EXHIBIT 10.12
THE LEASE
THIS LEASE AGREEMENT (hereinafter referred to as the "Lease") , made and entered
into on the 27 day of August, 1997, between Principal Mutual Life Insurance
Company, an Iowa Corporation (hereinafter referred to as "Landlord") and
Automated Dispatch Solutions, Inc. d/b/a ADS (hereinafter referred to as
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"Tenant").
WITNESSETH:
1. Summary of Lease.
The following is a summary of certain portions of the Lease:
Landlord: Principal Mutual Life Insurance Company an Iowa Corporation
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Landlord's Address: Principal Mutual Life Insurance Company
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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Other Address: Principal Mutual Life Insurance Company
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c/o Brannen/▇▇▇▇▇▇▇ Company
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▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Tenant: Automated Dispatch Solutions, Inc. d/b/a ADS
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Tenant Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Building Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Suite Number: 235
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Floor(s) upon which the Premises are located: 2/nd/
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Lease Term: 5 years and No months
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Commencement Date: September 1, 1997
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Expiration Date: August 31, 2002
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Base Rental: $74,733.72 per annum
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Monthly Base Rental: $6,227.81
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Rentable Area of Premises: 4,745 square feet
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Rentable Area of Building: 98,000 square feet
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Tenant's Percentage of Building: 4.84 percent
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Security Deposit: $7,009.45
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Broker: Peachtree Partners
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It is understood that the foregoing is intended as a summary of portions of
the Lease for convenience only and if there is a conflict between the above
summary and any provisions of this Lease hereinafter set forth, the latter
shall control.
2. Definitions:
(a) "Building" means the office building located upon certain real property
(the "Property") in Land Lot(s)58, 59, 70 and 71 of the 13th District of
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▇▇▇▇▇▇▇ County, Georgia the address of which is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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(b) "Premises" or "Leased Premises" means the office space which is located
in the Building and shown on the drawing attached hereto as Exhibit "A".
(c) "Base Rental" means the annual rental of $74,733.72, as the same may be
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increased from time to time pursuant to the provisions of this Lease.
(d) "Commencement Date" means September 1, 1997.
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(e) "Expiration Date" means August 31, 2002.
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(f) "Security Deposit" means the sum of $7,009.45 which has been deposited
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with Landlord by Tenant.
(g) "Common Areas" means those areas of the Building devoted to corridors,
elevator foyers, restrooms, mechanical rooms, janitorial closets,
electrical and telephone closets, vending areas and other similar
facilities (but shall not include any such areas provided or reserved for
the exclusive use of a particular tenant). Common Areas shall be measured
from and to the inside finished surface of exterior Building walls, and
from and to the center of any partition walls which separate Common Areas
from tenant spaces, including the Premises, and from Service Areas.
(h) "Service Areas" means those areas within the Building used for Building
stairs, fire towers, elevator shafts, flues, vents, stacks, pipe shafts and
vertical ducts (but shall not include any such areas provided or reserved
for the exclusive use of a particular tenant). Service Areas shall be
measured from and to the inside finished surface of exterior Building
walls, and from and to the center of any partition walls which separate
Service Areas front tenant spaces, including the Premises, and from Common
Areas.
(i) "Exterior Common Areas" means all areas, not located within the
Building, provided and maintained for the common use and benefit of
Landlord and tenants of the Building generally, and the employees, invitees
and licensees of Landlord and such tenants, including, without limitation,
parking areas (whether enclosed or not), streets, sidewalks, and landscaped
areas (including Landlord's interest in any such areas which are part of
the "common areas" established pursuant to the Declaration of Covenants,
Conditions and Restrictions affecting the Building).
(j) "Rentable Area" of the Premises means (1) the gross area of the
Premises as measured from and to the inside surface of the outer glass of
the exterior Building walls, and from and to the center of any partition
walls which separate the Premises from adjoining Common Areas, Service
Areas, or premises of other tenants; plus (2) an area equal to the gross
area of the Common Areas, measured by the method described in Paragraph
2(g), times a fraction, the numerator of which is the gross area of the
Premises as described in (1) above and the denominator of which is the
Rentable Area of the Building, as hereinafter defined.
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"Rentable Area" of the Building means the gross area of the Building as
measured from and to the outer glass of the exterior Building walls, and
from and to the center of any partition walls of any Service Areas, which
Rentable areas of the Building is set forth in the Lease summary in
Paragraph 1.
(k) "Basic Costs" means all expenses, costs and disbursements (but not
repayment of debt or replacement of capital investment items other than
those elsewhere herein expressly included, nor specific costs specially
billed to and paid by other tenants of the Building) of every kind and
nature which Landlord shall pay or become obligated to pay because of, or
in connection with the ownership and operation of the Building, the
Property and the Exterior Common Areas, including but not limited to the
following: (i) wages and salaries, including payroll taxes, workers'
compensation, insurance premiums, and all other employment benefit and
insurance costs to Landlord of all employees directly engaged in operating
and maintaining the Building, and that part of central accounting costs
which are applicable to the Building; (ii) costs of all supplies and
materials used in operation and maintenance of the Building; (iii) cost of
all utilities for the Building including the cost of water, sewer, gas, oil
and electric and other fuels or forms of power or energy; (iv) cost of all
maintenance and service agreements (oral or written) for the Building and
the equipment therein including, but not limited to, security service,
window cleaning, janitorial service, elevator maintenance, maintenance of
heating, ventilation and air-conditioning equipment, plumbing, controls,
locks, alarms and all other parts of the Building; (v) landscaping and
grounds maintenance costs and expenses; (vi) annual and special assessments
against the Property made pursuant to tile Declaration of Covenants,
Conditions and Restrictions by the Owners Associations; (vii) cost of all
insurance relating to the Building or rents therefrom including, but not
limited to, the costs of casualty and liability insurance applicable to the
Building and the Exterior Common Areas and to Landlord's personal property
used in connection with the Building and the Exterior Common Areas; (viii)
the following taxes; (A) personal property taxes (attributable to the year
in which paid) imposed upon the furniture, fixtures, machinery, equipment,
apparatus, systems, and appurtenances used in connection with the Building
for tile operation thereof, and (B) real estate taxes, assessments, sewer
rents, rates, and charges, transit taxes, taxes based upon the receipt of
rent and any other federal, state, or local governmental charge, general,
special, ordinary, or extraordinary (but not including income or franchise
taxes or any other taxes imposed upon or measured by landlord's income or
profits, unless the same shall be imposed in lieu of real estate taxes)
which may now or hereafter be levied or assessed against the Building
and/or the Property or the rents derived from the Building (in the case of
special taxes or assessments which may be payable in installments, only the
amount of each installment paid during the calendar year shall be included
in the taxes for that year); (ix) costs for the maintenance and repair of
the Building and the personal property used in connection therewith
(excluding repairs and maintenance costs which are paid from proceeds of
insurance of which are paid by, Tenant or other third parties, and
alterations attributable solely to tenants of the Building other than
Tenant); (x) amortization of the cost of installation of capital investment
items which are primarily for the purpose of reducing operating costs or
which may be required by governmental authority, as reasonably amortized by
Landlord, with interest at 15% per annum on the amount unamortized from
time to time; (xi) advertising and leasing fees; and (xii) legal and
accounting expenses, including, but not limited to, such expenses as
related to seeking or obtaining reductions in and/or refunds of real estate
taxes; and (xiii) management fees.
(l) The Basic Costs of the Building shall be computed on the accrual basis
and shall be all Basic Costs incurred by Landlord to maintain all
facilities of the Building and the Exterior Common Areas in operation
during all or part of the year, together with such additional or substitute
facilities in subsequent years as may be determined by Landlord to be
necessary. If less than ninety five percent (95%) of
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the Rentable Area of the Building shall have been occupied by tenants at
any time during any calendar year of the Lease Term, the Basic Costs for
such calendar year shall be deemed to be an amount equal to the Basic Costs
which would normally be expected to have been incurred had such occupancy
been ninety-five percent (95%) throughout such calendar year.
(m) "Building Standard Improvements" when used herein, means those
Improvements to the Premises described as such in Exhibit "A".
3. Lease Grant
Subject to and upon the terms herein set forth, Landlord leases to Tenant
and Tenant leases from Landlord the Premises for the Lease Term. Tenant is
hereby granted only a usufruct, not subject to levy or sale; neither an
estate for years nor other estate shall pass from the Landlord on account
thereof. The Rentable Area of the Premises is stipulated for all purposes
to be 4,745 (four thousand seven hundred forty five) square feet.
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4. Lease Term
(a) The "Lease Term" is for a period of time commencing at 12:01 a.m. on
the Commencement Date, or on such later date as is provided in subparagraph
(c) below, and continuing thereafter through and until 6:00 p.m. on the
Expiration Date.
(b) If on the Commencement Date the Premises have not been substantially
completed due to omission, delay or default by Tenant or anyone acting
under or for the Tenant (including, without limitation, Tenant's default or
failure to perform its obligations in a timely manner or any delay
resulting from changes to the "Drawings and Specifications" by Tenant )
then Tenant's obligations under this Lease (including, without limitation,
the obligation to pay rent) shall nonetheless commence as of the
Commencement Date.
(c) If, due to causes other than as set forth in subparagraph (b) above,
Landlord does not deliver possession of the Premises to Tenant on the
commencement date this Lease shall not be void or voidable, nor shall
Landlord be liable to Tenant for any loss or damage resulting therefrom,
but in that event rent shall ▇▇▇▇▇ until the date when Landlord does
deliver possession, and the Lease Term shall commence on the date when
possession is delivered to Tenant except that, if for any reason other than
strikes, casualties or other causes beyond the control of the Landlord,
possession of the Premises is not delivered to Tenant within ninety (90)
days after the Commencement Date or if possession is not so delivered for
any reason whatsoever other than the causes set forth in subparagraph (b)
above within one hundred eighty (180) days after the Commencement Date,
then this Lease shall be voidable by either party upon thirty (30) days
written notice to the other given at any time prior to the delivery of
possession, provided that such notice shall be void, and this Lease shall
remain in full force and effect, if possession is delivered within said
thirty (30) day period following such notice of termination. In the event
this Lease is terminated as provided in this Paragraph 4(c), any monies
advanced by Tenant to Landlord shall be returned and the parties hereto
shall have further obligation one to the other.
(d) In the event that Landlord cannot deliver possession of the Premises to
Tenant on the Commencement Date because of Tenant's failure to perform its
obligations under, or to pay the amounts specified, this Lease shall be
terminable at the sole option of Landlord at any time after the
Commencement Date and prior to Tenant's performance or payment; and should
Landlord so elect to terminate this Lease, such termination shall be
without prejudice to Landlord's right to ▇▇▇ Tenant to recover damages for
Tenant's failure to perform its obligations, or to pay amounts due.
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5. Base Rental
(a) Tenant shall pay to Landlord as annual rental during the term of this
Lease the Base Rental, payable in lawful money of the United States, in
advance, in monthly equal installments on or before the first day of each
month during the Lease Term. The Base Rental is subject to increase as
provided hereinbelow. If this Lease commences on a day other than the
first day of the calendar month or ends on a day other than the last day of
a calendar month, the monthly installment of Base Rental for the fractional
month shall be appropriately prorated on a daily basis for such month.
Tenant has paid Landlord $6,227.81 (six thousand two hundred twenty-seven
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dollars and eighty-one cents) upon Tenant's execution of this Lease,
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representing the monthly installment of Base Rental for the month of
September, 1997.
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(b) On January 1/st/ of each year beginning with the January 1, 19__
payment of Base Rental, and on each January 1/st/ thereafter during the
Lease Term, the Base Rental shall be increased by one half (1/2) of the
amount equal to the product of: (i) the amount of Base Rental set forth in
Paragraph 2(c) of this Lease, as increased from time to time by all earlier
adjustments established under this subparagraph (b), multiplied by (ii) the
difference (expressed as a percentage) between the Consumer Price Index (as
hereinafter defined) published for the month of October of the calendar
year just ended and the Consumer Price Index published for the month of
October of the calendar year preceding the calendar year just ended. In no
event shall the Base Rental computed according to the provisions of this
subparagraph (b) for any calendar year be less than the Base Rental for the
preceding calendar year. Such increase shall be prorated over the first
year.
(c) "Consumer Price Index" means the Consumer Price Index for all Urban
Consumers, U.S. Metro Atlanta (if "Metro Atlanta" is not available will use
South Average) for All Items (1967 - 100) of the Bureau of Labor Statistics
of the United States Department of Labor. If the Consumer Price Index
published by the United States Department of Labor, Bureau of Labor
Statistics, is changed so that it affects the calculations achieved
hereunder, the Consumer Price Index shall be converted in accordance with a
conversion factor published by the United States Department of Labor,
Bureau of Labor Statistics in order to obtain substantially the same result
as would have been obtained if the Consumer Price Index had not been
changed. If the Consumer Price Index is discontinued or revised during the
term of this Lease, such other government index or computation with which
is replaced shall be used in order to obtain substantially the same result
as would have been obtained if the Consumer Price Index had not been
discontinued or revised. If the Consumer Price Index is discontinued and no
government index or computation replaces same, the Landlord shall designate
an appropriate substitute.
(d) Tenant shall pay to Landlord all Base Rental, additional rent, and all
other charges due and owing by Tenant under this Lease with deduction or
set-off, in legal tender, and at Landlord's address or as otherwise
directed from time to time by Landlord's notice.
6. Additional Rent
(a) Tenant's Base Rental is based, in part, upon the estimate that annual
Basic Costs will be equal to the _____ per square foot of Rentable Area of
the Building at full occupancy as determined below. (Base Year shall be
defined as the actual "Basic Costs" paid or incurred during the calendar
year 1995. In the event the building is less than ninety percent (90%)
occupied, the costs shall be adjusted by the Landlord to reflect ninety
percent (90%) occupancy). The Rentable Area of the Building is stipulated
to be 98,000 square feet. Tenant shall, from time to time during the term
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of the Lease, pay as additional rent hereunder an amount equal to the
produce obtained by multiplying (i) the excess in actual Basic Costs over
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$_________ per square foot of Rentable Area of the Building times (ii) the
number of square feet of the Rentable Area of the Premises (the "Excess").
(b) Landlord shall also have the right, prior to after the close of any
calendar year, to make a good faith estimate of the Excess for the
succeeding calendar year and, following thirty (30) days' notice to Tenant,
Tenant shall pay to Landlord, on or before the first day of each month of
such calendar year, one twelfth (1/12th) of such estimated Excess;
provided, however, that prior to receipt of such notice, Tenant shall
continue to pay Landlord the monthly installment amount of the Excess, if
any, which was paid or payable in the calendar year just ended.
(c) By April 1 of each calendar year following the year during which the
Lease Term begins, or as soon thereafter as practical, Landlord shall
furnish to Tenant a statement of Landlord's actual Basic Costs for the
previous calendar year, and Landlord shall notify Tenant of the actual
amount of the Excess owing by Tenant to Landlord, which statement shall
show the calculations used to derive the amount of the Excess. Tenant
agrees to pay Landlord promptly, with the next monthly rental payment, as
additional rent, all Excess which has not been previously paid as estimated
Excess. If for any calendar year additional rent collected for the prior
year, as a result of Landlord's estimate of Excess, is greater than the
additional rent actually due during such prior year, then Landlord shall
refund to Tenant any such overpayment or, at Landlord's option, apply such
amount against rentals thereafter coming due under the Lease.
7. Late Payments
Tenant shall pay, as a late charge in the event any installment of Base
Rental, additional rent, or other charge to be paid by Tenant hereunder is
not paid when due, an amount equal to five percent (5%) of the amount due
for each and every 30-day period that said amount remains unpaid (but in no
event shall the amount of such late charge exceed an amount based upon the
highest legally permissible rate chargeable at any time by Landlord under
the circumstances). Should Tenant make a partial payment of past due
amounts, the amount of such partial payment shall be applied first to
reduce all accrued and unpaid late charges, in inverse order of their
maturity, and then to reduce all other past due amounts, in inverse order
of their maturity.
8. Occupancy and Use
(a) Tenant shall use and occupy the Premises for general office purposes
and for no other use or purpose without prior written consent of Landlord.
(b) Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building or injure or annoy them. Tenant
shall not use the Premises or allow the Premises to be used for any
improper, immoral, unlawful, or objectionable purposes, or for any
business, use or purpose which is, in Landlord's judgment, disreputable or
inconsistent with the operation of a first class office building, nor shall
Tenant cause or maintain or permit any nuisance in, on, or about the
Premises.
9. Hazardous Substances
Tenant shall not use the Premises or permit anything to be done in or about
the Premises which will in any way conflict with any law, governmental
standard or regulation applicable to Tenant and/or to the Premises in
connection with occupational health and safety, Hazardous Substances (as
hereinafter defined) and environmental matters. Tenant shall not use the
Premises or allow the Premises to be used for, the generation, storing or
disposal of any Hazardous Substances. Tenant shall promptly notify
Landlord of its receipt of any notice of a violation of any such law,
standard or regulation. The use,
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generation, storage, release, threatened release, discharge, disposal or
presence on or about the Premises of any Hazardous Substances by Tenant,
Tenant's agents or any sublessee or assignee occupying all or part of the
Premises shall be an immediate event of default under this Lease. For the
purpose hereof "Hazardous Substances" means any toxic or hazardous waste or
substances, including, without limitation, asbestos, PCBs, substances
defined as "hazardous substances" or "toxic substances" in the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. section 9601 et seq., Hazardous Materials
Transportation Act, 49 U.S.C. section 1802, the Resource Conservation and
Recovery Act, 42 U.S.C. section 6901 et seq. and in the Toxic Substance
Control Act of 1976, as amended, 15 U.S.C. section 2601 el seq., or in any
applicable state environmental statues.
10. Compliance with Laws
Tenant shall not use the Premises or permit anything to be done in or about
the Premises which will in any way conflict with any law, statute,
ordinance, or governmental rule or regulation now in force or which may
hereafter be enacted or promulgated. Tenant shall not do or permit
anything to be done on or about the Premises or bring or keep anything
therein which will in any way increase the rate of any insurance upon the
Building in which the Premises are situated or any of its contents or cause
a cancellation of said insurance or otherwise affect said insurance in any
manner, and Tenant shall at its sole cost and expense promptly comply with
all laws, statutes, ordinances, and governmental rules, regulations, or
requirements now in force or which may hereafter be in force and with the
requirements of any board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use, or
occupancy of the Premises.
11. Service and Utilities
(a) Landlord shall maintain the Service Areas and Common Areas of the
Building, the mechanical, plumbing and electrical equipment serving the
Building, and the structure itself, in reasonably good order and condition
except for damage occasioned by the act or negligence of Tenant, which
damage shall be repaired by Landlord at Tenant's expense. In the event
Tenant requires or needs to have one or more separate systems of either
heating, ventilating, air-conditioning or other similar systems over and
above that provided by Landlord, the installation, care, expense, and
maintenance of each such system shall be borne by and paid for by Tenant.
(b) Provided the Tenant shall not be in default hereunder, and subject to
the provisions elsewhere herein contained and the rules and regulations of
the Building, Landlord agrees to furnish to the Premises during ordinary
business hours (7 a.m - 6 p.m. M-F; 8 a.m. - 1 p.m., Sat.) of generally
recognized business days, to be determined by Landlord (but exclusive, in
any event, of Sundays and legal holidays: (i) heat and air-conditioning
required in Landlord's judgment for the comfortable use and occupation of
the Premises; (ii) janitorial services during the times and in the manner
that such services are, in Landlord's judgment, customarily furnished in
comparable office buildings in the immediate market area, except that, if
Tenant's floor covering or other improvements require special treatment,
Tenant shall pay the additional cleaning cost attributable thereto as
additional rent upon presentation of a statement therefor by Landlord;
(iii)elevator service; (iv) electricity; and (v) water.
(c) Tenant will not without the written consent of Landlord use any
apparatus or device in the Premises, including without limitation,
electronic data processing machines and machines using excess lighting or
current which will in any way increase the amount of electricity or water
usually furnished or supplied for use of the Premises as general office
space; nor connect with electric current, except through existing
electrical outlets in the Premises, or with water pipes, any
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apparatus or devise for the purpose of using electrical current or water.
If Tenant in Landlord's judgment shall require water or electric current or
any other resource in excess of that usually furnished or supplied for use
of the Premises as general office space (it being understood that such an
excess may result from the number of fixtures, apparatus and devices, the
hours of use, or any combination of such factors), Tenant shall first
procure the consent of Landlord, which Landlord may in its discretion
withhold, to the use thereof, and Landlord may cause a special meter to be
installed in the Premises, at Tenant's expense, so as to measure the amount
of water, electric current or other resource so consumed, as shown by said
meters, at the rates charged by the local public utility furnishing the
same, plus any additional expense incurred in keeping account of the water,
electric current or other resources so consumed.
(d) Landlord shall not be liable to Tenant or to any person, firm,
corporation, or other business association claiming by, through or under
Tenant for: (i) failure to furnish or for delay in furnishing any service
provided for in this Lease, and no such failure or delay by Landlord shall
be an actual or constructive eviction of Tenant nor shall any such failure
or delay operate to relieve Tenant from the prompt and punctual performance
of each and all of the covenants to be performed hereunder by Tenant; (ii)
any latent defects in the Premises or Building; (iii) defects in the
cooling, heating, electric, water, elevator, or other apparatus or systems
or for water discharged from sprinkler systems, if any, in the Building;
(iv) the limitation, curtailment, rationing or restricting of use of water
or electricity, gas or any other form of energy or any other service or
utility whatsoever serving the Premises or the Building; (v) for Landlord's
reasonable voluntary cooperation with the efforts of national, state or
local government agencies or utilities suppliers in reducing energy or
other resource consumption.
(e) Any sums payable under this Paragraph 11 shall be considered additional
rent and shall be added to any installment of Base Rental thereafter
becoming due, and Landlord shall have the same remedies for payment of such
sums as for a default in the payment of Base Rental.
(f) Tenant shall not provide any janitorial services without Landlord's
written consent and then only subject to supervision of Landlord and by a
janitorial contractor or employees at all times satisfactory to Landlord.
Any such services provided by Tenant shall be Tenant's sole responsibility
and at Tenant's sole risk.
(g) Access to the Building may be regulated during other then normal
business hours in such manner as Landlord deems appropriate. Landlord,
however, shall have no liability to Tenant, its employees, agents, invitees
or licensees for losses due to theft or burglary, or for damages or
injuries done by unauthorized persons on the Premises or in the Building
and neither shall Landlord be required to insure against such losses.
Tenant shall cooperate fully in Landlord's efforts to regulate access to
the Building.
12. Improvements on Premises
All installations and improvements now or hereafter placed on the Premises
other than Building Standard Improvements shall be made by Landlord at
Tenant's elections for Tenant's account and at Tenant's cost (and Tenant
shall pay ad valorem taxes and increased insurance thereon or attributable
thereto), which cost shall be payable by Tenant to Landlord in advance as
additional rent.
13. Graphics
Landlord shall provide and install, at Tenant's cost, all letters and
numerals on doors in the Premises, all such letters and numerals shall be
in the standard graphics chosen by
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Landlord for the Building and no others shall be used or permitted on the
Premises without Landlord's prior written consent.
14. Care of Premises
Tenant agrees not to commit any waste or allow any waste to be committed on
any portion of the Premises, and at the termination of this Lease to
deliver up to the Premises to Landlord in as good condition as at the
Commencement Date, ordinary wear and tear excepted.
15. Alterations
Tenant shall not make or suffer to be made any alterations, additions, or
improvements in, on, or to the Premises or any part thereof, without the
prior written consent of Landlord; and any such alterations, additions, or
improvements in, on, or to said Premises, except for Tenant's movable
furniture and equipment, shall immediately become Landlord's property and,
at the end of the term hereof, shall remain on the Premises without
compensation to Tenant. In the event Landlord consents to the making of
any such alterations, additions, or improvements by Tenant, the same shall
be made by Tenant, at Tenant's sole cost and expense, in accordance with
all applicable laws, ordinances, and regulations and all requirements of
Landlord's and Tenant's insurance policies, and in accordance with plans
and specifications approved in writing by Landlord, and any contractor or
person selected by Tenant to make the same, and all subcontractors must
first be approved in writing by Landlord, or, at Landlord's option, the
alteration, addition or improvement shall be made by Landlord for Tenant's
account and Tenant shall reimburse Landlord for the cost thereof upon
demand.
16. Repair
By taking possession of the Premises, Tenant accepts the Premises as being
in the condition in which Landlord is obligated to deliver them and
otherwise in good order, condition and repair. Tenant shall at all times
during the term hereof, at Tenant's sole cost and expense, keep the
Premises and every part thereof in good order, condition and repair,
excepting ordinary wear and tear, damage thereto by fire, earthquake, act
of God or the elements. Should Tenant fail to make any repairs or
replacements required of it hereunder promptly, Landlord may at its option
make such repairs and replacements and Tenant shall pay the cost thereof to
Landlord as additional rent.
17. Parking
During the Lease Term, Tenant shall have the nonexclusive use in common
with Landlord, other tenants of the Building, their guests and invitees, of
the non-reserved common automobile parking areas not to exceed (See Special
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Stipulation Section 4) spaces, driveways, and footways located on the
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Property, subject to such rules and regulations for the use thereof as may
be prescribed from time to time by Landlord.
18. Re-Entry by Landlord
Landlord reserves and shall at all times have the right to re-enter the
Premises to inspect the same, to supply janitorial service and any other
service to be provided by Landlord to Tenant hereunder, to show the
Premises to prospective purchasers, mortgagees or tenants, to post notices
of non-responsibility, and to alter, improve, or repair the Premises and
any portion of the Building of which the Premises are a part or to which
access is conveniently made through the Premises, without abatement of
rent, and may for that purpose erect, use, and maintain scaffolding, pipes,
conduits, and other necessary structures and equipment in and through the
Premises where reasonably required by the character of the work to be
performed, provided that entrance to the Premises shall not be blocked
thereby, and further provided that the business of Tenant shall not be
interfered with unreasonably. Tenant hereby waives any claim for
damages for any injury or
9
inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss occasioned
thereby. For each of the aforesaid purposes, Landlord shall at all times
have and retain a key with which to unlock all of the doors in, upon, and
about the Premises, and Landlord shall have the right to use any and all
means which Landlord may deem necessary or proper to open said doors in an
emergency, in order to obtain entry to any portion of the Premises, and any
entry to the Premises, or portions thereof obtained by Landlord by any of
said means, or otherwise, shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into, or a detainer of the
Premises, or an eviction, actual or constructive, of Tenant from the
Premises or any portions thereof; Landlord shall also have the right at any
time, without the same constituting an actual or constructive eviction and
without incurring any liability to Tenant therefor, to change the
arrangement and/or location of entrances or passageways, doors and
doorways, and corridors, elevator, stairs, toilets, or other public parts
of the Building and to change the name, number of designation by which the
Building is commonly known.
19. Assignment and Subletting
(a) Tenant shall not, without the prior written consent of Landlord,
(i)sell, assign, convey, mortgage, pledge, encumber or otherwise transfer
this Lease or any interest herein (whether voluntarily, by operation of
law, or otherwise), (ii) sublet the Premises or any portion thereof, or
(iii) permit any one other than Tenant to occupy or use the Premises or any
portion thereof; and any attempt to consummate any of the foregoing without
Landlord's written consent shall be void. Landlord may deny or withhold
its consent to any of the foregoing (i) through (iii) for any reason or for
no reason.
(b) If at any time during the term of this Lease Tenant desires to sublet
all or part of the Premises or to assign this Lease, Tenant shall submit
such request to Landlord in writing, together with a copy of the proposed
assignment or sublease and such additional information concerning the
proposed assignee or sublessee as may be requested by Landlord for
Landlord's review. If Landlord, in its discretion, approves in writing the
terms of the proposed assignment or sublease and the proposed assignee or
sublessee, but a fully executed counterpart of such assignment or sublease
is not delivered to Landlord within thirty (30) calendar days after the
date of Landlord's written approval, then Landlord's approval of the
proposed assignment or sublease shall be automatically withdrawn and shall
be deemed null and void. As a condition to Landlord's prior written
consent as provided for in this Paragraph 19, the assignee or subtenant
shall agree in writing to comply with and be bound by all of the terms,
covenants, conditions, provisions and agreements of this Lease, and Tenant
shall deliver to Landlord promptly after execution an executed copy of said
sublease or assignment and an agreement of said compliance by each
sublessee or assignee, Landlord's consent to any assignment or subletting
shall not release Tenant from any of Tenant's obligations hereunder or be
deemed to be a consent to any other or subsequent assignment or subletting.
Tenant agrees to pay to Landlord, on demand, reasonable costs incurred by
Landlord in connection with any request by Tenant for Landlord to consent
to any assignment or subletting by Tenant.
(c) Notwithstanding the giving by Landlord of its consent to any assignment
or sublease with respect to the Premises, no assignee or sublessee may
exercise any expansion option, right of first refusal option, or renewal
option under this Lease except in accordance with a separate written
agreement entered into directly between such assignee or sublessee and
Landlord.
(d) Any transfer after the date hereof, whether to one or more persons or
entitles and whether at one or more different times, of a controlling
interest in Tenant (whether Tenant is a corporation, partnership, or other
entity), whether
10
voluntarily, by operation of law, or otherwise, shall be deemed an
assignment of this Lease within the meaning of this Paragraph 19.
(e) If, with the consent of the Landlord, this Lease or any interest
therein is assigned or the Premises or any part thereof is sublet or
occupied by anybody other than Tenant, Landlord may, after default by
Tenant, collect rent from the assignee, subtenant or occupant, and apply
the net amount collected to the Base Rental and additional rent herein
reserved, but no such assignment, subletting, occupancy, or collection
shall be deemed (i) a waiver of any of Tenant's covenants contained in this
Lease, the acceptance by Landlord of the assignee, subtenant or occupant as
Tenant, or (iii) a release of Tenant from further performance by Tenant of
its covenants under this Lease.
(f) If this Lease is assigned or the Premises or any part thereof is sublet
or occupied by anyone other than Tenant, then Tenant shall pay to Landlord,
in addition to any other amounts owing hereunder, all compensation received
by Tenant from such assignee or subtenant with respect to such assignment
or subletting, over and above the amount of Base Rental, additional rent or
other sums owing under this Lease, whether such additional compensation to
Tenant is in the form of a lump sum payment, monthly payment or otherwise;
such additional compensation or any installment thereof shall be payable by
Tenant to Landlord as and when received by Tenant, and Tenant hereby
assigns all rights it might have or ever acquire in any such additional
compensation to Landlord.
20. Discharge of Liens
Tenant shall discharge of record by bond or otherwise within ten (10) days
following the filing thereof any mechanic's or similar lien filed against
the Premises, the Building or the Property for work or materials claimed to
have been furnished to or for the benefit of Tenant and/or the Premises;
provided, however, that Tenant shall have no responsibility with respect to
any mechanic's or similar lien filed against the Premises or the Building
for work or materials furnished by or at Landlord's request, if Tenant is
current in the payment of all obligations owed Landlord. If Tenant shall
fail to cause such lien or claim of lien to be so discharged or bonded
within such period, in addition to any other right or remedy it may have,
Landlord may, but shall not be obligated to, discharge the same by paying
the amount claimed to be due or by procuring the discharge of such lien or
claim by deposit in court or bonding, and in any such event, Landlord shall
be entitled, if Landlord so elects, to compel the prosecution of any action
for the foreclosure of such lien or claim by the lienor or claimant and to
pay the amount of the judgment, if any, in favor of the lienor, with
interest, costs, and allowances. Tenant shall pay as additional rent on
demand from time to time any sum or sums so paid by Landlord, including,
but not limited to, attorneys' fees in processing such discharge or in
defending any such action.
21. Insurance and Indemnification
(a) Landlord shall not be liable to Tenant, and Tenant hereby waives all
claims against Landlord, for any injury or damage to any person or property
in or about the Premises or the Property by or from any cause whatsoever,
including, without limitation, any such injury or damage caused or
occasioned by or resulting from (i) water leakage of any charger from the
roof, walls, basement or other portions of the Premises or the Building,
(ii) gas, fire or explosion of the Premises or the Building, (iii) theft,
mysterious disappearance, burglary, or loss of any property of Tenant
whether from the Premises or any part of the Building, (iv) acts of or
disturbances or interference by third persons, including other tenants, (v)
acts or omissions to act, whether criminal, negligent, or otherwise, of
independent contractors (including security guards and janitorial staff),
other tenants, or third parties, (vi) acts of' God, public enemy,
injunction, riot, strike, vandalism, insurrection, war, casualty, court
order, requisition, or order of governmental body
11
or authority and (vii) any other cause beyond the control of Landlord.
Further, Landlord shall not be liable for any damage or inconvenience which
may arise through repair or alteration of any part of the Building,
Exterior Common Areas, or Premises.
(b) Each party hereto hereby waives all liability of and all right of
recovery and subrogation against and agrees that neither such party or any
of its officers, agents, employees or its or their insurer will ▇▇▇, the
other party, or any of the officers, agents or employees of the other party
from any loss or a damage to property arising out of fire or other
casualty, and agrees that all such party's insurance will contain waivers
by the insurer of such liability, recovery, subrogation and suit.
(c) Tenant agrees to purchase at its own expense and to keep in force
during the term of this Lease a policy or policies of worker's compensation
and comprehensive general liability insurance, including personal injury
and property damage, with contractual liability endorsement, in the amount
of Five Hundred Thousand Dollars ($500,000.00) for property damage and One
Million Dollars ($1,000,000.00) per occurrence for personal injuries or
deaths of persons occurring in or about the Premises. Each such policy
shall: (i) name Landlord as an additional insured (except for the worker's
compensation policy), (ii) be issued by an insurance company which is
acceptable to Landlord and licensed to do business in the State of Georgia,
(iii) include a waiver of subrogation endorsement in favor of Landlord, and
(iv) provide that said insurance shall not be canceled unless thirty (30)
days prior written notice shall be given to Landlord. Said policy or
policies or certificates thereof shall be delivered to Landlord by Tenant
upon commencement of the term of the Lease and upon each renewal of said
insurance.
22. Waiver of Subrogation
Each of Landlord and Tenant hereby releases the other from any and all
liability or responsibility to the other or anyone claiming through or
under the releaser or by way of subrogation or otherwise for any loss or
damage to property caused by fire or any other perils insured in policies
of insurance covering such property, even if such loss or damage shall have
been caused by the fault or negligence of the other party, or anyone for
whom such party may be responsible, including any other tenants or
occupants of the remainder of the Building in which the Premises are
located.
23. Damage by Fire, Etc.
(a) If the Building, improvements, or Premises are rendered partially or
wholly untenantable by fire or other casualty, and if such damage cannot,
in Landlord's reasonable estimation, be materially restored within ninety
(90) days of such damage, then Landlord may, at its sole option, terminate
this Lease as of the date of such fire or casualty. Landlord shall
exercise its option provided herein by written notice to Tenant within
sixty (60) days of such fire or other casualty. For purposes hereof, the
Building, improvements, or Premises shall be deemed "materially restored"
if they are in such condition as would not prevent or materially interfere
with Tenant's use of the Premises for the purpose for which it was then
being used.
(b) If this Lease is not terminated by Landlord pursuant to this Paragraph
23, then Landlord shall proceed with all due diligence to repair and
restore the Building, improvements or Premises, as the case may be (except
that Landlord may elect not to rebuild if such damage occurs during the
last year of the term of this Lease, exclusive of any option which is
unexercised at the date of such damage).
(c) If this Lease is terminated by Landlord pursuant to this Paragraph 23,
the term of this Lease shall end on the date of such damage as if that date
had been originally
12
fixed in this Lease for the expiration of the term hereof. If this Lease is
not terminated by Landlord pursuant to this Paragraph 23 and if the
Premises is untenantable in whole or in part following such damage, the
Base Rental and additional rent payable during the period in which the
Premises is untenantable shall be reduced to such extent, if any, as may be
fair and reasonable under all of the circumstances.
In the event that Landlord shall fail to complete such repairs and
material restoration within one hundred fifty (150) days after the date of
such damage, Tenant may at its option and as its sole remedy terminate this
Lease by delivering written notice to Landlord, whereupon the Lease shall
terminate on the date of such notice as if the date of such notice were the
date originally fixed in this Lease for the expiration of the term hereof;
provided, however, that if construction is delayed because of changes,
deletions, or additions in construction requested by Tenant, strikes,
lockouts, casualties, acts of God, war, material or labor shortages,
governmental regulation or control or other cause beyond the reasonable
control of Landlord, the period for restoration, repair or rebuilding shall
be extended for the amount of time Landlord is so delayed.
In no event shall Landlord be require to rebuild, repair or replace
any part of the partitions, fixtures, additions or other improvements which
may have been placed in or about the Premises by Tenant. Any insurance
which may be carried by Landlord or Tenant against loss or damage to the
Building or Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control except that Landlord's insurance
may be for the benefit of and subject to control by the holder or holders
of any indebtedness secured by a deed to secure debt or similar instrument
encumbering the Building.
(d) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a deed to secure debt encumbering the
Building requires that any insurance proceeds be paid to it, then Landlord
shall have the right to terminate this Lease by delivering written notice
of termination to Tenant within fifteen (15) days after such requirement is
made by any such holder, whereupon the Lease shall end on the date of such
damage as if the date of such damage were the date originally fixed in this
Lease for the expiration of the term.
(e) In the event of any damage or destruction to the Building or the
Premises, Tenant shall, upon notice from Landlord, remove forthwith, at his
sole cost and expense, such portion or all of the property belonging to
Tenant or Tenant's licensees from such portion or all of the Building or
the Leased Premises as Landlord shall request and Tenant hereby indemnifies
and holds Landlord harmless from any loss, liability, costs, and expenses,
including attorneys' fees, arising out of any claim of damage or injury as
a result of any alleged failure to properly secure the Premises prior to
such removal and/or resulting from such removal.
24. Condemnation
If any substantial part of the Premises shall be taken for any public or
quasi-public use under governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof (any of the
foregoing being referred to as a "taking"), this Lease shall terminate when
the physical taking shall occur in the same manner as if the date of such
physical taking were the date originally fixed in this Lease for the
expiration or the term hereof; provided, however, that in no event shall a
partial taking of less than twenty percent (20%) of the Rentable Area of
the Premises give rise to an option on Tenant's part to terminate this
Lease. In the event of a partial taking which does not result in this
Lease being terminated, the Base Rental shall be adjusted in proportion to
the percentage of the Rentable Area of the Premises so taken. In the event
any such taking, in Landlord's judgment, would prevent or materially
interfere with the use of the Building or the Premises for the purpose for
which it is then being used, or would render
13
the Landlord's continued use or leasing of the Building economically or
physically unfeasible, Landlord shall have the right to terminate this
Lease by written notice to Tenant. In the event of any termination of this
Lease pursuant to this Paragraph 24, any Base Rental or additional rent pay
by Tenant for any period following the date of such termination shall be
refunded to Tenant. Tenant shall not share in the condemnation award or
payment in lieu thereof or in any award for damages resulting from any such
taking, the same being hereby assigned to Landlord by Tenant; provided,
however, that Tenant may separately claim and receive from the condemning
authority, if legally payable, compensation for Tenant's removal and
relocation costs and for Tenant's loss of business and/or business
interruption.
25. Events of Default
The following events shall be deemed to be events of default by Tenant
under this Lease:
(a) Tenant shall fail to pay when due any sum of money becoming due to be
paid to Landlord under this Lease, whether such sum be any installment of
the Base Rental or additional rent hereunder, or any other payment or
reimbursement to Landlord required herein, whether or not treated as
additional rent hereunder, and such failure shall continue for a period of
five (5) days from the date such payment was due; or
(b) Tenant shall fail to comply with any term, provision or covenant of
this Lease, other than by failing to pay when or before due any sum of
money becoming due to be paid to Landlord hereunder, and shall not cure
such failure within twenty (20) days (forthwith, if the default involves a
hazardous conditions) after written notice thereof to Tenant; or
(c) Tenant shall vacate or abandon any substantial portion of the Premises,
even though Tenant continues to pay the stipulated monthly rent; or
(d) Tenant shall fail to vacate the Premises immediately upon termination
of this Lease, by lapse of time or otherwise, or upon termination of
Tenant's right to possession; or
(e) Tenant's interest in the Lease or the Premises shall b subjected to any
attachment, levy, or sale pursuant to any order or decree entered against
Tenant in any legal proceeding and such order or decree shall not be
vacated within ten (10) days after entry thereof; or
(f) A receiver shall be appointed to take possession of all or
substantially all of the assets of Tenant, Tenant shall make an assignment
for the benefit of creditors, or Tenant shall take or suffer any action
under any insolvency, bankruptcy or reorganization act (it being expressly
agreed that in no event shall this Lease be assigned or assignable by
operation of law or by voluntary or involuntary bankruptcy proceedings or
otherwise and in no event shall this Lease or any rights or privileges
hereunder be an asset of Tenant under any bankruptcy, insolvency, or
reorganization proceedings).
26. Landlord's Remedies
Upon the occurrence of any events of defaults described in Paragraph 25 or
elsewhere in this Lease, Landlord shall have the option to pursue any one
or more of the following remedies without any notice or demand whatsoever:
(a) Landlord may, at its election, terminate this Lease or terminate
Tenant's right to possession only, without terminating the Lease.
14
(b) Upon any termination of this Lease or upon any termination of Tenant's
right to possession without termination of the Lease. Tenant shall
surrender possession and vacate the Premises immediately, and deliver
possession thereof to Landlord and Tenant hereby grants to Landlord full
and free license to enter into and upon the Premises in such event with or
without process of law and to repossess the Premises and to expel or remove
Tenant and any others who may be occupying or within the Premises and to
remove any and all property therefrom, without being deemed in any manner
guilty of trespass, eviction or forcible entry or detainer, and without
incurring any liability for any damages resulting therefrom, whether in
contract or tort or otherwise. Tenant hereby waiving any right to claim
damage, whether in contract or tort or otherwise, for such re-entry and
expulsion, and without relinquishing Landlord's rights to rent or any other
right given to Landlord hereunder or by operation of law.
(c) Upon termination of this Lease, Landlord shall be entitled to recover,
on the date of termination, all Base Rental and additional rent hereunder
and other sums due and payable by Tenant on the date of termination, plus
the sum of (i) liquidated damages in an amount equal to the future Base
Rental and additional rent hereunder, and other sums provided herein to be
paid by Tenant for the remainder of the Lease Term, discounted to present
value on the basis of interest calculated at 5 percent per annum, less any
amounts actually realized by Landlord in reletting the Premises after
taking into account all expenses and time necessary to obtain a replacement
tenant or tenants, including, without limitation, broker's commissions,
recovery of the Premises, preparation for reletting and for itself, if any;
(ii) the unamortized cost of all work performed on the Premises by Landlord
in preparing the Premises for occupancy by Tenant; and (iii) the cost of
performing any other covenants which would have otherwise been performed by
Tenant. Tenant expressly agrees that Landlord is under no obligation to
find a replacement tenant or to accept any tenant offered by Tenant or to
observe any instructions given by Tenant about such reletting upon
termination and Tenant expressly waives and renounces any defenses it may
have under Georgia law relating to mitigation of damages and expressly
agrees and covenants that Landlord's action or inaction with respect to the
reletting of the Premises do not in any way constitute a failure to
mitigate damages or any other diminution of any damages which Landlord is
entitled to recover pursuant to this paragraph.
(d) Upon termination of Tenant's right to possession without termination of
the Lease: (i) Landlord may, at Landlord's option, enter into the Premises,
remove Tenant's signs and other evidences of tenancy, and take and hold
possession thereof as provided in subparagraph (b) above, without such
entry and possession terminating the Lease or releasing Tenant, in whole or
part, from any obligation including Tenant's obligation to pay the Base
Rental and additional rent hereunder for the full Lease Term. In such
case, Tenant shall pay forthwith to Landlord, if Landlord so elects, a sum
equal to the entire amount of the Base Rental and additional rent hereunder
for the remainder of the Lease Term plus any other sums provided herein to
be paid by Tenant for the remainder of the Lease Term; (ii) Landlord may,
but need not, relet the Premises or any part thereof for such rent and upon
such terms as Landlord in its sole discretion shall determine (including
the right to relet the Premises for a greater or lesser term than that
remaining under this Lease, the right to relet the Premises as a part of a
larger area, and the right to change the character and use made of the
Premises) and Landlord shall not be required to accept any Tenant offered
by Tenant or to observe any instructions given by Tenant about such
reletting. In any such case, Landlord may make repairs, alterations in or
to the Premises, and redecorate same, to the extent Landlord deems
necessary or desirable, and Tenant shall, upon demand, pay the cost
thereof, together with Landlord's expenses for reletting including, without
limitations any broker's commission incurred by Landlord . If the
consideration collected by Landlord upon any such reletting plus any sums
previously collected from Tenant are not sufficient to pay the full amount
of all
15
Base Rental and additional rent hereunder and other sums reserved in this
Lease for the remaining term hereof, together with the cost or repairs,
alterations, additions, redecorating, and Lessor's expenses of reletting
and the collection of the rent accruing therefrom (including attorney's
fees and broker's commissions), Tenant shall pay to Landlord the amount of
such deficiency upon demand and Tenant agrees that Landlord may file suit
to recover any sums falling due under this subparagraph (d) from time to
time.
(e) In the event of any default in the payment of any installment when due,
or upon any amount falling due pursuant to this paragraph, (or for any
other breach of any other provisions of this Lease), Tenant agrees to pay
Landlord the actual attorneys' fees incurred by Landlord in the collection
of any such amounts, including any and all costs and expenses of
litigation.
Pursuit of any of the remedies provided in this Paragraph 26 shall not
preclude pursuit of any of the other remedies herein provided or any other
remedies provided by law (all such remedies being cumulative), nor shall
pursuit of any remedy herein provided constitute a forfeiture or waiver of
any rent due to Landlord hereunder or of any damages accruing to Landlord
by reason of a violation of any of the terms, provisions and covenants
herein contained. Landlord's acceptance of the payment of rental or other
payments hereunder after the occurrence of an event of default shall not be
construed as a waiver of such default, unless Landlord so notifies Tenant
in writing. Forbearance by Landlord in enforcing one or more of the
remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default of Landlord's right to
enforce any such remedies with respect to such default or any subsequent
default. Without limiting the foregoing, to the extent permitted by law,
Tenant hereby: (i) appoints and designates the Premises as a proper place
for service of process upon Tenant, and agrees that service of process upon
any person apparently employed by Tenant upon the Premises or leaving
process in a conspicuous place within the Premises shall constitute a
personal service of such process upon Tenant (provided, however, Landlord
does not hereby waive the right to serve Tenant with process by any other
lawful means); (ii) expressly waives any right to trial by jury; (iii)
expressly waives the service of any notice under any existing or future law
of the State of Georgia applicable to landlords and tenants; (iv) expressly
consents to the personal jurisdiction of the courts of the State of
Georgia; and (v) expressly waives the defense of failure to mitigate
damages or any other defense which would constitute a diminution of any
remedies or damages to which landlord is entitled hereunder.
In no event shall Tenant have the right to terminate or rescind this Lease
as a result of the breach of any promise or inducement hereof, whether in
this Lease or elsewhere. Tenant hereby waives such remedies of termination
and recession and hereby agrees that Tenant's remedies for default
hereunder and for breach of any promise or inducement shall be limited to a
suit for damages and/or injunction. In addition, Tenant hereby covenants
that, prior to the exercise of any such remedies, it will give the holder
of any deed to secure debt or similar instrument encumbering the Building,
notice of and a reasonable time to cure any default by Landlord.
27. Quiet Enjoyment
Landlord represents and warrants that it has full right and authority to
enter into this Lease and that Tenant, while paying the Base Rental and
additional rent hereunder and performing its other covenants and agreements
herein set forth, shall peaceably and quietly have, hold and enjoy the
Premises for the term hereof without hindrance or molestation from
Landlord, subject to the terms and provisions of this Lease. In the event
this Lease is a sublease, then Tenant agrees to take the Premises subject
to the provisions of the prior leases. Landlord shall not be liable for
any interference or disturbance by other tenants or third persons, nor
shall Tenant be released from any obligations of this Lease because of such
Interferences or disturbances.
16
28. Surrender of Premises
(a) At the end of the term or any renewal thereof or other sooner
termination of this Lease, the Tenant will peaceably deliver up to the
Landlord possession of the Premises, together with all improvements or
additions upon or belonging to the same, by whomsoever made, in the same
conditions as received or first installed, ordinary wear and tear, damage
by fire, earthquake, act of God or the elements alone excepted. Tenant
shall, upon the termination of this Lease, remove all movable furniture and
equipment belonging to Tenant, at Tenant's sole cost, title to which shall
be in name of Tenant until such termination, repairing any damage caused by
such removal. Property not so removed shall be deemed abandoned by the
Tenant, and title to the same shall thereupon pass to Landlord. Upon
request by Landlord, Tenant shall remove, at Tenant's sole cost, any or all
permanent improvements or additions to the Premises installed by or for the
account of Tenant and all movable furniture and equipment belonging to
Tenant which may be left by Tenant and Tenant shall repair any damage
resulting from such removal and restore the Premises to its original
condition. Any and all property which Tenant fails to remove from the
Premises or the Building upon termination of this Lease may be handled,
removed and stored by or at the direction of Landlord, at the sole risk,
cost and expense of Tenant, and Landlord shall in no event be responsible
for the value, preservation or safekeeping thereof. Tenant shall pay to
Landlord, upon demand, any and all expenses incurred in such removal and
all storage charges against such property so long as the same shall be in
Landlord's possession or under Landlord's control.
(b) The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
the Landlord, terminate all or any existing subleases or subtenancies, or
may, at the option of Landlord, operate as an assignment to it if any or
all such subleases or subtenancies.
29. Subordination and Attornment
(a) This Lease and all rights of Tenant hereunder are and shall be subject
and subordinate to the lien and security title of any deed to secure debt
or similar instrument which may now or hereafter encumber Landlord's title
in and to the Building and to any modifications, renewals, consolidations,
extensions, or replacements thereof.
(b) Subparagraph (a) above shall be self-operative, and no further
instrument of subordination shall be required. However, in confirmation of
such subordination, Tenant shall, upon demand, at any time or times,
execute, acknowledge, and deliver to Landlord or the holder of any such
deed to secure debt or similar instrument, without expense, such
instruments as may be reasonably requested by Landlord or such holder to
evidence the subordination of this Lease and all rights hereunder to the
lien of any such deed to secure debt or similar instrument, and each
renewal, modification, consolidation, replacement, and extension thereof,
and if Tenant shall fail at any time, within ten (10) days following the
giving of a written request therefore to execute, acknowledge, and deliver
any such instrument, Landlord in addition to any other remedies available
to it in consequence thereof, may execute, acknowledge, and deliver the
same as the attorney-in-fact of Tenant and in Tenant's name, place, and
stead, and Tenant hereby irrevocably makes, constitutes, and appoints
Landlord and its successors and assigns, such attorney-in-fact for that
purpose.
(c) If the holder of any deed to secure debt or similar instrument
encumbering Landlord's title in and to the Building shall hereafter succeed
to the rights of Landlord under this Lease, whether through possession or
foreclosure action or delivery of a new lease, Tenant shall at the option
of such holder, attorn to and
17
recognize such successor as Tenant's landlord under this lease and shall
promptly execute and deliver any instrument that may be necessary to
evidence such attornment, and Tenant hereby irrevocably appoints Landlord
or such holder the attorney-in-fact of Tenant to execute and deliver such
instrument on behalf of Tenant should Tenant refuse and fail to do so
within ten (10) days after Landlord or such holder shall have given notice
to Tenant requesting the execution and delivery of such instrument. Upon
such attornment, this Lease shall continue in full force and effect as a
direct lease between such successor landlord and Tenant, subject to all of
the then executory terms, covenants, and conditions of this Lease.
30. Estoppel Certificate
Within ten (10) days following any written request which Landlord may make
from time to time, Tenant shall execute and deliver to Landlord a
certificate substantially in the form attached hereto as Exhibit "C" and
made a part hereof, indicating thereon any exceptions thereto which may
exist at that time. Failure of the Tenant to execute and deliver such
certificate shall constitute an acceptance of the Premises and
acknowledgment by Tenant that the statements included in Exhibit "C" are
true and correct without exception. Landlord and Tenant intend that any
statement delivered pursuant to this Paragraph 30 may be relied upon by
Landlord or by any lender, purchaser or prospective purchaser of the
Building or the Property or anyone else to whom Landlord may provide said
certificate.
31. Waiver
If either Landlord or Tenant waives the performance of any term, covenant
or condition contained in this Lease, such waiver shall not be deemed to be
a waiver of any subsequent breach of the same or of any other term,
covenant or condition contained herein.
32. Security Deposit
The Security Deposit shall be held by Landlord without liability for
interest and as security for the performance by Tenant of Tenant's
covenants and obligations under this Lease, it being expressly understood
that the Security Deposit shall not be considered an advance payment of
rent or a measure of Landlord's damages in case of default by Tenant.
Landlord may, from time to time, without prejudice to any other remedy, use
the Security Deposit to the extent necessary to make good any arrearages of
rent or to satisfy any other covenant or obligation of Tenant hereunder.
Following any such application of the Security Deposit, Tenant shall pay to
Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. Landlord shall be entitled to commingle
the Security Deposit with other funds of Landlord, and the Security Deposit
shall not be deemed to be held in trust by Landlord for Tenant or any other
person. Although the Security Deposit shall be deemed the property of
Landlord, any remaining balance of such deposit shall be returned by
Landlord to Tenant or Tenant's last permitted assignee at such time after
termination of this Lease when Landlord shall have determined that all of
Tenant's obligations under this Lease (including, without limitation, the
obligations, of Tenant to maintain and repair the Premises) have been
fulfilled. On the occurrence of any events of default as described in the
Lease, said Security Deposit shall become due and payable to Landlord. If
the Building is conveyed by Landlord, said Security Deposit shall become
due and payable to Landlord. If the Building is conveyed by Landlord, said
Security Deposit may be paid over to Landlord's successor and, if so,
Tenant hereby releases Landlord from any and all liability with respect to
said Security Deposit and its application or return. The Security Deposit
shall not be assigned or encumbered by Tenant without the written consent
of Landlord and such assignment or encumbrance without Landlord's consent
shall be void.
18
33. Notices
Whenever any notice, demand or request is required or permitted hereunder,
such notice shall be sent by United States Mail, registered, postage pre-
paid, or by a commercial mail service with delivery confirmed by receipt
or, if by hand delivery, with confirmation delivery as described above to
the address set forth below:
Tenant: Automated Dispatch Solutions, Inc. Automated Dispatch Solutions, Inc.
-----------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
-----------------------------------------------------------------------------------
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------
Attn: Attn:
-----------------------------------------------------------------------------------
Landlord:Principal Mutual Life Insurance Principal Mutual Life Insurance
Company Company
-----------------------------------------------------------------------------------
▇/▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
-----------------------------------------------------------------------------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Any notice, demand or request which shall be served upon either of the
parties in the manner aforesaid shall be deemed sufficiently given for all
purposes hereunder (i) at the time such notices, demands or requests are
hand-delivered in person or (ii) on the third day after the mail of such
notices, demands or requests in accordance with the preceding portion of
this Paragraph 33.
Either Landlord or Tenant shall have the right from time to time to
designate by written notice to the other party such other places in the
United States as Landlord or Tenant may desire written notice to be
delivered or sent in accordance herewith; provided, however, at no time
shall either party be required to send more than an original and two copies
of any such notice, demand or request required or permitted hereunder.
34. Captions and References
The paragraph headings herein are for convenience of reference and shall in
no way define, increase, limit, or describe the scope or intent of any
provision of this Lease.
35. Successors and Assigns
The words "Landlord" and "Tenant" as used herein include the respective
contracting party, whether singular or plural, and whether an individual,
masculine or feminine, or a partnership, joint venture, business trust, or
corporation. The provisions of this Lease shall inure to the benefit of
and be binding upon Landlord and Tenant, and their respective successors,
and assigns subject, however, to the provisions of Paragraph 19 hereof.
36. Severability
If any clause, phrase, provisions or portions of this Lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such even shall not affect, impair or
render invalid or unenforceable the remainder of this Lease or any other
clause, phrase, provision or portion hereof, nor shall it affect the
application of any clause, phrase, provision or portion to other persons or
circumstances, and it is also the intention of the parties to this Lease
that in lieu of each such clause, phrase, provision or portion of this
Lease that is invalid or unenforceable, there shall be added as a part of
this Lease a clause, phrase, provision or portion as similar in terms to
such invalid or
19
unenforceable clause, phrase, provision or portion as may be possible and
be valid and enforceable.
37. Governing Law
This lease and the rights and obligations of the parties hereto shall be
interpreted, construed, and enforced in accordance with the laws of the
State of Georgia.
38. Force Majeure
Whenever a period of time is herein prescribed for the taking or any action
by Landlord, Landlord shall not be liable or responsible for, and there
shall be excluded from the computation of such period of time, any delays
due to strikes, riots, fire, acts of God, shortages of labor or materials,
war, governmental laws, regulations or restrictions, or any other cause
whatsoever beyond the control of Landlord.
39. Time of Essence
Time is of the essence of this Lease and all of its provisions.
40. Entire Agreement
This Lease together with its exhibits contains all the agreements of the
parties hereto and supersedes any previous negotiations. There have been
no representations made by the Landlord or understandings made between the
parties other than those set forth in this Lease and its exhibits. This
Lease may not be modified except by a written instrument signed by the
parties hereto.
41. Survival of Tenant's Obligations
All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term or this Lease shall survive
the expiration or earlier termination of the term hereof.
42. Holding Over
In no event shall there be any renewal of this Lease by operation of law,
and if Tenant remains in possession of the Premises after the termination
of this Lease and without a new lease executed by Landlord and Tenant,
Tenant shall be deemed to be occupying the Premises as a tenant at
sufferance on a month to month basis and shall pay rent in an amount equal
to two hundred percent (200%) of the Base Rental and additional rent
provided for in this Lease and otherwise subject to all the covenants and
provisions of this Lease insofar as the same are applicable to a month-to-
month tenancy.
43. Corporate Authority
If Tenant is a corporation each of the persons executing this Lease on
behalf of Tenant does hereby covenant and warrant that Tenant is a duty
authorized and existing corporation, that Tenant has and is qualified to do
business in Georgia, that the corporation has full right and authority to
enter into this Lease, and that each and both persons signing on behalf of
the corporation were authorized to do so. Upon Landlord's request, Tenant
shall provide Landlord with evidence reasonably satisfactory to Landlord
confirming the foregoing covenants and warranties.
44. Mortgage Approvals
Landlord shall not be deemed to have unreasonably withheld its consent or
approval of any matter hereunder if the holder of any deed to secure debt
or similar instrument encumbering the Building or the Property or any
portion thereof shall refuse or withhold
20
its approval or consent thereto. Any requirement which Landlord imposes
pursuant to the direction of any such holder shall be deemed to have been
reasonably imposed by Landlord if made in good faith.
45. Landlord's Lien
In addition to any statutory lien for rent in Landlord's favor, Landlord
shall have and Tenant hereby grants to Landlord a continuing security
interest for all rentals and other sums of money becoming due hereunder
from Tenant, upon all goods, wares, equipment, fixtures, furniture,
inventory, accounts, contract rights, chattel paper and other personal
property of Tenant situated on the Premises, and such property shall not be
removed therefrom without the consent of Landlord until all arrearages in
rent as well as any and all other sums of money then due to Landlord
hereunder shall first have been paid and discharged. In the event of a
dreamt under this Lease, Landlord shall have, in addition to any other
remedies provided herein or by law, all rights and remedies under the
Uniform Commercial Code. including without limitation the right to sell the
property described in this Paragraph 45 at public or private sale upon
providing the notice called for by the Uniform Commercial Code or if none
is so called for upon five (5) days notice to Tenant. Tenant hereby agrees
that this Lease shall constitute a security agreement and further agrees to
execute such financing statements and other instruments necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created. Any statutory lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary
thereto.
46. Landlord's Liability
In no event shall Landlord's liability for any breach of this Lease exceed
the amount of rental then remaining unpaid for the then current term
(exclusive of any renewal periods which have not then actually commenced).
This provision is not intended to be a measure of agreed amount of
Landlord's liability with respect to any particular breach, and shall not
be utilized by any court or otherwise for the purpose of determining any
liability of Landlord hereunder, except only as a maximum amount not to be
exceeded in any event. Neither Landlord nor any partner of Landlord shall
have any personal liability with respect to any of the provisions of this
Lease, and if Landlord is in default with respect to its obligations under
this Lease, Tenant shall look solely to Landlord's equity in the Building
and the Property or any available insurance proceeds for satisfaction.
47. Right to Relocate
If the size of Tenant's Premises is less than 5,000 square feet, Landlord
reserves the right to relocate Tenant during the term of this Lease or any
renewal hereof, to similar quality office space within the Building. If
Landlord exercises this right to relocate Tenant, then the expenses of
moving Tenant's property from the Premises to Tenant's new office space
shall be determined prior to the relocation of Tenant.
48. Rules and Regulations
Tenant shall faithfully observe and comply with the Rules and Regulations
attached hereto as Exhibit "D" to this Lease and all reasonable
modifications thereof and additions thereto from time to time put into
effect by Landlord. Landlord shall not be responsible for the
nonperformance by any other tenant or occupant of the Building of any of
said Rules and Regulations.
49. Transfers by Landlord
Landlord shall have the right to transfer and assign, in whole or in part
all its rights and obligations hereunder and in the Building or the
Property, and in such event and upon such transfer Landlord shall be
released from any further obligations hereunder, and
21
Tenant agrees to look solely to such successor in interest of Landlord for
the performance of such obligations. Tenant agrees to attorn to such
successor in interest of Landlord.
50. Commissions
Tenant represents and warrants to Landlord that (except with respect to any
broker identified in Paragraph 1 hereof) no broker or other person has
represented Tenant in the negotiations for and procurement of this Lease
and that no commissions or compensation of any kind are due and payable in
connection herewith to any broker or other person. Tenant agrees to
indemnify and hold Landlord harmless from any and all claims, suits, or
judgments (including, without limitation, reasonable attorneys' fees and
court costs incurred in the enforcement of this indemnity or otherwise) for
any commissions or compensation of any kind which arise out of or are in
any way connected with any claimed agency relationship with Tenant (except
for any broker identified in Paragraph 1 above).
51. Submission of Lease
The submission of this Lease to Tenant for examination does not constitute
an offer to lease, and this Lease shall be effective only upon its complete
execution by both Landlord and Tenant. Execution of this Lease by Tenant
and delivery of such Lease to Landlord for its execution shall constitute
an offer to lease to Landlord which shall remain open for Landlord's
acceptance for a period of fourteen (14) days after the receipt by Landlord
of such executed Lease.
52. Special Stipulations
In the event that the following conflicts with the foregoing provisions of
this Lease, the following shall control:
EXHIBIT A: Premises
EXHIBIT B: Special Stipulation
EXHIBIT C: Estoppel Certificate
EXHIBIT D: Rules and Regulations
EXHIBIT E: Lower Lot
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in
multiple counterparts each of which shall be deemed an original as of the day
and year first above written
LANDLORD: PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------------
TITLE: Assistant Director
--------------------------------------------------
ATTEST: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------------
TITLE: Director
--------------------------------------------------
TENANT: AUTOMATED DISPATCH SOLUTIONS, INC.
BY: /s/
--------------------------------------------------
TITLE: President
--------------------------------------------------
ATTEST: /s/
--------------------------------------------------
TITLE:
--------------------------------------------------
(corporate seal)
22
EXHIBIT "B"
SPECIAL STIPULATIONS
Lease Agreement between Principal Mutual Insurance Company, as Landlord, and
Automated Dispatch Solutions, Inc. d/b/a ADS, as Tenant dated _______________,
for Suite 235 at One Crown Center containing 4,745 rentable square feet.
These special Stipulations are made and entered into contemporaneously with the
lease agreement described above. In the case of any conflict between the
Special Stipulations and the Lease, these Special Stipulations shall control.
All terms used herein shall be the same as defined in the Lease.
1. RENTAL SCHEDULE. The Base Rental shall be:
---------------
PERIOD MONTHLY AMOUNT ANNUAL AMOUNT
------------------ -------------- -------------
9/1/97 - 8/31/98 $6,227.81 $74,733.72
-------------------------------------------------
9/1/98 - 8/31/99 $6,414.64 $76,975.68
-------------------------------------------------
9/1/99 - 8/31/00 $6,607.08 $79,284.96
-------------------------------------------------
9/1/00 - 8/31/01 $6,805.29 $81,663.48
-------------------------------------------------
9/1/01 - 8/31/02 $7,009.45 $84,113.40
-------------------------------------------------
2. CONSTRUCTION OF PREMISES. Landlord shall repaint and recarpet the Premises
------------------------
and otherwise deliver the Premises in "as is" condition. Tenant may elect
to vary from the plans and specifications, however, such changes shall be
confirmed by a work change order prior to the performance of such changes.
Landlord will not be responsible for delays in the completion of the
Premises resulting from changes made at the request of the Tenant after
final construction documents are issued. Tenant shall pay Landlord for
such changes which result in increased construction costs in cash prior to
the Commencement Date. During the course of construction of the Premises,
any changes made by Tenant will not delay the Commencement Date.
Landlord's failure to deliver possession due to Tenant's failure to pay any
such cost shall not be a breach of this Lease.
3. OPTION TO TERMINATE. Provided Tenant is not in default Tenant shall have
-------------------
the option to terminate the lease without penalty effective September 1,
2000 upon notice to Landlord on or before September 1, 1999.
4. PARKING. Tenant will require 19 of Tenant's Employees to park in the
-------
"Lower Lot" (See Exhibit "E") and Tenant will be responsible for the
enforcement of this provision. Failure to do so will constitute a default
under this Lease. Tenant shall also be allowed the use of 8 spaces
throughout the Building parking areas with no restrictions.
5. All rental payments are to be forwarded to:
One Crown Center
c/o Brannen/▇▇▇▇▇▇▇ Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. REPRESENTATION. In this transaction the Tenant has been represented by
--------------
Peachtree Partners and Peachtree Partners shall receive a commission from
the Landlord payable by
23
▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ Company. The Landlord has been represented by
▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ company and ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ Company shall be paid a
commission by the Landlord.
24
EXHIBIT "C"
ESTOPPEL CERTIFICATE
--------------------
--------------------
EXHIBIT
--------------------
--------------------
RE:
Gentlemen:
The undersigned, as Tenant under that certain lease (the "Lease") dated
___________________ made with _______________________, as Landlord (the
"Landlord"), does hereby agree and certify:
1. That the copy of the Lease attached hereto as Exhibit "A" is a true
and complete copy of the Lease, and there are no amendments, modifications
or extensions of or to the Lease except as set forth immediately below:
--------------------
--------------------
--------------------
2. That the term of the Lease commenced or began on ______________,
19____, and the Lease is now in full force and effect.
3. That its leased premises at the above location have been completed in
accordance with the terms of the Lease, that it has accepted
possession of said premises, that it now occupies the same and that
Tenant is Paying full lease rental.
4. That it began paying rent on ________________________, and that save
only as may be required by the terms of the Lease, no rental has been
paid in advance, nor has the undersigned deposited any sums with the
Landlord as security except as set forth immediately below:
-----------------------------
-----------------------------
-----------------------------
5. That there exist no defenses or offsets to enforcement of the Lease by
the Landlord and, so far as is known to the undersigned, the Landlord
is not, as of the date hereof, in default in the performance of the
Lease, nor has the Landlord committed any breach thereof, nor has any
event occurred which, with the passage of time or the giving of
notice, or both, would constitute a default or breach by the Landlord.
The undersigned acknowledges that you are relying on the above
representations of the undersigned in (advancing funds to purchase the
existing first mortgage loan covering the building in which the leased
premises arc located) and does hereby warrant and affirm to
25
and for your benefit, and that of your successors and assigns, that each of
the foregoing representations is true, correct and complete as of the date
hereof.
Dated: Tenant:
-------------------- --------------------
By: EXHIBIT
------------------------
Its:
26
-------------------------
EXHIBIT "D"
RULES AND REGULATIONS
1. Sidewalks, halls, passages, exits, entrances, elevators, escalators and
stairways shall not be obstructed by Tenants or used by them for any
purpose other than for ingress and egress from their respective premises.
The halls, passages, exits, entrances, elevators and stairways are not for
the use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose presence,
in the judgment of Landlord, shall be prejudicial to the safety, character,
reputation and interests of the Building and its Tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any Tenant normally deals in the ordinary course of such
Tenant's business unless such persons are engaged in illegal activities.
No Tenant, and no employees or invitees of any Tenant, shall go upon the
roof of the Building, except as authorized by Landlord.
2. No sign, placard, picture, name, advertisement or notice, visible from the
exterior of the leased premises shall be inscribed, painted, affixed,
installed or otherwise displayed by any tenant either on its premises or
any part of the Building without the prior written consent of Landlord, and
Landlord shall have the right to remove any such sign, placard, picture,
name, advertisement, or notice without notice to and at the expense of
Tenant,
If Landlord shall have given such consent to any Tenant at any time,
whether before or after the execution of the Lease, such consent shall in
no way operate as a waiver or release of any of the provisions hereof or of
such Lease and shall be deemed to relate only to the particular sign,
placard, picture, name, advertisement or notice so consented to by Landlord
and shall not be construed as dispensing with the necessity of obtaining
the specific written consent of Landlord with respect to any other such
sign, placard, picture, name, advertisement or notice.
All approved signs or lettering on doors and walls shall be painted,
affixed and inscribed at the expense of the Tenant by a person approved by
Landlord.
3. The bulletin board or directory of the Building will be provided
exclusively for the display of the name and location of Tenants only and
Landlord reserves the right to exclude any other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on any premises
without the prior written consent of Landlord. In any event with the prior
written consent of Landlord, all such items shall be installed inboard of
Landlord's standard window covering and shall in no way be visible from the
exterior of the Building. No articles shall be placed or kept on the window
▇▇▇▇▇ so as to be visible from the exterior of the Building. No articles
shall be placed against glass partitions or doors which might appear
unsightly from outside Tenant's premises.
5. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 8 a.m. at all hours on Saturday, Sundays and holidays all
persons who are not Tenants or their accompanied guests in the Building.
Each Tenant shall be responsible for all persons it allows to enter the
Building and shall be liable to Landlord for all acts of such persons.
Landlord shall in no case be liable for damages for error with regard to
the admission to or exclusion from the Building of any person.
During the continuance of any invasion, mob, riot, public excitement or
other circumstances rendering such action advisable in Landlord's opinion.
Landlord reserves
27
the right to prevent access to the Building by closing the doors, or
otherwise, for the safety of Tenants and protection of the Building and
property in the Building.
6. No Tenant shall employ any person or persons other than the janitor of
Landlord for the purpose of cleaning premises unless otherwise agreed to by
Landlord in writing. Except with the written consent of Landlord no person
or persons other than those approved by Landlord shall be permitted to
enter the Building for the purpose of cleaning same. No Tenant shall cause
any unnecessary labor by reason of such Tenant's carelessness or
indifference in the preservation of good order and cleanliness of the
premises. Landlord shall in no way be responsible to any tenant for any
loss of property on the premises, however occurring, or for any damage done
to the effects of any Tenant by the janitor or any other person.
7. No Tenant shall obtain or maintain for use upon its premises coin-operated
vending machines or receive barbering or shoe shine services in its
premises except from persons authorized by Landlord.
8. Each Tenant shall see that all doors of its premises are closed and
securely locked and must observe strict care and caution that all water
faucets or water apparatus are entirely shut off before the Tenant or its
employees leave such premises, and that all utilities shall likewise be
carefully shut off so as to prevent waste or damage, and for any default or
carelessness the Tenant shall make good all injuries sustained by other
Tenants or occupants of the Building or Landlord. On multiple-tenancy
floors. all Tenants shall keep the door or doors to the Building corridors
closed at all times except for ingress and egress.
9. As more specifically provided in the Tenant's Lease of the premises, Tenant
shall not waste electricity, water or air-conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air-conditioning, and shall refrain from attempting
to adjust any controls.
10. No Tenant shall alter any lock or access device or install a new or
additional lock or access device or any bolt off any door of its premises
without prior written consent of Landlord. If Landlord shall give its
consent, Tenant shall in each case furnish Landlord with a key for any such
lock.
11. No Tenant shall make or have made additional copies of any keys or access
devices provided by Landlord. Each Tenant upon the termination of' the
Tenancy, shall deliver to Landlord all the keys or access devices for the
Building, offices, rooms and toilet rooms which shall have been furnished
the Tenant or which the Tenant shall have had made. In the event of the
loss of any keys or access devices so furnished by Landlord, Tenant shall
pay Landlord therefor.
12. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever, including, but not limited
to, coffee grounds shall be thrown therein, and the expense of any
breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the Tenant who, or whose employee or invitees, shall have
caused it.
13. No Tenant shall use or keep in its premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material other than limited
quantities necessary for the operation or maintenance of office equipment.
No Tenant shall use any method of heating or air-conditioning other than
that supplied by Landlord.
14. No Tenant shall use, keep or permit to be used or kept in its premises any
foul or noxious gas or substance or permit or suffer such premises to be
occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors and/or vibrations
or interfere in any way with other Tenants or those having
28
business therein, nor shall any animals or birds be brought in or kept in
or about any premises of the Building.
15. No cooking shall be done or permitted by any Tenant on its Premises (except
microwave ovens or Underwriters' Laboratory approved equipment for the
preparation of coffee, tea, hot chocolate and similar beverages for Tenants
and their employees shall be permitted, provided that such equipment and
use is in accordance with applicable federal, state and city laws, codes,
ordinances, rules and regulations) nor shall premises be used for lodging.
Except with the prior written consent of Landlord, no Tenant shall sell,
permit the sale, at retail, of newspapers, magazines periodicals, theater
tickets or any other goods or merchandise in or on any premises, nor shall
Tenant carry on, or permit or allow any employees or other person to carry
on, the business of stenography, typewriting or any similar business in or
from any premises for the service or accommodation of occupants of any
other portion of the Building, nor shall the premises of any Tenant be used
for the storage of merchandise or for manufacturing of any kind, or the
business of a public ▇▇▇▇▇▇ shop, beauty parlor, nor shall the premises of
any Tenant be used for any improper, immoral or objectionable purpose, or
any business activity other than that specifically provided for in such
Tenant's lease.
16. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlords instructions in
their installation.
17. Landlord will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call boxes or other
office equipment affixed to all premises shall be subject to the written
approval of Landlord.
18. No Tenant shall install any radio or television antenna, loudspeaker or any
other device on the exterior walls or the roof of the Building. Tenant
shall not interfere with radio or television broadcasting or reception from
or in the Building or elsewhere.
19. No Tenant shall lay linoleum, tile, carpet or any other floor covering so
that the same shall be affixed to the floors of its premises in any manner
except as approved in writing by Landlord. The expense of repairing any
damage resulting from a violation of this rule or the removal of any floor
covering shall be borne by the Tenant by whom, or by whose contractors,
employees or invitees, the damage shall have been caused
20. No furniture, freight equipment, materials, supplies, packages, merchandise
or other property will be received in the Building or carried up or down
the elevators except between such hours and in such elevators as shall be
designated by Landlord. Landlord shall have the right to prescribe the
weight, size and position of all sales, furniture, files, bookcases or
other heavy equipment brought into the Building. Safes or other heavy
objects shall, if considered necessary by Landlord, stand on wood strips of
such thickness as determined by Landlord to be necessary to property
distribute the weight thereof. Landlord will not be responsible for loss
of or damage to any such safe, equipment or property from any cause, and
all damage done to the Building by moving or maintaining any such safe,
equipment or other property shall be repaired at the expense of Tenant.
Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the Building
or to any space therein to such a degree as to be objectionable to Landlord
or to any tenants in the Building shall be placed and maintained by Tenant,
at Tenant's expense, on vibration eliminators or other devices sufficient
to eliminate noise or vibration. The persons employed to move such
equipment in or out of the Building must be acceptable to Landlord.
29
21. No Tenant shall place a load upon any floor of the premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. No Tenant shall ▇▇▇▇, or drive nails, screws or drill
into, the partitions, woodwork or plaster or in any way deface such
premises or any part thereof.
22. There shall not be used in any space, or in the public areas of the
Building, either by Tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material-handling equipment
as Landlord may approve. No other vehicles of any kind shall be brought by
any Tenant into or kept in or about the premises.
23. Each Tenant shall store all its trash and garbage within the interior of
its premises. No materials shall be placed in the trash boxes or
receptacles if such material is of such nature that it may not be disposed
of in the ordinary and customary manner of removing and disposing of trash
and garbage in this area without violation of any law or ordinance
governing such disposal. All trash, garbage and refuse disposal shall be
made only through entry ways and elevators provided for such purposes and
at such times as Landlord may designate.
24. Canvassing, soliciting, distributing of handbills or any other written
material, and peddling in the Building are prohibited and each Tenant shall
cooperate to prevent the same. No Tenant shall make room-to-room
solicitation of business from other tenants in the Building.
25. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs or who is in violation of any of the rules and
regulations of the Building.
26. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
27. Tenant shall comply with all energy conservation, safety, fire protection
and evacuation procedures and regulations established by Landlord or any
governmental agency.
28. Tenant assumes any and all responsibility for protecting its premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the premises closed.
29. The requirements of Tenants will be attended to only upon application at
the office of the Building by an authorized individual. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless special instruction from Landlord, and no employees will
admit any person (Tenant or otherwise) to any office without specific
instructions from Landlord.
30. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular Tenant or Tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other Tenant or Tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all Tenants of the Building.
31. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order therein. Tenant agrees to abide by all such
Rules and Regulations herein above stated and any additional rules and
regulations which are adopted.
32. All wallpaper or vinyl fabric materials which Tenant may install on painted
walls shall be applied with a strippable adhesive. The use of
nonstrippable adhesives will cause damage
30
to the walls when materials are removed, and repairs made necessary thereby
shall be made by Landlord at Tenant's expense.
33. Tenant shall provide and maintain hard surface protective mats under all
desk chairs which are equipped with casters to avoid excessive wear and
tear to carpeting. If Tenant falls to provide such mats, the cost of
carpet repair or replacement made necessary by such excessive wear and tear
shall be charged to and paid for by Tenant.
34. Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service to Tenant to Landlord for
Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in
the Building, including installations of telephones, telegraph equipment,
electrical devices and attachments and installations of any nature
affecting floors, walls, woodwork, trim, windows, ceilings, equipment or
any other physical portion of the Building.
35. Tenant shall give prompt notice to Landlord of any accidents to or defects
in plumbing, electrical mixtures, or heating apparatus so that such
accidents or defects may be attended to properly.
36. No Tenant shall store items in any common areas, corridors, stairwells or
restrooms. This includes any mechanical, telephone or other rooms
restricted to Landlord.
37. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invitees and guests.
38. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, after or amend, in whole or in part, the terms,
covenants, agreements and conditions of any Lease of premises in the
Building.
39. No smoking is allowed within the Building, including any Tenant premises or
Building common areas. Landlord may designate a specific smoking area in a
suitable area outside of the Building.
40. No animals or dogs are allowed within the Building, including any Tenant
premises or Building common areas.
41. Tenant shall not store nor bring into the Buildings, Fire Arms, ammunition
or other devices generally considered to be a weapon.
31
FIRST AMENDMENT TO LEASE
This Amendment of Lease is made as of _____________, 1997, between PRINCIPAL
MUTUAL LIFE INSURANCE COMPANY ("Landlord") and AUTOMATED DISPATCH SOLUTIONS,
INC. D/B/A ADS ("Tenant").
WHEREAS:
A. Principal Mutual Life Insurance Company ("Landlord") and Automated Dispatch
Solutions, Inc. d/b/a ADS, ("Tenant") have entered into a lease agreement
dated ___________________ ("Lease"), by which Landlord demised unto Tenant
4,745 square feet, Suite 235, on the second floor of One Crown Center,
situated at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, as described in
the Lease.
B. Landlord and Tenant desire to amend the lease as described below:
NOW THEREFORE BE IT AGREED:
42. Expansion of Premises: Effective October 1, 1997 the Premises shall
---------------------
increase by 2,075 rentable square feet (Suite 306 "Expansion Area") to a
total of 6,820 rentable square feet.
43. Lease Term: The Lease Term termination date shall be amended to September
----------
30, 2002.
44. Base Rental: The Base rental schedule shall be amended as follows:
-----------
PERIOD MONTHLY RATE PERIOD AMOUNT
------ ------------ -------------
10/1/97 - 9/30/98 $ 8,951.25 $107,415.00
10/1/98 - 9/30/99 $ 9,219.79 $110,637.48
10/1/99 - 9/30/00 $ 9,496.38 $113,956.56
10/1/00 - 9/30/01 $ 9,781.27 $117,375.24
10/1/01 - 9/30/02 $10,074.71 $120,896.52
45. Tenant Improvements: Landlord at Landlord's expense shall repaint and
-------------------
recarpet the Expansion Area. Landlord shall also remove one wall,
construct two walls and install a door, close one opening.
46. Option to Terminate: Provided Tenant is not in default, Tenant shall have
-------------------
the option to Terminate the Lease effective October 1, 2000 upon notice to
Landlord on or before October 1, 1999 and payment of $2,000.00 at the time
of notice.
47. Early Occupancy: Tenant may temporarily occupy the "Expansion Area"
---------------
effective September 1, 1997 on an "as-is" basis. Landlord shall make the
Tenant improvements after the completion of Tenant's temporary occupancy.
48. Parking: Reference Special Stipulations Exhibit B section 5. Tenant will
-------
require 19 of Tenant's employees to park in the "Lower Lot" (See Exhibit
"E") and Tenant will be responsible for the enforcement of this provision.
Failure to do so will constitute a default under this Lease. Tenant shall
also be allowed the use of 16 spaces throughout the Building parking areas
with no restrictions.
32
49.50. Security Deposit.Reference 2.6 of the Lease. The Security Deposit is
----------------
hereby increased to $10,074.71
51. First Month's Rent.Tenant shall pay to Landlord $2,723.44 as additional
------------------
first month's rent on the expansion area for the month of October 1997.
52. Peachtree Partners represents the Tenant and Peachtree Partners shall be
paid a commission by the Landlord. ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ Company represents the
Landlord and will be paid a commission by the Landlord.
53. In the event of conflict between the terms of this Amendment and the Lease,
this Amendment shall control.
54. Except as otherwise stated herein, all capitalized terms shall bear the
same meanings as ascribed to them in the Lease.
55. Except as set forth herein, the Lease remains unmodified and in full force
and effect.
LANDLORD: Principal Mutual Life Insurance Co.
Attest: By:
----------------- -------------------------------------------
Its: Its:
----------------- -------------------------------------------
TENANT: Automated Dispatch Solutions
Attest: By: /s/
----------------- -------------------------------------------
Its: Its: President
----------------- -------------------------------------------
33
Exhibit "A"
▇▇▇▇▇ ▇▇▇
2,075 RSF
34
LANDLORD: NEW WORLD PARTNERS JOINT VENTURE, a
Florida general partnership
c/o Codina Real Estate Management, Inc.
▇▇▇▇ ▇.▇. ▇▇/▇▇/ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
TENANT: AUTOMATED DISPATCH SOLUTIONS, INC., a
Delaware corporation
▇▇▇▇ ▇.▇. ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
DATE OF EXECUTION: Aug. 7, 1997
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LEASE-OFFICE COMMERCIAL
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Revised Form 4/6/95
35