OAKBROOK PLACE
LEASE AGREEMENT
LESSOR: THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
c/▇ ▇▇▇▇▇▇▇▇ Management Company, Inc.
Paces ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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LESSEE: VIEWCALL AMERICA, INC.
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TABLE OF CONTENTS
Article Description Page
1 Leased Premises 1
2 Term 1
3 Base Rent & Security Deposit 1
4 Signs 2
5 Usage, Laws & Insurance 2
6 Janitorial Service 3
7 Services 3
8 Rental Escalation 4
9 Repairs & Maintenance 4
10 Compliance With Rules & Regulations 4
11 Lessor Improvements 4
12 Alterations & Improvements 5
13 Condemnation 5
14 Fire & Casualty 5
15 Hold Harmless 6
16 Quiet Enjoyment 6
17 Lessor's Right of Entry 6
18 Assignment or Sublease 6
19 Surrender & Holding Over 7
20 Defaults by Lessee 7
21 Remedies for Lessee's Default 7
22 Late Charges 9
23 Interest on Past Due Obligations 9
24 Acts of God 9
25 Attorney's Fees & Homestead 9
26 Lessee Estoppel Certificate 10
27 Rights of Mortgagees 10
28 Definitions 10
29 Successors 10
30 Extrinsic Evidence 10
31 Notice 11
32 Real Estate Commission 11
33 Conditional Mutual Waiver of Subrogation 11
34 Amendments 11
35 Enforceability 12
36 Cumulative 12
37 Applicable Law 12
38 Limitation of Lessor's Liability 12
39 Exceptions to Demise 12
40 Statement of Acceptance 12
41 Hazardous Substances 12
42 Commencement Date Agreement 13
Signatures 13
Rules & Regulations 14
Special Stipulations (Exhibit "A") 15
Commencement Date Agreement (Exhibit "B") 18
Floor Plan (Exhibit "C") 19
Site Plan (Exhibit "D") 20
Sign Criteria (Exhibit "E") 21
Schedule A (Exhibit "F") ▇▇
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LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into between THE NORTHWESTERN
MUTUAL LIFE INSURANCE COMPANY hereafter referred to as "Lessor" and
VIEWCALL AMERICA, INC. hereafter referred to as "Lessee".
WITNESSETH:
1. LEASED PREMISES. In consideration of the rents, terms provisions
and covenants of this Lease Agreement, Lessor hereby leases, lets and
demises to Lessee and Lessee hereby takes, the following describes
premises (hereafter referred to as the "Leased premises" or "demised
premises or the premises") containing approximately 21,375 square
feet situated in Suite 165 at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ which, together with driveways, sidewalks, loading areas and
grounds appurtenant thereto, is hereinafter referred to as "the
building"). A floor plan of the premises is attached hereto as
Exhibit "C". the premises are more particularly described as follows:
Approximately 21,375 square feet in a 92,678 square foot
multi-tenant business/service building located in Suite 165 at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇. Approximately
19,200 square feet exists as finished office area.
2. TERM. Subject to and upon the conditions set forth below, the
term of this Lease shall commence at the earliest of either (1) the
date upon which the Lessee takes possession of the demised premises,
or (2) 12:01 a.m. on the 1st day of January, 19 97, (hereinafter
called "Commencement Date"), and shall end at midnight on the 31st
day of December, 1999, unless sooner terminated as hereinafter
provided (hereinafter called the "Lease Term"). The "Commencement
Date" shall constitute the commencement of this Lease Agreement for
all purposes, whether or not Lessee has actually taken possession.
3. BASE RENT AND SECURITY DEPOSIT. (a) Lessee agrees to pay to
Lessor as annual rental for the Leased Premises, the sum of See
Attached Special Stipulation #43 DOLLARS ($__________) payable
monthly in equal installments of See Attached Special Stipulation
#43 DOLLARS ($________), without deduction or setoff, in advance on
the first day of each month. Lessee agrees annually, throughout the
term of this Lease, to increase the base rental due under this Lease,
in the following manner: Beginning with the January 1, 1998, rental
payment, Lessee's monthly base rental shall be increased by an amount
equal to Three percent ( 3%) ) of the previous year's monthly base
rental payment; on each subsequent January 1 , Lessee shall
increase the monthly base rental payments over the previous year's
monthly base rental payment by a like percentage.
The aforesaid payments of rent are to be made to Lessor at ▇▇▇▇▇▇▇▇
Management Company, Inc., ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, or at
any other place which Lessor, from time to time might designate.
A prorated monthly installment, based on a thirty (30) day month,
shall be paid in advance if the lease term begins on any date other
than the first day, or terminates on any date other than the last day
of any month.
(b) On the date of execution of this Lease by Lessee, there
shall be due and payable by Lessee the first month's rental and a
security deposit in an amount equal to one monthly rental installment
to be held for the performance by Lessee of Lessee's covenants and
obligations under this Lease, it being expressly understood that the
deposit shall not be considered an advance payment of rental or a
measure of Lessor' damage in case of default by Lessee. Upon the
occurrence of any event of default by Lessee or breach by Lessee of
Lessee's covenants under this Lease, Lessor may, from time to time,
without prejudice to any other remedy, use the security deposit to the
extent necessary to make good any arrears of rent and/or damage,
injury, expense or liability caused to Lessor by the event of default
or breach of covenant and thereafter Lessee hereunder shall promptly
restore the resulting deficiency in said deposit.
(c) The base rental set forth in the preceding subparagraph (a)
shall be subject to escalation as provided elsewhere in this Lease.
4. SIGNS. (a) Lessee shall have the right to install
non-illuminated letters, numerals, sign cuts, logos, etc., which will
be provided and erected by Lessor at Lessee's expense, to be mounted
at or immediately adjacent to the leased premises. Exact location of
the signage will be uniform and determined by Lessor. Sign will be of
standard uniform design determined by Lessor.
(b) If the leased premises have a rear steel service door
(intended for deliveries or shipping), Lessee shall have the right to
install a standard sign of uniform design determined by Lessor.
(c) Lessee agrees that no other signs of description shall be
erected or painted in the or about the premises. If Lessee installs
any sign which does not conform to the foregoing, Lessor shall have
the right to remove the same and Lessee shall be liable for any and
all expenses incurred by Lessor in said removal.
5. USAGE, LAWS AND INSURANCE. (a) Lessee's business consists of
sales, development and service of consumer electronics. The demised
premises shall be used only for general office the purpose of
receiving, storing, shipping and selling (other than retail) products,
materials and merchandise made and/or distributed by Lessee and for
such other lawful purpose as may be incidental thereto. Lessee shall
at its own cost and expense obtain any and all licenses and permits
necessary for any such use. Lessee shall comply with all laws,
ordinances, rules and regulations of all state, federal, municipal or
other agencies having jurisdiction relating to the use, condit8ion and
occupancy of the premises, and shall promptly comply with all
governmental orders and directives for the correction, prevention and
abatement of nuisances in, upon, or connected with the premises, all
at the Lessee's sole expense. Without Lessor's prior written consent,
Lessee shall not receive, store or otherwise handle any product,
material or merchandise which is explosive or highly inflammable.
Lessee will not permit the premises to be used for any purpose which
would render the insurance thereon void or the insurance risk more
hazardous; nor shall the demised premises by used for any illegal
purposes; nor in violation of any regulation of any governmental body;
nor in any manner to create any nuisance or trespass. If the
insurance premiums on the building in which the leased premises are
located are increased due to Lessee's use of the premises, then,
Lessee shall immediately upon demand of Lessor, pay such increased in
premiums as additional rent.
(b) Liability. Lessee, at Lessee's sole cost and expense, shall
maintain and keep in effect throughout this lease insurance against
liability for bodily injury (including death) or property damage in or
about the Premises, and the Building, under a policy of comprehensive
general public liability insurance, with such limits as to each as may
be reasonably required by Lessor from time to time by not less than
$1,000,000 for each occurrence for bodily injury (including death) and
$1,000,000 for property damage. The policies of comprehensive general
public liability insurance shall name Lessor and Lessee as the insured
parties. Each policy required by this paragraph (b) shall provide
that it shall not be cancelable without at least thirty (30) days
prior written notice to Lessor and to any mortgagee named in an
endorsement thereto and shall be issued by an insurer and in a form
satisfactory to Lessor. At least five (5) days prior to the
commencement date, a certificate of insurance shall be delivered to
Lessor, and Lessor shall be named a additional insured. Each such
policy shall have attached thereto an endorsement to the effect that
no act or omission of Lessee shall affect the obligation of the
insurer to pay Lessor the full amount of any loss sustained by Lessor.
(c) Insurance. Commencing in the year 1997 and continuing
thereafter during each year of the term of this Lease, in the event
Lessor's per square foot cost of insurance on the building increase
above the 1997 base year cost per square foot, then Lessee shall pay
to Lessor as additional rent the amount of such increase computed by
multiplying the number of square feet in the Premises by the amount of
such increase. The term "increase" shall include all fire and
extended casualty insurance on the building and all liability coverage
on the grounds, sidewalks, driveways, parking areas and any other
exterior or interior areas, together with such other insurance
protection as if from time to time reasonably necessary by Lessor.
Lessor shall notify Lessee in writing, on or reasonably after Lessor's
annual receipt of insurance billing, of the amount of any such
increase over the preceding calendar year in insurance, and Lessee
shall pay the amount of such increase to Lessor as additional rent
within ten (10) calendar days after delivery of such notice to
Premises or receipt thereof by Lessee.
In the event Lessee's occupancy causes any increase of premium for any
insurance policy on the premises or the building or any part thereof
above the rate of the least hazardous type of occupancy legally
permitted in the premises, Lessee shall pay the additional premium of
such insurance policies by reason thereof.
6. JANITORIAL SERVICE. Lessee shall pay directly all charges for
dumpster, trash removal and janitorial services performed at the
demised premises during the term of this Lease. Lessee reserves the
right to locate trash containers and dumpsters which shall be placed
by Lessee in the service area of the demised premises. Lessee agrees
at all times to keep the sidewalks and loading areas directly adjacent
to its demised premises in a sightly condition and free and clear of
rubbish, trash and other debris.
7. SERVICES. (a) Lessee, at its sole cost and expense, shall pay
all charges for gas and electricity used by Lessee during the term of
this Lease. Lessee shall contract directly with the utility companies
and pay all charges directly to said utility companies, exclusive of
water to the premises and common area utilities. Lessee acknowledges
that Lessor shall not be responsible for any failure in the
electrical, gas or water supply.
(b) Lessee shall be responsible for obtaining, maintaining and
paying the cost of any and all telephone service to the premises.
(c) Lessor will contract for common area maintenance, electric
current and electric lighting service to the public portions and
special service areas of the building in the manner and to the extend
deemed by Lessor to be standard. Failure by Lessor to any extent to
furnish these defined services, or any cessation thereof, resulting
from cause beyond the control of Lessor shall neither render Lessor
liable in any respect for damages to either person or property, be
construed as an eviction of Lessee, work an abatement of rent or
relieve Lessee from fulfillment of any covenant of this Lease.
Should any of the equipment or machinery for which Lessor is
responsible breakdown, or for any cause cease to function properly,
Lessor shall use reasonable diligence to repair the same promptly, but
Lessee shall have no claim for rebate of rent or damages on account of
any interruptions in service occasioned from repairs. Lessor will not
undertake the responsibility to repair any equipment that is not owned
by Lessor.
(d) Lessee agrees to pay to Lessor monthly during the term
hereof, as additional rent, without notice or demand and without any
deduction whatsoever, a Water and Common Area Maintenance Charge equal
to one-twelfth (1/12th) of Lessee's proportionate share (as defined in
paragraph 8 (b), below) of the Water and Common Areas Operating costs
(as hereinafter defined) of the Building. Lessee shall pay an initial
minimum annual charge of $9,252.00 per year, in equal monthly
installments of $771.00 each. Within one hundred twenty (120) days
following the end of each calendar year during the term hereof, Lessor
shall furnish to Lessee a statement in reasonable detail of the actual
Water and Common Area Operating Costs for the preceding calendar year.
Thereupon, Lessee shall immediately reimburse Lessor for any shortfall
in the current year to date, or Lessee shall be credited by Lessor any
overage in the amount of said annual payments, said credit to be
applied to the Water and Common Area Maintenance Charges for the
current twelve (12) month period. The actual Water and Common Area
Operating Costs are reported in said statement shall be used as the
basis for calculating Lessee's annual Water and Common Area
Maintenance Charge for the present twelve (12) month period. The
obligation to the annual adjustment in the Water and Common Area
Maintenance Charge in accordance with this paragraph shall survive the
expiration or other termination of this lease. In no event shall the
Water and Common Area Maintenance Charge for any year be less than the
minimum annual charge stated above.
In the event that the Commencement Date or the termination date
of this lease should fall on a date other than January 1st or December
31st, then, in such event the Water and Common Area maintenance Charge
shall be pro-rated for that calendar year based upon the number of
days during the year that Lessee's lease was in effect.
The term "Water and Common Area Operating Costs" means the total
cost and expense incurred by Lessor in supplying water and sewer to
the building and in operating and maintaining the Common facilities
(as hereinafter defined), and specifically including, without
limitation, the costs of gardening and landscaping, repairs,
utilities, lighting, cleaning and sprinkler systems. The term "Common
Facilities" means all areas provided by Lessor, from time to time, for
the common or joint use and benefit of the occupants of the building
and their employees, agents, servants, customers and other invitee,
including, without limitation, lawns, parking areas, access roads,
driveways, retaining walls, landscaped areas, sidewalks, and exterior
walkways.
(e) Lessee shall have an annual maintenance check-up performed on
the heating, ventilation and air conditioning systems in the demised
premises. Lessee shall provide Lessor with a copy of the maintenance
report and shall pay for any repairs resulting from said check-up.
Lessee shall be solely responsible for the maintenance and upkeep of
the hearing, ventilation and air conditioning systems in the demised
premises.
8. RENTAL ESCALATION. (a) Lessee agrees to pay to Lessor monthly
during the term hereof, as additional rent, without notice or demand
therefore and without any deduction whatsoever, Lessee's proportionate
share of the amount by which real estate valorem taxes, governmental
and public charges and special assessments imposed against the
property containing the leased premises, including all costs and fees
incurred by Lessor in contesting same, exceed the sum of the 1997 base
year cost per square foot, which shall be Lessor's share of said
taxes, charges and assessments. Lessee's payments under this
subparagraph 8(a) shall be based on Lessor's reasonable estimates of
tax bills or any future tax levied in lieu of or in additional to real
property taxes for the applicable period, and Lessor shall set forth
in written notice to Lessee the total estimated amount of said taxes,
charges and assessments and Lessee's proportionate share of same. If,
based upon applicable tax bills, payment of estimated amounts by
Lessee resulted in an overpayment to Lessor for a particular calendar
year, Lessee shall be entitled to a credit against its payments for
taxes, charges and assessments in the current calendar year.
(b) For the purposes of this and all other escalation clauses,
"Lessee's proportionate share" shall mean 21,375 / 92,678 = 23.06%
(c) If any governmental authority having jurisdiction now or
hereafter imposes upon Lessor, pursuant to statute, ordinance,
regulation, order or otherwise, a tax, levy or other imposition based
upon the rentals received by Lessor under this Lease, the above
paragraph 8(a) notwithstanding, Lessee shall without prior demand, pay
to Lessor the amount thereof at the time or times the same may fall
due with respect to the term of this Lease. The tax, levy or
imposition to which reference is made shall include sales, excise or
similar tax, but shall not include capital stock, estate or
inheritance taxes imposed upon Lessor. These sums shall be paid as
additional rent beyond any other rent reserved herein.
9. REPAIRS AND MAINTENANCE. (a) Lessor agrees that it shall at all
times, at its sole cost and expense, except as noted herein, keep the
roof, and exterior walls (excluding windows, window glass, plate glass
and all doors), in good repair and condition, reasonable wear and tear
excepted, and will with reasonable promptness during regular business
hours, make all repairs thereto which may be necessary during the term
of this Lease. Lessee shall be responsible for all other maintenance
and repair required in connection with the leased premises. Lessor
shall not be liable to Lessee, except as expressly provided in this
Lease, for any damage or inconvenience, and Lessee shall not be
entitled to any abatement or reduction of rent, by reason of any
repairs, alterations or additions made by Lessor under this Lease.
(b) Lessee shall promptly at its own cost and expense repair or
replace any damage or injury to all or any part of the leased premises
caused by Lessee or Lessee's agents, employees, invitee, licensees,
visitors or any other person, thing or event not caused by Lessor's
gross negligence, provided, however, if Lessee fails to make the
repairs or replacements promptly, Lessor may, at his option, make the
repairs and replacements and Lessee shall reimburse the cost to Lessor
on demand.
(c) Lessee shall not commit or allow any waste or damage to be
committed on any portion of the leased premises and at the termination
of this Lease, by lapse or time or otherwise, Lessee shall deliver the
leased premises to Lessor in as good condition as the date of first
possession of Lessee, ordinary wear and tear excepted. The cost and
expense of any repairs necessary to restore the condition of the
leased premises shall be paid by Lessee.
10. COMPLIANCE WITH RULES AND REGULATIONS. Lessee will comply with
the Building Rules and Regulations, which are set forth below (Page
14) Lessor shall have the right at all times to change the rules and
regulations of the building or to amend them in any reasonable manner
as may be deemed advisable for the safety, care and cleanliness, and
for the preservation of good order, of the property. All changes and
amendments in the rules and regulations of the building will be sent
by Lessor to Lessee in writing and shall thereafter be carried out and
observed by Lessee.
11. LESSOR IMPROVEMENTS. Lessee acknowledges that unless there is a
Special Stipulation requiring Lessor to construct any improvements in
the demised premises prior to Lessee's occupancy, Lessor shall have no
such obligation prior to subsequent to the commencement of the term of
this lease and Lessee shall accept possession of the demised premises
"as is". Taking possession of the demised premised by Lessee shall be
conclusive evidence, as against Lessor, that Lessee accepts the same
"as is" and that the demised premises and the building were in good
and satisfactory condition at the time such possession was so taken.
12. ALTERATIONS AND IMPROVEMENTS. (A) Lessee shall not make or
allow to be made any alteration or physical additions in or to the
leased premises without first obtaining the written consent of Lessor
which consent shall not be unreasonably withheld. Any alterations,
physical additions or improvements to the leased premises made by
Lessee shall at once become the property of Lessor and shall be
surrendered to Lessor upon the termination of this Lease; provided,
however, this clause shall not apply to movable equipment or furniture
owned by Lessee which may be removed by Lessee at the end of the term
of this Lease if Lessee is not then in default and if such equipment
and furniture is not the subject to any other rights, liens and
interests of Lessor. At the termination of this lease, and upon
written notice from Lessor to Lessee, Lessee shall be required to
remove all alterations, and improvements, and additions at Lessee's
sole expense.
(b) Lessee shall have no authority, express or implied, to create
or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of Lessor in the favor of
any person dealing with Lessee, including those who may furnish
materials or perform labor for any construction or repairs, and each
such claims shall affect and each such lien shall attach to, if at
all, only the leasehold interest granted to Lessee by this instrument.
Lessee covenants and agrees that it will pay or cause to be paid all
sums legally due and payable by it on account of any labor performed
or materials furnished in connection with any work performed on the
premises and that it will save and hold Lessor harmless from any and
all loss, cost or expense (including, but not limited to, reasonable
attorney's fees) based on or arising out of asserted claims or liens
against, the leasehold estate or against the rights, titles and
interest of the Lessor in the premises or under the terms of this
Lease. Without limiting the generality of the foregoing, Lessee shall
unconditionally remove or discharge, by bonding or otherwise, any
mechanic's or materialman's lien without twenty (20) days after
receiving notice thereof.
13. CONDEMNATION. (a) If, during the term of this Lease, or any
extension or renewal thereof, an amount of space in excess of
twenty-five percent (25%) of the leased premises is taken for any
public or quasi-public use under any governmental law, ordinance or
regulation, or by eminent domain or by private purchase in lieu
thereof, this Lease shall terminate effective on the date physical
possession is taken by the by condemning authority, and no further
rent shall be due by Lessee.
(b) In the event a portion of the demised premises shall be taken
for any public or any quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain or by private
sale in lieu thereof, and this Lease is not terminated as provided in
subparagraph (a) above, Lessor may, at Lessor's sole risk and expense,
restore and reconstruct the building and other improvements situated
on the demised premises to the extent necessary to make it reasonable
tenantable. The rent payable under this Lease during the unexpired
portion of the term shall be equitably adjusted (on the basis of the
number of square feet before and after such event) as of the date on
which the condemning authority takes possession and the lease shall
otherwise continue in full force and effect.
(c) Any award for any taking of all or any part the Demised
Premises under the power of eminent domain shall be the property of
the Lessor, whether such award shall be made as compensation for
diminution in value of the leasehold or for taking of the fee.
Nothing contained herein, however, shall be deemed to preclude Lessee
from obtaining, or to give Lessor any interest in, any award to Lessee
for damages for cessation or interruption of Lessee's business. See
Special Stipulation #49
14. FIRE AND CASUALTY. (a) If the leased premises should be totally
destroyed by fire, tornado or other casualty, or if the premises
should be so damaged that the rebuilding or repairs cannot reasonably
be completed within one hundred eighty (180) working twenty (120) days
after the date of the casualty, this Lease shall terminate and the
rent shall be abated for the unexpired portion of the Lease, effective
as of the date of the casualty.
(b) If the leased premises should be partially damaged by fire,
tornado or other casualty, and rebuilding or repairs can reasonable be
completed within one hundred eighty (180) working twenty (120) days
from the date of the casualty, this Lease shall not terminate, but
Lessor may at its sole risk and expense proceed with reasonable
diligence to rebuild or repair the building or other improvements to
substantially the condition in which they existed prior to the damage.
If the demised premises are to be rebuilt or repaired and are
untenantable in whole or in part following the damage, and the damage
or destruction was not caused or contributed by intentional act or
negligence of the Lessee, its agents, employees, invitee or others for
whom the Lessee is responsible, the rent payable under this Lease
during the period for which premises are inhabitable shall be adjusted
to such an extent as may be fair and reasonable under the
circumstances. In the event that Lessor fails to complete the
necessary repairs or rebuilding within one hundred eighty (180) twenty
(120) days from the date of the casualty, Lessee may at its option
terminate this Lease by delivering written notice of termination to
Lessor, whereupon all rights and obligations under the Lease shall
cease to exist; provided, however, that said 180 120 day period may be
extended by a period of up to 180 60 days for which Lessor is delayed
from completing said repairs and rebuilding due to fire, theft, labor,
dispute, governmental regulation, act of God or other cause beyond
Lessor's control. Lessee may exercise its right to cancel the Lease
pursuant to the preceding sentence only by delivering said notice to
Lessor within (10) twenty (20) business days after the date by which
Lessor is required to complete said repairs or rebuilding.
(c) Notwithstanding anything herein to the contrary, in the event
the holder of any indebtedness secured by a mortgage or deed of trust
covering the premises requires that the insurance proceeds be applied
to such indebtedness, the Lessor shall have the right to terminate
this Lease by delivering written notice of termination to Lessee,
whereupon all rights and obligations hereunder shall cease and
terminate, subject to any rights of Lessor for amounts due hereunder
and unpaid.
15. HOLD HARMLESS. Lessor shall not be liable to Lessee's employees,
agents, invitees, licensees or visitors, or to any other person, for
any injury to person or damage to property on or about the leased
premises caused by the negligence or misconduct of Lessee, its agents,
servants or employees, or of any other person entering upon the leased
premises under express or implied invitation by Lessee, or caused by
the building and improvements located on the leased premises becoming
out of repair, or caused by leakage of gas, oil, water or steam or by
electricity emanating from the leased premises or due to any other
cause. Lessee agrees to indemnify and hold harmless Lessor from any
loss, attorney's fees, expenses or claims arising out of any such
damage or injury. Any liability insurance which may be carried by
Lessor with respect to the Leased Premises shall be for the sole
benefit of Lessor and under its sole control. See Special
Stipulation #50
16. QUIET ENJOYMENT. Subject to the terms of this Lease, Lessor
hereby covenants and agrees that Lessee, upon payment of the required
rents and performing the terms, conditions, covenants and agreements
contained in this Lease, shall peaceably and quietly have, hold and
enjoy the leased premises during the full term of this Lease as well
as any extension or renewal without let or hindrance by Lessor or its
agent; provided, however, that Lessee accepts this Lease subject and
subordinate to any recorded mortgage, deed of trust or other lien
hereafter placed on the leased premises, and Lessee agrees upon demand
to execute additional instruments subordinating this Lease as Lessor
may require.
17. LESSOR'S RIGHT OF ENTRY. With prior notice except in the case of
emergency Lessor shall have the right, at all reasonable hours, to
enter the leased premises for the following; inspection; cleaning or
making repairs; alterations or additions as Lessor may deem necessary
or desirable within the last six months of the Lease for purposes of
showing the leased premises to prospective Lessees (notwithstanding
anything in the Rules and Regulations to the contrary); determining
Lessee's use of the leased premises; or determining if any act of
default under this Lease has occurred; showing the Leased Premises to
prospective lessees or purchasers provided that Lessor shall not
interfere with the operation of Lessee's business.
18. ASSIGNMENT OR SUBLEASE. Lessor shall have the right to transfer
and assign, in whole or in part, its rights and obligation sin the
building and property that are the subject of this Lease and its
rights and obligations under this Lease. Upon such an assignment,
Lessor shall be fully and automatically released from all obligations
and liabilities under this lease. Lessee shall not assign this Lease
or sublet all or any part of the leased premises without the prior
written consent of Lessor which consent shall not be unreasonably
withheld. Lessor shall have the option, upon receipt from Lessee of
written request for Lessor's consent to subletting or assignment, to
cancel this Lease or modify the lease for a portion of the Premises in
a sublease as of the date the requested subletting or assignment is to
be effective. The option shall be exercised, if at all, within
fifteen (15) days following Lessor's receipt of said written request
from Lessee by delivery to Lessee of written notice of Lessor's
intention to exercise the option. In the event Lessor terminates this
Lease pursuant to the preceding sentence, Lessor shall have the right
to lease the premises to any entity whatsoever, including without
limitation Lessee's proposed assignee or sublessee.
In the event of any assignment or subletting, Lessee shall
nevertheless at all times, remain fully responsible and liable for the
payment of the rent and for compliance with all of its other
obligations under the terms, provisions and covenants of this Lease.
In the event that Lessor consents to any assignment or sublease of any
portion of the Demised Premises, Lessee shall pay Lessor, within five
(5) days of receipt, seventy-five percent (75%) fifty percent (50%)
of the amount of rent payable by such sublessee or assignee in excess
of the amount of rent payable by Lessee (net of costs associated with
such sublease or assignment including but not limited to tenant
improvements, commissions, free rent, and other concessions)
hereunder with respect to the portion of the Demised Premises sublet
or assigned. Lessee covenants and agrees to provide Lessor with a
quarterly statement, prepared and verified by a certified public
accountants, stating the amount of rent paid in cash or other non-cash
considerations by its sublessee(s) or assignee(s) during such
quarterly period. If such statement shows Lessee failed to make the
full payments required by this Paragraph, a late charge equal to tent
percent (10%) of the amount due shall be paid by Lessee as additional
rent hereunder. Upon the occurrence of any "event of default" as
defined below, if all or any part of the leased premised are then
assigned or sublet, Lessor, in addition to any other remedies provided
by this Lease or provided by law, may at its option, collect directly
from the assignee or sublessee all rents becoming due to Lessee by
reason of the assignment or sublease and Lessor shall have a security
interest in all properties on the leased premise to secure payment of
such sums. Any collection directly by Lessor from the assignee or
sublessee shall not be construed to constitute a novation or a release
of Lessee from the further performance of its obligations under this
Lease. Consent to one assignment or sublease shall not destroy or
waive this provision, and all later assignments and sublease shall
likewise be made only upon the prior written consent of Lessor.
Sublessees or assignees shall become liable to Lessor for all
obligations of the Lessee hereunder without relieving Lessee's
liability hereunder. For purposes of this Paragraph 18, if Lessee is
a corporation, a transfer of at least 50% of the voting shares of
Lessee shall be deemed as assignment of this lease. If Lessee is a
joint venture, general partnership or limited partnership, a transfer
of 50% or more of the interests held by the general partner(s) of
Lessee shall be deemed as assignment of this lease. See Special
Stipulation #51.
19. SURRENDER AND HOLDING OVER. Lessee shall deliver up and
surrender to Lessor possession of the demised premises upon the
expiration of the Lease, or its termination in any way, in as good
condition and repair as the same shall be at the commencement of said
term (damage by fire and other perils and normal wear and tear
excepted), and shall deliver the keys at the office of Lessor or
Lessor's agent. Should Lessee or any party claiming under Lessee
remain in possession of the demised premises, or any part thereof,
after any termination of this Lease, no tenancy or interest in the
demised premises shall result therefrom and no holding over by Lessee,
whether with or without consent of Lessor shall operate to extend this
Lease except as otherwise provided, but such holding over shall be an
unlawful detainer and all such parties shall be subject to immediate
eviction and removal, and Lessee shall, upon demand, pay to Lessor as
liquidated damages, a sum equal to twice one and one half times the
rent which would have been payable by Lessee had the holdover period
been a part of the original term of this lease.
20. DEFAULTS BY LESSEE. The following events shall be deemed to be
events of default by Lessee under this Lease:
(a) Lessee shall fail to pay any installation of the rent hereby
reserved when due, and such failure shall continue for a period of
five (5) ten (10) days from the date such installment was due. Lessor
to provide written notice thereof to Lessee provided that no such
notice shall be required if Lessee has received a similar notice
within 365 days prior to such violation or failure.
(b) Lessee shall be come insolvent, or shall make a transfer in
fraud of creditors or shall make an assignment for the benefit of
creditors.
(c) Lessee shall file a petition under any section or chapter of
any federal bankruptcy act, as amended, or under any similar law or
statute of the United States or any State thereof; or Lessee shall be
adjudged bankrupt or insolvent in proceedings filed against Lessee
thereunder.
(d) A receiver or trustee shall be appointed for all or
substantially all of the assets of Lessee.
(e) The filing of an involuntary petition against Lessee as the
subject debtor under the Bankruptcy Code or other insolvency laws,
which is either not dismissed within thirty (30) days of filing, or
results in the issuance of an order for release against the debtor,
whichever is later.
(f) Lessee shall desert or abandon all or any substantial portion
of the premises
(g) Lessee shall assign this Lease or sublet all or any part of
the leased premises in violation of Paragraph 18.
(h) Lessee shall fail to comply with any terms, provisions or
covenant of this Lease (other than the foregoing in this paragraph
20), and shall not cure such failure within twenty (20) thirty (30)
days after written notice thereof to Lessee provided that no such
notice shall be required if Lessee has received a similar notice
within 365 days prior to such violation or failure.
(i) the institution of a foreclosure action upon all or a
substantial portion of Lessee's real or personal property.
(j) Lessee shall commit any act on the premises which is
inconsistent with the Declaration of Subdivision Regulations of
Oakbrook Center, Gwinnett County, Georgia, dated January 26, 1979, as
amended from time to time.
21. REMEDIES FOR LESSEE'S DEFAULT. (a) Upon the occurrence of any
of such events of default described in paragraph 20 hereof, Lessor
shall have the option to pursue any one or more of the following
remedies without notice or demand whatsoever.
(i) Terminate this Lease by giving written notice of such
termination to Lessee, in which event Lessee shall immediately
surrender the premises to Lessor, and if Lessee fails to do so, Lessor
may, without prejudice to any other remedy which it may have for
possession or arrearage in rent, enter upon and take possession of the
premises and expel or remove Lessee and any other person who may be
occupying such premises or any part thereof, or may recover possession
under and by virtue of the laws of the State of Georgia, without being
liable for prosecution or any claim of damages therefor and Lessee
agrees to pay to Lessor on demand the amount of all loss and damage
which Lessor may suffer by reason of such termination, whether through
inability to relet the premises on satisfactory terms or otherwise.
(ii) Should this Lease be terminated before the expiration of the
term of this Lease by reason of Lessee's default as hereinabove
provided, or if Lessee shall abandon or vacate the Demised Premises
before the expiration or termination of the term of this Lease without
having paid the full rental for the remainder of such term, Lessor
shall have the option to relet the Demised Premises for such rent and
upon such terms as are reasonable under the circumstances and , if the
full rental reserved under this Lease (and any of the costs, expenses
or damages indicated below) shall not be realized by Lessor, Lessee
shall be liable for all damages sustained by Lessor, including,
without limitation, deficiency in rent, reasonable attorney's fees,
brokerage fees and expenses of placing the Demised premises in first
class rentable condition. Lessor, in putting the Demised Premises in
good order or preparing the same for re-rental may, at Lessor's
option, make such alterations, repairs, or replacements in the Demised
Premises as Lessor, in its sole judgment, considers advisable and
necessary for the purpose of reletting the Demised Premises, and the
making of such alterations, repairs, or replacements shall in no event
be liable in any way whatsoever for failure to relet the Demised
Premises, or in the event that the Demised Premises are relet, for
failure to collect the rent under such reletting, and in no event
shall Lessee be entitled to receive the excess, if any, of such net
rent collected over the sums payable to Lessee to Lessors hereunder.
(iii) Enter upon the premises and do whatever Lessee is obligated
to do under the terms of this Lease and Lessee agrees to reimburse
Lessor on demand for any expenses which Lessor may incur in thus
effecting compliance with Lessee's obligations under this Lease, and
Lessee further agrees that Lessor shall not be liable for any damages
resulting to the Lessee from such action, whether caused by the
negligence of Lessor or otherwise.
(b) Nothing contained herein shall prevent the enforcement of any
claim Lessor may have against Lessee for anticipatory breach of the
unexpired term of this Lease. In the event of a breach or
anticipatory breach by Lessee of any of the covenants or provision
hereof, Lessor shall have the right of injunction and the right to
invoke any remedy allowed at law or in equity as if reentry, summary
proceedings and other remedies were not provided for herein. Mention
in this Lease of any particular remedy shall not preclude Lessor from
any other remedy, in law or in equity. Lessee hereby expressly waives
any and all rights of redemption granted by or under any present or
future laws in the event of Lessee being evicted or dispossessed for
any cause, or in the event of Lessor obtaining possession of the
Demised Premises, by reason of the violation by Lessee of any of the
covenants and conditions of this Lease, or otherwise.
(c) Lessor shall have a lien upon the personal property of Lessee
moved in to the Demised Premises, as and for security for the rent and
other obligations of Lessee herein provided. In order to perfect and
enforce said lien, Lessor may, at any time after default by Lessee in
the payment of rent or default of other obligations to be performed or
complied with by Lessee under this Lease, seize and take possession of
any and all personal property belonging to Lessee which is found in
and upon the Demised Premises. If Lessee fails to redeem the personal
property so seized, by payment of whatever sum may be due Lessor under
and by virtue of the provisions of this Lease, then and in that event,
Lessor shall have the right, after twenty (20) days written notice to
Lessee of its intention to do so, to sell such personal property so
seized at public or private sale and upon such terms and conditions as
to Lessor may appear advantageous, and after the payment of all proper
charges incident to such sale, apply the proceeds thereof to the
payment of any balance due to Lessor on account of rent or other
obligations of Lessee pursuant to this Lease. In the event there
shall then remain in the hands of Lessor any balance realized from
the sale of said personal property as aforesaid, the same shall be
paid over to Lessee. The exercise of the foregoing remedy by Lessor
shall not relieve or discharge Lessee from any deficiency owed to
Lessor which Lessor has the right to enforce pursuant to any other
provision of this Lease.
(d) Assumption or Assignment by Trustee. (i) In the event Lessee
becomes the subject debtor in a case pending under the Bankruptcy
Code, Lessor's right to terminate this Lease pursuant to Paragraph
21(a)(i), shall be subject to the rights of the Trustee in bankruptcy
to assume or assign this Lease. The Trustee shall not have the right
to assume or assign this Lease unless the Trustee (a) promptly cures
all defaults under this Lease, (b) promptly compensates Lessor for
monetary damages incurred as a result of such default, and (c)
provides "adequate assurance of future performance" (as hereinafter
defined).
(ii) Adequate Assurance of Future Performance. Lessor and Lessee
hereby agree in advance that the phrase "adequate assurance of future
performance." As used in this Subparagraph 21(d)(ii), shall mean that
all of the following minimum criteria must be met: (a) the Trustee
must pay to Lessor, at the time the next payment of rent is then due
under this Lease, in addition to such payment of rent, an amount equal
to the next three (3) months rent due under this Lease, said amount to
be held by Lessor in escrow until either the Trustee or Lessee
defaults in its payments of rent or other obligations under this Lease
(whereupon Lessor shall have the right to draw upon such escrowee
funds) or until the expiration of this Lease (whereupon the funds
shall be returned to Trustee or Lessee); (b) the Lessee or Trustee
must agree to pay to Lessor, at any time the Lessor is authorized to
and does draw upon the funds escrowee pursuant to this Subparagraph
21(d)(ii), the amount necessary to restore such escrow account to the
original level required by said provision; [copyright] Lessee must pay
the cost of all services, if any, provided by Lessor for which Lessee is
charged (whether directly or through agents or contractors, and
whether or not the cost of such services is to be passed through to
Lessee) in advance of the performance or provision of such services;
(d) the Trustee must agree that liquidation sales, auctions, or other
non-first class business operations shall not be conducted on the
Demised Premises without Lessor's prior written approval; (e) the
Trustee must agree that the use of the Demised Premises as stated in
this Lease will remain unchanged; and (f) the Trustee must agree that
the assumption or assignment of this Lease will not violate or affect
the rights of other Lessees in the Building.
(iii) Failure to Provide Adequate Assurance. In the event of a
default under Paragraph 20, above, where Lessee is unable (a) to cure
its defaults, (b) to reimburse Lessor for its monetary damages, [copyright]
to pay when due the rent due under this Lease, or any other payments
required of Lessee under this Lease, or (d) to meet the criteria and
obligations imposed by Paragraph 21(d)(ii) above, then Lessee agrees
in advance that it has not met its burden to provide adequate
assurance of future performance, and this Lease may be terminated by
Lessor in accordance with Paragraph 21(a)(i) above.
22. LATE CHARGE. Anything contained in this lease to the contrary
not withstanding, in order to cover the extra expenses involved in
handling delinquent payments, Lessee shall pay a "late charge" of
$100.00 or ten percent (10%) five percent (5%) of base rent, whichever
is greater, when any installment of rent (base or otherwise, as may be
considered additional rental under this lease), is paid more than five
(5) ten (10) days after the due date thereof. It is hereby understood
that the late charge is for extra expenses incurred by the Lessor in
processing the delinquency.
23. INTEREST ON PAST DUE OBLIGATIONS. Any installment of rent (base
or otherwise, as may be considered additional rental under this lease)
or other charges or money obligations to be paid by Lessee hereunder
which is not paid within 30 days from the date due shall bear interest
at a rate of eighteen percent (18%) twelve percent (12%) per annum
(but in no event higher than the highest interest rate permitted by
law) from the due date until paid.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or constitute a forfeiture
or waiver of any rent due to Lessor hereunder or of any damages
accruing to Lessor by reason of the violation of any of the terms,
provisions and covenants herein contained. Now waiver by Lessor of
any violation or breach of any of the terms, provision and covenants
herein contained shall be deemed or construed to constitute a waiver
of any other violation or breach of any of the terms, provisions and
covenants herein contained. Lessor's acceptance of the payment of
rental or other payments hereunder after the occurrence of any event
of default shall not be construed as a waiver of such default, unless
Lessor so notifies Lessee in writing. Forbearance by Lessor to
enforce one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute waiver of such
default. If, on account of any breach or default by Lessee in
Lessee's obligations under the terms and conditions of this Lease, it
shall be come necessary to appropriate for Lessor to employ or consult
with an attorney concerning or to enforce or defend any of Lessor's
rights or remedies hereunder, Lessee agrees to pay all reasonable
attorney's fees. No act or thing done by the Lessor or its agents
during the term hereby granted shall be deemed an acceptance of the
surrender of the premises, and no agreement to accept a surrender of
said premises shall be valid unless in writing signed by Lessor. The
receipt by Lessor of rent with knowledge of the breach of any covenant
or other provisions contained in this Lease shall not be deemed or
construed to constitute a waiver of any other violation or breach of
any of the terms, provisions and covenants contained herein.
24. ACTS OF GOD. Lessor shall not be required to perform any
covenant or obligation in this Lease, or be liable in damages to
Lessee, so long as the performance or nonperformance of the covenant
or obligation is delayed, caused by or prevented by act of God or
force majeure.
25. ATTORNEY'S FEES AND HOMESTEAD. If any amount owing or payable
under this Lease are collected by or through an attorney at law,
Lessee the non-prevailing party agrees to promptly reimburse Lessor
the prevailing party for all reasonable attorney's fees. Lessee
waives all homestead rights and exemptions which Lessee may have under
any law as against any obligation owing this Lease and assigns so much
thereof to Lessor as may be necessary to secure payment and
performance of Lessee's obligations under this Lease.
26. LESSEE ESTOPPEL CERTIFICATE. At any time and from time to time,
Lessee agrees upon request in writing from Lessor, to execute,
acknowledge and deliver to Lessor, or to Lessor's mortgagee or
financial institution, a statement in writing certifying to all or any
part of the following information as Lessor shall request: (I) that
this Lease constitutes the entire agreement between Lessor and Lessee
and is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified
and stating the modification); (ii) the dates to which the base
rental, additional rental and other charges hereunder have been paid,
and the amount of any security deposits held by Lessor; (iii) that the
demised premises have been completed on or before the date of such
letter and that all conditions precedent to the Lease taking effect
have been carried out; (iv) that Lessee has accepted possession, that
the lease term has commenced, that Lessee is occupying the said
premises and that Lessee knows of no default under the Lease by Lessor
and there are no defaults or offsets which Lessee has against
enforcement of the Lease by Lessor; (v) the actual commencement date
of the Lease and the expiration date of the Lease; and (vi) that
Lessee's facility is open for business, provided such facts are true
and ascertainable. In the event Lessee fails to provide such letter
as above described within ten (10) twenty (20) days after Lessor'
written request therefore, Lessee does hereby make, constitute and
irrevocably appoint Lessor as its attorney-in-fact and in this name,
place and stead so to do.
27. RIGHTS OF MORTGAGEES. If the interests of Lessor under this
Lease shall be sold and/or assigned by reason of foreclosure of other
proceedings for enforcement of any first mortgage on the leased
premises, Lessee shall be bound to the transferee (whether mortgagee
or third party purchaser, either or whom is referred to herein as
"Purchaser") under the terms, covenants and conditions of this Lease
for the balance of the term remaining, and any extensions or renewals
that have been exercised by Lessee, with the same force and effect as
if the Purchaser were the Lessor under this Lease and Lessee agrees to
attorn to Purchaser provided Purchaser assumes in writing the
obligations of lessor hereunder. The attornment is to be effective
and self-operative without the execution of any further instruments
upon Purchaser succeeding to the interest of Lessor under this Lease.
The respective rights and obligations of Lessee and Purchaser upon the
attornment, to the extent of the then remaining balance of the term of
this Lease, and any exercised extensions and renewals shall be and are
the same as those set forth in the Lease.
28. DEFINITIONS. The following definitions apply to the terms
defined as those terms are used throughout this Lease.
(a) "Abandon" means the vacating of all or a substantial portion
of the leased premises by Lessee, whether or not Lessee is in default
of the rental payments due under this Lease.
(b) An "act of God" or "force majeure" is defined for purpose of
this Lease agreement as strikes, lockouts, sit-downs, material or
labor restrictions by a governmental authority, riots, floods,
washout, explosions, earthquakes, fire, storms, acts of the public
enemy, wars, insurrections and any other cause not reasonably within
the control of Lessor and which by the exercise of due diligence
Lessor is unable, wholly or in part, to prevent or overcome.
(c) Notwithstanding the provisions of Paragraph 2 hereinabove,
and without creating a conflict therewith, the taking of possession by
Lessee shall be conclusively deemed to establish that the improvements
have been completed and that the leased premises are in good and
satisfactory condition as of the date possession was so taken by
Lessee.
(d) "Real property tax" means all city, state, and county taxes
and assessments including special taxing, district taxes or
assessments, or any future taxes levied in lieu of or in addition to
real property taxes.
29. SUCCESSORS. This Lease and all the covenants, provisions and
conditions herein contained shall be binding upon and inure to the
benefit of Lessor and Lessee and their respective heirs, personal
representatives, successors and permitted assigns; provided, however,
that no assignment by, from, through or under Lessee in violation of
the provisions hereof shall vest in the assigns any right, title or
interest whatsoever. It is hereby covenanted and agreed that should
Lessor'' interest in the Leased premises cease to exist for any reason
during the term of the Lease, then notwithstanding the happening of
such event this Lease nevertheless shall remain unimpaired and in full
force and effect and Lessee hereunder agrees to attorn to the then
owner of the leased premises.
30. EXTRINSIC EVIDENCE. It is expressly agreed by Lessee, as a
material consideration for the execution of this Lease Agreement, that
this Lease, with the specific references to written extrinsic
documents, is the entire agreement of the parties; that there are, and
were, no verbal representations, understandings, stipulations,
agreements or promises pertaining to this Lease Agreement or the
expressly mentioned written extrinsic documents not incorporated in
writing in the Lease Agreement. It is likewise agreed that this Lease
may not be altered, waived, amended or extended except by an
instrument in writing, signed by both Lessor and Lessee.
31. NOTICE. (a) All rent and other payments required to made by
lessee shall be payable to Lessor at the address set forth below, or
any other address Lessor may specify from time to time by written
notice delivered to Lessee.
(b) All payments required to be make by Lessor to Lessee shall be
payable to Lessee at the address set forth below, or at any other
address within the United States as Lessee may specify from time to
time by written notice.
(c) Any notice or document required to be delivered by this Lease
shall be deemed to be delivered (whether or not actually received)
when deposited in the United States Mail, postage prepaid, certified
mail, return receipt requested, addressed to the parties at the
respective address set out below.
LESSOR: LESSEE:
The Northwestern Mutual Life Insurance ViewCall America, Inc.
Company
c/▇ ▇▇▇▇▇▇▇▇ Management Company, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇
Attn: Lease Administrator
With Copies to:
The Northwestern Mutual Life Insurance
Company
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and
The Northwestern Mutual Life Insurance
Company
Atlanta Regional ▇▇▇▇▇▇
#▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
32. REAL ESTATE COMMISSION. Lessee warrants that he has had no
dealings with any real estate Broker(s) or Agent(s) in connection with
the negotiation of this lease, excepting only ▇▇▇▇▇▇▇▇ Management
Company, Inc. for Lessor and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. for Lessee and that
he knows of no other real estate Broker(s) or Agents(s) who is or
might be entitled to a commission in connection with this lease.
Lessor shall pay all brokerage commissions due and payable to the
Broker(s) or Agent(s) named above and such brokerage commission shall
be paid in accordance with a separate agreement between Lessor and
Broker(s) or Agent(s). Lessee shall indemnify Lessor from any other
commission claims by Brokers or Agents not named under this paragraph.
33. CONDITIONAL MUTUAL WAIVER OF SUBROGATION. Each party hereby
waives its right to recover against the other, for any losses or
claimed losses that are caused by or result from risks normally
covered by a standard policy of Fire and Extended Coverage Insurance
except where waiver has or would have the effect of invalidating or
denying either party's coverage under any Fire and Extended Coverage
Insurance policy held at the time of loss, in which case this Mutual
Waiver of Rights of Recovery shall be of no force or effect. Lessee
agrees to obtain an endorsement from Lessee's Fire and Extended
Coverage Insurer(s) that such insurer(s): (a) has waived its rights
for subrogation as against any party for who Lessee has waived its
right of recovery pursuant to the terms of this Lease, or (b) has
agreed that Lessee's coverage shall not be invalidated should the
Lessee-insured waive in writing prior to loss its right of recovery
for any loss covered by such policy, and to provide evidence of such
endorsement upon Lessor's request. Lessor agrees, to the extent is
does not act as a self-insurer, to obtain a similar endorsement from
Fire and Extended Coverage Insurer; however failure to obtain
endorsement shall not constitute a default under the terms of the
lease.
34. AMENDMENTS. No amendment to this Agreement shall be binding on
any of the parties to the Agreement unless it is in writing and
executed by all parties with the same formality as this Agreement is
executed.
35. ENFORCEABILITY. If any term, covenant or condition of this
agreement or the application thereof to any person or circumstances
shall, to any extent, be invalid or unenforceable, the remainder of
this Agreement or the application of such terms, covenants and
conditions to persons or circumstances other than those as to which it
is held invalid or unenforceable, shall be affected thereby and each
term, covenant or condition of this Agreement shall be valid and
enforced to the fullest extent permitted by law.
36. CUMULATIVE. All right, powers and privileges conferred hereunder
upon the parties shall, unless otherwise provided, be cumulative and
not restricted to those given by Law.
37. APPLICABLE LAW. This Agreement shall be construed and
interpreted under the law of the State of Georgia.
38. LIMITATION OF LESSOR'S LIABILITY. If Lessor shall fail to
perform any covenant, term or condition of this Lease upon Lessor's
part to be performed, Lessee hereby releases Lessor from any personal
liability for such default. Should Lessee, as a consequence of such
default, recover a money judgment against Lessor, such judgment shall
be satisfied only out of (I) the proceeds of sale produced upon
execution of such judgment and levy thereon against Lessor's interest
in the entire demised premises and improvements thereon, (ii) the
rents or other income from such property receivable by Lessor and
(iii) the consideration received by Lessor from the sale of all or any
part of Lessor's interest in the entire demised premises, and Lessor
shall not be liable for any deficiency. The provisions of this
article are not designed to relive Lessor from the performance of any
of its obligations hereunder, nor do they constitute a liquidated
damages clause, but rather to limit Lessor's liability in the case of
recovery of a judgment against it, as aforesaid, nor shall nay of the
provisions of this Paragraph 38 be deemed to limit or otherwise affect
Lessee's right to obtain injunctive relief or specific performance or
avail itself of any other right or remedy which may be accorded Lessee
by law or this Lease. In the event of sale or other transfer of
Lessor's right title and interest in the building of which the demised
premises are a part and an assumption of this lease by the purchaser
or transferee, Lessor shall thereafter be released from all liability
and obligations hereunder. This paragraph shall inure to the benefit
of any such purchaser or transferee.
39. EXCEPTION TO DEMISE. Notwithstanding anything to the contrary
herein contained, this Lease is subject to all easements and other
restrictions and agreements affecting the Building or Demised
Premises, both recorded and unrecorded.
40. STATEMENT OF ACCEPTANCE. After completion of the Premises in
accordance with the terms of this Lease, Lessee, prior to occupancy,
will furnish Lessor with a written statement confirming Lessee's
acceptance of the Premises and confirming the Commencement Date of the
term of this Lease.
41. HAZARDOUS SUBSTANCES. (a) the term "hazardous substance(s)" as
used in the Lease, is defined as follows:
Any element, compound, mixture, solution, particle or substance,
which presents danger or potential danger for damage or injury to
health, welfare or the environment including, but not limited to: (i)
those substances which are inherently or potentially radioactive,
explosive, ignitable, corrosive, reactive, carcinogenic, or toxic and
(ii) those dangerous to health, welfare or to the environment by any
federal, municipal, state, county or other government or
quasi-governmental authority and/or any department or agency thereof.
Lessee represents and warrants to Lessor that at all times during
the terms of this Lease and any extensions or renewals thereof, Lessee
shall:
(a) obtain Lessor's prior written consent, which consent, shall
be granted or withheld in Lessor's sole discretion, to the
manufacturing, processing, distributing, using, producing, treating,
storing (above or below ground level), disposing or allowing to be
present (the "Presence") of hazardous substances in or about the
Premises. In connection with each such consent request by Lessee,
Lessee shall submit to Lessor a description, including the
composition, quality and all other information requested by Lessor
concerning the proposed presence of any hazardous substance. Lessor's
consent to the presence of any hazardous substance may be deemed given
only by inclusion of a description of the composition and quantity of
the proposed hazardous substance on Schedule A to the Addendum to
Lease. Any hazardous substance, which Lessor has agreed to the
presence thereof, shall be deemed to be an allowed substance for
purposes of this article. Lessor's consent to the presence of any
hazardous substance at any time during the lease term or renewal
thereof shall not waive the requirement of obtaining Lessor's consent
to the subsequent presence of any other, or increased quantities of,
hazardous substance, such consent shall be deemed given only by
amendment of Schedule A to this Addendum to lease.
(b) refrain from (and prohibit others from) allowing the presence
of any hazardous substance in or about the Premises which is not an
allowed substance;
(c) promptly comply at Lessee's own cost and expense, with all
laws, orders, rules, regulations, certificates of occupancy, or other
requirements, as the same now exist or may hereafter be enacted,
amended or promulgated, or any federal, municipal, state, county or
other governmental or quasi-governmental authorities and/or any
department or agency thereof relating to the manufacturing, processing
distributing, using, producing, treating, storing (above or below
ground level), disposing or allowing to be present (the "Presence") of
hazardous substances in or about the Premises, whether or not such
substances are allowed substances.
(d) indemnify and hold Lessor, its agents, and employees,
harmless from any and all demands, claims causes of action, penalties,
liabilities, judgments, damages (including consequential damages) and
expenses including, without limitation, court costs and reasonable
attorney's fees incurred by Lessor as a result from (a) Lessee's
failure to delay in properly complying with such law, order, rule,
regulation, certificate of occupancy or other requirement referred to
in section (b) (iii), above or (b) any adverse effect which results
from the Presence of any hazardous substance in our about the
Premises, whether Lessee or Lessee's agents, employees, contractors or
any other person claiming under Lessee, with our without Lessee's
consent, has caused, either intentionally or unintentionally, the
Presence of such hazardous substance. IF any action or proceeding is
brought against Lessor, Lessee, upon notice from Lessor, will defend
such claim at Lessee's expense with counsel reasonably satisfactory to
Lessor. This indemnification by Lessee of Lessor shall survive the
termination of the Lease.
(e) promptly disclose the Lessor by delivering , in the manner
prescribed for delivery of notice in the Lease, a copy of any forms,
submissions, notices, reports, or other written documentation
(Communications) relating to the Presence of any hazardous substance
in or about the Premises, whether such Communications are delivered to
Lessee or are requested of Lessee by any federal, municipal, state,
county or other governmental or quasi-governmental authority and/or
any department or agency thereof.
(f) notwithstanding any other provisions of the Lease, allow
Lessor, and any authorized representative of Lessor, access and the
right to enter and inspect the Premises for the Presence of any
hazardous substance, at any time deemed reasonable by Lessor, without
prior notice to Lessee.
Compliance by Lessee with any provision of this special
stipulation shall not be deemed a waiver of any other provision
thereof. Without limiting the foregoing, Lessor's consent to the
Presence of any hazardous substance shall not relieve Lessee of its
indemnity obligations under the terms of this Section 41.
42. COMMENCEMENT DATE AGREEMENT. Lessor shall, not later than thirty
(30) days after Lessee takes possession of the premises, prepare and
deliver to Lessee an agreement (hereinafter the "Commencement Date
Agreement") which shall fix the date upon which the term commenced,
the date upon which the obligation to pay Base Rent and Additional
Rent commenced and the date upon which the Term shall expire.
Provided Lessee agrees with the information contained in the
Commencement Date Agreement, it shall properly execute and return said
agreement to Lessor. When fully executed and delivered the
Commencement Date Agreement shall supersede any inconsistent terms
contained in this Lease and shall be attached to this Lease as Exhibit
B.
IN WITNESS WHEREOF, the parties herein have hereunto set their
hands and seals this __________ day of October, 19____.
Signed, sealed and LESSOR: The Northwestern Mutual Life
delivered in the presence Insurance Company
of:
________________________ By: __________________________________
Witness ▇▇▇▇▇▇▇▇ Management Company, Inc.
Agent for Lessor
Signed, sealed and LESSEE: ViewCall America, Inc.
delivered in the presence
of:
_________________________ By: __________________________________
Witness
BUILDING RULES AND REGULATIONS
1. No additional locks shall be places on doors of the demised
premises by Lessee, nor shall any existing locks be changed
unless lessor is immediately furnished with two keys thereto.
Lessor will without charge furnish Lessee with two keys for each
lock existing upon the entrance doors when Lessee assumes
possession with the understanding that the termination of the
Lease these keys shall be returned.
2. Lessee will refer all contractors, contractor's representatives
and installation technicians, rendering any service on the
premises for Lessee, to Lessor for Lessor's approval and
supervision before performance of any contractual service. This
provision shall apply to all work performed in the building
including installation of telephone, telegraph equipment,
electrical devices and attachments and installations of any
nature affecting floors, walls, woodwork, trim, windows,
ceilings, equipment or any other physical portion of the
building. Nothing herein shall be construed to require Lessor to
exercise any care in the approval of supervision of any such
person or firm and is solely an agreement for benefit of Lessor.
3. No Lessee shall at any time occupy any part of the building as
sleeping or lodging quarters.
4. Less shall not place, install or operate on the demised premises
or in any part of the building, any engine, stove or machinery,
or conduct mechanical operations or ▇▇▇▇ thereon or therein, or
p;ace or use in or about the premises any explosives, gasoline,
kerosene, oil, acids, caustics, or any other flammable,
explosive, or hazardous material without written consent of
Lessor.
5. Lessor will not be responsible for loss of stolen personal
property, equipment, money or jewelry from Lessee's area or
public rooms regardless of whether such loss occurs when area is
locked against entry or not.
6. Lessee shall not at any time display a "For Rent" sign upon the
demised premise for rent.
7. Safes and other unusually heavy objects which might damage the
slab or floor structure shall be placed by Lessee only in such
places as may be approved by Lessor.
8. Windows facing on corridors and walkways shall at all times by
wholly clear and uncovered (except for curtains and such signs as
Lessor may approve) so that a full unobstructed view of the
interior of the demised premises may be had from the corridors
and walkways.
9. Lessor will not permit entrance to Lessee's offices by use of
pass key controlled by Lessor, to any person at any time without
written permission by Lessee, except employees, contractors, or
service personnel directly supervised by Lessor.
10. None of the entries, passages, doors, or hallways shall be
blocked or obstructed, or any rubbish, litter, trash, or material
of any nature placed, emptied or thrown into these areas,
including any alleyways to the rear of the leased premises, or
such areas be used at any time except for access or egress by
Lessee, Lessee's agents, employees or invitee.
11. The water closets and other fixtures shall not be used for any
purpose other than those for which they were constructed, and any
damages resulting to them from misuse, or the defacing or injury
of any part of the building shall be home by the person who shall
occasion it. No person shall waste water by interfering with the
faucets or otherwise.
12. No vehicles or animals shall be brought into the building without
Lessor's written approval.
13. No sign, tag, label, picture, advertisement, or notice shall be
displayed, distributed, inscribed, painted or affixed by the
Lessee on any part of the outside of the building or on any part
of the inside of the Premises such that it will be visible from
the outside of the building without the prior written consent of
the Lessor.
14. In the event Lessor should advance upon the request, or for the
account of the Lessee, any amount of labor, material, packing,
shipping, postage, freight, or express upon articles delivered to
the demised premises for the safety, care and cleanliness for the
demised premises, the amount so paid shall be regarded as
additional rent and shall be due and payable forthwith to the
Lessor.
15. Lessee shall not do or permit to be done within the demised
premises anything which would unreasonably annoy or interfere
with the rights of other Lessees of the building.
16. During the sixty days prior to the expiration of this Lease,
Lessor may show the demised premises to prospective Lessees and
place upon the windows or doors thereon one or more "For Rent"
signs of reasonable dimensions.
17. Lessee shall at no time during the term of this Lease maintain or
place any materials outside of the demised premises. No vehicles
shall be permanently parked or stored in the designated parking
or loading areas of the building without consent of Lessor.
18. Lessee shall keep and maintain all exterior area immediately
adjacent to the demised premises and loading facilities in a
clean and orderly manner.
19. Lessee shall abide at all time by the rules, regulations and
covenants of Oakbrook Center as they currently exist and are
amended from time to time.
Exhibit "A"
SPECIAL STIPULATIONS
Insofar as the following Special Stipulations conflict with any of the
foregoing provisions, the following shall control:
43. BASE RENT:
In further reference to Paragraph 3, "Base Rent and Security
deposit", Lessee agrees to pay Lessor as Base Rental for the
Leased Premises according to the following schedule:
Period Per SF Month Base Rent Per Annum
1/1/97 to 12/31/97 6.50 $11,578.13 $138,937.56
1/1/98 to 12/31/98 6.70 $11,934.38 $143,212.56
1/1/99 to 12/31/99 6.90 $12,290.63 $147,487.56
44. DISCLOSURE:
In further reference to paragraph 32, all parties hereto
acknowledge and agree that ▇▇▇▇▇▇▇▇ Management Company, Inc. is
acting as agent for Lessor in connection with the transactions
described herein and shall be paid a commission by Lessor ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. is acting as agent for the Lessee in this
transaction and shall be paid a commission by Lessor.
45. HVAC EQUIPMENT:
Lessee shall at all times conduct maintenance on the HVAC
equipment in the Premises in accordance with all Federal, state
or local laws. In the event that a leak occurs in any portion of
the HVAC equipment in the Premises, Lessee shall promptly repair
such leak in accordance with such Federal, sate or local laws and
shall, in any event, repair such leaks within the deadline
imposed by such Federal, state or local laws subject to any
applicable warranties. Lessee hereby agrees to indemnify, defend
and hold Lessor harmless against any and all damages,
liabilities, losses, costs and expenses, including reasonable
attorneys' fees, incurred by Lessor as a result to Lessee's
failure to conduct maintenance on the HVAC equipment in the
Premises in accordance with all Federal, state or local laws or
as a result of Lessee's failure to repair any leak in any portion
of the HVAC equipment in the Premises in accordance with Federal,
state or local laws.
Lessee shall have an annual maintenance check up performed on the
heating, ventilation and air condition systems in the demised
Premises. Lessee shall provide Lessor with a copy of the
maintenance report and shall pay for any repairs from said
check-up. Lessee shall be solely responsible for the maintenance
and up keep of the heating, ventilation and air conditioning
systems in the demised premises. Lessor shall warrant the
heating, ventilation and air conditioning systems until February
28, 1997.
46. ACCESS:
Lessor agrees to provide to Lessee access to the Premises for
renovation by November 1, 1996. No base rent or CAM shall be due
for the access.
47. RIGHT OF FIRST OFFER:
(a) Lessor and Lessee acknowledge that there is currently
approximately 10,738 square feet of space in Suite 175 in the
Building (hereinafter the "First Offer Space"), as outline on
Exhibit "D" of this Lease. Lessor acknowledges that Lessee may
wish to expand the Premises and lease the First Offer Space.
Lessee, however, acknowledges that Lessor must be in a position
to lease the First Offer Space to other tenants. In order to
accommodate Lessee's desire regarding the First Offer Space and
Lessor's requirements for a future lease of the First Offer
Space, Lessor shall grant to Lessee the Right of First Offer to
lease the First Offer Space in accordance with the terms and
conditions contained herein. In the event Lessor obtains a
written offer from a prospective tenant to lease the First Offer
Space and Lessor desires to accept such offer, then Lessor shall
submit to Lessee in writing all of the material terms and
conditions of such proposed offer to lease (hereinafter referred
to as the "Offer") and Lessee shall have the right and option to
lease the First Offer Space covered by the Offer upon the
following terms and conditions:
1) In no event shall the lease term for the First Offer Space
be less than thirty-six (36) months.
2) In the event the lease term for the First Offer Space
extends beyond the expiration date of the Lease, the Lease shall
be extended so that the lease terms for both spaces are
coterminous.
3) The Base Rental for the First Offer Space shall be at least
the rate which Lessee is paying for Suite 165. In the event the
Offer includes tenant improvements to the First Offer Space, Base
Rental shall be adjusted so that the rent to be paid by Lessee
for the First Offer Space is based on "As-Is" condition of the
space.
If Lessee shall elect to exercise its right to lease the First
Offer Space covered by the Offer, written notice of such election
shall be give to Lessor within five (5) business days from the
time that Lessee first received a copy of the Offer from Lessor
(hereinafter referred to as the "Offer Period"), which notice by
Lessee shall specify a date that Lessee shall lease the space
covered by the Offer, which date shall be not less than thirty
(30) nor more than ninety (90) days after the giving of notice
thereof.
b) Upon exercise of its right to lease the First Offer Space covered
by the Offer, Lessor and Lessee shall enter into a written
agreement modifying and supplementing this Lease and specifying
that the First Offer Space is a part of the Premises under this
Lease and containing other appropriate terms and provisions
relating to the addition of such area to this Lease, including,
without limitation, increasing, adjusting or augmenting Rent as a
result of the addition of such space.
c) If a right to Lease pursuant to this Section shall not be
exercised within the Offer Period or shall be waived (no notice
is deemed to be a waiver of such right), then Lessor shall have
the right to offer such space to the prospective tenant, and if
such transaction is consummated, Lessee's rights under this
Section shall automatically terminate and be of no further force
or effect. If a right to lese pursuant to this Section shall not
be exercised within the Offer Period or shall be waived (no
notice is deemed to be a waiver of such right), and Lessor fails
to lease the space covered by the Offer within six (6) months
after Lessor's submission of a copy of the Offer to Lessee, then
this section shall be applicable to any subsequent offer to lease
the First Offer Space.
d) Notwithstanding the foregoing Right Of First Offer and any other
provision of this Lease to the contrary, such Right of First
Offer is conditioned upon this Lease being in full force and
effect and there being no default under this Lease. If Lessee
fails to exercise the foregoing Right of First Offer as provided
in and in strict accordance with the terms of this Section, or if
the condition above is not entirely satisfied, the foregoing
Right of First Offer shall automatically terminate and be of no
further force or effect, or if exercised, shall be null and void.
e) Lessee shall not have the right to assign its Right of First
Offer to any sublessee of the Premises or any portion thereof or
to any assignee of this Lease, nor may any such sublessee or
assignee exercise or enjoy the benefit of such Right of First
Offer.
f) Notwithstanding any other term or provision of this Section or
elsewhere in the Lease, expressed or implied, it is understood
and agreed by the Lessee that , (i) Lessor shall not be liable
for the failure or inability of Lessee to exercise or benefit
from any or all rights granted in this Section with respect to
said First Offer Space or any portion thereof by reason of such
superior rights and options of the existing lessees, and (ii)
Lessee shall not be entitled to any compensation, consolation,
consideration, replacement of such space, or any other remedy
from or against Lessor by reason of such failure or inability.
48. RENEWAL OPTION:
As long as Lessee is not then in default and has fulfilled each
and every provision of this Lease, Lessee shall have the option,
with written notice to Lessor by October 1, 1999, to extend this
Lease for three additional years at the then market rent for
comparable space in Gwinnett County, Georgia. This option is not
assignable to another entity and is based on "as is" condition of
the Premises.
49. CONDEMNATION:
Notwithstanding the provisions of Article 13 of the Lease, Lessee
shall be entitled to retain any condemnation proceeds which are
separately awarded to Lessee or which are otherwise available
under applicable law, including but not limited to Lessee's
moving costs and other costs of relocation or the interruption of
or damage to Lessee's business.
50. INDEMNIFICATION:
Notwithstanding the provisions of Article 15 of this Lease,
Lessee shall not be required to defend, indemnify and hold
harmless Lessor from any liability for injury, loss, accident,
claims or damage to any person or property resulting from the
gross negligence of Lessor, its agents, contractors, servants,
employees, or licensees in connection with Lessor's activities on
the Premises. Lessor agrees to defend, indemnify, and hold
harmless Lessee from and against any and all claims arising from
the gross negligence of Lessor, its agents, contractors,
servants, employees and licensees. Such exclusion from Lessee's
indemnity obligation and such agreement by Lessor to indemnify
Lessee are not intended to and shall not relieve any insurance
carrier of its obligations under policies required to be carried
by Lessee pursuant to the Lease to the extent such policies cover
the gross negligence of Lessor or its agents, contractors,
servants, employees, or licensees; provided, however, that this
sentence shall in no way be construed to imply the availability
of any double or duplicate coverage following the primary
liability of such carrier. Lessee waives no claim for damages or
other relief against Lessor arising as a result of Lessor's gross
negligence.
51. ASSIGNMENT OR SUBLETTING:
Notwithstanding the provision of Article 18 of this Lease, Lessee
shall have the right, without prior consent of the Lessor, to
assign this Lease or sublet the whole or any part of the premises
to a corporation of entity which: 1) is Lessee's parent
corporation; or 2) is a wholly owned subsidiary of Lessee or
Lessee's parent corporation; or 3) is a corporation of which
Lessee or Lessee's parent corporation owns in excess of fifty
percent (50%) of the outstanding capital stock; or 4) as a result
of consolidation or merger with Lessee and/or Lessee's parent
corporation; or 5) a corporation to which substantially all of
Lessee's assets may be transferred. Any transfer pursuant to
1,2,3,4 or 5 above, shall be subject to the following conditions:
a) Lessee shall remain fully liable during the unexpired term of
this Lease; and b) any such assignment, sublease or transfer
shall be subject to all of the terms, covenants and conditions of
this Lease, and such assignee, sublessee or transferee shall
expressly assume the obligations of Lessee under the Lease by a
document reasonably satisfactory to Lessor.
52. IMPROVEMENTS
Lessor shall close openings in the demising wall to demise the
Premises and separate it from Suite 175 at its sole cost and
expense. Except for these improvements, Lessee shall accept the
Premises in "as-is" condition.
EXHIBIT "B"
COMMENCEMENT DATE AGREEMENT
Mr. ▇▇▇▇ ▇▇▇▇▇
ViewCall America, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Commencement Date Agreement - to the Lease dated October _____,
1996, between ViewCall America, Inc. and the Northwestern Mutual
Life Insurance Company.
Dear ▇▇▇▇:
The Commencement Date for the Lease noted for the Premises located at
Oakbrook Place, more particularly known as Suite 165 at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, is hereby set as January 1, 1997.
The base rental shall be paid as follows:
Base Rental Schedule
Period Per SF Month Base Rent Per Annum
1/1/97 to 12/31/97 6.50 $11,578.13 $138,937.56
1/1/98 to 12/31/98 6.70 $11,934.38 $143,212.56
1/1/99 to 12/31/99 6.90 $12,290.63 $147,487.56
Please acknowledge your acceptance of the above by signing below and
returning this letter to me. We are pleased to have you at Oakbrook
Place. If we can be of assistance, please do not hesitate to call.
Sincerely,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Agreed to this _______ day of _______________, 19____.
____________________________
(Signature)
EXHIBIT "C"
FLOOR PLAN
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
21,375 SF
EXHIBIT "D"
SITE PLAN
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
21,375 SF
EXHIBIT "E"
SIGN CRITERIA
All Lessees at Oakbrook Place will be allowed to install a Lessee
identification sign for their Premises as follows:
1. Front elevation sign shall consist of individual non-illuminated
brushed aluminum letters with a maximum height of 12". Company
logo will be permitted in same constructions with maximum size of
12" x 12".
2. Rear and front door lettering to consist of vinyl die cut letters
reading Lessee name and Suite number with maximum height of 3".
Only a flat white color is acceptable unless approved by Lessor.
3. Lessee shall be responsible for all costs incurred for
fabrication and installation of Lessee's signs.
4. Before installation of signage, Lessee must submit to Lessor a
detailed sketch and layout of proposed signage for Lessor's
written approval.
EXHIBIT "F"
Schedule "A"
FIRST AMENDMENT TO LEASE
STATE OF GEORGIA
COUNTY OF GWINNETT
THIS, First Amendment to Lease, made and entered into this ______ day
of October, 1996 by and between the NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY hereafter referred to as "Lessor" and VIEWCALL AMERICA, INC.,
hereafter referred to as "Lessee"/
WITNESSETH:
WHEREAS, Lessor and Lessee entered into a Lease Agreement dated
October 21, 1996 for the Premises located at Suite 165 at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ initially containing 21,375
square feet (hereinafter referred to as "Lease");
WHEREAS, Lessor and Lessee desire to further amend the Lease in
certain respects and to ratify and confirm all provisions of the Lease
Agreement;
NOW THEREFORE, in consideration of the Premises, the sum of ten and
no/100 dollars ($10.00) in hand paid by Lessee to Lessor, and for
other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. EXPANSION
2. The Premises shall be expanded to include Suite 175 containing
10,738 square feet. The new size of the Premises shall be
32,113 square feet.
3. FIRST RIGHT OF OFFER
4. Since the Premises will now include ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇ 47,
First Right Offer, page 16 of the lease, is hereby deleted and is
of no further force and effect.
5. REVISED BASE RENT
In further reference to Paragraphs 1 and 43 of the Lease,
Paragraph 43 is hereby deleted and the revised schedule for Base
Rent in the Premises shall be the following:
Period Per SF Month Base Rent Per Annum
1/1/97 to 1/31/97 $4.33 $11,578.13 $138,937.56
2/1/97 to 12/31/97 $6.50 $17,394.54 $208,734.48
1/1/98 to 12/31/98 $6.70 $17,929.76 $215,157.12
1/1/99 to 12/31/99 $6.90 $18,464.98 $221,579.76
4. REVISED COMMENCEMENT DATE LETTER:
A revised Commencement Date Letter reflecting the above terms is
now included as Exhibit A, attached.
5. IMPROVMENTS:
Paragraph 52, Improvements, is hereby deleted and is of no
further force and effect.
Signed, sealed and LESSOR: The Northwestern Mutual Life
delivered in the presence Insurance Company
of:
_________________________ By: __________________________________
Witness ▇▇▇▇▇▇▇▇ Management Company, Inc.
Agent for Lessor
Signed, sealed and LESSEE: ViewCall America, Inc.
delivered in the presence
of:
__________________________ By: __________________________________
Witness
EXHIBIT "A"
COMMENCEMENT DATE AGREEMENT
Mr. ▇▇▇▇ ▇▇▇▇▇
ViewCall America, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Commencement Date Agreement - to the Lease dated October _____,
1996, between ViewCall America, Inc. and the Northwestern Mutual
Life Insurance Company.
Dear ▇▇▇▇:
The Commencement Date for the Lease noted for the Premises located at
Oakbrook Place, more particularly known as Suite 165 at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, is hereby set as January 1, 1997.
The base rental shall be paid as follows:
Base Rental Schedule
Period Per SF Month Base Rent Per Annum
1/1/97 to 1/31/97 $4.33 $11,578.13 $138,937.56
2/1/97 to 12/31/97 $6.50 $17,394.54 $208,734.48
1/1/98 to 12/31/98 $6.70 $17,929.76 $215,157.12
1/1/99 to 12/31/99 $6.90 $18,464.98 $221,579.76
Please acknowledge your acceptance of the above by signing below and
returning this letter to me. We are pleased to have you at Oakbrook
Place. If we can be of assistance, please do not hesitate to call.
Sincerely,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
Agreed to this _______ day of _______________, 19____.
____________________________
(Signature)