Exhibit 10.4
RADIANT SYSTEMS, INC.
LEASE AGREEMENT
TABLE OF CONTENTS
SECTION PAGE
1 LEASED PREMISES..................................................1
2 TERM.............................................................1
3 RENTAL...........................................................1
4 DELAY IN DELIVERY................................................6
5 USE OF LEASED PREMISES...........................................7
6 UTILITIES........................................................8
7 LANDLORD OBLIGATIONS.............................................9
8 ALTERATIONS, MECHANICS' LIENS...................................10
9 WASTE AND QUIET CONDUCT.........................................11
10 FIRE INSURANCE, HAZARDS.........................................11
11 INDEMNIFICATION.................................................11
12 WAIVER OF CLAIMS................................................12
13 SIGNS, LANDSCAPING..............................................12
14 ENTRY BY LANDLORD...............................................13
15 INSURANCE.......................................................13
16 ABANDONMENT.....................................................14
17 DESTRUCTION.....................................................15
18 ASSIGNMENT AND SUBLETTING.......................................16
19 INSOLVENCY OF TENANT............................................17
20 BREACH BY TENANT................................................17
21 ATTORNEYS' FEES/COLLECTION CHARGES..............................20
22 CONDEMNATION....................................................20
23 NOTICES.........................................................21
24 WAIVER..........................................................21
25 EFFECT OF HOLDING OVER..........................................22
26 SUBORDINATION...................................................22
27 ESTOPPEL CERTIFICATE............................................22
28 PARKING.........................................................23
29 MORTGAGEE PROTECTION............................................23
30 RULES AND REGULATIONS...........................................23
31 BROKERAGE COMMISSIONS...........................................23
32 DELAYS..........................................................24
33 MISCELLANEOUS PROVISIONS........................................25
EXHIBITS:
EXHIBIT "A": Legal Description of the Land
EXHIBIT "B": Description of Brookside Office Park
EXHIBIT "C": Estimated Operating Expenses
EXHIBIT "D": Construction Schedule
EXHIBIT "E": Subordination, Non-disturbance, Attornment
Agreement
EXHIBIT "F": Base Building Project Plans and Specifications
EXHIBIT "G": Management Specifications
EXHIBIT "H": Special Stipulations
EXHIBIT "I": Land Option Agreement
EXHIBIT "J": The Additional Building
EXHIBIT "K": Work Letter Agreement
EXHIBIT "L": Location of Jogging Trail
EXHIBIT "M": Example of Rental Rate Calculation
STATE OF GEORGIA
GWINNETT COUNTY
THIS LEASE AGREEMENT, made this 7th day of October, 1997, by
and between WEEKS REALTY, L.P., hereinafter referred to as
"Landlord", and RADIANT SYSTEMS, INC., hereinafter referred to as
"Tenant";
ARTICLE I
PREMISES
1.01 Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, the property hereinafter referred to as the
LEASED PREMISES, described as: (i) an office building (the
"Building") containing approximately 106,631 rentable square feet
(and 102,043 usable square feet) of office and warehouse space in
Brookside Office Park, ▇▇▇▇▇▇ County, Georgia, which Building is
to be constructed by Landlord for Tenant, at Landlord's sole cost
and expense, in accordance with the Approved Plans and
Specifications (as hereafter defined), and (ii) the land on which
the Building is to be located (the "Land") as more particularly
described on Exhibit "A" attached hereto and by this reference
incorporated herein. The Land is a part of that certain office
park to be known as Brookside Office Park (the "Office Park"),
said Office Park being shown on Exhibit "B" attached hereto and
made a part hereof. (The Building and Land are sometimes
collectively referred to as the "Leased Premises").
ARTICLE II
TERM
2.01 TO HAVE AND TO HOLD said Leased Premises for a term
commencing upon Substantial Completion of construction of the
Leased Premises (hereafter defined) (hereinafter referred to as
the "Commencement Date") and continuing for a period of ten (10)
years, (provided that if the Commencement Date is not the first
day of a calendar month, the term of this lease shall continue
until the last day of the calendar month in which the 10th
anniversary of the Commencement Date occurs) upon the terms,
conditions, and covenants contained herein. "Substantial
Completion" shall mean completion of construction
of the Leased Premises in accordance with the Approved Plans and
Specifications, subject only to normal punchlist items and
completion of all off-site improvements reasonably necessary for
Tenant's occupancy of and operation of its business within the
Leased Premises, including, but not limited to, all roadways and
utility lines. It is understood and agreed by Landlord and
Tenant that in order to achieve Substantial Completion the only
permitted incomplete or defective punchlist items must be those
which shall, if taken either individually or in the aggregate, do
not materially or substantially interfere with Tenant's taking
possession of, moving its personal property and effects into, or
using and enjoying the Leased Premises for the purposes for which
it was intended. Landlord agrees to provide to Tenant at least
thirty (30) days prior written notice of the date on which it
expects to achieve Substantial Completion.
ARTICLE III
RENTAL
3.01 As rental for the Leased Premises, Tenant agrees to
pay to Landlord, without offset or abatement, except as might
otherwise be specifically provided for hereunder to the contrary,
base rental as set forth below:
Years 1-5 $134,149.08/month $1,609,789.00/year
Years 6-10 $150,247.00/month $1,802,964.00/year
due on or before the first day of each calendar month
beginning on the Commencement Date and thereafter for the
remainder of the term, together with any other additional rental
as hereinafter set forth. Notwithstanding the foregoing, in the
event the Commencement Date occurs on or before July 17, 1998,
then, in such event, Base Rental shall not be due and payable
hereunder until said July 17, 1998 date. Tenant shall pay
interest at a rate of twelve percent (12%) per annum on any
payment of rent remaining due five (5) days after the due date
thereof. Tenant has deposited with Landlord, upon delivery of
this Lease Agreement, an amount equal to One Hundred Thirty-three
Thousand Two Hundred Eighty-nine and 97/100 Dollars
($133,289.97), which is to be applied as first month's rental.
If the Commencement Date of this Lease shall be a date other than
the first day of a calendar month, applicable rent for such month
shall be prorated on a daily basis, based on the number of days
in such month.
3.02 In addition to the Base Rental payable by Tenant in
accordance with Paragraph 3.01 of this Lease, Tenant shall pay
monthly to Landlord on the same due date as the Base Rental the
sum (hereinafter referred to as the "Additional Rent") calculated
in accordance with the following:
(a) As used in this Lease, the following definitions shall
apply:
(i) "Calendar Year" shall mean any period during the Term of this
Lease commencing on January 1 and ending on the next following
December 31.
(ii) "Building" shall mean the Land and the Building and other
structures, improvements, fixtures and appurtenances now or
hereafter placed, constructed or erected thereon.
(iii) "Pro Rata Share" shall equal one hundred percent (100%);
provided, however, that in the event that the amount of space
leased by Tenant shall increase or decrease subsequent to the
Commencement Date of the Term, whether pursuant to an option to
expand or otherwise, the Pro Rata Share shall be appropriately
adjusted by Landlord.
(iv) "Operating Expenses" shall mean any and all costs, expenses
and disbursements of every kind and character (subject to the
limitations set forth below) which Landlord shall incur, pay or
become obligated to pay in connection with the ownership of any
estate or interest in the Building or the operation, maintenance,
repair, and security of the Building and which are typically
passed through to tenants by landlords of like kind space in the
northern corridor of the Atlanta, Georgia metropolitan area and
which are determined in accordance with generally accepted
accounting principles consistently applied, including, but not
limited to, the following:
(A) Wages and salaries of all employees engaged in the
operation, repair, maintenance, and security of the
Building, including taxes, insurance and benefits relating
thereto.
(B) All supplies and materials used in the operation,
maintenance, repair, and security of the Building.
(C) Cost of all maintenance and service agreements on
equipment, including alarm service, window cleaning and
elevator maintenance.
(D) Cost of casualty, liability and other insurance
applicable to the Building or Landlord's personal property
used in connection therewith.
(E) All taxes and assessments and governmental charges,
whether federal, state, county or municipal, and whether
they be by taxing districts or authorities presently taxing
or by others, subsequently created or otherwise, and any
other taxes and assessments imposed upon or attributable to
the Building, its operation or the Base Rental or Additional
Rent without reference to other income of the Landlord.
(F) Cost of repairs, and general maintenance of the
Building.
(G) Cost of service or maintenance contracts with
independent contractors for the operation, maintenance,
repair, replacement, or security of the Building.
(H) Cost of maintaining accounting books and records.
(I) Costs of contractual management fees and other costs
directly related to the on-site management of the Building.
(J) Cost of janitorial services, trash, garbage, snow and
ice removal; servicing, replacing, equipping and maintenance
of all electrical, security and fire alarms, fire pumps,
sprinkler systems and fire extinguishers and hose cabinets;
painting; window cleaning and landscaping and gardening.
(K) Capital expenditures required by any governmental or
regulatory authority, or fire and safety equipment, and
capital expenditures for energy related equipment only to
the extent of savings resulting therefrom. Said capital
expenditures shall be amortized over their useful life and
shall only be passed through on an annualized basis.
(L) All costs, expenses or assessments levied, assessed or
imposed on the Leased Premises by, or at the direction of,
any entity or group authorized by the Protective Covenants
to make such assessments or levy such costs in connection
with the Leased Premises
Specifically excluded from the definition of the term "Operating
Expenses" are expenses for repairs, replacements and general
maintenance to the extent paid by proceeds of insurance or by
Tenant or other third parties and alterations attributable solely
to tenants of the Building other than Tenant; expenses for
repairs, replacements or maintenance to the extent same are to be
paid for solely by Landlord pursuant to the provisions of Article
VII hereof; interest, amortization or other payments on loans to
Landlord whether secured or unsecured; depreciation of the
Building; leasing commissions; legal expenses; salaries of
officers, executives, employees and agents not directly involved
in the on-site operation of the Building; and state, federal or
local income taxes, excess profits or franchise taxes or other
such taxes imposed on or measured by or determined from the gross
income of Landlord.
(b) Commencing on the first anniversary of the Commencement
Date and continuing thereafter during each Calendar Year of the
term of this Lease, Tenant shall pay to Landlord increases in
Operating Expenses above: the greater of (i) $3.29 per square
foot of rentable area in the Building, said amount being based
upon the estimated Operating Expense amounts provided by Landlord
to Tenant as set forth on Exhibit "C" attached hereto and
incorporated herein by reference, or (ii) the Operating Expenses
for the first full year during which the Building is fully
operational (hereinafter the "Base Amount"). Tenant shall pay to
Landlord, as additional rent, its Pro Rata Share of the amount of
such increase in equal monthly installments along with its Base
Rental payments. Notwithstanding the provisions of this Section
3.02, in no event shall any increase in the Operating Expenses
attributable to increases in all costs except taxes and insurance
exceed a 5% per annum increase over Operating Expenses for the
immediately preceding Calendar Year. Tenant shall in any event
be responsible for the payment of all increases in the costs of
taxes and insurance over the Base Amount.
(c) On or before December 31st of each Calendar Year during
the Term, or as soon thereafter as practicable, Landlord shall
give Tenant written notice of its estimate of the Additional Rent
for the next ensuing Calendar Year, which estimate shall break
down each component of the Operating Expenses into the same
categories and shall otherwise be in the same format as shown on
Exhibit "C". Commencing in the first (1st) month of the ensuing
Calendar Year, or as soon thereafter as Landlord shall invoice
Tenant, Tenant shall pay to Landlord one-twelfth (1/12) of such
estimated Additional Rent. If notice of
Landlord's estimate of Additional Rent is not given prior to December
31, during the next Calendar Year Tenant shall continue to pay the
monthly payment based on the Additional Rent computed for the previous
Calendar Year until the month after such notice is given. In relation
to the foregoing and by way of example, if, as anticipated, the
Commencement Date falls in July of 1998, then, in such event, Landlord
would provide Tenant notice of Landlord's estimate of Tenant's Pro
Rata Share of Operating Expenses for the months August, 1999 through
December, 1999 on or about December 31, 1998; however, Tenant would
not be obligated to pay such Pro Rata Share until August, 1999, at
which time the Base Amount will have been established. Furthermore,
in the event of such a July, 1998 Commencement Date, Tenant's Pro Rata
Share for the partial year running from August, 1999 through December,
1999 would be reconciled during the first three (3) months of the year
2000.
(d) Within ninety (90) days after the close of each Calendar
Year, Landlord shall deliver to Tenant a final statement of the
Additional Rent for the immediately preceding Calendar Year and
such statement shall be final and binding upon Landlord and
Tenant, absent manifest error as determined by a Tenant audit of
same. If such statement shows an amount owing by Tenant that is
less than the payments actually made by the Tenant for the
immediately preceding Calendar Year, Tenant shall be credited for
such excess against the next monthly payments of Additional Rent.
If such statement shows an amount owing by the Tenant that is
more than the payments actually made by the Tenant for the
immediately preceding Calendar Year, Tenant shall pay the
deficiency to Landlord within thirty (30) days after delivery of
the statement.
(e) Tenant will be entitled from time to time, at its sole
cost and expense, to audit and verify the operations of the
Building and the related books and records of Landlord to assure
that the operating expenses from time to time reported by
Landlord are in keeping with the provisions of this paragraph.
As to any calendar year, any undertaking by Tenant must be
initiated before the end of the following calendar year; and
absent fraud or gross negligence on Landlord's part, the
operating expenses as timely reported by Landlord for the
calendar year will be deemed controlling upon the expiration of
Tenant's audit and verification rights for such calendar year.
In the event of any errors, the appropriate party will make a
correcting payment in full to the other party within thirty (30)
days after the determination and communication to all parties of
the amount of such error. Notwithstanding any other
language contained herein to the contrary, in the event of any errors
on the part of Landlord in excess of 7.5% of Tenant's actual
Operating Expenses liability for that Calendar Year, Landlord
will also reimburse Tenant for all costs of the audit and
verification reasonably, and actually incurred by Tenant.
(f) Landlord agrees to manage the Leased Premises based upon
the management specifications as outlined in Exhibit "G".
Notwithstanding any provisions contained herein to the contrary,
Landlord acknowledges and agrees that it will, at all times, at a
minimum, manage and operate the Leased Premises in accordance
with the standards then generally met by landlords of first class
office parks located in the northern corridor of the metropolitan
Atlanta, Georgia area. Tenant shall be given the opportunity to
actively participate in management procedure and policy decisions
which directly relate to Operating Expenses for the Leased
Premises, and, in relation thereto, Landlord agrees to consider
in good faith all recommendations of Tenant related thereto.
3.03 Landlord shall provide the allowances as set forth in
the Work Letter Agreement, attached hereto and incorporated
herein by reference as Exhibit "K".
3.04 Tenant agrees to pay as additional rent to Landlord,
upon demand, its pro rata share of any utility surcharges, or any
other costs levied, assessed or imposed by, or at the direction
of, or resulting from statutes or regulations, or interpretations
thereof, promulgated by any Federal, State, Municipal or local
governmental authorities in connection with the use or occupancy
of the Leased Premises.
3.05 Tenant recognizes that the Leased Premises are subject
to the Protective Covenants (as defined below) and that the
Protective Covenants provide, among other things, for the
imposition of assessments and other charges against the Leased
Premises and the Land. In relation thereto, Landlord agrees to
pay all such charges and assessments, however, such charges and
assessments will constitute a portion of the Operating Expenses
as provided for in Section 3.02(a) hereof. Further in relation
thereto, Tenant may, within the time and in the manner prescribed
by the Protective Covenants for such purpose, in its own name and
behalf or, if necessary or appropriate in order to perfect such
challenge, in the name and on behalf of Landlord, challenge the
amount, validity or applicability of any such costs, expenses or
assessments (an "Assessment Protest"); provided that (a) Tenant
shall pay any such cost, expense or assessment under protest,
prior to delinquency, if any such
Assessment Protest does not suspend the collection thereof from any
party, and (b) no portion of the Leased Premises or any rentals
payable hereunder or Landlord's title or interest therein would be in
any danger of being sold, forfeited, interrupted or lost as a result
of such Assessment Protest. Tenant shall prosecute any Assessment
Protest with due diligence and continuity. Tenant shall provide
Landlord with copies of any application, petition or other
pleading filed in connection with any Assessment Protest before
filing. Landlord may join with Tenant in making any such
application, petition or other pleading, retain co-counsel,
attend hearings, present evidence and arguments, and generally
participate in the conduct of the Assessment Protest. If and to
the extent that Landlord is requested in writing to do so by
Tenant, Landlord agrees to cooperate with Tenant in good faith in
connection with any Assessment Protest undertaken by Tenant,
provided Tenant promptly reimburses Landlord for any expense in
connection therewith. Subject to Landlord's right to
reimbursement as set forth below, Tenant shall be entitled to
receive and retain any refund of any costs, expense or
assessments obtained by Tenant, to the extent such cost, expense
or assessment was paid by Tenant under this paragraph 3.05.
Nothing contained in this paragraph 3.05 shall limit or restrict
Landlord's right to undertake any Assessment Protest with respect
to the Leased Premises. Any reduction in or refund of any such
costs, expenses or assessments previously paid by Tenant obtained
by Landlord shall be applied first to Landlord's costs and
expenses in conducting such Assessment Protest, with the balance
refunded to Tenant in the manner described above, and in the
event of a reduction in any such costs, expenses and assessments
not yet paid by Tenant, Tenant shall reimburse Landlord, within
thirty (30) days of receipt of Landlord's invoice therefor, for
Landlord's costs and expenses in conducting such Assessment
Protest, up to the amount of the reduction obtained. In the
event Tenant undertakes or files any Assessment Protest in the
name of Landlord, Tenant shall promptly provide Landlord written
notice thereof, and Tenant acknowledges that Tenant's use of
Landlord's name shall be subject to the indemnification of
Landlord contained in Article 12 hereof. Tenant shall give
Landlord five (5) days advance written notice of any such use of
Landlord's name.
"Protective Covenants" means the Initial Declaration of
Covenants, Conditions and Restrictions for the Office Park which
shall be recorded in the ▇▇▇▇▇▇ County, Georgia records, as might
thereafter be amended.
3.06 In the event Landlord elects not to file a tax protest
(a "Tax Protest"), Tenant may, within the respective times and in
the manner prescribed by law for such purposes, in its own name
and behalf or, if necessary or appropriate in order to perfect
such petition, in the name and on behalf of Landlord, petition
for reduction of the assessed valuation of the Building and Land,
claim a refund of real estate taxes or assessments or otherwise
challenge the amount, validity or applicability of any real
estate tax or assessment pertaining to the Leased Premises.
Tenant shall prosecute any Tax Protest with due diligence and
continuity. If and to the extent that Landlord is requested to
do so by Tenant, Landlord agrees to cooperate with Tenant in good
faith in connection with any Tax Protest undertaken by Tenant,
provided Tenant promptly reimburses Landlord for any expense in
connection therewith.
ARTICLE IV
DELAY IN DELIVERY OF POSSESSION
4.01 Attached hereto as Exhibit "D" is a schedule of
construction of the Leased Premises, including the dates by which
Tenant must make certain decisions regarding the Leased Premises
(hereinafter referred to as the "Construction Schedule").
Landlord and Tenant shall use their diligent good faith efforts
to ensure construction of the Leased Premises remains on schedule
in accordance with the Construction Schedule, provided, however,
that in no event shall the failure of Landlord to cause
Substantial Completion to occur on or before the scheduled
completion date, constitute a default by Landlord under this
Lease. In the event of any delay in Substantial Completion of
the Leased Premises caused by Tenant Delays (hereafter defined),
the Commencement Date (for purposes of Tenant's obligation to
commence the payment of rent and for purposes of fixing the lease
term) shall be the date on which Substantial Completion would
have occurred but for such delay.
4.02 Landlord acknowledges and agrees that it is of
critical importance to Tenant that Landlord (i) shall have
completed all aspects of the Base Building Improvements and
Tenant Improvements as necessary to enable Tenant to begin its
Tenant fixturing by June 26, 1998 (the "Tenant Fixturing Date"),
and (ii) shall have achieved Substantial Completion, as herein
defined, by July 17, 1998 (the "Target Substantial Completion
Date"). Accordingly, Landlord agrees that Landlord shall be
liable to Tenant for any and all damages suffered by Tenant as a
result of Landlord's failure to meet such construction deadlines,
except to the extent such failure is due to Tenant
Delays or Excusable Delays. Notwithstanding the foregoing damages, in
the event the completion of the required work by Landlord is so
delayed for thirty (30) days or less following said Tenant
Fixturing Date or Target Substantial Completion Date (whichever
is applicable), said damages shall be limited to one-half (1/2)
of the total holdover rent paid by Tenant to Tenant's current
landlord (estimated at $62,500.00), and in the event completion
of the required work is so delayed for more than thirty (30) days
following said Tenant Fixturing Date or Target Substantial
Completion Date (whichever is applicable), said damages shall be
limited to an additional One Hundred Fifty Thousand Dollars
($150,000.00). Furthermore, in addition to Landlord's liability
for such damage amounts, Tenant shall be entitled to a credit
against future rent equal to the number of days by which the work
necessary to achieve Substantial Completion remains incomplete
following the Target Substantial Completion Date for any reason
other than Tenant Delays or Excusable Delays.
4.03 In the event the Substantial Completion has not
occurred by November 14, 1998, as such date has been extended for
Excusable Delays and Tenant Delays, or, in the event Substantial
Completion has not occurred by March 14, 1999, as such date has
been extended for only Tenant Delays, then, in either said event,
Tenant shall have the right to terminate this Lease by giving
Landlord five (5) days written notice, whereupon neither party
shall have further liability to the other hereunder except as
provided for in Section 4.02 above.
ARTICLE V
USE OF LEASED PREMISES
5.01 The Leased Premises may be used and occupied only for
general manufacturing and assembly, testing, warehousing and
distribution, showroom and offices and such other uses as are
incidental thereto and customary in connection therewith, and for
no other purpose or purposes, without Landlord's prior written
consent. Tenant shall promptly comply at its sole expense with
all laws, ordinances, orders, and regulations affecting the
Leased Premises which are applicable as a result of Tenant's
specific use of the Leased Premises. Tenant shall not, without
prior written notice to Landlord, do or permit anything to be
done in or about the Leased Premises that will in any way
increase the insurance premiums due for fire insurance upon the
Building. Tenant shall be solely responsible for all increases
in fire insurance premium amounts resulting from Tenant's
specific use of the Building. Tenant
will not perform any act or carry on any practices that may injure the
building or be a nuisance to owners or occupants of adjoining
premises. Tenant shall not cause, maintain or permit any outside
storage on or about the Leased Premises, including pallets or other
refuse. No area outside of the Leased Premises shall be used by
Tenant for storage without Landlord's prior written consent. The rear
loading areas of the Tenant's unit must be clean and unobstructed.
Tenant shall, at Tenant's sole cost and expense, comply fully with all
environmental laws and regulations, and all other legal requirements,
applicable to Tenant's operations at, on or within, or to Tenant's use
and occupancy of, the Leased Premises. On or before the Commencement
Date, Tenant shall take possession of the Leased Premises and operate
thereon the normal business operations of Tenant.
5.02 Tenant shall not (either with or without negligence)
cause or permit the escape, disposal or release of any
biologically or chemically active or other hazardous substances
or materials, except in such manner as allowed under all
applicable laws, rules and regulations. Tenant shall not allow
the storage or use of such substances or materials in any manner
not sanctioned by law or by the highest standards prevailing in
the industry for the storage and use of such substances or
materials, nor allow to be brought into the Leased Premises any
such materials or substances except to use in the ordinary course
of Tenant's business, and then only after written notice is given
to Landlord of the identity of such substances or materials.
Without limitation, hazardous substances or materials shall
include those described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq., the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any
applicable state or local laws and the regulations adopted under
these acts. If any lender or governmental agency shall ever
require testing of the Leased Premises to ascertain whether or
not there has been any release of hazardous materials, and such
testing is required as the result of a reasonable suspicion on
the part of such lender or governmental agency of a violation by
Tenant of its covenants hereunder, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as
additional rent. In addition, Tenant shall execute affidavits,
representations and the like from time to time at Landlord's
request concerning Tenant's best knowledge and belief regarding
the presence of hazardous substances or materials on the Leased
Premises. Tenant shall in the manner provided in Article 12
indemnify Landlord and hold Landlord harmless from and against
any and all claims, damages, fines, judgments, penalties, costs,
liabilities and losses (including, without limitation, any and
all sums paid for settlement of claims, attorneys' fees and
consultant and expert fees) arising from or in connection with
the presence or suspected presence of hazardous substances in or
on the Leased Premises resulting from the actions of Tenant of
those for whom Tenant is responsible at law or under this Lease,
except as a result of the acts or omissions of Landlord, its
agents, employees and contractors for which Landlord shall
indemnify Tenant and hold Tenant harmless in the manner provided
in paragraph 5.03 below. Without limitation of the foregoing,
these indemnifications shall include any and all costs incurred
due to any investigation of the site or any cleanup, removal, or
restoration mandated by a federal, state, or local agency or
political subdivision. The within covenants shall survive the
expiration or earlier termination of the lease term.
5.03 Landlord agrees to indemnify and hold harmless the
Tenant from any and all claims, damages, fines, judgments,
penalties, costs, liabilities, or losses (including without
limitation, any and all sums paid for settlement of claims,
attorneys' fees, consultant, and expert fees) from or in
connection with the presence of hazardous substances in or on the
Leased Premises as a result of the acts or omissions of Landlord,
its agents, employees and contractors. Without limitation of the
foregoing, this indemnification shall include any and all costs
incurred due to any investigation of the site or any cleanup,
removal, or restoration mandated by a federal, state, or local
agency or political subdivision as a result of the acts or
omissions of Landlord, its agents, employees and contractors.
ARTICLE VI
UTILITIES
6.01 Landlord shall not be liable in the event of any
interruption in the supply of any utilities unless and except to
the extent caused by the actions or inactions of Landlord or
those for whom Landlord is responsible at law. Notwithstanding
the foregoing, Landlord agrees to use all reasonable efforts to
aid Tenant in having any such interrupted utility restored in an
expeditious manner. Tenant agrees that it will not knowingly
install any equipment which will exceed or overload the capacity
of any utility facilities and that if any equipment installed by
Tenant shall require additional utility facilities, the same
shall be installed by Tenant at Tenant's expense in accordance
with plans and specifications approved in writing by Landlord.
Tenant shall be solely responsible for and shall pay all charges
for use or consumption of sanitary sewer, water, gas,
electricity, telephone and any other utility services for the
Leased Premises.
ARTICLE VII
LANDLORD'S OBLIGATIONS
7.01 The Leased Premises shall be constructed by Landlord
in compliance with all federal, state, county, municipal or local
government laws, ordinances, regulations, rules and orders
(including, without limitation, all environmental laws, rules and
regulations, the Americans With Disabilities Act and the
Occupational Safety and Health Act of 1970, as amended). Further,
Landlord shall be solely responsible for insuring that the
Building is constructed in compliance with the Protective
Covenants.
7.02 During the course of construction of the Leased
Premises, Tenant or Tenant's agents or contractors may enter upon
the Leased Premises for purposes of inspecting and reviewing the
work, taking measurements, making plans, installing trade
fixtures and telephones, erecting temporary or permanent signs
and doing such other work as may be appropriate or desirable
without being deemed thereby to have taken possession or
obligated itself to pay rent but Tenant agrees that: (a) Landlord
shall have no liability for injury to any person or damage to any
property of Tenant stored on the Leased Premises except for
damages caused by the willful act or gross negligence of Landlord
or its employees or agents, (b) Tenant shall not materially
interfere with Landlord's construction
work on the Leased Premises, (c) Tenant shall indemnify, protect and
hold harmless Landlord from and against any and all claims, demands,
damages, losses, costs, expenses, liabilities and actions at law or in
equity based upon any occurrence or condition arising out of or
attributable to Tenant's exercise of such right, and (d) Tenant
shall be solely responsible for the permitting of any such work
it performs.
7.03 No later than twenty (20) days after the Commencement
Date, Tenant and Landlord shall prepare an agreed final punch
list setting forth the work, if any, remaining to be done, or
requiring correction, on the Leased Premises, and Landlord shall
promptly commence, and thereafter with due diligence prosecute to
completion, the work required by said punch list (which shall in
no event include, except on condition Tenant shall pay to
Landlord the actual cost thereof plus ten percent (10%) of such
amount, work required as a consequence of injury or damage to the
Leased Premises attributable to Tenant, its agents, employees,
contractors or movers). If the parties cannot agree upon the
final punch list, then the punch list shall be determined by an
independent professional engineer employed by the mutual
agreement of Landlord and Tenant. Landlord agrees to commence to
complete all mutually agreed upon punch list items within thirty
(30) days after Substantial Completion. Landlord acknowledges
and agrees that in the event it has not completed all punchlist
items within ninety (90) days after Substantial Completion,
Tenant shall have the right to complete such items and charge
Landlord the cost thereof.
7.04 Notwithstanding anything elsewhere in this Lease to
the contrary, Landlord shall, at its sole cost and expense, upon
notice by Tenant for a period of one (1) year immediately
subsequent to the Commencement Date, repair, replace or otherwise
correct structural or other construction defects, as well as
defects in any of the additional items to be constructed or
installed by Landlord in accordance with this Lease, provided
that Landlord shall not have any obligation to correct or repair
any defect or condition caused by the acts or failure to act of
Tenant, its agents, contractors, employees or invitees. In
addition, Landlord acknowledges and agrees that it shall, at its
sole cost and expense, repair any structural defects in any of
the structural components of the Leased Premises discovered
during the Lease Term. Landlord acknowledges and agrees that
Landlord's costs incurred in connection with its obligations
under this Section 7.04 shall not be passed through as Operating
Expense items.
7.05 From the Commencement Date until the expiration or
earlier termination of the term hereof, Tenant shall have
exclusive control of the Leased Premises and Landlord shall be
under no obligation to inspect the same. Tenant shall report in
writing to Landlord any defective condition known to it which
Landlord is required to repair, and Landlord shall move with
reasonable diligence to repair such condition. Landlord
agrees that in the event Landlord fails to maintain the Leased
Premises as required or fails to commence to make repairs within
thirty (30) days after its receipt of notice from Tenant, or fails
thereafter to diligently pursue such repair to completion, then
Tenant shall have the right to make such repairs and charge
Landlord for the cost thereof. Failure to report such defects
within a reasonable time after discovery shall make Tenant
responsible to Landlord for any and all additional costs or
liability incurred by Landlord resulting from such delay in
notification. Landlord agrees that in the event Landlord fails
to maintain the Leased Premises as required or fails to commence
repairs within thirty (30) days as provided herein, Tenant shall
have the right to make such repairs and charge Landlord for the
cost thereof.
ARTICLE VIII
ALTERATIONS, MECHANICS' LIENS
8.01 Alterations may not be made to the Leased Premises
without prior written consent of Landlord, and any alterations of
the Leased Premises excepting furniture and trade fixtures shall
at Landlord's option become part of the realty and belong to
Landlord. Notwithstanding the foregoing provisions, Tenant shall
have the absolute right to make alterations, additions or
improvements to the Leased Premises having a cost of Fifteen
Thousand Dollars ($15,000.00) for each alteration, addition or
improvement, or Forty-five Thousand Dollars ($45,000.00) in the
aggregate per lease year, provided such alterations, additions or
improvements do not diminish the value of the Building or
materially adversely affect the structure, electrical, mechanical
or plumbing systems of the Building.
8.02 Should Tenant desire to alter the Leased Premises and
Landlord gives written consent to such alterations, at Tenant's
option, Tenant shall contract with a contractor approved by
Landlord for the construction of such alterations.
8.03 Notwithstanding anything in paragraph 8.02 above,
Tenant may install trade fixtures, machinery or other trade
equipment in conformance with all applicable laws, statutes,
ordinances, rules, regulations, and the same may be removed upon
the termination of this Lease provided the Leased Premises are
not damaged by such removal. Tenant shall return the Leased
Premises on the termination of this Lease in the same condition
as when rented to Tenant, casualty, reasonable wear and tear only
excepted. Tenant shall not be required to remove the initial
Tenant Improvements upon the termination of the
Lease, and, further shall have no obligation to remove any alteration,
addition or improvement approved by Landlord during the term
unless Landlord advises Tenant at the time of such approval that
it will require such removal. Tenant shall keep the Leased
Premises, the building and property in which the Leased Premises
are situated free from any liens arising out of any work
performed for, materials furnished to, or obligations incurred by
Tenant, and Tenant shall discharge of record by bond or
otherwise, within ten (10) days following Tenant receiving notice
of the filing thereof, any mechanic's or similar lien or
encumbrance filed against the Leased Premises for work or
materials claimed to have been furnished to or for the benefit of
Tenant and/or the Leased Premises. All such work provided for
above, shall be done at such times and in such manner as Landlord
may from time to time reasonably designate.
ARTICLE IX
WASTE AND QUIET CONDUCT
9.01 Tenant shall not commit, or suffer any waste upon the
Leased Premises, or any nuisance, or other act or thing which may
unreasonably interfere with the quiet enjoyment of any owner or
occupant of any other property in the project in which the Leased
Premises are located.
ARTICLE X
FIRE INSURANCE, HAZARDS
10.01 No use shall be made or permitted to be made of the
Leased Premises, nor acts done which might cause the cancellation
of any insurance policy covering the Building, or any part
thereof, nor shall Tenant sell, or permit to be kept, used or
sold, in or about the Leased Premises, any article which may be
prohibited by the standard form of fire insurance policies.
Tenant shall, at its sole cost and expense, comply with any and
all requirements pertaining to the Leased Premises, of any
insurance organization or company, necessary for the maintenance
of reasonable fire and public liability insurance, covering the
Leased Premises and appurtenances. In the event that Tenant
takes any actions in the future, or conducts its business in such
a way that causes an increase in the fire insurance rate on the
Building, Landlord shall give Tenant notice of such proposed
increase, and Tenant shall have a period of ten (10) days within
which to discontinue such actions or use before Tenant shall be
responsible for the payment of such increase in cost.
ARTICLE XI
INDEMNIFICATION
11.01 Tenant shall indemnify Landlord and hold Landlord
harmless against and from any and all claims arising from
Tenant's use of the Leased Premises (other than those arising
from any negligence of Landlord or its agents or employees), or
the conduct of its business or from any activity, work, or thing
done, permitted or suffered by the Tenant in or about the Leased
Premises, and shall further indemnify and hold harmless Landlord
against and from any and all claims arising from any breach or
default in the performance of any obligation on Tenant's part to
be performed under the terms of this Lease, or arising from any
act, neglect, fault or omission of the Tenant,
or of its agents or employees, and from and against all costs,
reasonable attorney's fees actually incurred, expenses and liabilities
incurred in or about such claim or any action or proceeding
brought relative thereto and in case any action or proceeding be
brought against Landlord by reason of any such claim, Tenant upon
notice from Landlord shall defend the same at Tenant's expense by
counsel, chosen by Tenant and who is reasonably acceptable to
Landlord. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property or injury
to persons in or about the Leased Premises from any cause
whatsoever except that which is caused by the failure of Landlord
to observe any of the terms and conditions of this Lease where
such failure has persisted for an unreasonable period of time
after written notice of such failure, and Tenant hereby waives
all claims in respect thereof against Landlord. The obligations
of Tenant under this section arising by reason of any occurrence
taking place during the term of this Lease shall survive any
termination of this Lease.
11.02 Landlord shall indemnify and hold harmless Tenant
against and from all claims arising from any breach or default in
the performance of any obligation on Landlord's part to be
performed under this Lease, or arising from any act, neglect,
fault or omission of Landlord or of its agents, employees or
contractors and from and against all reasonable costs, reasonable
attorneys' fees actually incurred, expenses and liabilities
actually incurred in or about such claim or any action or
proceeding brought relative thereto and in case any action or
proceeding be brought against Tenant by reason of any such claim,
Landlord upon notice from Tenant shall defend the same at
Landlord's expense by counsel, chosen by Landlord and who is
reasonably acceptable to Tenant. The obligations of Landlord or
Tenant under this section arising by reason of any occurrence
taking place during the term of this Lease shall survive any
termination of this Lease.
ARTICLE XII
WAIVER OF CLAIMS
12.01 Notwithstanding any indemnity granted herein, and
notwithstanding any other term or provision of the Lease to the
contrary, Landlord and Tenant hereby both release the other and
their respective employees, agents and invitees from and waive
any claims either may have against the other and their employees,
agents, servants or invitees for any loss or damage to the
Building, Leased Premises, Land,
Office Park, improvements on or to the Building, Leased Premises,
Land, Office Park, or the contents of the foregoing, and any personal
property stored or placed thereon by either of them caused by any of
the perils insurable against under fire and extended coverage
insurance policies with "all risks" endorsement, whether such damage
or loss was caused by the negligence of either of them or their
respective employees, agents, servants or invitees. The
foregoing mutual release and waiver of subrogation shall apply
whether or not such insurance on the Building, Leased Premises,
Land, Office Park improvements, contents, and/or personal
property was in force at the time of the loss of damage.
Moreover, each party agrees to take all actions necessary to make
the foregoing release effective and binding upon their respective
insurance carriers so that such carriers specifically waive any
right of subrogation that such carriers might otherwise have
against the other party and/or their respective employees,
agents, servants or invitees.
ARTICLE XIII
SIGNS, LANDSCAPING
13.01 Landlord shall have the right to control landscaping
and approve the placing of signs and the size and quality of the
same. Tenant shall, however, be entitled to make changes to the
landscaping plan, with the prior written consent of the Landlord.
Tenant shall place no exterior signs on the Leased Premises
without the prior written consent of Landlord. Any signs not in
conformity with the Lease may be immediately removed by Landlord.
Notwithstanding the above language, Landlord acknowledges and
agrees that Tenant shall be entitled to have corporate
identification signage on any and all monument signs constructed
by Landlord within the Office Park, and, furthermore, Landlord
acknowledges and agrees that it will not withhold its approval of
any proposed Tenant signage based upon size so long as such
signage is in conformance with the Protective Covenants and all
applicable governmental requirements. Finally, Tenant shall have
the absolute right to place such identification signs within the
interior of the Building as Tenant so elects.
ARTICLE XIV
ENTRY BY LANDLORD
14.01 Tenant shall permit Landlord and Landlord's agents to
enter the Leased Premises at all reasonable times during normal
business hours for the purpose of inspecting the same or for the
purpose of maintaining the building, or for the purpose of making
repairs, alterations, or additions to any portion of the
building, including the erection and maintenance of such
scaffolding, canopies, fences and props as may be required or for
the purpose of posting notices of non-responsibility for
alterations, additions, or repairs, or for the purpose of showing
the Leased Premises to prospective tenants, or placing upon the
building any usual or ordinary "for sale" signs, without any
rebate of rent and without any liability to Tenant for any loss
of occupation or quiet enjoyment of the Leased Premises thereby
occasioned; and shall permit Landlord at any time within thirty
(30) days prior to the expiration of this Lease, to place upon
the Leased Premises any usual or ordinary "to let" or "to lease"
signs. For each of the aforesaid purposes, Landlord shall at all
times have and retain a key with which to unlock all of the
exterior doors about the Leased Premises. Notwithstanding the
foregoing, Landlord agrees to use all reasonable efforts to
provide Tenant at least twenty-four (24) hours prior written
notice of its intent to enter the Leased Premises and further
agrees any such entry shall be conducted in such manner so as to
minimize any interference with Tenant's business operations.
ARTICLE XV
INSURANCE
15.01 Liability Insurance. Tenant, at its own expense,
shall obtain and keep in full force and effect at all times
during the term of this Lease public liability insurance for the
benefit of Landlord and Tenant (and, at Landlord's request, any
Mortgagee (as hereinafter defined) of Landlord) jointly against
liability for personal injury and property damage in the amount
of not less than Three Million Dollars ($3,000,000.00) in respect
to injuries to or death of more than one person in any one
occurrence, in the amount of not less than One Million Dollars
($1,000,000.00) in respect to injuries to or death of any one
person, and in the amount of not less than One Million Dollars
($1,000,000.00) per occurrence in respect to damage to property,
such limits to be for any greater amounts as may be reasonably
indicated by circumstances from time to time existing. Tenant
shall increase said insurance coverage as reasonably required by
Landlord. All or part of the liability insurance coverage, if
any, that may from time to time be required or maintained in
excess of the minimum limits set forth above may be provided by
an umbrella policy complying in all respects with the
requirements of this Article 15 and which provides that its
coverage is not limited or affected by claims made with respect
to personal injury or property damage at other locations. As
used herein, "Mortgage" means any deed to secure debt, mortgage,
deed of trust, or similar security instrument. "Mortgagee" means
the holder of a Mortgage.
15.02 Each insurance policy required to be maintained by
Tenant hereunder shall be written by a company having an A.M.
Best Company rating of "A" or better and a financial category of
"VII" or better and legally qualified to issue such insurance,
and shall name as insured parties Landlord (and, at Landlord's
request, any Mortgagee of Landlord) and Tenant as their interests
may appear. Each such policy shall provide that it shall not be
canceled or reduced except after not less than thirty (30) days
written notice to Landlord (and any Mortgagee of Landlord), and
shall also provide that the interest of Landlord and any
Mortgagee of Landlord shall not be invalidated by any act or
negligence of Tenant or Landlord or of any person or entity
having an interest in the Leased Premises nor by occupancy or use
of the Leased Premises for any purpose that is more hazardous
than permitted by such policy. Tenant shall deliver to Landlord
(and, at Landlord's request, any Mortgagee of Landlord) a
certificate of insurance
evidencing the existence and renewal of each insurance policy which is
required to be maintained by Tenant hereunder (and specifically
confirming that such policy shall not be canceled or reduced except
after not less than thirty (30) days written notice to Landlord and
any Mortgagee of Landlord), such delivery to be made promptly after
such insurance is obtained at least thirty (30) days prior to the
expiration date of such insurance policy. If any such insurance
policy has a deductible clause, Tenant shall be liable for the full
deductible amount. Each policy of property insurance maintained
by Tenant hereunder shall provide that the insurer waives any
right of subrogation against Landlord and any Mortgagee of
Landlord, and any policy or policies of property insurance
maintained by Landlord with respect to the Leased Premises shall
provide that the insurer waives any right of subrogation against
Tenant. Each such policy maintained by Tenant shall be primary
and non-contributing with any insurance carried by Landlord (and
any Mortgagee of Landlord). The limits of any insurance provided
hereunder shall not limit the liability of Tenant hereunder. If
Tenant shall fail to procure and maintain any insurance required
hereunder, Landlord may, but shall not be required to, procure
and maintain the same but at the expense of Tenant.
15.03 At all times during and throughout the term hereof,
Landlord shall procure and maintain in full force and effect (i)
fire and extended coverage insurance covering the Building in an
amount at least equal to the full replacement cost thereof, and
(ii) public liability insurance for bodily injury and property
damage in an amount to be determined by Landlord in its sole
discretion, but in no event less than a limit of One Million
Dollars ($1,000,000.00) per occurrence and One Million Dollars
($1,000,000.00) aggregate. Landlord shall furnish Tenant with
certificates of such policies whenever reasonably required by
Tenant to satisfy Tenant that such policies are in full force and
effect.
ARTICLE XVI
ABANDONMENT
16.01 Tenant shall not abandon the Leased Premises at any
time during the term of this Lease; and if Tenant shall abandon,
or surrender the Leased Premises, or be dispossessed by process
of law, or otherwise, any personal property belonging to Tenant
and left on the Leased Premises shall, at the option of the
Landlord, be deemed abandoned and be and become the property of
Landlord.
16.02 Tenant may vacate the Leased Premises during the term
of this Lease provided (i) Tenant is not otherwise in default
hereunder; (ii) Tenant adequately secures the Leased Premises to
prevent damage, destruction or vandalism to the Leased Premises;
(iii) Tenant continues such utilities to the Leased Premises as
will prevent any damage to the Leased Premises; (iv) Tenant
continues to provide insurance for the Leased Premises and Tenant
pays any increased premium resulting from a lack of a tenant in
the Leased Premises.
ARTICLE XII
DESTRUCTION
17.01 In the event of damage to or destruction of the
Building during the lease term which requires repairs to the
Building, Landlord shall (subject to paragraph 17.02 below)
forthwith make repairs, provided in Landlord's reasonable
judgment repairs can be completed within one hundred fifty (150)
days under the laws and regulations of authorized public
authorities, but such damage or destruction (including any
destruction necessary in order to make repairs) shall in no way
annul or void this Lease, except that Tenant shall be entitled to
a proportionate reduction of rent while such repairs are being
made (but only to the extent of the proceeds of rental insurance
made available to Landlord pursuant to the rental insurance
policy Tenant is required to maintain under Article 15). The
proportionate reduction is to be based upon the extent to which
the making of repairs shall interfere with the business carried
on by Tenant in the Leased Premises. If repairs cannot in
Landlord's reasonable judgment be completed within one hundred
fifty (150) days, Landlord may, at its option, make same within a
reasonable time, this Lease continuing in full force and effect
and the rent to be proportionately abated, as in this paragraph
provided. In the event that Landlord does not so elect to make
repairs which cannot in Landlord's reasonable judgment be
completed within one hundred fifty (150) days, or repairs cannot
be made under current laws and regulations, this Lease may be
terminated at the option of either party. Landlord agrees to
notify Tenant in writing of the estimated time period for the
completion of required repairs within thirty (30) days after
Landlord receives notice of the occurrence of the damaging event,
and to promptly commence and diligently prosecute unto completion
any repairs required to be made by Landlord hereunder.
Notwithstanding any other provision contained herein to the
contrary, in the event following a casualty Landlord fails to
complete all necessary repairs within two hundred ten (210) days
of the date of the casualty event, then, in such event, Tenant
shall have the absolute right to terminate this Lease by
providing written notice of such election to Landlord on or
before ten (10) days following the expiration of said two hundred
ten (210) day period, provided, however, said two hundred ten
(210) day period shall be extended day for day for up to two
hundred seventy (270) days (but no longer than two hundred
seventy (270) days unless such delays are caused by Tenant
Delays) for any Tenant Delays or Excusable Delays.
17.02 (a) Either Landlord or Tenant may require that any
dispute under this Article 17 be submitted to arbitration
pursuant to this paragraph 17.02. To the extent the provisions
of this paragraph 17.02 vary from or are inconsistent with the
rules of the American Arbitration Association or any other
arbitration tribunal, the provisions of this paragraph 17.02
shall govern. All arbitration shall occur at a location in
Atlanta, Georgia chosen by the arbitrators and shall, except as
expressly provided to the contrary in this paragraph 17.02, be
conducted pursuant to the rules of the American Arbitration
Association (or the successor organization, or if no such
organization exists, then an organization composed of persons of
similar professional qualifications).
(b) The party desiring such arbitration shall give notice
to that effect to the other party. As soon as possible, but in
any event within the next ten (10) days, Landlord and Tenant
shall each select one arbitrator. As soon as possible, but in
any event within the next ten (10) days, the two arbitrators so
selected shall select a third arbitrator. Each arbitrator shall
be, if reasonably possible, a recognized expert in the subject
matter of the arbitration. In the event of the failure, refusal
or inability of any arbitrator to act, a new arbitrator shall be
appointed in his stead, which appointment shall be made in the
same manner as provided above. At the request of either party,
the arbitrators shall authorize the service of subpoenas for the
production of documents or attendance of witnesses.
(c) Within twenty (20) days after their appointment, the
arbitrators so chosen shall hold a hearing at which each party
may submit evidence, be heard and cross-examine witnesses, with
each party having at least ten (10) days advance notice of the
hearing. The hearing shall be conducted such that each of
Landlord and Tenant shall have reasonably adequate time to
present oral evidence or
argument, but either party may present whatever written evidence
it deems appropriate prior to the hearing (with copies of any
such written evidence being sent to the other party).
(d) The decision of the arbitrators so chosen shall be
given within a period of twenty (20) days after the conclusion of
such hearing, and shall be accompanied by findings of fact. The
decision within which any two arbitrators so appointed and acting
hereunder concur shall in all cases be binding and conclusive
upon the parties and shall be the basis for a judgment entered in
any court of competent jurisdiction.
(e) The fees and expenses of the arbitration proceeding and
the fees of the third arbitrator appointed under this paragraph
17.02 shall be equally borne by both parties. Landlord and Tenant
shall each pay the fees of the arbitrator each selected, and the
fees and expenses of preparing and presenting its own case.
Landlord and Tenant may at any time by mutual written agreement
discontinue arbitration proceedings and agree themselves upon any
such matter submitted to arbitration.
ARTICLE XVIII
ASSIGNMENT AND SUBLETTING
18.01 Landlord shall have the right to transfer and assign,
in whole or in part its rights and obligations in the Leased
Premises; provided, however, in the event of any such transfer
and assignment, Weeks Realty, L.P. shall remain primarily
responsible for any liability to Tenant arising either (i) prior
to the date of said assignment, or (ii) by virtue of Landlord's
failure to timely deliver the Leased Premises to Tenant in
accordance with the standards and schedules set forth in this
Lease. Tenant shall not assign this Lease or sublet all or any
part of the Leased Premises without the prior written consent of
the Landlord. Landlord agrees to provide Tenant written notice
of its decision to either approve or disapprove of any proposed
sublessee or assignee within ten (10) days of Tenant's request
for such approval. In the event of any assignment or subletting,
Tenant shall nevertheless at all times, remain fully responsible
and liable for the payment of the rent and for compliance with
all of its other obligations under the terms, provisions and
covenants of this Lease. Notwithstanding the foregoing, Tenant
shall have the right, without Landlord's consent, to sublet the
Leased Premises or any part thereof, or
assign this Lease to any of Tenant's parent, subsidiaries or
affiliated companies; provided, however, as a condition to any such
subletting or assignment (i) both Tenant and the proposed subtenant
or, if applicable, assignee shall be solvent at the time of each such
subletting and/or assignment; (ii) Tenant shall provide Landlord
at least ten (10) business days prior written notice of each such
subletting and/or assignment; and (iii) no such subletting and/or
assignment shall release Tenant of Tenant's obligation or alter
the primary liability of Tenant to pay Base Rental hereunder and
to perform all obligations to be performed by Tenant under this
Lease. Upon the occurrence of an "Event of Default" as defined
below, if all or any part of the Leased Premises are then
assigned or sublet, Landlord, in addition to any other remedies
provided by this Lease or provided by law, may at its option,
collect directly from the assignee or subtenant all rents
becoming due to Tenant by reason of the assignment or sublease.
Any collection directly by Landlord from the assignee or
subtenant shall not be construed to constitute a novation or a
release of Tenant from the further performance of its obligations
under this Lease, or an acceptance of such assignee or subtenant.
In the event that Tenant sublets the Leased Premises or any part
thereof, or assigns this Lease and at any time receives rent
and/or other consideration which exceeds that which Tenant would
at that time be obligated to pay to Landlord, Tenant shall pay to
Landlord 50% of the gross excess in such rent as such rent is
received by Tenant and 50% of any other consideration received by
Tenant from such subtenant in connection with such sublease or,
in the case of any assignment of this Lease by Tenant, Landlord
shall receive 50% of any consideration paid to Tenant by such
assignee in connection with such assignment. Landlord
acknowledges and agrees that Tenant shall be entitled to recoup
any and all normal customary costs incurred in connection with
its re-leasing the Leased Premises prior to sharing with Landlord
any gross excess and/or additional consideration received by
Tenant as a result of any sublease or lease assignment. In
addition, should Landlord agree to an assignment or sublease
agreement, Tenant will pay to Landlord on demand the sum of
$500.00 to partially reimburse Landlord for its costs, including
reasonable attorneys' fees, incurred in connection with
processing such assignment or subletting request.
ARTICLE XIX
INSOLVENCY OF TENANT
19.01 Either (a) the appointment of a receiver to take
possession of all or substantially all of the assets of Tenant,
or (b) a general assignment by Tenant for the benefit of
creditors, or (c) any action taken or suffered by Tenant under
any insolvency or bankruptcy act shall, if any such appointments,
assignments or action continues for a period of sixty (60) days,
constitute a breach of this Lease by Tenant, and Landlord may at
its election with written notice, terminate this Lease and in
that event be entitled to immediate possession of the Leased
Premises and damages as provided below.
ARTICLE XX
BREACH
20.01 The occurrence of any of the following shall
constitute an Event of Default ("Event of Default") under this
Lease on the part of Tenant:
(a) Failure to pay when due any payment of base rental,
additional rent, or any other sum of money payable by Tenant
under this Lease, and such failure to pay continues for a period
of ten (10) days after notice from Landlord of such failure to
pay; provided, however, Landlord shall not be required to provide
such notice more than two (2) times in any one (1) calendar year,
the third (3rd) and any subsequent such failure in such calendar
year to pay within ten (10) days after the due date therefor
constituting an Event of Default without Landlord being required
to provide such notice or allow Tenant a grace period after such
notice;
(b) Tenant's interest in this Lease or the Leased Premises
shall be subjected to any attachment, execution, levy or other
judicial seizure pursuant to any order or decree entered against
Tenant in any legal proceeding that is not stayed (so as to
prevent seizure) pending appeal and such order or decree is not
vacated or bonded against so as to prevent seizure upon the
earlier to occur of (aa) fifteen (15) days prior to the sale of
such interest pursuant to such order or decree, or (bb) sixty
(60) days after entry of the order; or
(c) Tenant breaches or fails to comply with any term,
provision, condition, or covenant of this Lease, other than as
described in clause 20.01 above, and such breach or failure
continues for thirty (30) days after written notice from Landlord
of such breach or failure to comply; or in the event such breach
or failure is curable but
cannot be cured within thirty (30) days and Tenant does not
commence to cure such breach or failure promptly within such
thirty (30) day period and continuously thereafter pursue such
cure and remedy such breach or failure within a reasonable period
of time, not to exceed an additional 90 days.
20.02 Upon the occurrence of an Event of Default, Landlord
shall have the option to do and perform any one or more of the
following in addition to, and not in limitation of, any other
remedy or right permitted it by law or in equity or by this
Lease:
(a) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter re-enter the Leased
Premises and correct or repair any condition which shall
constitute a failure on Tenant's part to keep, observe, perform,
satisfy, or abide by any term, condition, covenant, agreement, or
obligation of this Lease or of any notice given Tenant by
Landlord pursuant to the terms of this Lease, and Tenant shall
fully reimburse and compensate Landlord on demand for Landlord's
actual costs so incurred.
(b) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter demand in writing that
Tenant vacate the Leased Premises and thereupon Tenant shall
immediately vacate the Leased Premises and remove therefrom all
property thereon belonging to or placed in the Leased Premises
by, at the direction of, or with consent of Tenant, whereupon
Landlord shall have the right to re-enter and take possession of
the Leased Premises. Any such demand, reentry and taking
possession of the Leased Premises by Landlord shall not of itself
constitute an acceptance by Landlord of a surrender of this Lease
or of the Leased Premises by Tenant and shall not of itself
constitute a termination of this Lease by Landlord.
(c) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter, reenter the Leased
Premises pursuant to a court order and remove therefrom Tenant
and all property belonging to or placed on the Leased Premises
by, at the direction of, or with consent of Tenant. Any such
re-entry and removal by Landlord shall not of itself constitute
an acceptance by Landlord of a surrender of this Lease or of the
Leased Premises by Tenant and shall not of itself constitute a
termination of this Lease by Landlord.
(d) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter use reasonable efforts to
relet the Leased Premises or any part thereof, without cost to
Landlord (it being agreed that "reasonable efforts" does not
require Landlord to make any effort to relet the Leased Premises
or any portion thereof in preference to any unleased space or
space leased or subleased by Landlord or its affiliates in other
buildings) for such time or times, at such rental or rentals and
upon such other terms and conditions as Landlord in its sole, but
reasonable judgment (taking into
account the fair market rental value of the Leased Premises)
deems advisable, and Landlord may make any alterations or repairs
to the Leased Premises which it may deem necessary or proper to
facilitate such reletting; and Tenant shall pay all actual costs
of such reletting including but not limited to the cost of any
such alterations and repairs to the Leased Premises, reasonable
attorneys' fees actually incurred, leasing inducements, and
brokerage commissions; and if this Lease shall not have been
terminated, Tenant shall continue to pay all rent due under this
Lease up to and including the date of beginning of payment of
rent by any subsequent tenant of part or all of the Leased
Premises, and thereafter Tenant shall pay monthly during the
remainder of the term of this Lease the difference, if any,
between the rent and other charges collected from any such
subsequent tenant or tenants and the rent and other charges
reserved in this Lease, but Tenant shall not be entitled to
receive any excess of any such rents collected over the rent
reserved herein.
(e) Landlord may immediately or at any time thereafter
terminate this Lease, and this Lease shall be deemed to have been
terminated upon receipt by Tenant of notice of such termination;
upon such termination Landlord shall recover from Tenant all
damages that Landlord may suffer by reason of such termination
including, without limitation, all arrearages in rentals, costs,
charges, additional rentals, and reimbursements, the cost
(including court costs and reasonable attorneys' fees actually
incurred) of recovering possession of the Leased Premises, the
actual or estimated (as reasonably estimated by Landlord) cost of
any alteration of or repair to the Leased Premises which is
necessary or proper to prepare the same for reletting and, in
addition thereto, Landlord shall have and recover from Tenant an
amount equal to the present value (discounted at a rate per annum
equal to the discount rate of the Federal Reserve Bank of Atlanta
at the time the Event of Default occurs) of the rental to be paid
by Tenant for the remainder of the lease term, over the present
value (discounted at the same rate) of the fair market value of
the Leased Premises for the remainder of the lease term.
20.03 If Landlord re-enters the Leased Premises or
terminates this Lease pursuant to any of the provisions of this
Lease, Tenant hereby waives all claims for damages which may be
caused by such re-entry or termination by Landlord's reasonable
acts complying with the provisions of this Lease. No such reentry
or termination shall be considered or construed to be a forcible
entry.
20.04 "Events of Default by Landlord" under this Lease shall
be deemed to be the situations where Landlord shall fail to
comply with any term, provision or covenant of this Lease and
shall not commence to cure such failure within thirty (30) days
after written notice thereof and diligently and in good faith
continue to cure the default until completion. If the default
cannot reasonably be cured within such thirty (30) day period,
Landlord shall not be in default if Landlord commences to cure
the default within the thirty (30) day period and diligently and
in good faith continues to cure the default until completion. In
no event shall Landlord's right to cure extend beyond ninety (90)
days following written notice from Tenant, unless such period is
extended by Tenant Delays or Excusable Delays.
20.05 Upon the occurrence of any Event of Default by
Landlord, Tenant shall have the right to perform the obligations
of Landlord and Tenant shall have Landlord reimburse Tenant on
demand for any reasonable and necessary costs and expenses which
Tenant may have incurred.
ARTICLE XXI
ATTORNEY'S FEES
21.01 If Landlord and Tenant litigate any provision of this
Lease or the subject matter of this Lease, the unsuccessful
litigant will pay to the successful litigant all costs and
expenses, including reasonable attorneys' fees and court costs,
incurred by the successful litigant at trial and on any appeal.
If, without fault, either Landlord or Tenant is made a party to
any litigation instituted by or against the other, the other will
indemnify the faultless one against all loss, liability, and
expense, including reasonable attorneys' fees and court costs,
incurred by it in connection with such litigation.
ARTICLE XXII
CONDEMNATION
22.01 If, at any time during the term of this Lease, title
to the entire Leased Premises should become vested in a public or
quasi-public authority by virtue of the exercise of
expropriation, appropriation, condemnation or other power in the
nature of eminent domain, or by voluntary transfer from the owner
of the Leased Premises under threat of such a taking then this
Lease shall terminate as of the time of such vesting of title,
after which neither party shall be further obligated to the other
except for occurrence antedating such taking. The same results
shall follow if less than the entire Leased Premises be thus
taken, or transferred in lieu of such a taking, but to such
extent that it would be legally or commercially impractical for
Tenant to reasonably conduct his trade or business therein.
22.02 Should there be such a partial taking or transfer in
lieu thereof, but not to such an extent as to make such continued
occupancy and operation by Tenant commercially impractical, then
this Lease shall continue on all of its same terms and conditions
subject only to an equitable reduction in rent proportionate to
the effect (if any) of such taking on Tenant's continued
occupancy and operation.
22.03 Subject to paragraph 22.04 below, in the event of any
such taking or transfer, whether of the entire Leased Premises or
a portion thereof, it is expressly agreed and understood that all
sums awarded, allowed or received in connection therewith shall
belong to Landlord, and any such rights otherwise vested in
Tenant are hereby assigned to Landlord, and Tenant shall have no
interest in or claim to any such sums or any portion thereof,
whether the same be for the taking of the property or for
damages, or otherwise; provided, however, that Tenant may
separately claim and receive from the condemning authority (but
not from Landlord), if legally payable, compensation for Tenant's
removal and relocation costs and/or business interruption, as
well as alterations, additions and improvements paid for by
Tenant.
22.04 If all or any part of the Leased Premises shall be
the subject of a temporary taking, this Lease shall nevertheless
remain in full force and effect, and Tenant shall continue to be
responsible for all of its obligations hereunder insofar as
Tenant's ability and authority to comply with such obligations
are not affect by such taking, including without limitation the
payment of all base rental and additional rent. The award for
any such temporary taking payable for any period prior to the
expiration date of this Lease shall be paid to Tenant and the
award for any temporary taking for any period thereafter shall be
paid to Landlord. A taking or transfer in lieu of taking shall be
deemed to be a temporary taking if the
term of such taking does not extend beyond the then current lease term
so that Landlord's interest in unaffected thereby.
ARTICLE XXIII
NOTICES
23.01 Prior to the Commencement Date of this Lease, all
notices, statements, demands, requests, consents, approvals,
authorization, offers, agreements, appointments, or designations
under this Lease by either party to the other shall be in writing
and shall be sufficiently given and served upon the other party,
if sent by certified mail, return receipt requested, postage
prepaid, and addressed as follows:
(a) To Tenant at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇;
(b) To ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇,
Attention ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(c) To Landlord, addressed to Landlord at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to such other place as
Landlord may from time to time designate by notice to
Tenant.
23.02 Following the Commencement Date, all notices, statements,
demands, requests, consents, approvals, authorization, offers,
agreements, appointments, or designations under this Lease by either
party to the other shall be in writing and shall be sufficiently given
and served upon the other party, if sent by certified mail, return
receipt requested, postage prepaid, and addressed as follows:
(a) To Tenant at the Leased Premises;
(b) To ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Suite 3100, Promenade II, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇,
Attention ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(c) To Landlord, addressed to Landlord at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to such other place as
Landlord may from time to time designate by notice to
Tenant.
23.03 All notices shall be deemed received five (5) days
after being deposited in the mail in accordance with the
foregoing provisions.
ARTICLE XXIV
WAIVER
24.01 The waiver by either party of any breach of any term,
covenant, or condition herein contained shall not be deemed to be
a waiver of such term, covenant, or condition or any subsequent
breach of the same or any other term, covenant, or condition
herein contained. The subsequent acceptance of rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant, or condition of this
Lease, other than the failure of Tenant to pay the particular
rental so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent.
ARTICLE XXV
EFFECT OF HOLDING OVER
25.01 If Tenant should remain in possession of the Leased
Premises after the expiration of the lease term and without
executing a new lease, then such holding over shall be construed
as a tenancy from month to month, subject to all the conditions,
provisions, and obligations of this Lease insofar as the same are
applicable to a month to month tenancy, except that the rent
payable pursuant to subparagraph 3.01 hereof shall be 125% of the
rent payable pursuant to subparagraph 3.01 for any month or
portion thereof during the first thirty (30) days of any holdover
period, and 125% of the monthly rent payable pursuant to
subparagraph 3.01 during each subsequent month of any holdover
period after thirty (30) days. In such event, Landlord shall
have the right to terminate such tenancy-at-sufferance by giving
Tenant five (5) business days prior written notice of such
termination.
ARTICLE XXVI
SUBORDINATION
26.01 This Lease and all rights of Tenant hereunder are and
shall be subject and subordinate to each Mortgage which may now
or hereafter affect Landlord's fee simple title to the Leased
Premises and to any modifications, renewals, consolidations,
extensions or replacements thereof; provided, however, that such
subordination is conditioned upon the lessor under any such
holder of any such Mortgage first executing and delivering to
Tenant a Subordination, Non-Disturbance and Attornment Agreement
as described in paragraph 26.02 below. Subject to the provisions
of the immediately preceding sentence, Tenant agrees to recognize
and attorn to any party succeeding to the interest of Landlord as
a result of the enforcement of any Mortgage, and to be bound to
such party under all of the terms, covenants, and conditions of
this Lease, for the balance of the term of this Lease, including
renewal terms, with the same force and effect as if such party
were the original Landlord under this Lease.
26.02 Upon the request of Landlord, the holder of any
Mortgage, Tenant agrees to execute a Subordination,
Non-Disturbance and Attornment Agreement with respect to each
Mortgage or other instrument from time to time encumbering fee
simple title to the Leased Premises. Tenant agrees to execute
and deliver any Subordination, Non-Disturbance and Attornment
Agreement substantially in the form attached hereto as Exhibit
"E", or in such other form as Landlord, the lessor under such
Mortgagee shall reasonably request.
26.03 Notwithstanding the foregoing provisions of this
Article 26, Tenant shall, upon demand, at any time or times,
execute, acknowledge and deliver to Landlord, the holder of any
Mortgage, any and all instruments that may be necessary to make
this Lease superior to the lien of such Mortgage, and each
renewal, modification, consolidation, replacement and extension
thereof.
ARTICLE XXVII
ESTOPPEL CERTIFICATE
27.01 Upon ten (10) days notice from Landlord to Tenant at
any time after Substantial Completion and completion of the punch
list, Tenant shall deliver a certificate dated as of the first
day of the calendar month in which such notice is received,
executed by an appropriate officer, partner or individual, in the
form as Landlord may reasonably require and stating the
following: (i) the commencement date of this Lease; (ii) the
space occupied by Tenant hereunder; (iii) the expiration date
hereof; (iv) a description of any renewal or expansion options;
(v) the amount of rental currently and actually paid by Tenant
under this Lease; (vi) the nature of any default or claimed
default hereunder by Landlord; (vii) that Tenant is not in
default hereunder nor has any event occurred which with the
passage of time or the giving of notice would become a default by
Tenant hereunder and (viii) such other statements as Landlord may
reasonably require.
ARTICLE XXVIII
PARKING
28.01 Tenant shall be entitled to the exclusive use of five
and one-half (5 1/2) parking spaces per 1,000 square feet of
usable space within the Building. All such parking spaces shall
be provided for on the Leased Premises in accordance with the
Base Building Approved Plans and Specifications. Tenant agrees
to park all Tenant's trucks in the parking spaces provided at the
rear of the Building. "Parking" as used herein means the use by
Tenant's employees, its visitors, invitees, and customers for the
parking of motor vehicles for such periods of time as are
reasonably necessary in connection with use of and/or visits to
the Leased Premises. No vehicle may be repaired or serviced in
the parking area and any vehicle deemed abandoned by Landlord, in
its reasonable discretion, will be towed from the Leased Premises
and all costs therein shall be borne by the Tenant.
ARTICLE XXIX
MORTGAGE PROTECTION
29.01 In the event of any default on the part of Landlord,
Tenant will give notice by registered or certified mail to any
holder of a Mortgage covering the Leased Premises whose address
shall have been furnished to Tenant, and shall offer such
Mortgagee a reasonable opportunity to cure the default, including
time to obtain possession of the Leased Premises by power of sale
or a judicial foreclosure, if such should prove necessary to
effect a cure. Tenant will accept cure by Landlord's Mortgagee;
provided, however, such cure must occur within the same time
period provided for a Landlord cure under the Lease.
ARTICLE XXX
RULES AND REGULATIONS
30.01 Tenant shall comply with all covenants, restrictions
and other matters of record in the deed records of the county in
which the Leased Premises are located which affect or encumber
the Leased Premises, the Building or the Land.
ARTICLE XXXI
BROKERAGE COMMISSIONS
31.01 Landlord and Tenant acknowledge that ▇▇▇▇▇▇ &
Associates, LLC ("Broker") has represented Tenant in connection
with this Lease. Broker's commission, however, shall be payable
by Landlord. Landlord shall pay to Broker a leasing commission in
an amount as set forth in a separate agreement between Broker and
Landlord. The parties hereto do acknowledge and agree that that
certain Commission Agreement dated July 14, 1997, by and between
Weeks Realty, L.P., as lessor/owner, and ▇▇▇▇▇▇ & Associates,
LLC, as broker, is hereby incorporated into this Lease as if same
were repeated in full. Broker acknowledges that Broker is not
entitled to any other compensation in connection with this Lease
other than as expressly provided hereinabove.
31.02 Landlord and Tenant each represents and warrants to
the other that it has not dealt with any broker, agent,
commission salesman or other person (other than Broker) in the
negotiations for and procurement of this Lease and of the Leased
Premises and that no commissions, fees, or compensation of any
kind are due and payable in connection herewith to any broker,
agent, commission salesman or other person (other than Broker) as
a result of any such dealings. Landlord and Tenant each hereby
agrees to indemnify the other and hold the other harmless from
and against any and all claims, suits or judgments (including
without limitation, reasonable attorneys' fees and court costs
incurred in connection with any such claims, suits or judgments
or in the enforcement of this indemnity for any fees, commissions
or compensation of any kind which arise out of or in any way
connected with any claimed dealings or relationship with the
indemnifying party.
31.03 Broker represents and warrants to Landlord and Tenant
that Broker has not dealt with any broker, agent, commission
salesman or other person in the negotiations for and procurement
of this Lease and of the Leased Premises, and that no
commissions, fees, or other compensation of any kind are due and
payable in connection herewith to any broker, agent, commission
salesman or other person as a result of any such dealings.
Broker agrees to indemnify Landlord and Tenant and hold Landlord
and Tenant harmless from and against any and all claims, suits or
judgments (including without limitation, reasonable attorneys'
fees and court costs incurred in connection with any such claims,
suits or judgments or in the enforcement of this indemnity) for
any fees, commissions or
compensation of any kind which arise out of or in any way connected
with any claimed dealings or relationship with Broker.
31.04 Broker has executed this Lease solely for the purpose
of agreeing to the provisions of this Article 31 and for no other
purpose.
ARTICLE XXXII
DELAYS
32.01 The term "Excusable Delay" shall mean any delay due to
war, natural catastrophe, future order of any government, court
or regulatory body claiming jurisdiction, blockage, embargo,
inability to secure structural steel, pre-cast concrete panels or
elevators through ordinary sources by reason of shortages,
provided such items were ordered as early as reasonably possible
following the determination of the need for same, or similar
regulation or order of any government or other regulatory body,
storm, flood, washout, adverse weather conditions, inability to
obtain or delay in obtaining permits for reasons beyond the
control of the party seeking such permits, (provided that
applications for permits have been made within a reasonable
time), or inability to obtain any approval or consent required
under the Protective Covenants for reasons beyond the control of
the party seeking such approval or consent, or any other cause
whatsoever beyond the reasonable control of the party from whom
performance is required, whether or not similar to any of the
causes stated above; provided, however, that a party's lack of
funds or a party's failure, refusal or neglect to pay any amount
due hereunder shall not be deemed to be a cause beyond the
control of such party, and further provided, however, in no event
shall delays caused by strikes, lockouts or other labor or
industrial disturbance or the failure or inability to secure
materials (other than structural steel, pre-cast concrete panels
or elevators under the conditions provided for above), supplies
or labor, through ordinary sources by reason of shortages or
priority be deemed to be a cause beyond the control of such
party) and an Excusable Delay shall be deemed to exist only so
long as the party relying on such delay to excuse its performance
exercises due diligence to remove or overcome it (except that it
is expressly agreed that nothing contained in this definition of
Excusable Delay or elsewhere in this Lease shall obligate either
party to settle a strike or labor dispute when it does not wish
to do so).
32.02 Performance Excused. Landlord and Tenant shall each
be excused for the period of any Excusable Delay from, and shall
not be deemed in default with respect to, the performance of any
of the terms, covenants and conditions of this Lease to be
performed by such party when prevented from doing so by Excusable
Delays; provided, however, that nothing contained in this
paragraph shall excuse a party's performance or prohibit the
other party from exercising any remedy in any circumstance in
which any other provision of this Lease expressly provides that
such party is not excused or that such remedy may be exercised
notwithstanding or without regard to the existence of all or
certain Excusable Delays.
32.03 "Tenant Delays", as used herein, shall mean and refer
to delays directly or substantially attributable to or caused by
Tenant or Tenant's employees or agents, including any failure by
Tenant to make any decision within the time frame specified in
the Construction Schedule.
MISCELLANEOUS PROVISIONS
A. Whenever the singular number is used in this Lease and
when required by the context, the same shall include the plural,
and the masculine gender shall include the feminine and neuter
genders, and the word "person" shall include corporation, firm or
association. If there be more than one tenant, the obligations
imposed upon Tenant under this Lease shall be joint and several.
B. The headings or titles to paragraphs of this Lease are
not a part of this Lease and shall have no effect upon the
construction or interpretation of any part of this Lease.
C. This instrument contains all of the agreements and
conditions made between the parties to this Lease and may not be
modified orally or in any other manner than by agreement in
writing signed by all parties to this Lease.
D. Time is of the essence of each term and provision of this
Lease.
E. Except as otherwise expressly stated, each payment
required to be made by Tenant shall be in addition to and not in
substitution for other payments to be made by Tenant.
F. Subject to Article 18, the terms and provisions of this
Lease shall be binding upon and inure to the benefit of the
heirs, executors, administrators, successors, and assigns of
Landlord and Tenant.
G. Except as otherwise expressly provided herein, all
covenants and agreements to be performed by Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's
sole cost and expense and without any abatement of rent.
H. Where the consent, approval or acceptance of a party is
required, the party agrees that such consent, approval or
acceptance shall not be unreasonably withheld, conditioned or
unreasonably delayed.
I. This Lease shall create the relationship of Landlord and
Tenant between Landlord and Tenant; no estate shall pass out of
Landlord; Tenant has only a usufruct, not subject to levy and/or
sale and not assignable by Tenant except as provided in paragraph
18.01 hereof.
J. Tenant acknowledges and agrees that Landlord shall not
provide guards or other security protection for the Leased
Premises and that any and all security protection shall be the
sole responsibility of Tenant.
K. This Lease shall be governed by Georgia law.
L. Upon the request of Landlord or Tenant, both parties
shall join in the execution of a memorandum or so-called "short
form" of this Lease for the purpose of recordation. Said
memorandum or short form of this Lease shall describe the
parties, the Leased Premises and the lease term, the renewal and
purchase options, and shall incorporate this Lease by reference.
Said memorandum or short form of this Lease shall not include the
economic terms of this Lease unless both parties consent.
M. Except as otherwise expressly provided herein, Landlord's
liability for performance of its obligations under the terms of
this Lease shall be limited to its interest in the Leased
Premises, and neither Landlord, nor any officer, director,
shareholder or partner of Landlord, or of any partner of
Landlord, shall have any personal liability whatsoever with
respect to this Lease. Landlord's exculpation of liability
hereunder shall not apply to any liability of Landlord resulting
from its failure to timely deliver the Leased Premises to Tenant.
N. Landlord's obligations under this Lease are specifically
subject to and conditioned upon the closing by Landlord of the
purchase of the Land on or before October 10, 1997. If Landlord
is unable for any reason, to close the purchase of the Land on or
before October 10, 1997, either Landlord or Tenant shall have the
right at any time within five (5) days from the date thereof to
terminate this Lease by giving written notice to the other. Upon
such termination, this Lease shall be of no further force and
effect and neither party shall have any further rights or
obligations to the other.
SIGNATURES CONTAINED ON FOLLOWING PAGE
IN WITNESS WHEREOF, the parties hereto who are individuals
have set their hands and seals, and the parties who are
corporations have caused this instrument to be duly executed by
its proper officers and its corporate seal to be affixed, as of
the day and year first above written.
Signed, sealed and delivered LANDLORD:
as to Landlord, in the
presence of: WEEKS REALTY, L.P.,
a Georgia limited partnership
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: Weeks Corporation,
a Georgia corporation,
its sole general partner
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Notary Public Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: President & C.O.O.
Signed, sealed and delivered TENANT:
as to Tenant, in the presence
of: RADIANT SYSTEMS, INC.
___________________________ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: EVP/CFO
/s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇
Notary Public
ATTEST:
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Its: CTO
[Corporate Seal]
EXHIBIT A
[LEGAL DESCRIPTION OF LAND]
EXHIBIT B
[DESCRIPTION OF BROOKSIDE OFFICE PARK]
EXHIBIT C
[ESTIMATED OPERATING EXPENSES]
EXHIBIT D
[CONSTRUCTION SCHEDULE]
EXHIBIT E
[SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT]
THIS AGREEMENT, made as of the ___ day of ___________ , 1997, by
and among _______________________________, a _______________
corporation ("Tenant") ____________________________, a Georgia
____________________ ("Owner") and _________________________ (herein,
together with its successors, transferees and assigns, the
"Mortgagee").
W I T N E S S E T H:
WHEREAS, Mortgagee is about to or has heretofore granted to
Owner a first mortgage loan, which loan is secured by a Security
Deed (herein "Mortgage") dated as of __________________, 199__
and duly recorded on _______________, 199___, in the land records
of ▇▇▇▇▇▇ County, Georgia; and
WHEREAS, the Mortgage is to be a first and prior lien upon
the Owner's fee estate in the real property described in Exhibit
"A" annexed hereto ("Mortgaged Premises"); and
WHEREAS, Tenant is to occupy the Mortgaged Premises under a
lease dated as of ____________________ in which Owner is the
Landlord (the "Lease") covering that portion of the Mortgaged
Premises therein more particularly described (the "Leased
Premises"); and
WHEREAS, Mortgagee desires to confirm that the lease is and
shall be subordinate to the lien and security title of the
Mortgage; and
WHEREAS, Tenant desires to be assured of its continued and
undisturbed occupancy of the Leased Premises should the Mortgage
be foreclosed or the Mortgaged Premises sold pursuant to any
power of sale contained therein and Mortgagee is agreeable
thereto.
NOW, THEREFORE, in consideration of the mutual covenants
contained in this Agreement and in further consideration of the
sum of ONE DOLLAR ($1.00) each to the other in hand paid, the
receipt whereof is hereby acknowledged, Owner, Tenant and
Mortgagee mutually covenant and agree as follows:
FIRST: The Lease and all of Tenant's rights, interest and
estate therein and thereunder are hereby made subject and
subordinate to the lien and security title of the Mortgage and to
any extensions, renewals, replacements, modifications, additions
or consolidations thereof and to all rights, title and interest
of Mortgagee and its successors and assigns therein and
thereunder.
SECOND: In the event, however, proceedings shall ever be
instituted by Mortgagee to foreclose or exercise its right of
power of sale under the Mortgage (in either case hereinafter
referred to as a "foreclosure"), the Tenant's possession of the
Leased Premises shall not be disturbed by the foreclosure
proceedings or results thereof or exercise of right of power to
sell or other transfer and the Mortgaged Premises shall be sold
at any foreclosure sale or other sale or transfer subject to
Tenant's possession on the condition that there shall be, at the
time of commencement of foreclosure proceedings, as well as all
subsequent times, no default by Tenant in the due and timely
observance and performance of any covenant and agreement in the
Lease to be observed and performed by Tenant subject to periods
of notice and cure. Provided, however, Tenant acknowledges and
agrees that such condition is for the sole benefit of Purchaser
(as hereinafter defined) and that Purchaser shall have the right,
at its sole and exclusive option, to waive such condition in
connection with its acquisition of the Leased Premises by
foreclosure, or otherwise, without notice to Tenant, in which
event the non-disturbance of Tenant shall remain effective so
that Tenant and its rights under the Lease shall not be affected
by the foreclosure or other acquisition of the Leased Premises
notwithstanding the default by Tenant. Any such election by
Purchaser shall not however, waive such default or the rights or
remedies of the Purchaser as landlord under the Lease as a
consequence thereof.
THIRD: Tenant shall attorn to Mortgagee while Mortgagee is
in possession of the Mortgaged Premises, or to a Receiver
appointed in any action or proceeding to foreclose the Mortgage
or to any other person or entity acquiring the interest of
Landlord by foreclosure of the Mortgage or other proceeding to
enforce the rights of the Mortgage holder by deed in lieu of
foreclosure (herein the "Purchaser"). In the event of the
completion of foreclosure proceedings and sale of the Mortgaged
Premises or in the event the Purchaser should otherwise acquire
possession of the Mortgaged Premises, the Tenant will promptly
upon demand attorn to the Purchaser and will recognize such
Purchaser as the Tenant's landlord. The Tenant agrees to execute
and deliver, at any time and from time to time, upon the request
of the Purchaser at the foreclosure sale, as the case may be, any
reasonable instrument which may be necessary
or appropriate to such successor landlord to evidence such attornment.
The Tenant shall, upon demand of the Purchaser, pay to the Purchaser,
all rental monies then due or as they thereafter become due.
FOURTH: Upon the attornment provided for in preceding
Paragraph THIRD the Tenant's occupancy shall thereafter be in
full force and effect as under a direct Lease between the
Purchaser at the foreclosure sale, and Tenant. It is
specifically understood and agreed that Purchaser shall not be:
(a) personally liable for any act, omission, negligence or
default of any prior landlord; provided, however, that from
and after the date Purchaser shall take possession of or
obtain title to the Premises, Purchaser shall be responsible
for its own actions which may result in defaults under the
Lease notwithstanding the fact any such default may have
existed prior to the date that Mortgagee (or any Receiver or
purchaser) shall take possession of or obtain title to the
Premises;
(b) subject to any offsets, claims or defenses which Tenant
might have against any prior landlord under the Lease,
except to the extent Purchaser shall have received notice of
same and an opportunity to cure same in accordance with the
terms of the Lease and shall have failed to effect a cure;
(c) bound by any rent or additional rent which Tenant might have
paid for more than one month in advance to any prior
landlord;
(d) bound by any amendment or modification of the Lease made
without the prior written consent of the Mortgagee;
(e) personally liable or bound by the obligations of Landlord
regarding construction of the Premises or for any damages or
penalties resulting from Landlord's default in such
obligation; or
(f) bound in any respect with regard to the Lease for matters
and obligations accruing or to be performed thereunder from
and after the date of any subsequent disposition of the
Premises by Purchaser; provided the subsequent purchaser
assumes such matters and obligations.
FIFTH: On and after the date Tenant in good standing
attorns to Purchaser in pursuance of its agreement herein set
forth, Purchaser will undertake and perform all subsequent
obligations of the Landlord as set forth in the Lease for the
benefit of and undisturbed occupancy of Tenant under the Lease;
provided, however, that, Mortgagee shall have no obligation to
complete construction of the Leased Premises in the event of
foreclosure prior to completion thereof (provided, however that
in the event Purchaser elects not to complete construction of the
Leased Premises, after written notice of such election to be
given to Tenant within a reasonable time following foreclosure,
then, Tenant shall have the option, exercisable by delivery of
written notice to Purchaser within fifteen (15) days following
its receipt of notice of Purchaser's election, of terminating the
Lease and neither Mortgagee nor Tenant shall have any further
obligation thereunder accruing from and after the date of such
termination).
SIXTH: Tenant agrees it will not amend, modify nor abridge
the Lease (including any changes in the plans and specifications
for the construction of the Leased Premises) in any way without
prior written approval of the Mortgagee (which approval shall not
be unreasonably withheld), nor will the Lease ever merge into the
fee in the event that the Mortgagee acquires fee title to the
Mortgaged Premises.
SEVENTH: So long as the Mortgage remains outstanding and
unsatisfied, Tenant will mail or deliver to Mortgagee, at the
address and in the manner hereinbelow provided, a copy of all
notices permitted or required to be given to the landlord by
Tenant under and pursuant to the terms and provisions of the
Lease. At any time before the rights of the landlord shall have
been forfeited or adversely affected because of any default of
the landlord, or within the time permitted the landlord for
curing any default under the Lease as therein provided (but not
more than ninety (90) days from the receipt of notice by
Mortgagee), Mortgagee may, but shall have no obligation to, pay
any taxes and assessments, make any repairs and improvements,
make any deposits or do any other act or thing required of the
landlord by the terms of the Lease to cure any such default or
correct or remedy any condition giving rise to such default; and
all payments so made and all things so done and performed by
Mortgagee shall be as effective to prevent the rights of the
landlord from being forfeited or adversely affected because of
any default under the Lease as the same would have been if done
and performed by the landlord. Anything herein notwithstanding,
if necessary to enable Mortgagee (or Purchaser as the case may
be) to cure any default by Landlord, Mortgagee shall have such
reasonable amount of additional time to acquire possession and
title to the Premises by power of sale, within which to cure such
default by Landlord. Tenant will accept cure by Landlord's
Mortgagee; provided, however, such cure must occur within the
same time period provided for a Landlord cure under the Lease.
EIGHTH: Tenant acknowledges that Owner will execute and
deliver to Mortgagee an assignment of the Lease as additional
security for the loan secured by the Mortgage, and Tenant hereby
expressly consents to such assignment.
NINTH: Owner and Tenant shall certify to Mortgagee, to the
extent that the same are true at such time, that the Lease has
been duly executed by Owner and Tenant, has not been terminated
or canceled by either party and is in force in accordance with
its terms; that the Lease and any modifications and amendments
specified herein are a complete statement of the agreement
between Owner and Tenant with respect to the leasing of the
Leased Premises, and the Lease has not been modified or amended
except as specified herein; that to the knowledge of Owner and
Tenant, no party to the Lease is in default thereunder; that no
rent under the Lease has been paid more than thirty (30) days in
advance of its due date; and that Tenant, as of this date, has no
charge, lien or claim of offset
under the Lease, or otherwise, against the rents or other charges due
or to become due thereunder.
TENTH: Any and all notices, elections, demands, requests
and responses thereto permitted or required to be given under
this Agreement shall be in writing, signed by or on behalf of the
party giving the same, and shall be deemed to have been properly
given and shall be effective upon being personally delivered, or
upon being deposited in the United States mail, postage prepaid,
certified with return receipt requested, to the other party at
the address within the continental United States as such other
party may designate by notice specifically designated as a notice
of change of address and given in accordance herewith; provided,
however, that the time period in which a response to any such
notice, election, demand or request must be given shall commenced
on the date of receipt thereof; and provided further no notice of
change of address shall be effective until the date of receipt
thereof. Personal delivery to a party or to any officer,
partner, agent or employee of such party at said address shall
constitute receipt. Rejection or other refusal to accept or
inability to deliver because of changed address of which no
notice has been received shall also constitute receipt. Any such
notice, election, demand, request or response, if given to
Mortgagee, shall be addressed as follows:
___________________________________
___________________________________
___________________________________
___________________________________
Attn: ____________________________
with a copy to:
__________________________________
__________________________________
__________________________________
__________________________________
__________________________________
Attn: ___________________________
and, if given to Tenant, shall be addressed as follows:
__________________________________
__________________________________
__________________________________
Attn: ___________________________
with a copy to:
__________________________________
__________________________________
__________________________________
Attn: ___________________________
and, if given to Owner, shall be addressed as follows:
Weeks Realty, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: A. R. Weeks, Jr.
ELEVENTH: Mortgagee has and shall have the continuing right
to execute and record in the Land Records of ▇▇▇▇▇▇ County,
Georgia at any time, in its unilateral discretion, a Declaration
of Subordination for the purpose of thereby subordinating its
rights, title and interest in and under the Mortgage to the
rights, title and interest of Tenant under the Lease. Such
Declaration of Subordination shall, at Mortgagee's election,
operate, function and be in full force and effect for whatever
period of time Mortgagee declares therein that it shall be in
force not exceeding the term of the Lease and any extensions
thereof and the said Declaration may be voided unilaterally by
Mortgagee when it so elects.
TWELFTH: Tenant waives any and all rights it may have to
execute and record after the date hereof any document purporting
to again or further subordinate its right, title or interest
under the Lease to the lien of either the Mortgage or any other
mortgage or deed to secure debt or any ground lease or any
agreement modifying or amending the Mortgage except with the
written consent of Mortgagee.
THIRTEENTH: This Agreement cannot be changed orally but
only in writing signed by both parties hereto.
FOURTEENTH: This Agreement may be recorded by any party at
its own expense in the Land Records of ▇▇▇▇▇▇ County, Georgia
whenever, in its sole discretion, either party elects so to do.
FIFTEENTH: All of the terms, covenants and conditions
hereof shall run with the Mortgaged Premises and shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
SIXTEENTH: If the interest of Landlord shall be acquired by
Purchaser, Tenant shall look solely to the Purchaser's estate in
the Premises (or the proceeds thereof) for the satisfaction of
Tenant's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Purchaser by
the Purchaser in the event of default by the Purchaser, and no
other property or assets of Purchaser or
its partners or shareholders shall be subject to levy, execution or
other enforcement procedure in satisfaction of Tenant's remedies.
SEVENTEENTH: Landlord and Tenant agree there shall be no
other subordination of Tenant's interest under the Lease to any
other Lender or other party without first obtaining Lender's
prior written consent. Any attempt to subordinate such interest
shall be null and void.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, acknowledged and delivered the day
and year first above written.
Signed, sealed and delivered TENANT:
in the presence of:
_________________________
____________________________
Witness
____________________________ By:____________________
Notary Public Its: ____________________
Attest:
By: ____________________
Its: ____________________
[CORPORATE SEAL]
Signed, sealed and delivered OWNER:
in the presence of:
___________________________,
____________________________ a Georgia limited partnership,
Witness By: ______________________,
a Georgia corporation, its
____________________________ general partner
Notary Public
By:________________________
[CORPORATE SEAL]
Signed, sealed and delivered MORTGAGEE:
in the presence of:
__________________________
____________________________
Witness By: ______________________
Name:_____________________
____________________________ Its:______________________
Notary Public
[BANK SEAL]
EXHIBIT F
[APPROVED PLANS AND SPECIFICATIONS]
EXHIBIT G
[MANAGEMENT SPECIFICATIONS]
EXHIBIT H
SPECIAL STIPULATIONS
1. Option to Renew:
Tenant shall have the option to renew this Lease Agreement
for two (2) renewal terms of up to five (5) years each (each an
"Extended Term") provided that Tenant gives written notice to
Landlord of its intention to renew at least eight (8) months
prior to the end of the then current term of the Lease. Renewal
shall be upon the same terms and conditions as contained herein
except that the annual base rental shall be the fair market
rental value (but in no event less than the current rental rate
under the Lease) which shall be determined as follows:
(a) Landlord and Tenant will have fifteen (15) days after
Landlord receives the renewal notice within which to agree on the
then-fair market rental value of the Leased Premises as defined
in paragraph (c) below for the renewal period. If they agree on
the base monthly rent for the renewal period within fifteen (15)
days, they will amend this Lease by stating the base monthly
rental for the renewal period.
(b) If they are unable to agree on the base monthly rental
for the renewal period within fifteen (15) days, then the base
monthly rental for the renewal period will be the then-fair
market rental value of the Leased Premises as determined in
accordance with paragraph (d) below.
(c) The "then-fair market rental value of the Leased
Premises" means what a Landlord under no compulsion to lease the
Leased Premises and a Tenant under no compulsion to lease the
Leased Premises would determine as rents for the renewal period,
as of the commencement of the renewal period, taking into
consideration the uses permitted under this Lease, the quality,
size, design, and location of the Leased Premises, the rent for
comparable buildings located in the vicinity of the Leased
Premises and all other relevant factors related thereto.
Notwithstanding the foregoing, Landlord acknowledges and agrees
that the "then fair market rental value of the Leased Premises"
shall specifically exclude the increase in the rental value of
the Leased Premises resulting from any improvements made to the
Leased Premises which were paid for by Tenant. The then-fair
market rental value of the Leased Premises for the renewal period
will not be less than that provided during the initial term.
(d) Within seven (7) days after the expiration of the
fifteen (15) day period set forth in paragraph (b) above,
Landlord and Tenant will each appoint a real estate appraiser to
appraise the then-fair market rental value of the Leased
Premises. The two appraisers will meet promptly and attempt to
set the then-fair market rental value of the Leased Premises. If
they are unable to agree within thirty (30) days, they will
select a third appraiser within ten (10) days to set the then
fair market rental value of the Leased Premises. Landlord and
Tenant will bear one-half (1/2) of the cost of appointing the
third appraiser and of paying the third appraiser's fee.
(e) Within thirty (30) days after the selection of the
third appraiser, a majority of the appraisers will set the
then-fair market rental value of the Leased Premises. If a
majority of the appraisers are unable to set the then-fair market
rental value of the Leased Premises within thirty (30) days after
selection of the third appraiser, the two closest appraisals will
be averaged and the average will be the then-fair market rental
value of the Leased Premises.
It is expressly understood that Tenant shall have no option
to extend the term of this Lease for the Extended Term if at the
time of such attempted exercise of said Extended Term this Lease
is not then in full force and effect and if Tenant is then in
monetary default of any terms and conditions of this Lease beyond
any applicable notice and cure period provided for herein.
2. Option to Expand:
Landlord hereby grants to Tenant an option (the "Expansion
Option") for additional office space of approximately 25,000
square feet (the "Expansion Space"), to be located in any office
building to be built at Brookside by Landlord which will contain
speculative office space. In relation thereto, Landlord shall
provide written notice to Tenant of its intention to build
speculative office space at Brookside, at least ninety (90) days
prior to commencement of construction thereof. If space is
available, such Expansion Space shall be available to Tenant
upon the same terms and conditions contained herein, except that
the economic terms shall be at Fair Market Rental Value, as
defined below. In the event Tenant elects to exercise the
Expansion Option, and such space is still available, Tenant shall
provide written notice to Landlord of its intent to lease the
Expansion Space, and Landlord shall within seven (7) days provide
Tenant an option proposal (the "Option Proposal") stating the
location of such Expansion Space, the availability
date and market terms. The lease term for such Expansion Space shall
be for five (5) years with Tenant having an option to cancel (the
"Cancellation Option") (a) at any time after the third lease
year, or (b) at any time after the second lease year in the event
Tenant elects to have Landlord develop the Additional Building
(as hereinafter defined), provided Tenant provides written notice
to Landlord of its intention to cancel the Lease ten (10) months
prior to the Cancellation Date and reimburses Landlord for one
hundred percent (100%) of all unamortized tenant improvement
costs (below the finished ceiling) and for any unamortized
brokerage commissions paid to ▇▇▇▇▇▇ & Associates, L.L.C. by
Landlord. The Expansion Option shall be upon the same terms and
conditions as contained herein except that the annual base rental
shall be the fair market rental value which shall be determined
as follows:
(a) Landlord shall provide Tenant notice of its
determination of the Fair Market Rental Value in its Option
Proposal. Landlord and Tenant will have fifteen (15) days after
Tenant receives the Option Proposal within which to agree on the
then-fair market rental value of the Expansion Space as defined
in paragraph (c) below for the term of such lease. If they agree
on the terms of the Option Proposal, they will enter into a new
lease, on the same terms and conditions contained herein except
for the terms and conditions specific to the Expansion Space.
(b) If they are unable to agree on the base monthly rental
for the Expansion Space within fifteen (15) days, then the base
monthly rental for the term will be the Fair Market Rental Value
of the Expansion Space as determined in accordance with paragraph
(d) below.
(c) The "Fair Market Rental Value of the Expansion Space"
means what a Landlord under no compulsion to lease the Expansion
Space and a Tenant under no compulsion to lease the Expansion
Space would determine as rents for a five (5) year lease term, as
of the commencement of the term, taking into consideration the
uses permitted under the Lease, the quality, size, design, and
location of the Expansion Space, and the rent for comparable
buildings located in the vicinity of the Expansion Space
(inclusive of tenant improvement allowances and any concessions
which may be offered in the market place).
(d) Within seven (7) days after the expiration of the
fifteen (15) day period set forth in paragraph (b) above,
Landlord and Tenant will each appoint a real estate appraiser to
appraise the Fair Market Rental Value of the Expansion Space.
The two appraisers will meet promptly and attempt to set the
then-fair market rental value of the Expansion Space. If they
are unable to agree within thirty (30) days, they will select a
third appraiser within ten (10) days to set the then fair market
rental value of the Expansion Space. Landlord and Tenant will
bear one-half (1/2) of the cost of appointing the third appraiser
and of paying the third appraiser's fee.
(e) Within thirty (30) days after the selection of the
third appraiser, a majority of the appraisers will set the Fair
Market Rental Value of the Expansion Space. If a majority of the
appraisers are unable to set the Fair Market Rental Value of the
Expansion Space within thirty (30) days after selection of the
third appraiser, the two appraisals which are closest in value
will be averaged and the average of these two will be the Fair
Market Rental Value of the Expansion Space.
(f) It is expressly understood that Tenant shall have no
option to exercise its Expansion Option if at the time of the
attempted exercise of such option or at the commencement of such
term this Lease is not then in full force and effect or if Tenant
is then in monetary default of any terms and conditions of this
Lease after applicable notice and cure periods.
(g) It is expressly understood that this Expansion Option
is subject to space availability. In the event there is no
available space at Brookside, then Landlord shall provide the
Expansion Space in another building which Landlord owns in the
North ▇▇▇▇▇▇ County office market (also subject to space
availability). In the event Landlord has multiple vacancies
which could accommodate this requirement, then the exact location
of the Expansion Space shall be determined by Tenant subject to
Landlord's approval, such approval not to be unreasonably
withheld, conditioned or delayed.
3. The Additional Building:
Provided this Lease is in full force and effect and Tenant
is not in monetary default of any terms and conditions of this
Lease after applicable notice and cure periods, Landlord shall
extend to Tenant certain opportunities, with respect to an
additional building which can be constructed approximately as
shown on Exhibit "J" attached hereto and made a part hereof (the
"Additional Building") (it being expressly understood by both
parties that the representation is conceptual in nature and that
the final building plan will be based on Tenant's requirement of
a minimum 50,000 square feet), subject to the following terms and
conditions:
(a) Simultaneously with the execution of this Lease, Tenant
has entered into an Option Agreement with Realticorp. (the
"Option Agreement") to purchase from Realticorp. up to
approximately 25 acres of land adjacent to the Land (hereinafter
the "Additional Land"), said Option Agreement being attached
hereto as Exhibit "I". In consideration of the Construction
Option, as hereinafter defined, Landlord agrees to pay to Tenant
Ten Thousand Dollars ($10,000.00) on or before thirty (30) days
following Tenant's payment to Realticorp. of the Forty Thousand
Dollars ($40,000.00) payment due under the Option Agreement
(which payment is due Realticorp. on or before November 15,
1998). In the event Tenant elects to expand into an additional
building within the Additional Land, Tenant shall provide notice
thereof to Landlord. In such event, Landlord shall have the
option (the "Construction Option") to have Landlord construct,
for lease to Tenant, the Additional Building within the Phase II
Land, as hereinafter defined. In the event Landlord desires to
so construct the Additional Building for lease to Tenant,
Landlord shall provide written notice of such election on or
before thirty (30) days following its receipt of Tenant's notice.
In the event Landlord fails to provide such notice within said
thirty (30) day period or, provides notice to Tenant of its
election not to proceed with the construction of the Additional
Building for lease to Tenant, then, in such event, Landlord shall
have no further rights whatsoever with respect to the Option
Agreement or the Additional Land related thereto. If however,
Landlord does elect to construct the Additional Building for
Tenant, Tenant shall assign to Landlord so much of its rights
under the Option Agreement as are necessary to allow Landlord to
purchase that portion of the Additional Land upon which the
Additional Building and related improvements are to be
constructed (said portion being hereinafter referred to as the
"Phase II Land"), with Tenant retaining all other of its rights
under the Option Agreement. The Additional Building shall be of
similar quality as the Leased Premises in all material respects.
The size of the Additional Building shall be determined by Tenant
in its sole discretion. Other development decisions affecting
development costs, development schedule, and architectural style
of the Additional Building shall be mutually agreed upon between
Landlord and Tenant, the parties agreeing that the configuration
and style of the Additional Building shall be compatible with the
Building. In the event Tenant elects to have Landlord construct
the Additional Building pursuant to this paragraph, Tenant shall
enter into a Lease with Landlord for such space, which Lease
shall contain the same terms and conditions of this Lease, except
as follows:
(i) The commencement date of the term of the Additional Building
Lease, as hereinafter defined, shall be the date of Substantial
Completion of construction of the Additional Building (the
"Commencement Date"); rental payments shall commence on the
Commencement Date. The term of the lease for the Additional
Building (hereinafter referred to as the "Additional Building
Lease") shall be for a minimum of seven (7) years.
(ii) The Additional Building Lease shall contain no further
expansion options, rights of refusal or other opportunities to
lease additional space, no period of free rent and no
construction allowance or other similar incentives other than as
specified in (iii) below.
(iii) The annual base rent for the Additional Building shall be
equal to a yield of 11.30% per annum on the Project Cost of the
Additional Building. Any specialized construction (above building
standard allowance of $22.00 per useable square foot below a
partially finished ceiling commensurate with the Building) will
be amortized over the remaining term of the Lease at 10.5% per
annum. Yield shall be calculated as gross rents less a vacancy
allowance of 5% on lease terms less than ten (10) years, less a
base year operating expense stop and less a structural reserve of
.07 per square foot, divided by Project Costs as hereinafter
defined. (Please note that for purposes of this transaction,
utilities are paid for by Tenant.)
(b) "Project Costs" shall mean Landlord's cost of the Phase
II Land, and any commissions relating to the lease transaction
and all direct and indirect, hard and soft, costs and expenses of
designing, permitting, landscaping and constructing the
Additional Building including general conditions and a
construction and development fee of 5% of the total costs.
Landlord acknowledges and agrees that all of the standards and
procedures provided for in the Work Letter Agreement attached
hereto as Exhibit "K" relating to the Building shall be followed
by Landlord with respect to its construction of the Additional
Building.
(c) Landlord represents and warrants that the factors and
methodology which will be used for the determination of the
rental rate necessary to realize an 11.30% per annum yield on the
Project Cost of the Additional Building as set forth in Section
3(a)(iii) above are the same factors and methodology Landlord
used in its calculation on the rental rate necessary to realize
an 11.30% per annum yield on the Project Cost of the Leased
Premises. An example of said methodology is provided for on
Exhibit "M" attached hereto and made a part hereof. Landlord
further represents and warrants that the factors and methodology
used in the calculation of the 5% construction and development
fee for said Additional Building shall be the same as that used
in deriving the 5% construction and development fee applicable to
the Leased Premises. Finally, Landlord represents and warrants
that all phases of the development process relating to the
construction of the Additional Building shall be conducted on an
"open book" basis.
4. Lease Term Extensions: In the event Landlord constructs for
Tenant the Additional Building on the Phase II Land, Tenant shall
have the unilateral right to extend the lease term of the Leased
Premises so that it is co-terminus with the lease term of the
Additional Building. The extension Base Rental rate shall
escalate two and one-half (2.5%) percent annually from the end of
the original Lease for the Leased Premises.
5. Due Diligence Information: Landlord agrees to provide
Tenant with copies of all due diligence information collected by
Landlord associated with the Leased Premises or other land which
is included in Tenant's land option and agrees to consider in
good faith any of Tenant's comments or concerns in relation
thereto. Furthermore, Landlord acknowledges and agrees that it
has, on or before the date of execution hereof, provided to
Tenant a leasehold title insurance commitment which commitment
specifies all title exceptions applicable to the Land. Landlord
acknowledges and agrees that, as of the Commencement Date, only
those exceptions noted within Schedule B-2 of the title
commitment provided to Tenant shall encumber the Land, except,
however, that Landlord shall be able to place utility easements
on the Land for utilities to serve the Leased Premises.
6. Brookside Protective Covenants: To the extent that Landlord
exercises any control or influence with respect to the Protective
Covenants for Brookside, Landlord agrees that Tenant shall have
reasonable input into the establishment of same and that Landlord
will consider in good faith all of Tenant's comments and concerns
in relation thereto and will further consider in good faith all
of Tenant's comments and concerns in relation to any proposed
amendments thereto.
7. Infrastructure: Landlord shall enter into an agreement with
Realticorp. requiring that all infrastructure, including roads,
landscaping, park entry, signage and the section of the jogging
trail in the vicinity of the Building, shall be
completed prior to the Commencement Date. The approximate location of
the jogging trail is shown on Exhibit "L" attached hereto and by this
reference made a part hereof.
8. Microwave Dishes: Tenant may install, at its sole cost and
expense (but at no additional rental), up to four (4) microwave
satellite dishes as well as related base site cabinets in
connection with such satellite dishes, on either the ground or
rooftop of the Leased Premises. The exact size of each dish
should not exceed six (6) feet in diameter. Any installation
shall be in accordance with applicable code requirements and
shall be subject to Landlord's approval of the size, design,
installation and appearance, and screening of such equipment,
such approval not to be unreasonably withheld, conditioned or
delayed. Any additional screening or structural reinforcement
necessary as a result of the installation of such microwave
dishes shall be at Tenant's sole cost and expense. Tenant's use
of and access to such facilities and equipment will be
uninterrupted while the Lease is in effect. In addition to the
foregoing, at Tenant's election, subject only to structural
limitations applicable to the Building, Tenant shall be entitled
to install additional microwave satellite dishes on the roof of
the Building or elsewhere on the Land; provided, however, each of
the above provisions relating to Landlord's approval of size,
design, installation, appearance and screening of the original
four microwave satellite dishes shall likewise apply to such
additional microwave dishes. Landlord acknowledges and agrees
that in no event shall it charge any additional rent with respect
to any such microwave satellite dishes; however, Tenant shall pay
for any structural alterations to the Building necessitated by
the installation of such microwave satellite dishes. Tenant
acknowledges and agrees that the placement of such additional
microwave dishes is contingent on there being adequate land for
the placement of such additional microwave dishes, and if Tenant
requests in writing Landlord to acquire any such additional land,
Tenant shall be responsible for the cost of acquiring such
additional land.
9. Traffic Signal: Upon the Commencement Date, Landlord will
either install a traffic signal at the Western entrance (primary
entrance) to the Office Park or that traffic officers will be on
site during peak hours and the lunch hour to direct traffic until
such time as the traffic signal has been installed.
10. Computer Cabling Conduits: Landlord shall, during its
initial construction of the Building and related improvements on
the Land, make accommodation for additional computer cabling
conduits running from the Building to the planned public
right-of-way and running from the Building to the common property
line separating the Land and the Additional Land. In relation
thereto, Landlord acknowledges and agrees that it is likely
Tenant will, in the future, need to add additional computer cable
lines from the Building to the right-of-way and, in the event the
Additional Building is constructed, will desire to cross cable
between the Building and said Additional Building. Tenant
acknowledges and agrees that any and all costs for such
additional computer cabling work shall be borne by Tenant.
11. Buffer: Landlord shall enter into an agreement with the
owner of the property adjoining the eastern boundary of the Land
requiring that there be a ten (10) foot buffer located on all
property adjoining the eastern boundary of the Land.
EXHIBIT I
[LAND OPTION AGREEMENT]
TO BE ATTACHED
EXHIBIT J
[THE ADDITIONAL BUILDING]
EXHIBIT K
[WORK LETTER AGREEMENT]
EXHIBIT L
[LOCATION OF JOGGING TRAIL]
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