1
EXHIBIT 10.085
STATE OF GEORGIA
COUNTY OF GWINNETT
LEASE
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THIS LEASE, made this ___________ day of _______________, ______, between
COLOGNE INVESTORS, LIMITED and ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (herein collectively
called "Lessor"), and BIOSHIELD TECHNOLOGIES, INCORPORATED (herein called
"Lessee");
W I T N E S S E T H: THAT
WHEREAS, Lessor is the owner of that certain building situated at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (herein called the
"Building") and located on the land (herein called the "Land") described on
EXHIBIT "A", attached hereto and by this reference incorporated herein and made
a part hereof; and
WHEREAS, Lessee wishes to lease from Lessor: (i) all of the Building,
including the whole approximate 55,324 rentable square feet therein, and the
Building layout is shown on EXHIBIT "B" attached hereto and by this reference
incorporated herein and made a part hereof, and (ii) the exclusive right to use
the "Common Areas" (as defined herein) located on the Land (the Building and
the Land including all Common Areas are herein called the "Premises");
NOW, THEREFORE, in consideration of the payment of the rent and the
keeping and performance of the covenants and agreements by Lessee as
hereinafter set forth, Lessor does hereby lease to Lessee, and Lessee does
hereby lease from Lessor, the Premises. Lessee accepts the Premises in "as is"
condition, provided that Lessor represents and warrants that as of the
Commencement Date, all HVAC and mechanical building systems will be in good
operating condition consistent with such systems' age and prior use, but Lessor
makes no continuing warranty. LESSEE HEREBY ACKNOWLEDGES THAT LESSOR HAS NOT
MADE ANY REPRESENTATION OR WARRANTY AS TO THE SUITABILITY OF THE PREMISES FOR
THE CONDUCT OF LESSEE'S BUSINESS. No easement for light or air is included in
the Premises.
FOR AND IN CONSIDERATION of the leasing of the Premises as aforesaid, the
parties hereby covenant and agree as follows:
1. TERM; OCCUPANCY; RENT COMMENCEMENT. The term (herein called the "Lease
Term") of this Lease shall commence on , 1999 (herein called the "Commencement
Date") and, unless sooner terminated under the provisions hereof, shall expire
at 11:59 p.m. on the day before the date which is the last day of the one
hundred twentieth (120th) full calendar month after the Commencement Date.
Lessee shall be obligated to occupy the Premises as of the Commencement Date,
and whether or not Lessee does so occupy the Premises, the obligations of
Lessee to pay all rents and other amounts under this Lease shall commence ten
(10) days after the execution of this Lease by all parties.
2. RENT.
2.1 The annual base rental (herein called "Annual Base Rental"
or "Base Rent") for the Premises shall be as follows:
------------------------------ ---------------------------- --------------------------- ----------------------------
MONTHS ANNUAL P.R.S.F. MONTHLY RENTAL ANNUAL RENTAL
------------------------------ ---------------------------- --------------------------- ----------------------------
1-12 $6.50 $29,967.17 $359,606.00
------------------------------ ---------------------------- --------------------------- ----------------------------
13-24 $13.26 $61,133.02 $733,596.24
------------------------------ ---------------------------- --------------------------- ----------------------------
2
25-36 $13.53 $62,377.81 $748,533.72
------------------------------ ---------------------------- --------------------------- ----------------------------
37-48 $13.80 $63,622.60 $763,471.20
------------------------------ ---------------------------- --------------------------- ----------------------------
49-60 $14.08 $64,913.49 $778,961.92
------------------------------ ---------------------------- --------------------------- ----------------------------
61-72 $14.36 $66,204.39 $794,452.64
------------------------------ ---------------------------- --------------------------- ----------------------------
MONTHS ANNUAL P.R.S.F. MONTHLY RENTAL ANNUAL RENTAL
----------------------------- ---------------------------- --------------------------- ----------------------------
73-84 $14.65 $67,541.38 $810,496.60
------------------------------ ---------------------------- --------------------------- ----------------------------
85-96 $14.94 $68,878.38 $826,540.56
------------------------------ ---------------------------- --------------------------- ----------------------------
97-108 $15.24 $70,261.48 $843,137.75
------------------------------ ---------------------------- --------------------------- ----------------------------
109-120 $15.54 $71,644.58 $859,734.96
------------------------------ ---------------------------- --------------------------- ----------------------------
2.2 Lessee shall pay the rent and all other sums, amounts,
liabilities, and obligations which Lessee herein assumes or agrees to pay,
whether designated Annual Base Rental, additional rent, costs, expenses,
damages, losses, or otherwise, (all of which are herein collectively called
"Amount Due") as herein provided promptly at the times and in the manner herein
specified without deduction, setoff, abatement, counterclaim, or defense. If
any Amount Due is not received by Lessor within ten (10) days after the date on
which it is due, Lessee shall pay Lessor a late charge equal to five percent
(5%) of the amount of such past due payment, notwithstanding the date on which
such payment is actually paid to Lessor. If such Amount Due is not paid within
thirty (30) days of the date on which it was originally due, then, in addition
to such late charge, Lessee shall pay Lessor interest on such Amount Due from
the date on which it was originally due until the date it is actually paid at
the rate of twelve (12%) percent per annum. Any such late charge and interest
shall be due and payable at the time of actual payment of the Amount Due. Any
Amount Due payable to Lessor by Lessee shall be paid in cash or by check at the
following location, ▇/▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇▇, ▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place or places as Lessor
may from time to time designate in writing.
2.3 Contemporaneously with the execution of this Lease, Lessee
shall pay Lessor a security deposit in the amount of FIFTY NINE THOUSAND NINE
HUNDRED THIRTY FOUR AND 33/100 DOLLARS ($59,934.33) (herein called the
"Security Deposit") to be held by Lessor for the performance by Lessee of
Lessee's covenants and obligations under this Lease. If Lessee shall at any
time fail to pay any Amount Due, Lessor may, but shall not be obligated to,
from time to time and without prejudice to any other remedy, apply all or any
portion of the Security Deposit to the extent necessary toward the payment of
any such Amount Due. In the event Lessor applies the Security Deposit or a
portion thereof as provided in this Section 2.3, Lessee shall immediately upon
notice from Lessor of such application pay the amount so applied to Lessor, it
being the intent of the parties that the Security Deposit held by Lessor always
be in the amount stated above. It is expressly understood and agreed, however,
that the Security Deposit shall not be considered an advance payment of rent or
a measure of Lessor's damages in the event of any default by Lessee. If, at the
expiration or termination of this Lease, Lessee is not in default hereunder,
the Security Deposit shall be returned by Lessor to Lessee without interest.
Lessor agrees to keep the Security Deposit in a separate escrow account in the
name of Lessor, but not commingled with any other funds of the Lessor, with a
financial institution whose deposits are insured by the federal government, for
purposes of ensuring availability of such Security Deposit for purposes of the
same under this Lease.
2.4 Base Rent shall be paid monthly in advance on the first day
of each calendar month in the Lease Term. The Base Rent for the first month
shall be prorated and due when Lessee's payment obligations commence under
Section 1.
3. NET LEASE. This lease is a "net" lease. It is the intention
and purpose of the parties that Lessor shall receive the Base Rent, additional
rent, and other amounts constituting the Amount Due as income or expense
2
3
reimbursements from the Premises totally net of expenses. Lessee shall bear,
pay for, and discharge not only such items as Lessee has specifically agreed by
the provisions of this Lease to pay, but also all other costs, charges, and
expenses of every reasonable kind and nature with respect to the ownership,
occupancy, and operation of the Premises, including but not limited to costs,
charges, and expenses associated with maintenance and repair, taxes and
assessments, insurance, management, and utilities, for or of the Premises,
except only any such cost, charge, or expense which Lessor expressly agrees in
this Lease to pay or not to charge to Lessee; provided that Lessee shall not be
required to pay any additional amount for (a) income tax imposed on Lessor on
account of income from the Premises or (2) amounts owed by Lessor under any
mortgage, security deed, or security agreement on the Premises or any part
thereof. All amounts payable by Lessee hereunder in addition to the Base Rent
shall be deemed to be additional rent.
4. SHARED EXPENSES.
4.1 During the Lease Term, Lessee shall pay to Lessor as
additional rent Lessee's Proportionate Share (as hereinafter defined) of Shared
Expenses (as hereinafter defined). Lessee shall also pay as additional rent all
other charges, costs and expenses which are not included within Shared Expenses
and which are reasonably incurred by Lessor as a result of any use of the
Premises by Lessee. Such amounts shall be paid to Lessor in equal monthly
installments in advance on the first day of each month of the Lease Term, at
the same time and in the same manner as Base Rent. The dollar amount of
Lessee's Proportionate Share of Shared Expenses shall be prorated as necessary
for any year during which this Lease is in effect for less than the full twelve
month calendar year. Shared Expenses shall be calculated on an accrual basis
and estimated in accordance with Section 4.6 below.
4.2 "TOTAL RENTABLE AREA" shall mean all space within the
Building designed and designated for individual tenant occupancy whether such
space is currently subject to a lease by an individual tenant or not,
including, if any, publicly used areas and areas used in common with other
tenants of the Building, if any. The parties hereby acknowledge that the Total
Rentable Area within the Building is 55,324 square feet.
4.3 "LESSEE'S PROPORTIONATE SHARE" shall mean that proportion
which the area in the Building hereby leased to Lessee bears to the Total
Rentable Area of the Building. Specifically, the parties acknowledge that the
area of the Building occupied by Lessee is 55,324 square feet out of a Total
Rentable Area of 55,324 square feet; therefore, for any applicable period, the
Lessee's Proportionate Share of Shared Expenses, to be paid by Lessee to
Lessor, is 100%. During the Lease Term (and any renewals thereof), should the
Lessor construct additional buildings upon the Land or lease a portion of the
Building to any other tenant who then shares occupancy of the Building with
Lessee, the Lessee's Proportionate Share shall be recalculated to adjust for
the Building square footage then occupied by the Lessee and the Total Rentable
Area of the Building and such additional buildings, and, in the case of such
shared occupancy of the Building, the respective areas of the Building occupied
by Lessee and such other tenant(s) shall be considered in fixing the respective
Proportionate Shares of Lessee and such other tenant(s), provided that the
Common Area shall not be reduced, and the aggregate Proportionate Shares shall
equal 100%.
4.4 For purposes of this Lease, the term "SHARED EXPENSES" shall
mean the operating and maintenance expenses reasonably incurred by Lessor
pertaining to all areas of the Premises (herein called the "COMMON AREA")
including, but not limited to, publicly used areas, if any, and areas such as,
lawns, gardens, sidewalks, driveways and parking lots. Shared Expenses shall
include, but not be limited to:
4.4.1 The wages, salaries and attributable overhead
expenses of all employees engaged in the operation and maintenance of the
Common Area, including employers' Social Security taxes, unemployment, and any
other taxes which may be levied on or with respect to such wages, salaries, and
attributable overhead expenses but excluding interest and penalty charges
arising from late payment, thereof.
4.4.2 The cost of all janitorial and other cleaning
expenses if provided, all office supplies, tools, equipment and materials used
in the operation and maintenance of the Common Area by Lessor.
4.4.3 The cost of water, sewer, heating, lighting,
ventilation, electricity, air conditioning and
3
4
any other utilities supplied or paid for by Lessor and the cost of maintaining
the systems supplying the same.
4.4.4 The cost of all maintenance and service of the
Common Area, including, but not limited to, pest control and the cleaning and
maintenance of equipment, janitorial service, and landscaping maintenance.
4.4.5 The costs of acquiring and installing all sprinkler
systems, fire extinguishers, fire hoses, security services and protective
services or devices rendered to or in connection with the Land and the Building
or any part thereof.
4.4.6 Insurance premiums for insurance for the Premises
or any part thereof required to be maintained by Lessor hereunder or which
Lessor deems reasonably appropriate, including, but not limited to, premiums
for insurance maintained by Lessor under Section 9, business interruption,
rental abatement, or liability insurance.
4.4.7 The cost of repairs and general maintenance of the
Common Area, including, but not limited to: maintenance and cleaning of common
areas and facilities; lawn mowing, gardening, landscaping, and irrigation of
landscaped areas; line painting, pavement maintenance, sweeping, and sanitary
control; removal of snow, trash, rubbish, garbage, and other refuse; the cost
of personnel to implement such services, to direct parking, and to police the
common facilities; the cost of exterior and interior painting; all maintenance
and repair costs incurred under Section 6.1 or Section 10.14; and the cost of
maintenance of sewers and utility lines.
4.4.8 The amortization, together with financing charges,
of the costs of acquiring and installing capital investment items which are
reasonably installed for the purpose of reducing operating expenses, promoting
safety, complying with governmental requirements (other than "Prior ADA and
Code Requirements" as hereinafter defined) or maintaining the quality and
nature of the Premises consistent with the quality and nature of Technology
Park/Atlanta and the Premises prior to and up to the Commencement Date.
4.4.9 All Impositions (as hereinafter defined), taxes,
assessments and governmental or other charges, general or special, ordinary or
extraordinary, foreseen or unforeseen, which are levied, assessed or otherwise
imposed against the Premises, street lights, personal property, or rents, or on
the right or privilege of leasing the Premises or collecting rents therefrom or
from parking vehicles thereon by any federal, state, county or municipal
government or by any special sanitation district or by any other governmental
or quasi-governmental entity that has taxing or assessment authority, and any
other taxes and assessments attributable to the Premises or their operation,
including but not limited to any Impositions payable by Lessor under Section 16
hereof; but exclusive of federal, state or local income taxes of Lessor,
inheritance taxes, estate taxes, gift taxes, transfer taxes, excess profit
taxes and any taxes imposed in lieu of such excluded taxes.
4.4.10 All management expenses attributable to the
Premises, including, but not limited to: administrative expenses associated
with collecting rent, arranging for and assuring continuity of Common Area
services, supervising maintenance or repair, enforcing rules and regulations;
salaries or wages of persons employed or contracted to manage the Premises; the
cost of supplies and materials, equipment and furnishings necessary for such
management functions; the cost of telephone service, attributable overhead
expenses and any other expenses and management fees directly relating to the
management of the Premises.
4.4.11 All assessments, if any, assessed against the
Premises during the Lease Term under any protective covenants now or hereafter
of record against the Premises, including, without limitation, any assessments
imposed for the maintenance and repair of the common areas of Technology Park
under the Protective Covenants described in Section 26.
4.4.12 Those items specified in Section 7.1 hereof which
are Lessor's responsibility to maintain.
-4-
5
4.5 Nothing contained in this Section 4, including, but not
limited to the definition of "Shared Expenses" contained in Section 4.4 hereof,
shall imply any duty on the part of Lessor to pay any expense or provide any
service. The foregoing sentence is not intended to waive any affirmative
obligations of the Lessor expressly stated elsewhere in this Lease.
4.6 Prior to the Commencement Date and prior to each December 31
thereafter during the Lease Term, Lessor shall estimate the amount of Shared
Expenses and Lessee's Proportionate Share of Shared Expenses for the ensuing
calendar year or, if applicable, remaining portion thereof and notify Lessee in
writing of such estimate. Such estimate shall be made by Lessor in the exercise
of its sole reasonable discretion and in good faith, but shall not be subject
to dispute by Lessee or arbitration. Lessor agrees to provide such estimate in
sufficient detail that Lessee and Lessor can reasonably discuss proposed
expenses, and Lessor agrees to reasonable discussion with Lessee about such
expenses. The amount of additional rent specified in each such notification
shall be paid by Lessee to Lessor in equal monthly installments in advance on
the Commencement Date and on the first day of each calendar month thereafter
during the Lease Term, at the same time and in the same manner as Base Rent.
Attached hereto and expressly incorporated herein as Exhibit "F" is a true
schedule of Lessor's Shared Expenses for calendar years 1996 through 1998
inclusive. Attachment of such Exhibit "F" shall not be construed as a
limitation on any type or amount of expenses to be included in the Shared
Expenses.
4.7 On or before each April 30 during the Lease Term, Lessor
shall advise Lessee of the amount of actual Shared Expenses for such prior
calendar year. If Lessee's Proportionate Share of Shared Expenses for such
calendar year proves to be greater than the estimated amount, Lessor shall
invoice Lessee for the deficiency as soon as practicable after the amount of
underpayment has been determined, and Lessee shall pay such deficiency to
Lessor within fifteen (15) days following its receipt of such invoice. If,
however, Lessee's Proportionate Share of Shared Expenses for such calendar year
is lower than the estimated amount, Lessee shall receive a credit toward the
next ensuing monthly payment or payments of the estimated amount of Lessee's
Proportionate Share of Shared Expenses in an amount of such overpayment until
depleted, provided however that (i) in no event shall Lessee's Proportionate
Share of Shared Expenses be deemed to be less than zero, and (ii) that in the
event of the expiration or other termination of this Lease, Lessee shall be
refunded such overpayment as soon as practicable thereafter after the amount of
overpayment has been determined.
4.8 Lessee may, only one (1) time during each calendar year and
upon ten (10) days' prior written notice to Lessor, at Lessee's expense and at
any reasonable time, audit the books and supporting documentation of Lessor
pertaining exclusively to the types and amounts of Shared Expenses incurred for
either or both of the two immediately previous calendar years (provided,
however, that Lessee shall only have the right to audit records one time for
any calendar year). If Lessee disputes the amount of additional rent due under
Section 4.7 hereof, and Lessor and Lessee are unable to resolve the dispute by
good faith efforts, then Lessee may institute arbitration proceedings and such
dispute shall be settled by arbitration in the Gwinnett County, Georgia, by a
panel of three members in accordance with the rules then in effect of the
American Arbitration Association; provided, however, that Lessee shall
immediately pay any disputed amount to Lessor, and if the arbitrators find that
Lessee has paid more than the Lessee's Proportionate Share of Shared Expenses
for the previous calendar year, Lessor shall immediately refund such
overpayment to Lessee. The decision of the arbitrators acting hereunder shall
be binding and conclusive upon the parties. Lessor and Lessee shall each pay
one-half of the cost of such arbitration; provided, however, that if the
arbitrators determine that the arbitration proceedings were not instituted in
good faith by Lessee, Lessee shall pay the full cost thereof or in the event
the arbitrators determine that the Shared Expenses were not determined in good
faith by Lessor, Lessor shall pay the full cost thereof. Said arbitrators shall
also be empowered to award reasonable attorney's fees and expert witness fees
to the prevailing party in such arbitration.
4.9 Notwithstanding the foregoing, Shared Expenses shall not
include the following:
-5-
6
(i) Maintenance, repairs and other expenses arising
from gross negligence or willful wrong-doing of Lessor or
its employees;
(ii) Expenses and improvements arising from Lessor's (or
its predecessor's) failure (if any) to construct,
modify, or maintain the Premises so as to comply with
"Prior ADA and Code Requirements" as hereinafter
defined;
(iii) Attorney's fees and collection costs which Lessor
incurs in connection with legal controversies arising
from the actions or dealings of any other actual or
alleged lessee which may use and occupy the Premises;
and
(iv) Lessor's cost of maintaining the exterior
structure, walls and roof of the Building.
4.10 Lessee agrees to consult with Lessor as to any expenses
which Lessee wishes to pay directly for the Premises, which might otherwise be
included in Shared Expenses, and which Lessee's payment will fully discharge
such that inclusion of such expenses in the Shared Expenses would result in
double payment of such expenses, and Lessor agrees to such consultation;
provided that Lessor shall have the option at Lessor's sole discretion of
including such expenses in the Shared Expenses in lieu of Lessee's direct
payment, as reasonably necessary for proper or efficient administration and
management of the Premises.
4.11 The term "Prior ADA and Code Requirements" shall mean
requirements imposed on Lessor or its predecessor as owner of the Premises
before the Commencement Date (a) requiring compliance before the Commencement
Date with the Americans with Disabilities Act ("ADA") or (b) as to any
structure or improvement, if any, whose condition or use before the
Commencement Date and continuing thereafter violates any applicable statute or
code, unless in case of clause (a) or (b), the Lessee's Improvements will
effect such ADA compliance or will correct such statutory or code violation, or
will otherwise make such compliance or correction moot. If the Lessee's
Improvements will effect such compliance or correction, or make such compliance
or correction moot, without additional cost or expense not otherwise required
for Lessee's Improvements, Lessee shall effect or moot such compliance or
correction as part of Lessee's Improvements without any cost or expense to
Lessor other than Lessor's provision of the Allowance. If additional cost or
expense over and above the cost and expense of Lessee's Improvements would be
required to effect such compliance or correction or to make such compliance or
correction moot, Lessee shall nevertheless cooperate with Lessor to provide an
opportunity for Lessor to make or to moot such compliance or correction at
savings in cost and time, if any, in connection with making Lessee's
Improvements. Nothing contained in this section shall impose any obligation
upon Lessee to investigate or otherwise discover any condition falling within
the scope of a Prior ADA and Code Requirement in order to correct, remediate or
eliminate said condition.
4.13 "Amortization" to be included in the Shared Expenses
pursuant to this Section 4 shall be based on straight-line amortization of the
included cost and the standard useful life of such item in the accounting
industry, whether such useful life is longer or shorter than the Lease Term.
Only the portion of such amortization for years included in the Lease Term
shall be included in Shared Expenses.
5. USE.
5.1 Lessee and its permitted assignees and subtenants shall use
the Premises for general office and other uses associated with Lessee's
operations, not in violation of the Protective Covenants (as hereinafter
defined), and for no other purpose without the prior written consent of Lessor.
Lessor acknowledges and approves the use of the Building for research,
laboratory facilities, testing, development, marketing, production, packaging
and shipping operations by Lessee and its affiliated entities in connection
with organic volatile compounds, microbial agents, antimicrobial products
-6-
7
and prescription drugs, provided such use does not violate any applicable law
or requirement having the force of law, or any of the Protective Covenants, and
does not injure any person or damage any property. Lessee shall operate its
business in the Premises during the entire Lease Term and in a reputable manner
in compliance with all applicable laws, ordinances, regulations, covenants,
restrictions, and other matters shown on the public records, now in force or
hereafter enacted. Lessee will not permit, create, or maintain any disorderly
conduct, trespass, noise, or nuisance whatsoever about the Premises which has a
tendency to annoy or disturb any persons occupying adjacent premises either
within or without the Building.
5.2 Lessee shall not place or maintain machines, equipment, or
other apparatus which causes vibrations or noise that may be transmitted to the
Building structure or to any space to such a degree as to be objectionable to
Lessor or to any other tenant in the Building or to persons having rights to
occupy property adjacent to the Premises. Neither Lessee nor any of Lessee's
employees, agents or invitees shall place or maintain within the Premises any
stoves, ovens or space heaters (other than properly-installed professional
equipment necessary for Lessee's laboratory operations), except with the prior
written consent of Lessor in each instance. Lessee shall not make or permit to
emanate from the premises any smoke or odor that is objectionable to other
occupants of the Building, or to persons having rights to occupy property
adjacent to the Premises, and shall not create, permit, or maintain a public or
private nuisance thereon, or do any act which damages the Premises or would
cause disinterested, impartial persons having expertise as to quality of
buildings in the commercial office market in the vicinity of Technology
Park/Atlanta to characterize the Building as declining in quality on account of
such act below the quality of the Building during its existence prior to the
Commencement Date.
5.3 Lessee shall cause all loading and unloading of any goods or
materials delivered to or sent from the Premises to be done only in the areas
as Lessor may designate. Under no circumstances shall Lessee allow any goods or
materials delivered to or sent from the Premises to be stored on, accumulate on
or obstruct such area, dumpster pad, sidewalks, driveways, parking areas,
entrances or other public areas or spaces of the Building or other parts of the
Premises. Lessee acknowledges that violations of this Section 5.3 shall
constitute a material breach of this Lease.
5.4 Lessee shall not perform or permit any work, including, but
not limited to, assembly, construction, mechanical work, painting, drying,
layout, cleaning, or repair of goods or materials, to be done on the sidewalks,
driveways, parking areas, landscaped areas of the Building or other parts of
the Premises.
5.5 Lessee shall not use, handle, store, deal in, discharge, or
fabricate any environmentally hazardous wastes, substances or materials as the
same are now or hereafter may be defined or classified by any local, state, or
federal environmental protection legislation or regulation issued pursuant
thereto. Notwithstanding the foregoing, Lessee shall be authorized to use,
store, handle and test various organic volatile compounds and microbial agents,
including but not limited to E-coli and Salmonella, in connection with its
usual operations provided that Lessee complies with all laws, requirements
having the force of law, and the Protective Covenants, applicable to the use of
said substances in Lessee's operations, and in such use, storage, handling, and
testing.
5.6 Lessee shall defend, indemnify, and hold harmless Lessor and
Lessor's partners, managers, and employees ("Indemnified Parties") from and
against all claims, actions, demands, losses, liabilities, damages, awards,
fines, penalties, costs, and expenses, including reasonable attorneys' fees,
which are made against or incurred by the Indemnified Parties on account of
Lessee's use of the Premises.
5.7 Technology Park/Atlanta, Inc., as a signatory to this Lease
and as the original Declarant of that certain Declaration of Covenants,
Conditions and Restrictions dated July 2, 1971 [being recorded at Deed Book
389, Pages 636-649, Gwinnett County, Georgia Records] (said instrument and any
amendments thereto being collectively referred to as the "Declaration"),
represents that (i) it is the owner of twenty (20%) percent or more of the
acreage subject to the Declaration; (ii) it holds the controlling vote of the
members of the TP/A Design Control Committee referenced in said
-7-
8
Declaration; and (iii) the Lessee's use of the Premises, as described in this
Lease, is hereby approved by the Committee and will not violate or breach the
Declaration.
6. UTILITIES AND SERVICE.
6.1 Lessee shall pay during the Lease Term the costs of all
utilities furnished to the Premises, including, without limitation, water, gas,
if any, electricity, sewer and refuse disposal. To the extent water, sewer and
refuse disposal for the Premises are not separately billed to Lessee, the costs
for such services shall be paid by Lessee to Lessor as a Shared Expense. Lessee
shall be solely responsible for the payment of all telephone and cable charges,
including, without limitation, the cost of installation at the Premises of all
telephone and cable equipment which shall be installed at the request of
Lessee. The furnishing of and cost of janitorial services for the Premises
shall be the sole responsibility of Lessee.
6.2 Unless caused by the gross negligence or willful wrongdoing
of the Lessor or its employees, Lessor shall not be held liable for any damage
or injury suffered by Lessee or by any of Lessee's licensees, agents, invitees,
servants, employees, contractors, or subcontractors or any other person or
entity engaged, invited, or allowed to come onto the Premises by Lessee (herein
collectively called "Lessee Parties"), resulting directly, indirectly,
proximately, or remotely from the installation, use, or interruption of any
service to the Premises or Building, including, but not limited to, temporary
failure to supply any heating, air conditioning, electrical, water, or sewer
services, or any of them. No temporary failure to provide services shall
relieve Lessee from fulfillment of any covenant of this Lease, including,
without limitation, the covenant to pay any Amount Due in the manner and
amounts, and promptly at the times set forth herein. The provisions of this
Section 6.2 shall not be construed to impose such gross negligence or willful
wrongdoing standard upon any claim by Lessee against any person other than
Lessor or its employees, nor to permit any lesser standard for any liability by
Lessor or its employees.
7. MAINTENANCE.
7.1 Lessor shall not be obligated to maintain or make any
repairs or replacements to the Premises during the Lease Term other than the
roof, foundation and exterior walls of the Building (excluding, however, glass
doors), and Lessee covenants and agrees to assume all responsibility of other
repair and maintenance of the Premises. Notwithstanding the foregoing, Lessee
shall be responsible for the cost of any and all damage arising from the
negligence or wilful misconduct of Lessee or any of the Lessee Parties.
7.2 Upon commencement of the Lease Term, Lessee shall accept and
occupy the Premises for its intended use. Lessee shall, at its sole cost, risk,
expense and liability, keep and maintain the Premises in good order and repair,
and in compliance with all applicable governmental codes, ordinances and
regulations. Lessee shall also keep all sewer and utility lines including,
without limitation, all sewer connections, plumbing, heating, ventilating and
air conditioning equipment and appliances, wiring and glass, in good order and
repair; (ii) provide janitorial services for the Premises; and (iii) keep the
Premises free from all litter, dirt, debris and obstructions and in a clean and
sanitary condition. At all times the Premises shall be kept in accordance with
the standards then prevailing in Gwinnett County, Georgia submarket for similar
office buildings and common areas, and all such maintenance, repair,
replacement and work performed under this section shall be performed in
accordance with such standards. Actions to be taken by Lessee under the second,
third, and fourth sentences of this Section 7.2 may be taken by a third party
provider of services pursuant to any service contract which Lessor has in
effect for the Premises; provided such actions are fully paid for by Lessee as
Shared Expenses and fully discharge the obligations of Lessee under this
paragraph; and provided, further, that making or keeping any such service
contract in effect, and the terms and conditions thereof, including the extent
to which any such actions may be covered thereby, shall be at Lessor's sole
discretion, and nothing herein shall be construed to impose on Lessor any
obligation to perform any such actions for Lessee or any liability for
non-performance of such actions.
-8-
9
7.3 At the expiration or other termination of this Lease, Lessee
shall surrender the Premises, and the keys thereto, in as good condition as
when received, loss by fire or other casualty not the result of any act or
omission of Lessee, or ordinary wear and tear only excepted.
7.4 Nothing in this Section 7 shall be deemed to relieve Lessee
from any liability which Lessee may have to Lessor under the terms of this
Lease or otherwise, on account of any damage as may be caused to the Premises
by the negligence or misconduct of Lessee or any of the Lessee Parties.
7.5 As used in this Section 7, "repair and maintenance" shall
include repairs and replacements, and the standard shall be the good, clean and
safe condition of similar office buildings and common areas in Gwinnett County,
Georgia submarket.
8. FORCE MAJEURE. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive government laws or regulations, riots,
insurrection, war, or (in the case of performance of any construction) severely
inclement weather which prevents construction, or other reason of a like nature
(other than finance) not the fault of the party delayed in performing work or
doing acts required under the terms of this Lease, then performance of such act
shall be excused for the period of the delay and the period for the performance
of any such act shall be extended for a period equivalent to the period of the
delay. The provisions of this Section 8 shall not cancel, postpone, or delay
the due date of any payment to be made by Lessee hereunder, nor operate to
excuse Lessee from prompt payment of any Amount Due required by the terms of
this Lease.
9. PROPERTY AND LIABILITY INSURANCE.
9.1 Throughout the Lease Term, Lessor will insure the Building,
including foundations and excavations, the Building standard leasehold
improvements, and the machinery, boilers, and equipment contained therein owned
by Lessor, excluding any property Lessee is obliged to insure under Section 9.3
below, against damage by fire and the perils insured in the standard extended
coverage endorsement. Lessor shall also, throughout the Lease Term, carry
public liability insurance with respect to the ownership and operation of the
Premises.
9.2 Lessee shall comply with all applicable insurance
regulations so the lowest fire, extended coverage, and liability insurance
rates available for use of the Premises as described in Section 5.1 may be
obtained by Lessor and will not use or keep any substance or material in or
about the Premises which may vitiate or endanger the validity of insurance on
the Premises, increase the hazard or the risk beyond that for such use, or
result in an increase in premium on such insurance above the premium from time
to time that reasonably accounts for the use of the Premises permitted by this
Lease. If any insurance policy upon the Premises or any part thereof shall be
canceled or shall be threatened by the insurer to be canceled, the coverage
thereunder reduced or threatened to be reduced, or the premium therefor
increased or threatened to be increased in any way by the insurer above the
premium from time to time that reasonably accounts for the use of the Premises
permitted by this Lease, by reason of the use and occupation of the Premises by
Lessee or by any assignee or subtenant of Lessee for a use other than the use
as set forth in Section 5.1 herein, and if Lessee fails to remedy the condition
giving rise to the cancellation, reduction, or premium increase or threat
thereof within forty-eight (48) hours after notice thereof by Lessor, Lessor
may, at its option, do any one of the following:
9.2.1 Declare a default by Lessee, and thereupon the
provisions of Section 12 shall apply; or
9.2.2 Enter upon the Premises and remedy the condition
giving rise to the cancellation, reduction, or premium increase or threat
thereof, and in such event, Lessee shall forthwith pay the cost thereof to
Lessor as additional rent; and if Lessee fails to pay such cost, Lessor may
declare a default by Lessee and thereupon the
-9-
10
provisions of Section 12 shall apply, and Lessor shall not be liable for any
damage or injury caused to any property of Lessee or of others located on the
Premises as a result of the re-entry; or
9.2.3 If the sole action taken by the insurer is to raise the
premium or other monetary cost of the insurance, demand payment from Lessee of
the premium or other cost as additional rent hereunder, and if Lessee fails to
pay the increase to Lessor within ten (10) days of demand by Lessor, Lessor may
declare a default by Lessee and thereupon the provisions of Section 12 shall
apply. Lessee acknowledges that it has no right to receive any proceeds from any
insurance policies carried by Lessor and that such insurance will be for the
sole benefit of Lessor with no coverage for Lessee for any risk insured against.
9.3 Lessee shall, during its occupancy of the Premises and
during the entire Lease Term, at its sole cost and expense, obtain, maintain,
and keep in full force and effect, the following types and kinds of insurance:
9.3.1 Upon property of every description and kind owned
by Lessee and located on the Premises or for which Lessee is legally liable or
which was installed by or on behalf of Lessee, including, without limitation,
furniture, fittings, installations, alterations, additions, partitions, and
fixtures (excluding, however, those improvements, if any, to be insured by
Lessor in accordance with Section 9 hereof), against all risk of loss in an
amount not less than one hundred percent (100%) of the full replacement cost
thereof;
9.3.2 Commercial general liability insurance in an amount
not less than $1,000,000.00 for any one occurrence or at such higher limits as
Lessor may reasonably require from time to time, with Lessor and Lessor's
mortgagees named as additional insureds therein as their respective interests
may appear; the insurance shall include coverage against liability for bodily
injuries or property damage arising out of the use by or on behalf of Lessee of
owned, non-owned, or hired automobiles and other vehicles for a limit not less
than that specified above; and shall also include coverage for "Fire Legal"
liability with respect to the Premises in an amount not less than $1,000,000.00
or such higher limits as Lessor may reasonably require from time to time; and
9.3.3 Workers' compensation insurance in the amount
required by law to protect Lessee's employees.
9.4 All insurance policies shall be taken out with nationally
recognized companies reasonably acceptable to Lessor and licensed and
registered to operate in the State of Georgia and in form reasonably
satisfactory to Lessor. The insurance may be by blanket insurance policy or
policies. Lessee shall deliver certificates evidencing the insurance policies
and any endorsement, rider, or renewal thereof, to Lessor. Certificates
evidencing renewals shall be delivered to Lessor no later than fifteen (15)
days after each renewal, as often as renewal occurs, and in no event less than
fifteen (15) days prior to the date on which the policy would otherwise expire.
All insurance policies shall require the insurer to notify Lessor and Lessor's
mortgagees in writing thirty (30) days prior to any material change,
cancellation, or termination thereof.
9.5 Lessor and Lessee hereby release the other from any and all
liability or responsibility to the other or to anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured or insurable, whether or not such
insurance is obtained, in policies of fire and extended coverage insurance
covering such property even if such loss or damage shall have been caused by
the fault or negligence of the other party, or any one for whom such party may
be responsible, other than acts, such as intentional wrongdoing or criminal
conduct, that are not waived in the standard waiver of subrogation provision in
commercial property insurance at the time of the loss or damage.
-10-
11
10. ALTERATIONS AND IMPROVEMENTS.
10.1 Subject to the provisions of this Section 10, Lessor agrees
that Lessee may do phased renovations to the Building as described herein
("Lessee's Improvements") after the Commencement Date and after Lessee occupies
the Premises and commences paying Base Rent and additional rent. The Lessee's
Improvements shall be constructed in accordance with final plans,
specifications and construction drawings (collectively the "Lessee's Plans and
Specifications") provided by Lessee and agreed upon by Lessor and Lessee in
accordance with the terms hereof.
10.2 After Lessee shall have commenced paying Base Rent and
additional rent for the Premises, Lessee shall cause plans and specifications
to be prepared by a licensed, professional engineer or architect, and submitted
to Lessor, at Lessee's sole cost and expense, covering all work to be performed
in constructing the Lessee's Improvements. The Lessee's Plans and
Specifications shall be in reasonable detail. Lessee shall ensure that the
Lessee's Plans and Specifications comply with all applicable statutes, codes,
ordinances and regulations ("Codes"). The submitted Lessee's Plans and
Specifications shall be subject to review, comment and approval by Lessor.
Lessor shall advise Lessee of its approval of the Lessee's Plans and
Specifications, or raise any objections thereto, in writing within fifteen (15)
business days after Lessor receives all of the Lessee's Plans and
Specifications. Lessee will have Lessee's Plans and Specifications modified as
reasonably required by Lessor and will resubmit the modified plans to Lessor
within fifteen (15) business days after Lessee receives all of the modification
requirements. Lessor will expeditiously review such modifications and return
Lessor's final approvals or any further comments or objections within an
additional fifteen (15) business days after Lessee's resubmission. Lessee shall
then have an additional ten (10) business days to address such further comments
or objections, if any. If Lessee and Lessor cannot agree on such changes, the
disagreement shall be resolved by submission to an independent architect
(selected mutually by Lessor and Lessee) having at least ten (10) years
experience in the construction or renovation of property comparable to the
Building. If the parties are not able to agree on such an independent architect
within ten (10) days of notice from either party of such a disagreement, either
party may request the selection of such an architect by the president of the
local chapter of the American Institute of Architects.
10.3 Lessee shall obtain all building permits covering Lessee's
Improvements pursuant to the Lessee's Plans and Specifications, and, if
required, other permits, licenses, and approvals for Lessee's Improvements from
any governmental agency or private third party. Lessee shall provide Lessor
copies of all the same. Lessor will cooperate reasonably with Lessee's efforts
to obtain such permits, licenses, and approvals. The contractor for Lessee's
Improvements may be chosen by Lessee, subject to Lessor's reasonable prior
approval. Such contractor shall be a reputable, licensed contractor with proven
experience in the kind of work involved in doing Lessee's Improvements, capable
of providing performance and payment bonds for the total cost of the Lessee's
Improvements, creditworthy, and in good standing with applicable licensing
agencies. Lessor may require Lessee to have the contractor obtain such bonds
from an established, reputable surety and to name Lessor as a beneficiary of
such bonds by dual obligee rider or other appropriate means. Lessee shall
provide Lessor a copy of any construction contract or similar agreement which
Lessee proposes to make for installation of the Lessee's Improvements for
verification that such contract will contain terms and conditions consistent
with Lessee's obligations under this Lease concerning construction of the
Lessee's Improvements. Lessor and Lessee will cooperate reasonably, diligently,
and in good faith in Lessee's finalization of such contract. Lessee represents
to Lessor that Lessee intends to use for the basic form of such construction
contract the American Institute of Architects (AIA) form of construction
contract in substantial part (either cost plus or stipulated sum, at Lessee's
discretion) with AIA general conditions thereto and other contract documents,
subject to such modifications (not contravening any obligation of Lessee under
this Lease) as may be negotiated between Lessee and Lessee's general
contractor, including but not limited to a ten percent (10%) retention from
payments thereunder. Lessor shall have the right to have a representative of
Lessor (who may be a professional architect or engineer) observe and inspect
the installation of the Lessee's Improvements, and to participate reasonably in
management of the same.
10.4 Lessee will prosecute construction of the Lessee's
Improvements diligently to Substantial Completion after commencement of such
construction; provided, however, that if Lessee shall be unable to accomplish
-11-
12
such Substantial Completion on or before the intended completion date due to
force majeure as defined herein, such inability of Lessee shall not give Lessee
a right to cancel this Lease, and, so long as Lessee continues diligently in
making Lessee's Improvements and is not otherwise in default under this Lease,
shall not give Lessor the right to cancel this Lease; provided, further, that
Lessee shall in any event Substantially Complete the Lessee's Improvements by
July 31, 2006 and failure to complete the Lessee's Improvements by such final
date, or failure by Lessee to prosecute construction of Lessee's Improvements
as required by this Lease, shall be a breach of this Lease and Lessor shall
have all available remedies provided under this Lease for such breach including
the right to terminate this Lease in connection with such breach.
Upon Substantial Completion of Lessee's Improvements, a
representative of Lessor and a representative of Lessee together shall inspect
the Premises and prepare a "punchlist" of defective or uncompleted items
relating to the construction of the Lessee's Improvements. Lessee shall, within
a reasonable time but in no event more then thirty (30) days after such
punchlist is prepared and agreed upon by Lessor and Lessee, complete such
incomplete work and remedy any defective work as set forth on the punchlist.
10.5 No material amendments to the final approved Lessee's Plans
and Specifications will be implemented without the written approval of Lessor.
Any proposed material amendment to such final approved plans shall be submitted
by the Lessee to the Lessor in writing and shall be approved or rejected in
writing within ten (10) business days after receipt thereof by the Lessor.
Lessee shall advise Lessor of the additional costs of the Lessee's proposed
changes. Lessor and Lessee shall act reasonably, diligently and in good faith
to agree upon any such proposed amendment to final approved plans.
10.6 Lessee shall have all work in constructing the Lessee's
Improvements or any other construction on the Premises performed promptly,
diligently and in a good and workmanlike manner, free of defects, and in
accordance with the applicable plans and specifications.
10.7 Lessor shall provide Lessee with an allowance (herein
called the "Allowance") of TWO HUNDRED TWENTY ONE THOUSAND TWO HUNDRED NINETY
SIX AND NO/100 DOLLARS ($221,296.00) for the design, supervision and
construction of the Lessee's Improvements to the Premises, including, without
limitation, all costs of design, all costs of materials and labor to install
such improvements, and an overhead and supervisory fee to Lessor of five
percent (5%) of all such costs, and Lessor will pay all such costs to the
extent of the Allowance. If such costs should exceed the Allowance, then Lessee
shall pay for all such costs in excess of the Allowance. Lessor makes no
representation or warranty that the Allowance will be sufficient to pay for
Lessee's Improvements.
10.8 The Allowance shall be paid out as follows:
Lessor will disburse funds from the Allowance to Lessee to pay
the costs of constructing Lessee's Improvements according to customary and
reasonable methods of payment for construction, including but not limited to
progress payments not more frequently than monthly, lien releases from Lessee's
general contractor and retention from such funds in connection with progress
payments to the contractor, and appropriate evidence of such general
contractor's payment of subcontractors and material suppliers.
If the actual expenditures by Lessee for costs of construction
of the Lessee's Improvements shall total less than the Allowance, the Allowance
shall automatically be deemed reduced to the actual costs. The Allowance shall
be applied to reimburse only costs of improving real property in the Premises,
and not to costs of any furniture, furnishings, fixtures, equipment, or other
personal property of any kind.
Lessee may submit to Lessor monthly requests for disbursement,
less retention of ten percent (10%), which Lessor may withhold from progress
payments to Lessee's contractor. Lessee's request shall be in writing and
-12-
13
shall be accompanied by the following items:
(i) Signed lien release or releases by Lessee's general
contractor and major subcontractors, which release(s) may include a conditional
lien release (conditional upon the contractor's receipt of payment in a
specified amount), for the work covered by the progress payment applied for.
"Major subcontractors" means any supplier of services or materials costing more
than $5,000.00;
(ii) A certificate for payment (AIA form) provided by a
disinterested and impartial professional, licensed architect or engineer who
has inspected such construction, and evidencing that the work and stored
materials to be paid for by the progress payment applied for, and the work in
the aggregate up to the date of that progress payment and covered by the
aggregate of previous progress payments and the current progress payment, has
been completed free of defects, and in accordance with the approved plans and
specifications;
(iii) Lessee's contractor's acknowledgment in writing that
the retention of ten percent (10%) will be payable to such contractor only upon
expiration of any mechanic's lien period applicable to such construction,
following full completion of the Lessee's Improvements, without filing of
mechanic's liens claims on account of such construction or after discharge by
bonding or otherwise of any such mechanic's lien that is filed, to the
reasonable satisfaction of Lessor;
(iv) Evidence reasonably satisfactory to Lessor that no
mechanic's lien has then been filed on account of the Lessee's Improvements and
remains undischarged by bonding or otherwise;
(v) A customary general contractor's affidavit for
partial payment in form reasonably satisfactory to Lessor;
(vi) Evidence reasonably satisfactory to Lessor that the
remaining balance of the Allowance, together with any additional funds (if any)
already paid out or to be paid out by Lessee (and available for such use) and
not to be covered by the Allowance, will be sufficient to pay for all remaining
costs of constructing the Lessee's Improvements; and
(vii) Evidence reasonably satisfactory to Lessor that
any professional, licensed architect or engineer who has inspected the
installation of Lessee's Improvements on behalf of Lessor would not reasonably
refuse to certify such progress payments.
Subject to Lessor's receipt of the required submissions for such
progress payments as described above, Lessor will disburse the monthly progress
payment amount to Lessee within ten (10) business days after receipt of
Lessee's written request therefor; provided that Lessor may disburse all or a
portion of such progress payment directly to any contractor or material
supplier at Lessor's discretion after prior notice to Lessee and without
waiving any of Lessee's rights as to said contractor or supplier.
When Lessee's Improvements have been Substantially Completed,
Lessee may make written request to Lessor for payment of the remaining amount
of the Allowance, less and except one hundred fifty percent (150%) of the
estimated cost to complete applicable punchlist items (the "Holdback"). The
Holdback amount shall be available to Lessee immediately upon completion of
such punchlist corrections. Lessee's request for such remaining balance (less
the Holdback) shall be accompanied by the following:
(i) A written certificate (AIA form) of substantial
completion without defects and in accordance with the approved plans and
specifications, reasonably satisfactory to Lessor, from a licensed,
professional architect or engineer; and
-13-
14
(ii) Final lien releases of the contractors and
subcontractors whose lien releases were previously required and pursuant to
which disbursements of progress payments were made; and
(iii) A customary general contractor's affidavit for
full payment in form reasonably
satisfactory to Lessor; and
(iv) The other items described herein as necessary to
evidence Substantial Completion as defined herein.
Subject to Lessor's receipt of the required submissions
for payment of such remaining amount as described above, Lessor will disburse
the remaining balance of the Allowance (less Holdback) within ten (10) business
days after receipt of Lessee's written request therefor.
10.9 Substantial Completion of the Lessee's Improvements shall
mean that: (1) the construction to be done by Lessee according to the Lessee's
Plans and Specifications is complete except for minor punchlist items which
shall be promptly completed thereafter, and is in accordance with all
applicable laws, regulations, codes, and ordinances, and all systems that are
affected by the Lessee's Improvements and are necessary to service the Premises
are operational to the extent required for such service; (2) there is no
remaining construction or installation to be done by Lessee that would prevent
occupancy of any portion of the Premises; (3) Lessee has obtained a valid
Certificate of Substantial Completion from a licensed architect or engineer for
such work; and (4) Lessee has delivered to Lessor evidence reasonably
satisfactory to Lessor that the Lessee's Improvements have been completed lien
free and that there are no disputes or other matters which could lead to a
claim of any mechanic's or materialmen's lien against the Premises or if such a
dispute or claim shall have arisen, Lessee shall have delivered to Lessor
satisfactory evidence that such claim has been properly bonded or finally
resolved and any such lien bonded or released and that no such further claim
can be made. Without limiting what might be such reasonably satisfactory
evidence, Lessor agrees that the following will be satisfactory: (A) Original
executed lien waivers from Lessee's general contractors and subcontractors for
construction of the Lessee's Improvements together with (B) an original
affidavit signed by an officer of the general contractor with personal
knowledge, stating that (1) the persons or entities from which such lien
waivers have been obtained are all the contractors and subcontractors for the
construction of the Lessee's Improvements and stating (2) that all contractors,
subcontractors and material suppliers who have provided labor or materials for
such construction, for which a mechanic's or materialman's lien could be filed,
have been paid, less only standard retention amounts under construction
contracts with Lessee.
Lessor may reasonably require Lessee to file a Notice of
Commencement under applicable Georgia law on mechanic's and materialmen's liens
in connection with any work of installing Lessee's Improvements for which such
a lien could be filed.
10.10 Lessee shall deliver to Lessor copies of all warranties
and all tests conducted in connection with construction by Lessee of the
Lessee's Improvements as the same may relate to the Premises, and Lessee's
written confirmation that Lessee will enforce such warranties for the benefit
of Lessor and Lessee as their interests may appear during the term of this
Lease, and if and to the extent requested by Lessor and assignable, such
warranties shall be assigned to Lessor.
10.11 Unless specifically approved by Lessor as part of the
Lessee's Improvements, Lessee shall not make (a) any exterior or structural
alterations, additions, or improvements in or to the Premises, or attach or
install exterior fixtures or other fixtures which affect the structure of the
Building, without the prior written consent of Lessor, which shall not be
unreasonably withheld, conditioned or delayed, or (b) except as provided in
this Section 10.11, any nonstructural interior alterations, additions, or
improvements to the Premises. Lessee may make nonstructural interior
-14-
15
alterations, additions or improvements to the Premises not part of Lessee's
Improvements, and may install or attach, in or to the interior of the Building,
fixtures other than Lessee's Improvements and which do not affect the structure
of the Building, without Lessor's consent, provided such nonstructural changes,
installations, and attachments shall not total more than $25,000.00 in value
during any 12-month period. All alterations, additions, or improvements made,
installed in, or attached to the Premises by Lessee shall be made at Lessee's
expense in a good and workmanlike manner, in accordance with the plans and
specifications approved by Lessor (if applicable), all applicable laws,
ordinances, regulations, and other requirements of any appropriate governmental
authority, and with the Protective Covenants.
10.12 Prior to the commencement of any such work of making the
Lessee's Improvements as defined herein, or any other changes to the Premises
described in foregoing Section 10.11, Lessee shall deliver to Lessor
certificates issued by insurance companies licensed and registered to operate
in the State of Georgia evidencing that workers' compensation insurance and
public liability insurance, all in amounts satisfactory to Lessor, are in force
and effect and maintained by all contractors and subcontractors engaged by
Lessee to perform the work.
10.13 Lessee shall keep the Premises free from all liens,
preliminary notices of liens, right to liens, or claims of liens of
contractors, subcontractors, mechanics, or materialmen for work done or
materials furnished to the Premises at the request of Lessee. Whenever and so
often as any such lien shall attach or claims or notices thereof shall be filed
against the Premises or any part thereof as a result of work done or materials
furnished to the Premises at the request of Lessee, Lessee shall, within ten
(10) days after Lessee has actual notice of the claim or notice of lien, cause
it to be discharged of record, which discharge may be accomplished by deposit
or bonding proceedings. If Lessee shall fail to cause the lien, or such claim
or notice thereof, to be discharged or bonded off within the ten-day period,
then, in addition to any other right or remedy, Lessor may, but shall not be
obligated to, discharge it either by paying the amount claimed to be due or by
procuring the discharge of the lien, or claim or notice thereof, by deposit or
bonding proceedings. Any amount so paid by Lessor and all costs and expenses,
including, without limitation, attorneys' fees, incurred by Lessor in
connection therewith shall constitute additional rent payable by Lessee under
this Lease and shall be paid by Lessee in full on demand of Lessor together
with interest thereon at the rate set forth in Section 2.2 hereof from the date
it was paid by Lessor. LESSEE SHALL NOT HAVE THE AUTHORITY TO SUBJECT THE
INTEREST OR ESTATE OF LESSOR TO ANY LIENS, RIGHTS TO LIENS, OR CLAIMS OF LIENS
FOR SERVICES, MATERIALS, SUPPLIES, OR EQUIPMENT FURNISHED TO LESSEE, AND ALL
PERSONS CONTRACTING WITH LESSEE ARE HEREBY CHARGED WITH NOTICE THAT THEY MUST
LOOK TO LESSEE AND TO LESSEE'S INTEREST ONLY TO SECURE PAYMENT.
10.14 All alterations, additions, or improvements, including,
but not limited to, fixtures, partitions, counters, and window and floor
coverings, which may be made or installed by either of the parties hereto upon
the Premises, irrespective of the manner of annexation, and irrespective of
which party may have paid the cost thereof (excepting only movable office
furniture and shop, laboratory, or other equipment installed by Lessee during
the term of this Lease and not paid for by the Allowance), shall be the
property of Lessor, and shall remain upon and be surrendered with the Premises
as a part thereof at the expiration or other termination of this Lease, without
disturbance, molestation, or injury. Lessee shall remove all such excepted
furniture and equipment at Lessee's expense. Notwithstanding that any
alterations, additions, or improvements may belong to Lessor as stated herein,
Lessor may elect that any or all installations made or installed by or on
behalf of Lessee, and not to be removed by Lessee otherwise, must be removed by
Lessee at the end of the Lease Term. It shall be Lessee's obligation to restore
the portion of the Premises from which any such removal is required by this
Lease or by Lessor pursuant to this Lease, to the condition of the Premises
prior to the installation of any such equipment, alterations, additions, or
improvements made by Lessee, on or before the expiration or other termination
of this Lease. Such removal and restoration shall be at the sole expense of
Lessee. Furthermore, notwithstanding anything contained herein to the contrary
except as otherwise provided in Section 9.1 hereof, Lessor shall be under no
obligation to insure the alterations, additions, or improvements or anything in
the nature of a leasehold improvement made or installed by or on behalf of
Lessee, the Lessee Parties, or any other person, and such improvements shall be
on the Premises at the risk of Lessee only.
-15-
16
10.15 In the event Lessor makes any capital investment, major
structural repairs or improvements in or to the Premises which are required due
to any act or omission of Lessee or any of the Lessee Parties, any and all cost
and expenses incurred by Lessor in making the capital investment, major
structural repairs, or improvements shall constitute additional rent payable by
Lessee under this Lease and shall be paid by Lessee in full on demand of
Lessor, together with interest thereon from the date of the demand at the rate
set forth in Section 2.2 hereof.
11. ASSIGNMENT OR SUBLETTING.
11.1 Lessee shall not assign this Lease, or any interest herein,
or sublet or allow any other person, firm, or corporation to use or occupy the
Premises, or any part thereof, without the prior written consent of Lessor,
which consent will not be unreasonably withheld, conditioned or delayed, except
Lessee may assign this Lease to a corporation, partnership, limited liability
company, other entity or individual which controls, is controlled by, or is
under common control with, Lessee ("Affiliate"), without Lessor's consent;
provided, however, that Lessee shall ensure that Lessor receives at the time of
such assignment Lessee's written notice thereof, a true and correct copy of the
assignment instrument, the written undertaking by such assignee to observe and
perform all of the terms and conditions of this Lease, and a reasonable fee
(including reasonable attorneys' fees but not more than $1,000.00) for Lessor's
processing thereof. "Control" means the right to exercise at least twenty
percent (20%) of the voting power of an entity to which such "control"
criterion is applied. Lessor shall have the right to make such investigations
as it deems reasonable and necessary in determining the acceptability of the
proposed assignee or subtenant. Such investigations may include inquiries into
the financial background, business history, capability of the proposed assignee
or subtenant in its line of business, and the quality of its operations. Under
no circumstances shall Lessor be obligated to consent to the assignment of this
Lease or the subletting of the Premises to any entity whose operations violate
the Protective Covenants. Lessee shall provide to Lessor such information as
Lessor may reasonably require to enable it to determine the acceptability of
the proposed assignee or subtenant, including information concerning all of the
foregoing matters, and Lessor shall have no obligation to consent to any
assignment or subletting unless it has received from Lessee, at no cost or
expense to Lessor, the most recent audited financial statements of the proposed
assignee or subtenant a copy of the proposed sublease or assignment agreement,
to be followed by a copy of the fully executed document, and such other
information as Lessor reasonably requires. For purposes of this Section 11, an
assignment of stock or other ownership interest in Lessee shall be deemed an
assignment within the meaning of and be governed by this Section. No assignment
or subletting, be it with or without the consent of Lessor, shall release
Lessee from its obligations under this Lease. Unless consented to by Lessor,
Lessee shall not permit this Lease or any interest herein or in the tenancy
hereby created to become vested in or owned by any other person, firm, or
corporation by operation of law or otherwise. The power of Lessor to give or
withhold its consent to any assignment or subletting shall not be exhausted by
the exercise thereof on one or more occasions, but shall be a continuing right
and power with respect to any type of transfer, assignment or subletting.
Lessor consents to Allergy ▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.'s joint occupancy of the
Premises in whole or in part with Lessee.
11.2 If Lessee shall assign this Lease or sublet the Premises in
any way not authorized by the terms hereof, the acceptance by Lessor of any
Amount Due from any person claiming as assignee, sublessee, or otherwise shall
not be construed as a recognition of or consent to the assignment or subletting
or as a waiver of the right of Lessor thereafter to collect any rent from
Lessee, it being agreed that Lessor may at any time accept any Amount Due under
this Lease from any person offering to pay it without thereby acknowledging the
person so paying as a lessee in place of Lessee herein named, and without
releasing Lessee from the obligations of this Lease, and without recognizing
the claims under which such person offers to pay any Amount Due, but it shall
be taken to be a payment on account by Lessee.
11.3 In the event Lessee shall become entitled to receive any
premium in connection with an assignment or other transfer of this Lease or any
interest herein or from a sublease of the Premises or any part thereof
("Premium"), Lessor shall have the right to receive one-half (1/2) of such
Premium, free and clear of any claim, right, or interest of Lessee or any third
person. The term "Premium" shall include (1) any amount of money paid or
property provided, to or for the benefit of the Lessee, directly or indirectly,
for Lessee's making such an assignment or sublease, by any third
-16-
17
person other than an Affiliate, (2) any excess of rent (whether paid by money
or property) to which Lessee is entitled under any such sublease with such a
third person, over and above the Base Rent under this Lease, and (3) any excess
of additional rent and other components of the Amount Due other than Base Rent
(whether paid by money or property) which Lessee is entitled to receive under
any such sublease with such a third person over and above the Amount Due
(excluding Base Rent) owed under this Lease. Lessee shall ensure that half of
any such Premium is paid to Lessor no later than the time Lessee becomes
entitled to such Premium. The foregoing definition of "Premium" shall not
preclude Lessee from reasonably including in the calculation of such Premium
(before determining Lessor's half thereof) payment of a normal and customary,
arm's length, real estate brokerage commission to a Georgia-licensed real
estate broker who is entitled to such commission from Lessee in connection with
such an assignment or other transfer or sublease. Notwithstanding the
foregoing, a Premium shall not include any barter transaction, exchange of
services or product, systems sharing arrangement or other arrangement between
Lessee and such third person which advances Lessee's usual and customary
business activities. Nothing in this section shall permit any assignment or
sublease that would not otherwise be permitted under this Lease, require Lessor
to give consent to any assignment or sublease that Lessor would otherwise not
be required to give, or waive any right of Lessor in connection with any
assignment or sublease. In no case shall any right of Lessor to such a Premium
obligate Lessor to any person with whom Lessee makes any assignment or
sublease. Lessee shall provide Lessor full and complete details and
documentation about any transaction to which such a Premium may apply, so that
Lessor may evaluate the Premium to which Lessor is entitled.
12. DEFAULTS.
12.1 In the event that (i) Lessee shall fail to pay the Base
Rent or any other Amount Due for more than five (5) days following receipt of
written notice by Lessee that the same is due, or (ii) Lessee shall fail to
comply with any of the terms, covenants, conditions, or agreements herein
contained or any of the rules and regulations now or hereafter established for
the government of the Premises or any part thereof and such failure to comply
continues for thirty (30) days after Lessor's written notice to Lessee thereof,
then Lessor shall have the option, but not the obligation, to do any one or
more of the following in addition to, and not in limitation of, any other
remedy permitted by law, in equity or by this Lease:
12.1.1 Terminate this Lease, in which event Lessee shall
surrender the Premises to Lessor immediately upon expiration of ten (10) days
from the date of the service upon Lessee of written notice to that effect,
without any further notice or demand. In the event Lessor shall become entitled
to the possession of the Premises by any termination of this Lease herein
provided, and Lessee shall refuse to surrender or deliver up possession of the
Premises after the service of such notice, then Lessor may, without further
notice or demand, enter into and upon the Premises, or any part thereof, and
take possession of and repossess the Premises as Lessor's former estate, and
expel, remove, and put out of possession Lessee and its effects, using such
help, assistance, and force in so doing as may be needful and proper, without
being liable for prosecution or damages therefor, and without prejudice to any
remedy allowed by law available in such cases. Lessee shall indemnify Lessor
for all loss, cost, expense, and damage which Lessor may suffer by reason of
the termination, whether through inability to relet the Premises, or through
decrease in rent or otherwise. In the event of such termination, Lessor may, at
its option, recover forthwith as liquidated damages, and not as a forfeiture or
penalty, a sum of money equal to the total of (a) the cost of recovering the
Premises, including, without limitation, attorneys' fees and cost of suit, (b)
the unpaid rent earned at the time of termination, plus late charges and
interest thereon at the rate specified in Section 2.2 hereof, (c) the present
value (discounted at the rate of 8% per annum) of the balance of the rent for
the remainder of the Lease Term, including any amounts treated as additional
rent hereunder, less the present value (discounted at the same rate) of the
fair market rental value of the Premises for said period, taking into account
the cost, time, expenses and other factors necessary to obtain a replacement
tenant or tenants, including expenses relating to the recovery of the Premises,
preparation for reletting and reletting itself, and (d) any other sum of money
and damages owed by Lessee to Lessor.
12.1.2 Without terminating this Lease, retake possession
of the Premises and rent the Premises,
-17-
18
or any part thereof, for such term or terms and for such rent and upon such
conditions as Lessor may, in its sole discretion, think best, making such
changes, improvements, alterations, and repairs to the Premises as may be
required. All rent received by Lessor from any reletting shall be applied first
to the payment of any indebtedness other than rent due hereunder from Lessee;
second, to the payment of any costs and expenses of the reletting, including but
not limited to brokerage fees, attorneys' fees and costs of such changes,
improvements, alterations, and repairs; third, to the payment of rent due and
unpaid hereunder; and the residue, if any, shall be held by Lessor and applied
in payment of future rent or damage as they may become due and payable
hereunder. If the rent received from the reletting during the Lease Term is at
any time insufficient to cover the costs, expenses, and payments enumerated
above, Lessee shall pay any deficiency to Lessor, as often as it shall arise, on
demand.
12.1.3 Correct or cure the default and recover any amount
expended in so doing, together with interest thereon until paid.
12.1.4 Recover any and all costs incurred by Lessor
resulting directly, indirectly, proximately, or remotely from the default,
including but not limited to reasonable attorneys' fees actually incurred.
12.2 In addition to any other rights which Lessor may have,
Lessor, in person or by agent, may enter upon the Premises and take possession
of all or any part of Lessee's property in the Premises, and may sell all or
any part of such property at a public or private sale, in one or successive
sales, with or without notice, to the highest bidder for cash, and, on behalf
of Lessee, sell and convey all or part of such property to the highest bidder,
delivering to the highest bidder all of Lessee's title and interest in the
property sold to him. The proceeds of the sale of such property shall be
applied by Lessor toward the reasonable costs and expenses of the sale,
including, without limitation, attorneys' fees actually incurred, and then
toward the payment of all sums then due by Lessee to Lessor under the terms of
this Lease. Any excess remaining shall be paid to Lessee or any other person
entitled thereto by law. Such sale shall bar Lessee's right of redemption.
12.3 In the event of a default under this Lease by Lessee or
threat of a default which could result in death or personal injury to any
individual, or physical damage or destruction of, or loss of value to, the
Premises or any personal property of Lessor or any third person thereon, Lessor
shall be entitled to all equitable remedies, including, without limitation,
injunction and specific performance.
12.4 Pursuit of any of the remedies herein provided shall not
preclude the pursuit of any other remedies herein provided or any other
remedies provided at law or in equity. Failure by Lessor to enforce one or more
of the remedies herein provided shall not be deemed or construed to constitute
a waiver of any default, or any violation or breach of any of the terms,
provisions, or covenants herein contained.
13. BANKRUPTCY. The filing or preparation for filing by or against
Lessee of any petition in bankruptcy, insolvency, or for reorganization under
the Federal Bankruptcy Code, any other federal or state law now or hereafter
relating to insolvency, bankruptcy, or debtor relief, or an adjudication that
Lessee is insolvent, bankrupt, or an issuance of an order for relief with
respect to Lessee under the Federal Bankruptcy Code, any other federal or state
law now or hereafter relating to insolvency, bankruptcy, or debtor relief, or
the execution by Lessee of a voluntary assignment for the benefit of, or a
transfer in fraud of, its general creditors, or the failure of Lessee to pay
its debts as they mature, or the levying on under execution of the interest of
Lessee under this Lease, or the filing or preparation for filing by Lessee of
any petition for a reorganization under the Federal Bankruptcy Code, or for the
appointment of a receiver or trustee for a substantial part of Lessee's assets
or to take charge of Lessee's business, or of any other petition or application
seeking relief under any other federal or state laws now or hereafter relating
to insolvency, bankruptcy, or debtor relief, or the appointment of a receiver
or trustee for a substantial part of Lessee's assets or to take charge of
Lessee's business, shall automatically constitute a default in this Lease by
Lessee for which Lessor may, at any time or times thereafter, at its option,
exercise any of the remedies and options provided to Lessor in Section 12
hereof; provided, however, that
-18-
19
if such petition be filed by a third party against Lessee, and Lessee desires
in good faith to defend against the petition and is not in any way in default
of any obligation hereunder at the time of filing the petition, and Lessee
within ninety (90) days thereafter procures a final adjudication that it is
solvent and a judgment dismissing the petition, then this Lease shall be fully
reinstated as though the petition had never been filed.
14. DAMAGE AND CONDEMNATION.
14.1 In the event during the Lease Term the Premises are damaged
by fire or other casualty, but to such an extent that repairs and rebuilding
can reasonably be completed within one hundred eighty (180) days of the date of
the event causing the damage, Lessor may, at Lessor's option within sixty (60)
days of such event, elect to repair and rebuild the Premises. If Lessor elects
to repair and rebuild the Premises, this Lease shall remain in full force and
effect, but Lessor may require Lessee temporarily to vacate the Premises while
they are being repaired and, subject to the provisions of this Section 14.1,
rent shall ▇▇▇▇▇ during this period to the extent that the Premises are
untenantable; provided, however, that Lessor shall not be liable to Lessee for
any damage or expense which temporarily vacating the Premises may cause Lessee.
If Lessor elects to repair and rebuild, but the Premises are not repaired,
rebuilt, or otherwise made suitable for occupancy by Lessee within the
aforesaid one hundred eighty (180) day period, Lessee shall have the right, by
written notice to Lessor within ten (10) days of the end of such period, to
terminate this Lease, in which event rent shall be abated for the unexpired
Lease Term, effective as of the date of the written termination, in addition to
any abatement for untenantability under the foregoing provisions of this
Section 14.1, but the other terms and conditions of this Lease shall continue
and remain in full force and effect until Lessee shall have vacated the
Premises, removed all Lessee's personal property therefrom and delivered
peaceable possession thereof to Lessor.
If (a) within the aforesaid sixty (60) day period Lessor elects
not to repair and rebuild the Premises or (b) the Premises or any part thereof
be so damaged that the Premises are untenantable and in Lessor's reasonable
opinion, which shall be given to Lessee by notice in writing ("non-completion
notice") within sixty (60) days of such casualty, the repairs and rebuilding
cannot be completed within one hundred eighty (180) days of the date of the
event causing the damage, then within fourteen (14) days of Lessee's receipt of
Lessor's notice of such election not to rebuild or such non-completion notice,
Lessor or Lessee may by seven (7) days' written notice to the other terminate
this Lease in which event rent shall be abated for the unexpired Lease Term,
effective as of the date of the Lessor's election not to repair and rebuilt or
such non-completion notice, as applicable, but the other terms and conditions
of this Lease shall continue and remain in full force and effect until Lessee
shall have vacated the Premises, removed all Lessee's personal property
therefrom and delivered peaceable possession thereof to Lessor. Failure by
Lessee to comply with any provision of this Section 14.1 shall subject Lessee
to such costs, expenses, damages, and losses as Lessor may incur by reason of
Lessee's breach hereof. Notwithstanding any provision of this Lease to the
contrary, if the Premises or any part thereof are damaged by fire or other
casualty caused by or materially contributed to by the negligence or misconduct
of Lessee or any of the Lessee Parties, Lessee shall be fully responsible, to
the extent not covered by insurance, for repairing, restoring, or paying for
the damage as Lessor shall direct and this Lease shall remain in full force and
effect without reduction or abatement of rent.
14.2 In the event the Premises shall be taken, in whole or in
part, by condemnation or the exercise of the right of eminent domain, or if in
lieu of any formal condemnation proceedings or actions, if any, Lessor shall
sell and convey the Premises, or any portion thereof, to the governmental or
other public authority, agency, body, or public utility, seeking to take the
Premises or any substantial portion thereof which would materially adversely
affect Lessee's use and occupancy of the Premises, then Lessor at its option
may terminate this Lease upon ten (10) days' prior written notice to the Lessee
and prepaid rent shall be proportionately refunded from the date of possession
by the condemning authority. Lessor shall notify Lessee of the commencement of
any such condemnation proceeding within fourteen (14) days of Lessor's becoming
aware of the same. All damages awarded for the taking, or paid as the purchase
price for the sale and conveyance in lieu of formal condemnation proceedings,
whether for the fee or the leasehold interest, shall belong to and be the
property of Lessor; provided, however, Lessee shall have the sole right to
reclaim and recover from
-19-
20
the condemning authority, but not from Lessor, such compensation as may be
separately awarded or recoverable by Lessee in Lessee's own right on account of
any and all costs or loss, including loss of business, to which Lessee might be
put in removing Lessee's merchandise, furniture, fixtures, leasehold
improvements, and equipment to a new location. Lessee shall execute and deliver
any instruments, at the expense of Lessor, that Lessor may deem necessary to
expedite any condemnation proceedings, to effectuate a proper transfer of title
to such governmental or other public authority, agency, body or public utility
seeking to take or acquire the Premises or any portion thereof. Lessee shall
vacate the Premises, remove all Lessee's personal property therefrom and
deliver up peaceable possession thereof to Lessor or to such other party
designated by Lessor in the aforementioned notice. Failure by Lessee to comply
with any provisions of this Section 14.2 shall subject Lessee to such costs,
expenses, damages, and losses as Lessor may incur by reason of Lessee's breach
hereof. If Lessor chooses not to terminate this Lease, then to the extent and
availability of condemnation proceeds received by Lessor and subject to the
rights of any mortgagee thereto, Lessor shall, at the sole cost and expense of
Lessor and with due diligence and in a good and workmanlike manner, restore and
reconstruct the Premises within one hundred eighty (180) days after the date of
the physical taking, and such restoration and reconstruction shall make the
Premises tenantable and suitable as reasonably practicable for the permitted
use being made by Lessee prior to the taking; provided, however, that Lessor
shall have no obligation to restore and reconstruct Lessee's leasehold
improvements unless and to the extent that Lessor receives an award of
condemnation proceeds specifically designated as compensation for such
improvements. Notwithstanding the foregoing, if Lessor has not completed the
restoration and reconstruction within one hundred eighty (180) days after the
date of physical taking, Lessee, in addition to any other rights and remedies
Lessee may have, shall have the right to cancel this Lease. If this Lease
continues in effect after the physical taking, the rent payable hereunder shall
be equitably adjusted both during the period of restoration and reconstruction
and during the unexpired portion of the Lease Term.
14.3 In the event Lessor, during the Lease Term, shall be
required by any governmental authority or the order or decree of any court, to
repair, alter, remove, reconstruct, or improve (herein collectively called
"Repairs") any part of the Premises, then the Repairs shall be made by and at
the expense of Lessor, unless resulting from alterations made by Lessee, and
shall not in any way affect the obligations or covenants of Lessee herein
contained, and Lessee hereby waives all claims for damages or abatement of rent
because of the Repairs. If the Repairs shall render the Premises untenantable
and if the Repairs are not completed within one hundred eighty (180) days after
the date of the notice, requirement, order, or decree, either party hereto upon
written notice to the other party given not later than one hundred ninety (190)
days after the date of the notice, requirement, order, or decree, may terminate
this Lease, in which case rent shall be apportioned and paid to the date the
Premises were rendered untenantable; provided however that where the
requirement by a governmental authority having jurisdiction to repair, alter,
remove, reconstruct, or improve any part of the Premises arises out of any act
or omission by Lessee, then the Repairs shall be effected promptly at the sole
cost and expense of Lessee and there shall not, in any event, be any abatement
of rent nor any right in Lessee to terminate this Lease whether or not the
completion of the Repairs takes more than one hundred eighty (180) days.
14.4 Nothing in this Section 14 shall preclude extension of such
180-day periods by reason of force majeure as described in Section 8.
15. TAXES.
15.1 Subject to Lessee's obligation to pay its Proportionate
Share thereof as a Shared Expense, Lessor shall pay all taxes, assessments and
other governmental charges, general or special, ordinary or extraordinary,
foreseen or unforeseen, including any installments thereof (herein called
"Impositions"), levied, assessed or otherwise imposed by any lawful authority
or payable with respect to the Premises.
15.2 If at any time during the Lease Term the methods of
taxation prevailing at the Commencement Date shall be altered so that in lieu
of, or as a substitute for, the whole or any part of the taxes, assessments,
levies, impositions or charges now levied, assessed or imposed on real estate
and the improvements thereon, there shall be
-20-
21
levied, assessed or imposed a tax, assessment, levy, fee or other charge: (i)
on or measured by the rents received therefrom; (ii) measured by or based in
whole or in part upon the Premises and imposed upon Lessor; or (iii) measured
by the rent payable by Lessee under this Lease, then all such taxes,
assessments, levies, impositions, charges or fees or the part thereof so
measured or based, shall be deemed to be included within the definition of
"Impositions". The tax, levy, or other imposition to which reference is made
hereinabove shall include sales, excise or similar taxes, but shall not include
any net income, franchise, estate or inheritance taxes imposed on Lessor.
15.3 In the event that a tax or assessment attributable to
environmental protection legislation, as distinguished from a tax or assessment
in the nature of a real estate property tax, is imposed upon Lessor by a
governmental authority having jurisdiction over the Land, which tax or
assessment is attributable to a portion of the Common Area being parking
facilities available to the Lessee, its servants, agents, employees, invitees,
licensees, contractors or subcontractors, such tax or assessment shall be
included within the definition of "Impositions".
16. LIABILITY OF LESSOR.
16.1 Subject to Section 9.5 hereof, Lessee shall indemnify,
defend, and hold harmless Lessor, at Lessee's expense, against (a) any default
by Lessee or permitted assignee or subtenant hereunder; (b) any act of
negligence of Lessee or any of the Lessee Parties; and (c) all claims for
damages to persons or property by reason of the use or occupancy of the
Premises not caused by Lessor. Lessee shall not be liable to Lessor, or
Lessor's agents, servants, employees, contractors, customers or invitees for
any damage to person or property caused by any act, omission or neglect of
Lessor, its agents, servants or employees. Lessor shall not be liable to
Lessee, or Lessee's agent, servants, employees, contractors, customers or
invitees for any damage to person or property caused by any act, omission or
neglect of Lessee, its agents, servants, or employees. Moreover, Lessor shall
not be liable for any damage, injury, destruction, or theft to, of, or at the
Premises, the personal property of Lessee or any of the Lessee Parties, Lessee,
or any of the Lessee Parties arising from any use or condition of the Premises,
or any sidewalks, entrance ways, or parking areas serving the Premises, or the
act or neglect of co-tenants or any other person, or the malfunction of any
equipment or apparatus serving the Premises, or any loss thereof by mysterious
disappearance or otherwise. Any and all claims against Lessor for any damage
referred to in this Section 16, except to the extent such damage is caused by,
or arises from, the gross negligence or wilful wrongdoing of Lessor or its
employees, are hereby waived and released by Lessee.
16.2 Notwithstanding anything to the contrary in this Lease,
Lessor's liability is limited to, and Lessee expressly agrees to look solely
to, Lessor's interest in the Premises and the present revenues generated
therefrom. Excluding any criminal negligence by the following parties, none of
Lessor, or Lessor's partners, shareholders, officers, directors, principals,
members, attorneys, employees, shall ever be personally liable with respect to
this Lease. The provision contained in the foregoing sentence is not intended
to, and shall not, limit any right that Lessee might otherwise have to obtain
injunctive relief against Lessor or Lessor's successors-in-interest.
17. RIGHT OF ENTRY.
17.1 Lessor reserves the right, for itself, its mortgagees, or
their respective agents and duly authorized representatives, to enter and be
upon the Premises, after having given prior reasonable notice to Lessee, from
time to time during business hours, and in the company of a representative of
Lessee, to inspect the Premises and to repair, maintain, alter, improve, and
remodel the Premises or any part thereof; provided, however, that no such
notice or accompaniment by a representative of Lessee shall be required in case
of any emergency threatening loss, injury, or damage to person or property in
Lessor's reasonable discretion, and the foregoing shall not be construed to
require any such notice or accompaniment for Lessor's employees, agents, or
representatives to enter the Premises for routine services, maintenance, or
other activities connected with management of the Premises; provided, further,
that Lessor shall not materially interfere with Lessee's normal operation
except in case of an emergency. Lessee shall not be entitled to any
compensation, damages, or abatement or reduction in rent on account of any such
repairs, maintenance,
-21-
22
alterations, improvements or remodeling. Nothing contained in this Section 17.1
shall imply any duty on the part of Lessor to repair, maintain, alter, improve,
or remodel the Premises or any part thereof.
17.2 After reasonable notice to Lessee, Lessee shall permit
Lessor or Lessor's agents at any reasonable hour of the day to enter into or
upon and, subject to reasonable restrictions to protect Lessee's laboratory
operations and proprietary materials and for the safety of the entrants, to go
through and view the Premises and to exhibit the Premises to prospective
purchasers or (during the last twelve (12) months of this Lease) to prospective
tenants. Provided however, that with respect to such entry for exhibition to
prospective tenants, during the twelfth through sixth months before expiration
of this Lease, the laboratory area shall only be exhibited after Lessee's
normal business hours.
18. BUILDING RULES AND REGULATIONS. Lessor reserves the right to
establish reasonable rules and regulations pertaining to the use and occupancy
of the Premises, which rules and regulations may be changed by Lessor from time
to time and shall be provided to Lessee in writing. Lessee shall comply with
any rules and regulations established by Lessor under this Section 18.
19. PROPERTY LEFT ON THE PREMISES. Upon the expiration of this Lease,
or if the Premises should be abandoned by Lessee, or if this Lease should
terminate for any cause, or if Lessee should be dispossessed after default, if
at the time of any such expiration, abandonment, termination or dispossession,
Lessee or its assignees, subtenants, agents, servants, employees, contractors,
or any other person controlled by Lessee or claiming under Lessee should leave
any property of any kind or character in or upon the Premises, such property
shall be the property of Lessor and the fact of such leaving of property in or
upon the Premises shall be conclusive evidence of the intent by Lessee or such
person to abandon such property so left in or upon the Premises, and such
leaving shall constitute abandonment of the property. It is understood and
acknowledged by the parties hereto that none of Lessor's servants, agents or
employees, have or shall have the actual or apparent authority to waive any
portion of this Section 19, and neither Lessee nor any other person designated
above shall have any right to leave any such property upon the Premises beyond
the time set forth herein without the written consent of Lessor. Lessor, its
agents or attorneys, shall have the right and authority without notice to
Lessee or anyone else, to remove and destroy, store, sell or otherwise dispose
of, such property, or any part thereof, without being in any way liable to
Lessee or anyone else therefor. Lessee shall be liable to Lessor for all
reasonable and necessary expenses incurred in such removal and destruction,
storage, sale or other disposition of such property. The said property removed
or the proceeds from the sale or other disposition thereof shall belong to the
Lessor as compensation for the removal and disposition of said property.
20. OTHER INTERESTS.
20.1 This Lease and Lessee's interest hereunder shall at all
times be subject and subordinate to the lien and security title of any deeds to
secure debt, deeds of trust, mortgages, or other interests heretofore or
hereafter granted by Lessor or which otherwise encumber or affect the Premises
and to any and all advances to be made thereunder and to all renewals,
modifications, consolidations, replacements, substitutions, and extensions
thereof (each of which is herein called the "Mortgage"), so long as any such
lien or security title holder agrees in writing that Lessee shall not be
disturbed in its possession of the Premises in the absence of a Lessee default
hereunder. This clause shall be self-operative and no further instrument of
subordination need be required by any holder of any Mortgage. In acknowledgment
of such subordination, Lessee shall, at Lessor's request, promptly execute,
acknowledge, and deliver any instrument which may be required to evidence
subordination to any Mortgage and, to the holder thereof, only (if Lessee shall
not be in default hereunder) in connection with Lessee's contemporaneous
receipt of such nondisturbance agreement. In the event of a failure of Lessee
to execute, acknowledge, and deliver any such instrument as promised by Lessee
in the foregoing sentence, Lessor may in addition to any other remedies for
breach of covenant hereunder, execute, acknowledge, and deliver the instrument
as the agent or attorney in fact of Lessee, and Lessee hereby irrevocably
constitutes Lessor its attorney in fact under limited power of attorney for
such purposes of execution, acknowledgment, and delivery of such instrument,
Lessee acknowledging that the appointment is coupled with an
-22-
23
interest and is irrevocable. Lessee hereby waives and releases any claim it
might have against Lessor or any other party for any actions lawfully taken by
the holder of any such Mortgage.
20.2 In the event of a sale or conveyance by Lessor of Lessor's
interest in the Premises other than a transfer for security purposes only,
Lessor shall be relieved, from and after the date of transfer, of all
obligations and liabilities accruing thereafter on the part of Lessor solely to
the extent any such obligations and liabilities accrued following the effective
date of such transfer , provided that any funds in the hands of Lessor at the
time of transfer in which Lessee has an interest shall be delivered to the
successor of Lessor. This Lease shall not be affected by any such sale and
Lessee shall attorn to the purchaser or assignee in exchange for a
nondisturbance agreement from any such purchaser or assignee.
20.3 In the event of the enforcement by the holder of any
Mortgage, Lessee will, upon request of any person or party succeeding to the
interest of said holder, as a result of such enforcement, automatically become
the Lessee of such successor in interest without change in the terms or
provisions of this Lease; provided, however, that such successor in interest
shall not be (a) bound by any prepayment by Lessee to Lessor of Base Rental or
additional rent or advance rent for a period of more than one month in advance,
and all such rent shall remain due and owing notwithstanding such advance
payment, (b) bound by any security deposit which Lessee may have paid to any
prior lessor, including Lessor, unless such deposit is available to the party
who was the holder of such mortgage, deed of trust, or deed to secure debt at
the time of enforcement; (c) liable for any act or omission of any prior
lessor, including Lessor, or be subject to any offsets, defenses, or
termination rights of Lessee; (d) bound by any amendment or modification of
this Lease made without the written consent of such holder; or (e) personally
liable for monetary damages arising from a breach under the Lease after such
enforcement, the sole recourse of Lessee against such successor in interest on
account of such breach being limited, to the extent of any judgment obtained
for monetary damages, to such successor in interest's interest in the. Upon
request by such successor in interest, and upon such successor's submission to
Lessee of a nondisturbance agreement, Lessee shall execute and deliver an
instrument or instruments confirming the attornment herein provided for in a
form reasonably acceptable to such successor in interest. Notwithstanding
anything contained in this Lease to the contrary, in the event of any default
by Lessor in performing its covenants or obligations hereunder which would give
Lessee the right to terminate this Lease, Lessee shall not exercise such right
unless and until (aa) Lessee gives written notice of such default, which notice
shall specify the exact nature of said default and how the same may be cured,
to any holder(s) of any such mortgage, deed of trust or deed to secure debt who
has theretofore notified Lessee in writing of its interest and the address to
which notices are to be sent, and (bb) said holder(s) fail to undertake action
to cure said default within forty-five (45) days from the giving of such notice
by Lessee. The provisions of Section 20 shall govern the manner and effective
date of any notice to be given by Lessee to any such parties.
21. INTENTIONALLY DELETED
22. INTENTIONALLY DELETED.
23. HOLDING OVER. There shall be no renewal, extension, or
reinstatement of this Lease by operation of law. In the event of holding over
by Lessee after the expiration or sooner termination of this Lease, with
Lessor's acquiescence and without any express agreement of the parties, Lessee
shall be a tenant at sufferance and all of the terms, covenants, and conditions
of this Lease shall be applicable during that period, except that Lessee shall
pay Lessor as Base Rent for the period of the hold over an amount equal to 125%
of the Base Rent which would have been payable by Lessee under Section 2.1
hereof, had the hold-over period been part of the original Lease Term, together
with all additional rent due hereunder and together with any other Amount Due
under this Lease. The rent payable by Lessee during the hold-over period shall
be payable to Lessor on demand. If Lessee holds over as a tenant at sufferance,
Lessee shall vacate and deliver the Premises to Lessor upon demand. In the
event Lessee fails to surrender the Premises to Lessor upon expiration or other
termination of this Lease or of such tenancy at sufferance, then Lessee shall
indemnify Lessor against any and all loss or liability resulting from any delay
of Lessee in surrendering the Premises, including,
-23-
24
but not limited to, any amounts required to be paid to third parties who were
to have occupied the Premises and any reasonable and actual attorneys' fees
related thereto.
24. NO WAIVER. Lessor and Lessee understand and acknowledge that no
assent, express or implied, by the other party to each of any one or more of
the terms, covenants or conditions hereof shall be deemed or taken to be a
waiver of any succeeding or other breach, whether of the same or any other
term, covenant or condition hereof.
25. BINDING EFFECT. All terms and provisions of this Lease shall be
binding upon and apply to the successors, permitted assigns, and legal
representatives of Lessor and Lessee or any person claiming by, through, or
under either of them or their agents or attorneys, subject always, as to
Lessee, to the restrictions contained in Section 11 hereof.
26. COMPLIANCE WITH PROTECTIVE COVENANTS. In addition to and without
in any way limiting any of the other provisions of this Lease, Lessee shall
comply with any protective covenants now or hereafter of record against the
Building or the Premises and with any changes to the covenants duly adopted
(herein called the "Protective Covenants"). It is expressly acknowledged that
all uses of the Building and Premises are subject to the covenants, conditions
and restrictions of Technology Park/Atlanta filed at Deed Book ▇▇▇, ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, records, as may be amended and extended from time to
time. Lessor represents that Lessor has previously provided to Lessee the most
current version of the Protective Covenants, and Lessor further represents to
promptly provide Lessee with any changes or amendments thereto during the Lease
Term.
27. SIGNS. Lessee shall not install, paint, display, inscribe, place,
or affix any sign, picture, advertisement, notice, lettering, or direction
(herein collectively called "Signs") on any portion of the Premises exterior to
the Building, or the interior surface of glass and any other location which
could be visible from outside of the Building, without first securing written
consent from Lessor therefor. Any Sign permitted by Lessor shall at all times
conform with all municipal ordinances or other laws, regulations, deed
restrictions, and Protective Covenants. Lessee shall remove all Signs at the
expiration or other termination of this Lease, at Lessee's sole risk and
expense, and shall in a good and workmanlike manner properly repair any damage
caused by the installation, existence, or removal of Lessee's Signs.
28. INTENTIONALLY DELETED
29. ESTOPPEL CERTIFICATE. Lessee shall, at any time and from time to
time, upon not less than ten (10) days' prior written notice from Lessor,
execute, acknowledge, and deliver to Lessor a statement in writing certifying
that this Lease is unmodified and in full force and effect, or if modified,
stating the nature of the modification and certifying that this Lease, as so
modified, is in full force and effect, and the dates to which the rent and
other charges are paid, and acknowledging that Lessee is paying rent on a
current basis with no offsets or claims, and that there are not, to Lessee's
knowledge, any uncured defaults on the part of Lessor hereunder, or specifying
the offsets, claims, or defaults, if any are claimed, and such other
information, including, but not limited to, the most recent, financial
statements, reasonably required by Lessor. It is expressly understood and
acknowledged that any such statement may be relied upon by any prospective
purchaser or encumbrancer of all or any portion of the Premises or by any other
person to whom it is delivered.
30. SEVERABILITY. The terms, conditions, covenants, and provisions of
this Lease shall be deemed to be severable. If any clause or provision herein
contained shall be adjudged to be invalid or unenforceable by a court of
competent jurisdiction or by operation of any applicable law, it shall not
affect the validity of any other clause or provision herein, but the other
clauses or provisions shall remain in full force and effect.
31. ENTIRE AGREEMENT. Lessee acknowledges that there are no
covenants, representations, warranties, or conditions, express or implied,
collateral or otherwise, forming part of or in any way affecting or relating to
this Lease
-24-
25
save as expressly set out in this Lease and that this Lease together with the
Exhibits attached hereto constitutes the entire agreement between the parties
hereto and may not be modified except as herein explicitly provided or except
by subsequent agreement in writing of equal formality hereto executed by Lessor
and Lessee.
32. CUMULATIVE REMEDIES. In the event of any default, breach, or
threat (as described in Section 12.3) of a breach by Lessee of any of the
covenants or provisions hereto, Lessor shall, in addition to all other remedies
as provided by this Lease, have the right of injunction and/or damages and the
right to invoke any remedy allowed at law or in equity, and may have any one or
more of the remedies contemporaneously. The various rights, remedies, powers,
options, and elections of Lessor reserved, expressed, or contained in this
Lease are cumulative and no one of them shall be deemed to be exclusive of the
others, or of such other rights, remedies, powers, options, or elections as are
now, or may hereafter, be conferred upon Lessor by law.
33. PARKING AREAS AND COMMON AREA CONTROL. Lessor warrants and
represents that Lessee's rights as described herein include the exclusive use,
at no additional cost to Lessee, of 132 parking spaces located on the Land.
Lessee covenants and agrees to fully cooperate with Lessor in the enforcement
of any program of rules and regulations designed for the orderly control and
operation of parking areas located on the Land; provided, however, that Lessor
shall have the right to change the area, level, location, and arrangement of
portions of the Common Area so long as in so doing Lessor does not materially
and adversely affect ingress to and egress from the Building or the Premises.
Nothing in this Section shall be construed to limit the Lessor's agreement
regarding addition of parking places as described in Exhibit E (Special
Stipulations).
34. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been given when delivered in person or
when sent by overnight courier service or deposited in the United States mail,
return receipt requested, addressed to the parties at the respective addresses
set out below:
If to Lessee: Prior to the Commencement Date:
BioShield Technologies, Inc.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
After the Commencement Date:
BioShield Technologies, Inc.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ Moss Kline & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-25-
26
If to Lessor: Cologne Investors, Ltd.
c/o Jamestown Management Corporation
Two Paces West, Suite 1600
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with copy to: Technology Park/Atlanta, Inc.
Attention: President
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other addresses as the parties may direct from time to time by
thirty (30) days' written notice. However, the time period in which a response
to any notice, demand, or request must be given, if any, shall commence to run
from the date of receipt of the notice, demand, or request by the addressee
thereof. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was given shall be deemed to be
receipt of the notice, demand, or request sent.
35. RECORDING. Neither this Lease nor any portion hereof shall be
recorded unless both parties hereto agree to the recording.
36. ATTORNEYS' FEES. The non-prevailing party agrees to pay the
prevailing party's reasonable attorneys' fees, collection costs, and other
costs and expenses which the prevailing party incurs in enforcing any of the
obligations of the defaulting party under this Lease; provided that if Lessee
shall be in default for failure to pay any sum of money validly owed under this
Lease by Lessee, and Lessor shall bring an action to collect such sum, Lessor
shall be presumed to be the prevailing party.
37. HOMESTEAD. Lessee waives all homestead rights and exemptions
which it may have under any law as against any obligations owing under this
Lease. Lessee hereby assigns to Lessor its homestead right and exemption.
38. TIME OF ESSENCE. Time is of the essence of this Lease.
39. LESSOR-LESSEE RELATIONSHIP. This Lease shall create the
relationship of landlord and tenant between Lessor and Lessee, and nothing
contained herein shall be deemed or construed by the parties hereto, or by any
third party, as creating the relationship of principal and agent, or of
partnership, or of joint venture, or of any relationship other than landlord
and tenant between the parties hereto.
40. ACCORD AND SATISFACTION. No payment by Lessee or receipt by
Lessor of a lesser amount than the Base Rent, additional rent, or any other
Amount Due herein stipulated shall be deemed to be other than on account of the
earliest of such amount then due, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Lessor may accept the check or payment without
prejudice to Lessor's right to recover the balance of the rent or pursue any
other remedy provided in this Lease.
41. BROKERS' FEES. With the exception of Technology Park/Atlanta,
Inc., broker representing Lessor; Lessor and Lessee warrant and represent, each
to the other, that it has had no dealings with any broker or agent in
connection with this Lease, and Lessor and Lessee hereby indemnify each other
against, and agree to hold each other harmless from, any liability or claim,
and all expenses, including attorneys' fees, incurred in defending any such
claim or in enforcing this indemnity, for a real estate brokerage commission or
similar fee or compensation arising out of or
-26-
27
in any way connected with any claimed dealings with the indemnitor and relating
to this Lease or the negotiation thereof. Lessor shall compensate Technology
Park/Atlanta, Inc. per a separate Commission Agreement.
42. MISCELLANEOUS.
42.1 Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall
be held to include the plural unless the context otherwise requires.
42.2 The captions are inserted in this Lease for convenience
only, and in no way define, limit, or describe the scope or intent of this
Lease, or of any provision hereof, nor in any way affect the interpretation of
this Lease.
42.3 This Lease is made and delivered in the State of Georgia
and shall be governed by and construed in accordance with the laws of the State
of Georgia.
For additional terms and stipulations of this Lease, if any, see
EXHIBIT "E", attached hereto and by this reference incorporated herein and made
a part hereof.
-27-
28
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals the day and year first above written.
LESSOR:
-------
COLOGNE INVESTORS, LIMITED
By:
---------------------------------
Attest:
-----------------------------
Name:
-----------------------
Title:
----------------------
[CORPORATE SEAL]
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LESSEE:
-------
BIOSHIELD TECHNOLOGIES, INC.
By:
---------------------------------
Attest:
-----------------------------
Name:
-----------------------
Title:
----------------------
[CORPORATE SEAL]
-28-
29
AND TECHNOLOGY PARK/ATLANTA, INC. executes this Lease for purposes of Section
5.7 hereof and as Broker.
BROKER:
TECHNOLOGY PARK/ATLANTA, INC.
By:
---------------------------
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
President
-29-
30
SCHEDULE OF EXHIBITS
EXHIBIT "A" Legal Description
EXHIBIT "B" Outline of Premises
EXHIBIT "C" General Plans
EXHIBIT "D" Rules and Regulations
EXHIBIT "E" Special Stipulations
EXHIBIT "F" Shared Expenses
-1-
31
EXHIBIT "A"
LEGAL DESCRIPTION
Exhibit "A" - Legal Description ~ ▇▇▇▇- ▇ -
▇▇
▇▇▇▇▇▇▇ "▇"
OUTLINE OF PREMISES
Exhibit "B" -Outline of Premises~ Page- 1 -
33
EXHIBIT "C"
GENERAL PLANS
To Be Attached.
EXHIBIT "D"
RULES AND REGULATIONS
1. As part of the initial improvements to the Premises, Lessor agrees to
furnish Lessee two keys for each keyed door located within the Premises
without charge. Any pass keys or key cards required by Lessee must be
obtained from Lessor at a reasonable cost to be established by Lessor.
Lessee shall not alter any lock or install any new or additional locks or
bolts on any doors or windows of the Premises without obtaining Lessor's
prior written consent. All keys and key cards to Premises shall be
surrendered to Lessor upon termination of this Lease.
2. All contractors and installation technicians shall comply with Lessor's
rules and regulations pertaining to construction and installation. This
provision shall apply to all work performed on or about the Premises,
including installation of telephones, computer wiring, electrical devices
and attachments, and installations of any nature affecting floors, walls,
woodwork, trim, windows, ceilings, and equipment, or any other physical
portion of the Premises.
3. No signaling or telephonic devices, including antennae and satellite
dishes, or other wires, cabling and instruments or devices shall be
installed in connection with the Premises without the prior written
consent of Lessor. No advertising banners or balloons or any other items
which require fastening to the Premises are permitted without prior
written consent from Lessor. Mechanical equipment, utility meters, and/or
storage tanks will not be placed in or on the Premises without Lessor's
prior written approval.
4. Lessee shall not overload the floor of the Building; safes and other
heavy articles shall be placed by Lessee only in such manner as may be
specified in writing by Lessor, and any damage done to the Building or
other parts of the Premises from overloading a floor, or injury to
persons in moving safes or other heavy articles in or out of the Building
or Premises, shall be paid for by the Lessee.
5. All moving activity into or out of the Building must be scheduled with
the Lessor, and shall be under supervision of Lessor and carried out in a
manner that shall comply with Lessor's Rules and Regulations. Lessee
assumes, and shall indemnify Lessor against all loss, liability, cost,
expense, risk or claim of damage or injury to persons and properties
arising in connection with any said movement.
6. Lessee shall not place or use in or about the Premises any product
causing objectionable odors such as but not limited to furniture refinish
material, strong cleaners, gasoline, kerosene, oil, acids, caustics, or
any flammable explosive, or hazardous material without the prior written
consent of Lessor, which shall not be unreasonably withheld and which
shall be considered in light of the use for which Lessee is permitted
under this Lease to use the Premises.
7. Lessee shall not use any method of heating or air-conditioning, other
than that supplied by Lessor, without Lessor's prior written consent.
Space heaters are an electrical fire hazard, and are not to be used in
Lessee's Premises.
8. No cooking shall be done or permitted on the Premises, except that
Underwriters' Laboratory (UL)-approved equipment and microwave ovens may
be used in the Premises for heating food and brewing coffee, tea, hot
chocolate, and similar beverages for employees and visitors. This use
must be in accordance with all applicable federal, state, and city laws,
ordinances, rules, and regulations. Lessee shall not use outdoor grills
or cooking equipment, nor place picnic tables, tents, sports equipment,
etc. in or about the Premises, without prior written approval from
Landlord.
Exhibit "C" - General Plans ~ ▇▇▇▇- ▇ -
▇▇
▇. ▇▇▇▇▇▇ shall not, at any time, occupy any part of the Premises as sleeping
or lodging quarters.
10. No dogs, cats, fowl or other animals shall be brought into, or kept in or
about the Premises except for those animals utilized to assist any
persons with disabilities. Lessor should be notified in advance, and in
writing, if any such animals will be utilized on a regular basis.
11. No Lessee, or their employees or invitees, shall disturb occupants of the
Premises by the use of any radios, tape or cd players, or other musical
instruments, or the making of objectionable noises by any unreasonable
use. Office parties and functions should be limited to an appropriate
portion of the Building occupied by Lessee. Catering services shall use
service entrance for deliveries.
12. All canvassing, soliciting, and peddling in or about the Premises is
prohibited. Lessee, Lessee's employees, and Lessee's agents shall not
loiter in or on the entrances, corridors, sidewalks, lobbies, halls or
common areas, or disturb, solicit, or canvas any occupant of the
Premises. Lessor reserves the right to exclude or expel from the Premises
any person who, in Lessor's reasonable judgment, is under the influence
of alcohol or drugs, or commits any act in violation of any of these
Rules and Regulations.
13. The restrooms, 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 shall be thrown or poured into them. The
expense of any breakage, stoppage, or damage resulting from violation of
this rule shall be borne by the Lessee who caused, or whose employees,
agents, contractors, invitees, or licensees caused the breakage,
stoppage, or damage.
14. None of the parking, plaza, recreation, or lawn areas, entries, passages,
doors or hallways shall be blocked or obstructed; nor shall any rubbish,
litter, trash or material of any nature be placed, emptied or thrown into
these areas; nor shall these areas be used by Lessee's agents, employees,
and/or invitee's at any time for purposes which are inconsistent with
their designation by Lessor.
15. No signs of any type or description shall be erected, placed, or painted
in or about the doors and windows, the Building, the Common Area, or
other parts of the Premises except those signs submitted to Lessor in
writing and approved by Lessor in writing and which signs are in
conformance with the technology park's protective covenants. No covers or
awnings over or outside of the windows nor draperies or coverings hung
inside the windows will be permitted without Lessor's prior written
approval.
16. Lessee and its employees, agents, and invitees shall park their vehicles
only in those parking areas designated by Lessor and entirely within the
lines. All directional signs, arrows, and posted speed limits must be
observed. Bicycles, motorcycles or other mobile devices shall not be
allowed or placed anywhere on the Premises, except for in those areas so
designated. Parking is prohibited in areas not striped for parking, in
aisles where "No Parking" signs are posted, on ramps, in crosshatched
areas, and in other areas as may be designated by Lessor.
17. Lessee and its employees, agents, and invitees shall not leave any
vehicle in a state of disrepair, including, without limitation, flat
tires, oil or damaging fluid leaks, out-of-date inspection stickers or
license plates, on the Premises. If Lessee or its employees, agents or
invitees park their vehicles in areas other than the designated parking
areas or leave any vehicle in a state of disrepair, Lessor, after
ticketing vehicle in violation, shall have the right to remove such
vehicle at its owner's expense. No vehicle maintenance will be done on
the Premises without prior written consent of Lessor.
18. Lessee and its employees, agents, and invitees shall park their vehicles
in compliance with all parking rules and regulations, including any
sticker or other identification system established by Lessor. Parking
stickers or other forms of identification supplied by Lessor shall remain
the property of Lessor and are not transferrable. Vehicles should be kept
locked; any damage to vehicles or persons is assumed by the vehicle's
owner or its driver.
Exhibit "C" - General Plans ~ Page- 2 -
-30-
35
19. Employees of Lessor shall not be responsible to carry messages from or to
Lessee. Nor shall employees of Lessor contract with, or render free or
paid service to any Lessee or to any of Lessee's agents, employees, or
invitee's which service is not covered in this Lease, without prior
written notice to Lessor.
20. Lessee shall comply with all safety, fire protection, and evacuation
procedures and regulations established by Lessor or by any government
agency. All Christmas trees placed in or on the Premises must be
fire-resistant artificial trees. Any lighting attached to trees or
decorations must be UL approved and designated for the purpose being
used. Installation of any decorations that could be deemed potential fire
hazards requires prior written approval of Lessor. Decorations outside of
the Building shall also require prior Lessor approval.
21. Lessor reserves the right at any time to change or rescind any one or
more of these Rules and Regulations or to make any additional reasonable
Rules and Regulations that, in Lessor's judgment, may be necessary for:
a. The management, safety, care, and cleanliness of the Premises.
b. The preservation of good; and
c. The convenience of other occupants and tenants in the Premises.
Lessor may waive any one or more of these Rules and Regulations for the benefit
of any particular tenants. No waiver by Lessor shall be construed as a waiver
of those Rules and Regulations in favor of any other tenant, and no waiver
shall prevent Lessor from enforcing those rules and Regulations against any
other tenant of the Premises. Lessee shall be considered to have read these
Rules and Regulations and to have agreed to abide by them as a condition of
Lessee's occupancy of the Premises.
Exhibit "C" - General Plans ~ Page- 3 -
36
EXHIBIT "E"
SPECIAL STIPULATIONS
1. OPTION TO TERMINATE: Provided that Lessee provides Lessor with written
notice of termination on or before February 1, 2007, and provided that Lessee
pays over to Lessor an amount equal to two months' rental ($140,522.96), Lessee
may terminate this Lease so that the Lease Term will expire on November 1,
2007.
2. GUARANTY: Lessee's obligation under this Lease shall be guaranteed by Allergy
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. pursuant to a form of Guaranty to be executed at the time
this Lease is executed.
3. ADDITIONAL PARKING: Lessor shall after the third year of the Lease Term
(provided that Lessee's employee head count requires) add additional parking as
may be required by Lessee up to an additional 68 parking spaces. The cost of
such additional parking shall be shared one-half (1/2) by Lessee and one-half
(1/2) by Lessor up to a maximum of $80,000.00 total to be paid by Lessor. The
parking expansion is expressly subject to Gwinnett County's planned abandonment
of the driveway area (the "Abandonment"), which is intended to allow for the
parking expansion. Lessor at Lessor's sole cost shall use reasonable efforts to
see that the Abandonment is complete within sixty (60) days from the
Commencement Date of this Lease.
4. SIGNAGE: Subject to Lessor's architectural control review and approval, and
Gwinnett County ordinances, Lessee shall have the right but not the obligation
to refinish at Lessee's sole cost and expense, the current signage existing at
the entrance to the Building fronting Peachtree Parkway.
5. BUILDING SYSTEMS: Exclusive of the work contemplated in Section 10 hereof,
Lessor shall deliver the Building systems therein in good working order, and
any work associated with putting the Building systems in such good working
order shall be done so at Lessor's cost. Without limiting the foregoing, Lessor
shall perform the following maintenance and repair items: (i) clean condenser
coils on all three HVAC units located upon the Building; (ii) repair broken
condensate drain tap on HVAC unit RTU #2; (iii) repair damaged lap seams on
roof; (iv) complete HVAC ground floor compressor replacement; and (v) render
irrigation system operational. Lessor agrees that it will not replenish,
replace, upgrade or render operational, the Halon 1303 fire suppression system
situated upon the Premises unless so requested by the Lessee and at Lessee's
expense.
6. BUILDING SECURITY: Lessor shall insure that all keycard accesses to and
within the Building shall be in operating order upon delivery of the Premises.
7. CABLING/SATELLITE COMMUNICATION: Lessor consents to Lessee's rooftop
installation of a DVD-type system (or technological enhancement thereof) on the
Building's roof along with associated interior cabling; provided that Lessee
shall not cause any penetration of the roof without Lessor's explicit advance
consent to details of the same, and an opportunity of Lessor to confirm that
such installation will not adversely affect any warranty on the roof.
Exhibit "E" - Special Stipulations ~ Page-1
37
EXHIBIT "F"
SHARED EXPENSES
Exhibit "F" - Shared Expenses - Page-1