as previously
amended pertaining to Tenant's alterations to and modifications of the
premises. No improvements shall be made without Landlord's prior written
consent.
Notices. Any notice or other communication required or permitted to be
given under this Second Amendment must be in writing and shall be
effectively given or delivered, if hand delivered, to the addresses for the
parties stated below, or if sent by certified United States mail, return
receipt requested, or if sent by receipted overnight express service to
said addresses. Any notice mailed shall be deemed to have been received
upon the earlier of (a) actual receipt, (b) refusal thereof, or (c) three
(3) days after mailing same. Notice effected by hand delivery shall be
deemed ??????????????????.
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease (the "Second Amendment") is entered as of the
24th day of September, 1994 (the "Effective Date"), by and between ATLANTA U.K.
PARTNERS, LTD., a Georgia limited partnership (the "Landlord"), successor to
Lincoln P.C. Associates ("Lincoln P.C.") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a Delaware
corporation (the "Tenant")
WITNESSETH:
WHEREAS, Lincoln P.C. and Tenant entered into that certain lease agreement dated
September 1, 1991 the Lease whereby Lincoln P.C. leased to Tenant certain
premises consisting of approximately one hundred ten (110,108) rentable square
feet of space (the "Premises") in the building located at ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Building") for a term commencing on September
1, 1991 and expiring on August 31, 2001 (the "Term");
WHEREAS, Landlord and Tenant entered into that certain First Amendment to Lease
dated August 5, 1994 (the "First Amendment"), whereby the Lease was amended to
reflect Tenant's relocation from Suite 410 of the Building to Suite 260 of the
Building and Tenant was offered an Expansion Option to expand into basement
space in the Building;
WHEREAS, Landlord and Tenant mutually desire to expand Tenant's Premises to
include five thousand, two hundred thirty (5,230) rentable square feet of space
located in the Basement of the Building (the "Basement Space"), pursuant to
Paragraph 42 of the Lease and the First Amendment;
NOW THEREFORE, in consideration of their respective covenants and agreements as
hereinafter set forth, the parties hereto do mutually covenant and agree with
each other as follows:
1. Basement Space. Effective November 1, 1994 (the "Occupancy Date"), Tenant
shall lease from Landlord the Basement Space, as depicted on Exhibit "A"
which is attached hereto and incorporated herein by this reference. The
Basement Space shall become part of the Premises, and all terms and
conditions of the Lease, as amended, shall apply to the Basement Space.
2. Termination Date. Tenant's right to use and occupy the Basement Space shall
terminate on August 31, 2001 (the "Termination Date"), unless sooner
terminated by Tenant in accordance with the terms of Paragraph 8 of this
Second Amendment.
3. Rentable Square Feet. Effective on the Occupancy Date, Paragraph 1 of the
Lease shall be amended by substituting the definition set forth below for
the existing definition in the Lease:
58
Entire Agreement. This Second Amendment contains the entire agreement by and
between the parties relating to the subject matter hereof and supersedes all
prior negotiations and agreements relating thereto.
Governing Law. This Second Amendment shall be construed in accordance with and
governed by the laws of the state of Georgia.
IN WITNESS WHEREOF the parties hereunto set their hands and affixed their seals
effective date and year first written above.
LANDLORD TENANT
ATLANTA V. K. PARTNERS, LTD., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
a Georgia limited partnership a Delaware corporation
By The Travelers insurance Company, a By /s/ ▇▇▇▇▇▇▇ ▇. L'ECUYER
Connecticut corporation, its sole -----------------------------
general partner ▇▇▇▇▇▇▇ ▇. L'▇▇▇▇▇▇
Title: Corporate Director
------------------------
Real Estate Operations
By /s/ [Signature Illegible] Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------- ------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President Title: Assistant Secretary
--------------------------- ------------------------
[CORPORATE SEAL]
Attest: /s/ [Signature Illegible]
Title: Assistant Secretary
---------------------------
[CORPORATE SEAL]
-3-
59
THIRD AMENDMENT TO LEASE
This Third Amendment to Lease (the Third Amendment) is entered into this 26th
day of January 1995, by and between ATLANTA U.K. PARTNERS, LTD., a Georgia
limited partnership and Landlord, successor ???? and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a
Delaware corporation (the Tenant).
WITNESSETH
WHEREAS, Lincoln P.C. and Tenant entered into that certain lease agreement dated
September 1, 1991 (the "Lease") whereby Lincoln P.C. leased to Tenant certain
premises consisting of approximately one hundred ten thousand, one hundred
eight (110,108) rentable square feet of space (the "Premises"), a portion of
which consisted of certain space commonly known as Suite 399, in the building
located at ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Building")
for a term commencing on September 1, 1991 and expiring on August 21, 2001 (the
"Term").
WHEREAS, Landlord and Tenant entered into that certain First Amendment to Lease
dated August 5, 1994, whereby the Lease was amended to reflect Tenant's
relocation from Suite 410 of the Building to Suite 260 of the Building;
WHEREAS, Landlord and Tenant entered into that certain Second Amendment to
lease dated September 27, 1994, whereby the Lease was amended to reflect
Tenant's lease extension of the basement space in accordance with Paragraph 42
of the Lease and by the First Amendment to lease dated August 5, 1994.
WHEREAS, Landlord and Tenant mutually desire to terminate Tenant's rights to
Suite 399 of the Building, consisting of approximately seven thousand, three
hundred seventy-six rentable square feet (7,376) (the "Relinquished Space"),
effective January 31, 1995 (the "Terminate Date"), as is more particularly
described herein;
WHEREAS, Landlord and Tenant mutually desire to amend the Lease to expand
Tenant's Premises to include ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ of the Building;
NOW THEREFORE, in consideration of their respective covenants and agreements as
hereinafter set forth, the parties hereto do mutually covenant and agree with
each other as follows:
1. Termination Date. Tenant shall surrender possession of the Relinquished
Space effective as of 11:59 p.m. on the Termination Date. Tenant shall be
obligated for the payment of rent and all other charges as provided in the
Lease which accrue up to the Termination Date.
2. Surrender of the Relinquished Space. Effective on the Termination Date, all
rights of Tenant to the Relinquished Space, including, but not limited to,
Tenant's rights to use and occupy the Relinquished Space, are terminated.
Tenant shall surrender possession of the Relinquished Space to Landlord on
or before 11:59 p.m. on the Termination Date, in compliance with Paragraph
29 of the Lease. Tenant shall surrender the Relinquished Space unto
Landlord in the same condition as received, broom-clean and free of debris,
ordinary wear and tear excepted.
3. First Expansion Space. Effective February 1, 1995 (the "First Expansion
Date"), the Premises shall be expanded to include Suite 575 of the Building
(the "First Expansion Space"). The First Expansion Space is depicted on
Exhibit "A" which is attached hereto and incorporated herein by reference.
The First Expansion Space shall become part of the Premises and all terms
and conditions of the Lease, as amended, shall apply to the First Expansion
Space.
4. Second Expansion Space. Effective March 1, 1995 (the "Second Expansion
Date"), the Premises shall be expanded to include Suite 525 of the Building
(the "Second Expansion Space"). The Second Expansion Space is depicted on
Exhibit "B" which is attached hereto and incorporated herein by reference.
The Second Expansion Space shall become part of the Premises and all terms
and conditions of the Lease, as amended, shall apply to the Second
Expansion Space.
5. As Is. Tenant agrees to accept ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ "as is." Landlord
will construct for Tenant a cased opening connecting Tenant's existing
Premises with Suite 525 prior to delivery of the Premises. Landlord shall
have no obligation to make any other improvements to either suite.
6. Base Rental. Tenant's Base Rental obligation under the Lease shall remain
unmodified irrespective of any increase or decrease in Tenant's total
square footage created by Tenant a surrender of the Relinquished Space and
Tenant's expansion into the First Expansion Space and the Second Expansion
Space. Tenant will, however, receive a rent abatement equal to $5,712.06
per month for each month
60
beyond February 1, 1995 that Landlord delays in delivering the Second
Expansion Space to Tenant. The Premises shall be deemed delivered upon
written notification by Landlord that the Second Expansion Space is ready
for occupancy. Both Tenant's Monthly Rent and Annual Rent, as specified in
Paragraph ?? of the Lease for Lease Years 4 through 10, shall remain the
same, except for the abatement stated in this section.
Rentable Square Feet. Tenants' Approximate Rentable Square feet within
the Premises, as set forth in Paragraph 1 of the Lease, shall remain
unmodified irrespective of any increase or decrease in Tenant's total
square footage created by Tenant's surrender of the Relinquished Space and
Tenant's expansion into the First Expansion Space and the Second Expansion
Space.
Lease in Effect. Except as expressly amended herein, all terms and
conditions of the Lease shall remain in full force and effect, and the
Lease, as modified and amended, is hereby ratified and affirmed by
Landlord and Tenant.
Entire Agreement. This Third Amendment supersedes any and all prior
discussions and agreements, either oral or written, by and between
Landlord and Tenant with respect to the Relinquished Space, and this Third
Amendment contains the sole and entire agreement between Landlord and
Tenant with respect to the Relinquished Space.
10. Governing Law. This Third Amendment shall be construed in accordance with
and governed by the laws of the State of Georgia.
IN WITNESS WHEREOF the parties hereunto set their hands and affixed their seals
effective the date and year first written above.
LANDLORD TENANT
ATLANTA U.K. PARTNERS, LTD. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.
a Georgia limited partnership a Delaware corporation
By: The Travelers Insurance Company, a By: /s/ ▇▇▇▇▇▇▇ ▇. L'ECUYER
Connecticut corporation, its sole ------------------------------
general partner ▇▇▇▇▇▇▇ ▇. L'▇▇▇▇▇▇
By: /s/ [Signature Illegible] Title: Corporate Director
---------------------------------- --------------------------
Real Estate Operations
Title: Director WITNESS: /s/ [Signature Illegible]
------------------------------- --------------------------
Title: REGIONAL DIRECTOR
Attest: /s/ [Signature Illegible]
------------------------------
Title: Assistant Secretary
------------------------------
[CORPORATE SEAL]
-2-
61
EXHIBIT "A"
First Expansion Space
[FLOOR PLAN]
Third Amendment to Lease to be entered into by, between and among ATLANTA U.K.
PARTNERS, LTD., a Georgia limited partnership, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a
Delaware Corporation.
62
EXHIBIT "B"
Second Expansion Space
[FLOOR PLAN]
Third Amendment to Lease to be entered into by, between and among ATLANTA U.K.
PARTNERS, LTD., a Georgia limited partnership, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, a
Delaware Corporation.
63
EXHIBIT "A"
Basement Space
[FLOOR PLAN]
SECOND AMENDMENT TO LEASE BY AND BETWEEN ATLANTA U.K. PARTNERS, LTD., A GEORGIA
LIMITED PARTNERSHIP, SUCCESSOR TO LINCOLN P.C. ASSOCIATES, AND ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, A DELAWARE CORPORATION.
64
EXHIBIT A
[FLOOR PLAN]