LEASE AGREEMENT
Exhibit
10.45
STATE
OF
GEORGIA
COUNTY
OF
DEKALB
THIS
LEASE,
made
this 13th
day of
January, 2000 by and between BSRT Phoenix Business Park LLC, an Illinois limited
liability company (hereinafter called “Lessor”) and LightNetworks,
Inc.,
(hereinafter called “Lessee”).
WITNESSETH:
WHEREAS,
Lessor
is
the owner of Phoenix Business Park (hereinafter called the “Business Park”, said
Business Park, the parcel of land upon which it and its amenities are situated
and all improvements and betterments of any nature thereon are hereinafter
collectively called the “Property”); and
WHEREAS,
Lessee
wishes to lease from Lessor space known as 0000
XX Xxxxxxxxxx, Xxxxxxxx X, Xxxxx X-000, Xxxxxxx, XxXxxx Xxxxxx, XX
00000
of the
Business Park, as outlined on the diagram marked Exhibit
A
attached
hereto and by this reference incorporated herein (hereinafter 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, the Lessee does hereby lease from Lessor, the Premises. Except
as otherwise provided in this lease Lessee hereby accepts the Premises in their
condition existing as of the date hereof.
FOR
AND
IN CONSIDERATION
of the
leasing of the premises as aforesaid, the parties hereby covenant and agree
as
follows:
| 1. |
TERM.
The term (hereinafter called the “Lease Term”) of this Lease shall
commence on the
earlier of substantial completion or May 1, 2000 (hereinafter
called the “Commencement Date”) and, unless sooner terminated pursuant to
the provisions hereof, shall expire at midnight at
the end of the 66th
(sixty sixth full month, (See Special
Stipulations.)
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| 2. |
RENT.
|
| 2.1 |
Lessee
agrees to pay an annual base rental (hereinafter called “Annual Base
Rental”) for each year during Lease Term determined in accordance with
this Paragraph. During the first year of the Lease Term, Annual Base
Rental shall be (see
Special Stipulations).
The Annual Base Rental for each subsequent year of the Lease Term
shall
adjust according to the Rent Schedule described on Exhibit C and
by this
reference incorporated herein. If the final period of the Lease Term
is
not equal to one year, Annual Base Rental for such partial year shall
be
prorated based on a 30 day month and a 360 day
year.
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| 2.2 |
Annual
Base Rental shall be paid in equal monthly installments (hereinafter
called “Base Rent”), said Base Rent to be paid in advance on the first day
of every calendar month (except that the first month’s rent shall be paid
at the time this Lease is executed). For any partial month, Base
Rent
shall be adjusted on the basis of a 30 day
month.
|
| 2.3 |
Upon
execution of this Lease by Lessee, Lessee shall pay a deposit in
the
amount of Eighteen
thousand one hundred and thirty four dollars and eighty eight cents
($18,134.88)
(hereinafter called the “Security Deposit”), which Security Deposit may be
applied by Lessor towards (but not necessarily in satisfaction of)
Lessor’s damage or injury by virtue of any default by Lessee in the
performance of Lessee’s covenants and obligations under this Lease. If at
the expiration or other termination of this Lease the Security Deposit
has
not been previously applied and Lessee is not in default of any of
its
covenants, the Security Deposit shall be returned to Lessor without
interest.
|
| 2.4 |
If
Lessee shall commit more than two defaults of this Lease within any
twelve
month period, irrespective of whether such default is cured, then,
without
limiting the other rights and remedies of Lessor hereunder, the Security
Deposit shall be automatically increased by 100 percent of its current
amount and such increased amount shall be paid by Lessee to Lessor
within
five (5) days of written
notice from Landlord of said
default. Failure of Lessee to timely increase the Security Deposit
as
aforesaid shall be a default
hereunder.
|
| 2.5 |
Lessee
shall pay the rent and all other sums, amounts, liabilities and
obligations which Lessee herein assumes or agrees to pay or is liable
for
(whether designated Base Rent, additional rent, Common costs, taxes,
insurance, costs, expenses, damages, loses, or otherwise) (all of
which
are hereinafter called “Amount Due”) promptly at the time and in the
manner herein specified without deduction, setoff, abatement, counterclaim
or defense, and regardless of whether or not the Lease Term has previously
ended. If any Amount Due is not received by Lessor on or before the
date
on which the same is due, Lessee shall pay Lessor interest on such
Amount
Due from the date on which the same was due until the date the same
in
actually paid at a rate per annum equal to the lessor of (i) the
prime
rate of interest announced by NationsBank, Atlanta, Georgia (or successor
thereto) from time to time plus five percent (5%) or (ii) the maximum
rate
permitted by applicable usury law. Any Amount Due shall be paid at
such
place or places as Lessor may from time to time designate in
writing.
|
| 3. |
TAXES
AND INSURANCE STOPS; COMMON COST
RECOVERY
|
| 3.1 |
For
every whole or partial calendar year during the Lease Term, Lessee
agrees
to pay as additional rent the excess of actual Taxes over the Tax
Base,
“Actual Taxes” means the result obtained by (i) dividing Taxes by the Area
of the Business Park, and (ii) multiplying the result by the Area
of the
Premises. “Area of the Premises” means 26,378
square feet, plus any subsequent additions thereto. “Area of the Business
Park” shall mean the area of all space in the Business Park (including
expansions thereof, if any), which is presently 110,639
square feet. “Taxes for any calendar year shall mean (i) personal property
taxes imposed upon the Property or any part thereof, (ii) real estate
taxes, assessments, sanitary taxes, and any other governmental charge,
general or special, ordinary or extraordinary, now or hereafter levied
or
assessed against or allocable to the Property or any portion thereof,
or
Lessor, as owner of the Property, and (iii) fees and charges of
consultants incurred by Lessor with respect to items (i) and (ii)
of this
sentence to the
extent that it reduces taxes.
“Tax Base” means the product obtained by multiplying the Area of the
Premises by Base
Year 2000 Taxes
divided by Area of the Business
Park.
|
| 3.2 |
For
every whole or partial calendar year during the Lease Term, Lessee
agrees
to pay as additional rent the excess of Actual Insurance Premiums
over the
Insurance Base. “Actual Insurance Premiums” means the result obtained by
(i) dividing Lessor’s Insurance Premiums by the Area of the Business Park,
and (ii) multiplying that result by the Area of the Premises. “Lessor’s
Insurance Premiums” means the premiums charged by Lessor’s insurers for
Lessor’s Insurance during the calendar year in question. “Lessor’s
Insurance” means insurance carried by Lessor attributable or allocable to
the Property for fire and extended coverage insurance, public liability
and property damage insurance, rent loss insurance, and any other
insurance which Lessor is required to carry by the holder of any
Mortgage
on the Property or any part thereof. “Insurance Base” means the product
obtained by multiplying the Area of the Premises by Base
Year 2000
Lessor’s Insurance Premium divided by Area of the Business
Park.
|
| 3.3 |
For
any partial calendar year payments under Paragraphs 3.1 and 3.2 shall
be
prorated based on the actual number of days in such partial year.
If
Actual Taxes for any calendar year are less than the Tax Base, no
payment
shall be due under Paragraph 3.1, nor will Lessor have any obligation
to
make any payment or reimbursement to Lessee on account thereof. If
Actual
Insurance Premiums for any calendar year are less than the Insurance
Base,
no amount shall be due Lessor under Paragraph 3.2 nor will Lessor
have any
obligation to make any payment or reimbursement to Lessee on account
thereof. Lessor will send Lessee a statement of statements showing
amounts
due under Paragraph 3.1 or 3.2 as the case may be, and the amounts
reflected on any such statements shall be due and payable in full
30 days
after any such statement is mailed by Lessor; provided, however,
that for
the calendar year in which the Lease Term expires, Lessor may xxxx
Lessee
under Paragraph 3.1 and 3.2 for such partial calendar year at any
time
within 60 days prior to the expiration of the Lease Term, with said
xxxx
or bills being due and payable on the earlier of 30 days after mailing
thereof or the day the Lease Term expires, said xxxx or bills to
be bsed
on Lessor’s estimate of the amount due Lessor, with an appropriate
adjustment or adjustments being made a t such time as actual figures
are
available.
|
| 3.4 |
For
every whole or partial calendar year during the Lease term, Lessee
agrees
to pay as additional rent Lessee’s Proportionate Share of Common Costs, as
hereinafter set forth.
|
| 3.4.1 |
“Lessee’s
Proportionate Share of Common Costs” means the result obtained by (i)
dividing Common Costs by the Area of the Business Park, and (ii)
multiplying that result by the Area of the Premises. “Common Costs” mean
(a) all expenses incurred by Lessor allocable or attributable to,
or for
the operation and maintenance of the Property, or any part thereof,
other
than Taxes and Lessor’s Insurance Premiums, including, without limitation,
costs incurred for property management; lighting; painting; policing
of
common areas; interior and exterior cleaning; traffic control; driveway,
sidewalk and parking lot maintenance; garbage or debris collection
and
removal; landscape maintenance and replacement; and utility line
maintenance and replacement; and electric, water and sewer charges
not
separately metered to lessees of the Business Park, and (b) and all
levies, assessments, special assessments, dues and other charges
allocable
to the Property by virtue of any owner’s association or similar group of
which Lessor is a part, the Property’s share of costs of maintenance and
repair of common amenities (such as roadways, lakes streams, paths,
and
entrances) for the Project known as Phoenix Business Park, of which
the
Property is a part, including any expansions of the Project, and
covenants, restrictions or other agreements affecting the Property
or any
portion thereof, including those described in Section 23
hereof.
|
| 3.4.2 |
From
and after the Commencement Date, Lessee agrees to pay Lessor on the
first
day of each month during the Lease Term a sum equal to one-twelfth
of
Lessor’s estimate of Lessee’s Proportionate Share of Common cost for the
calendar year (or portion thereof) in question. For the calendar
year in
which the Commencement Date occurs, Lessor’s estimate of Lessee’s
Proportionate Share of Common Costs shall be deemed to be $.50
per square foot times the Area of the Premises. For each subsequent
calendar year or portion thereof during the Lease Term, Lessor will
provide Lessee with an estimate of Common Costs and a calculation
of the
monthly payment due under this subparagraph 3.4.2. If Lessor does
not
provide said data prior to January 1 of the calendar year in question,
Lessee shall continue paying monthly amounts from the previous calendar
year until a new estimate is provided, at which time Lessee shall
pay any
shortfall for previous months (or take a credit against subsequent
payments). For any period of less than a month, an appropriate proration
will be made based on the actual number of days involved.
Lessee’s responsibility to pay any increases in Common Costs shall be
limited to no more than a 10% (ten percent) increase over the previous
years actual Common costs.
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| 3.4.3 |
After
each calendar year, Lessor will furnish Lessee with a statement of
Lessee’s Proportionate Share of Common Costs for such year. If Lessee’s
Proportionate Share of Common Costs exceeds the estimated payments
made by
Lessee under subparagraph 3.4.2 for the year in question. Lessee
will pay
such excess within 30 days after Lessor’s statement is mailed; if said
estimated payments exceed Lessee’s Proportionate Share of Common costs,
the overpayment will be credited against the next payments coming
due
under subparagraph 3.4.2 hereof. For any partial calendar year, an
appropriate proration will be made based on the actual number of
days
involved.
|
| 3.5 |
The
payment obligations set forth in this Section 3 shall survive the
expiration of the Lease Term.
|
4.
USE.
4.1
Lessee
shall use the Premises only for office/warehouse purposes, and for no other
purpose without the prior written consent of Lessor. Lessee shall operate its
business at the Premises in a reputable manner in compliance with all applicable
laws, ordinances, Business Park rules, 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 or the Common Areas, or annoy
or disturb any persons occupying other parts of the Property.
4.2 Lessee
shall not install any equipment that will exceed or overload the capacity of
the
Business Park, or the utility facilities located at the Premises. If any
equipment installed by Lessee shall require additional utility facilities,
the
same shall be installed by Lessor at Lessee’s expense in accordance with plans
and specifications approved by Lessor prior to installation.
4.3 Lessee
shall not, and shall not allow or suffer (whether intentionally or ortherwise),
any Hazardous Substance to be introduced, kept, stored, created, emitted,
released, impregnated or discharged into, on or in the Property (including
sanitary and storm sewer systems), the Business Park or the Premises. As used
herein “Hazardous Substance” means any hazardous, toxic or dangerous waste,
substance or material, whether or not in excess of maximum levels set by any
governmental or other authority, including, but not limited to the cost of
removal of any Hazardous Substance from the Property, the Business Park, or
the
Premises; the cost of repairing and restoring the same; loss, expense or damage
relating to the existence of any Mortgage (including cost of compliance with
lender requirements and damage caused by default, acceleration or foreclosure);
reimbursement for any fines or impositions imposed by any governmental
authority, agency or court; and the cost of complying with the requirement
of
any governmental authority, agency or court. Lessee,
at Lessee’s cost and risk will be permitted to store and use reasonable
quantities of fuel for Lessee’s generator and the storage and use of reasonable
quantities of UPS batteries. The storage, use and location of said items will
meet all governing and regulating authorities’ requirements and will need to be
approved by Lessor, which shall not be unreasonably
withheld.
5.
UTILITIES.
5.1 Lessee
shall pay for electricity, gas, telephone and other utility service supplied
to
the Premises.
5.2 Unless
due lessor’s gross negligence,
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, resulting directly or indirectly from the installation, use
or
interruption of any utility service to the Premises or Property. No temporary
interruption of services shall relieve Lessee from fulfillment of any covenant
of this Lease or constitute a constructive eviction.
6.
MAINTENANCE.
|
6.1
Lessor shall keep the roof foundation, exterior walls and all sewer
and
utility lines to the Business Park in good order and repair, except
as to
damage to which Section 14 is
applicable.
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6.2 Lessor
shall have no obligation to make any repairs unless and until Lessee notifies
Lessor in writing of the necessity thereof, in which event Lessor shall have
a
reasonable time in which to make such repairs.
6.3 Lessee
shall keep the Premises maintained free from all litter, dirt, debris and
obstructions and in a clean and sanitary condition. Notwithstanding anything
herein to the contrary, Lessee shall maintain, replace and repair any
improvements (including, but not limited to, utility lines, sewer connections,
plumbing, wiring and glass) which are or were installed for Lessee. Lessee
will
purchase, keep in force and provide Lessor with a copy of a maintenance
agreement in form and substance satisfactory to Lessor, from a contract
satisfactory to Lessor, covering the heating and air conditioning equipment
serving the Premises. At the expiration or other termination of this Lease,
Lessee shall surrender the Premises (and keys thereto) in as good condition
as
when received, ordinary wear and tear only accepted. Lessor
shall warrant all HVAC equipment for a period of one year from the Commencement
Date of this Lease.
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7.
|
FORCE
MAJEURE. In the event that Lessor shall be delayed or hindered in
or
prevented from the performance of any act required hereunder by reason
of
strikes, lock-outs, labor troubles, inability to procure materials,
failure of power, restrictive government laws or regulations, riots,
insurrection, war or other reason of a like nature (other than for
financial reasons) not the fault of Lessor, then performance of such
act
shall be excused for the period of the delay and the period for the
performance of such act shall be extended for a period equivalent
to the
period of such delay. The provisions of this Section 7 shall not
cancel or
postpone or delay the due date of any payment to be made
hereunder.
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|
8.
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PROPERTY
AND LIABILITY INSURANCE.
|
8.1 Throughout
the Lease Term, Lessor will insure the Business Park (excluding foundations
and
excavations) and the machinery and equipment contained therein owned by Lessor
(excluding any property with respect to which Lessee is obligated to insure
pursuant to Paragraph 8.3 below) against damage by fire, lightning, explosion
and extended coverage, in amounts and with carriers satisfactory to Lessor.
All
property of Lessee, Lessee’s agent, servants, employees, invitees, licensees,
contractors, subcontractors, or any other person, shall be on the Premises
at
the risk of Lessee only, and Lessor shall not be responsible therefor.
Upon
written notice from lessee, Lessor shall provide Lessee written proof of
insurance.
8.2 Lessee
shall comply with all insurance regulations so the lowest fire, lighting,
explosion, extended coverage and liability insurance rates available for the
Business Park may be obtained by Lessor, and nothing shall be done or kept
in or
on the Premises by Lessee which will cause cancellation of any such insurance
or
increase the rate thereof, or threat thereof. Lessee shall remedy any condition
giving rise to such cancellation, reduction or cost increase or threat thereof
within five
(5) days
after
notice thereof by Lessor.
8.3 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,
and with Lessee, Lessor and Lessor’s mortgages named as additional insurers
therein as their respective interests may appear, all insurance required by
law
and such insurance as is reasonably required by Lessor for risks against which
a
prudent tenant would protect itself, including, without limitation, the
following:
8.3.1 Upon
property of every description and kind owned by Lessee and located at the
Property or for which Lessee is legally liable or installed by or on behalf
of
Lessee, including, without limitation, furniture, fittings, installations,
alterations, additions, partitions and fixtures, in an amount not less than
one
hundred percent (100%) of the full replacement cost thereof.
8.3.2 Public
liability insurance in an amount not less than $2,00,000.00 for any one
occurrence or such higher limits as Lessor may reasonably require from time
to
time; such insurance shall include a waiver of subrogation clause in favor
of
Lessor and 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.
8.4 All
insurance policies shall be taken out with companies licensed and registered
to
operate in the State of Georgia acceptable to Lessor and in form satisfactory
to
Lessor. Lessee shall deliver certificates evidencing such insurance policies,
and any endorsement, rider or renewal thereof, to Lessor; certificates
evidencing renewals shall be delivered to Lessor in no event less than thirty
(30) days prior to any material change, cancellation or termination
thereof.
| 9. |
ALTERATIONS
AND IMPROVEMENTS.
|
|
The
agreements of Lessor and Lessee concerning the work necessary to
prepare
the Premises for occupancy are set forth in the Special
Stipulations, further identified as Exhibit “B’
attached.
|
| 9.2 |
Other
than the matters specified in this Lease, Lessee shall not make any
alterations, additions or improvements in or to the Premises, nor
install
or attach fixtures in or to the Premises, without the prior written
consent of Lessor which
shall not be unreasonably withheld, excepting alterations of cosmetic
nature not exceeding $10,000.00 (ten thousand dollars) in
cost.
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, strictly in accordance with the plans and
specifications approved by Lessor. Prior to the commencement of any
such
work by Lessee, 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, public liability
insurance and property damage insurance, all in amounts satisfactory
to
Lessor are in force and effect and maintained by all contractors
and
subcontractors engaged by Lessee to perform such
work.
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| 9.3 |
Lessee
shall keep the Premises free from all liens, rights to liens or claims
of
liens of contractors, subcontractors, mechanics or materialmen for
work
done or materials furnished to the Property at the request of Lessee.
If
any claim of lien, or other statutory notice relating to mechanics
and
materialmen’s liens, is filed, Lessor may, but shall not be obligated to,
discharge the same either by paying the amount claimed to be due
or by
procuring the discharge of such lien or statutory notice by deposit
or by
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
on demand. Lessee shall not have the authority to subject the interest
or
estate of Lessor or the Property or any part thereof to any liens,
right
to liens or claims of liens for services, materials, supplies or
equipment
furnished to Lessee.
|
|
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,
office equipment and appliances put in at the expense of Lessee,
shall be
the property of Lessor, and shall remain upon and be surrendered
in good
condition with the Premises at the expiration or other termination
of this
Lease.
|
| 10. |
ASSIGNMENT
OR SUBLETTING.
|
| 10.1 |
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. Any
consent by Lessor under the preceding sentence shall not be deemed
to be a
consent to any subsequent event within the scope of the preceding
sentence. An assignment of stock, membership units, general partnership
or
other ownership interest in Lessee, or any merger, consolidation
or other
corporate reorganization shall be deemed an assignment within the
meaning
of this Paragraph. Lessee
will provide Lessor notice of such assignment of stock that does
not
require Lessor’s approval. Notwithstanding, Lessee and Assignee shall be
liable for the performance of all terms and conditions of this
Lease.
|
| 10.2 |
If
Lessee shall make any assignment of this lease or shall make any
subletting hereunder in any way not authorized by the terms hereof,
the
acceptance by Lessor of any rent or other Amount Due from any person
claiming as assignee, sublessee or otherwise shall not be construed
as a
recognition of or consent to such 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 rent or any other
Amount
Due under this Lease from any person offering to pay the same without
thereby acknowledging the person so paying as a Lessee in place of
Lessee
hereinabove named, and without releasing said Lessee from the obligations
of this lease, but the same shall be taken to be a payment on account
by
Lessee.
|
| 10.3 |
In
the case of any assignment consented to or permitted by Lessor hereunder,
at the time of such assignment Lessee shall pay Lessor as consideration
therefor, as Additional Rent, an amount equal to all sums and other
consideration paid to Lessee by the assignee for or by reason of
such
assignment (including any sum paid for the sale, rental or use of
Lessee’s
property) less the reasonable brokerage commissions and legal fees,
if any
actually paid by Lessee to unaffiliated third parties in connection
with
such assignment. In the case of any subletting consented to or permitted
by Lessor hereunder, at the time of such subletting, Lessee shall
pay
Lessor as consideration therefore, as additional rent, an amount
equal to
any rents, additional charges or other consideration payable under
the
sublease to Lessee by the subtenant (including any sums paid for
the sale,
rental or use of Lessee’s property) which are in excess of the Base Rent
during the term of the sublease in respect of the subleased space,
less
the reasonable brokerage commissions retrofitting
costs
and legal fees, if any, actually paid by Lessee to unaffiliated third
parties in connection with such
subletting.
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| 11. |
DEFAULTS.
|
| 11.1 |
In
the event that (i) the Base Rent or any additional rent herein reserved,
or any part thereof, or any other Amount Due, shall not be paid when
due
and within
five (5) days after written notice from Lessor,
or (ii) Lessee shall fall to comply with any of the other terms,
covenants, conditions or agreements herein contained or in any of
the
rules and regulations now or hereafter established for the government
or
operation of the Business Park, or (iii)Lessee shall fail to comply
with
any term, provision, condition or covenant of any other agreement
between
Lessor and Lessee within thirty (30) days after written notice from
Lessor, or (iv) Lessee makes an assignment for the benefit of creditors,
fails to pay its debts as they mature, seeks, prepares to seek, or
has
filed against it, any petition for relief under any federal, state
or
other bankruptcy, debtor relief or insolvency law now or hereafter
enacted, or a receiver or trustee is appointed for any substantial
portion
of lessee’s assets or business; then, in any such event, Lessor shall have
the option, but not the obligation, to do any or more of the
following:
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| 11.1.1 |
Terminate
this Lease, in which event Lessee shall surrender the Premises to
Lessor
immediately without further notice or demand; and Lessor may, without
further notice or demand, thereupon enter the Premises and take possession
of same, and expel, remove and put out of possession Lessee and its
effects, using such help, assistance and force in so doing as may
by
needful and proper, without being liable for prosecution or damages
therefore, and without prejudice to any other remedy allowed in such
cases. If Lessor exercises its rights under this subparagraph 11.1.1,
Lessee agrees that in addition to any other recovery permitted hereunder
or by law, Lessor shall be entitled to recover all Amounts Due (with
interest as herein provided) plus fees and costs under Section 28
hereof,
as elements of Lessor’s damages.
|
| 11.1.2 |
Without
terminating this Lease and without in any way diminishing Lessee’s
liability for the payment of all Annual Base Rental, additional rent
and
all other Amounts Due, whether past due or which come due during
the
remainder of the Lease Term (except for the credit for rentals collected
upon reletting set forth in the next sentence), retake possession
of the
Premises (whether by self-help, dispossessory or eviction proceeding
or
otherwise), and , if Lessor desires to do so (though it shall have
absolutely no obligation to do so), rent same, or any part thereof,
for
Lessee’s account 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. In the event Lessor does relet the Premises pursuant to
this
Paragraph, whether or not Lessor elects to collect liquidated damages
hereunder, all rent received by Lessor from such reletting during
the
Lease Term shall be applied as follows: first, to the payment of
any
Amount Due other than Base Rent; second, to the payment of any costs
and
expenses of such reletting, including but not limited to brokerage
fees,
attorney’s fees, and costs of such changes, improvements, alterations and
repairs; third to Base Rent due and unpaid hereunder; fourth, any
residue
shall be held by Lessor and applied in payment of future rent or
damage as
the same may become due and payable hereunder; and fifth, when all
of
Lessee’s obligations have been satisfied, any balance remaining shall be
paid to Lessee. In the event lessor exercises its rights under this
Paragraph 11.1.2. at Lessor’s sole option Lessee shall pay Lessor upon
demand as liquidated damages for Lessee’s breach and not as a penalty, an
amount equal to the sum of (i) all unpaid Annual Base Rental discounted
at
the rate of six (6%) percent per annum from the date each installment
is
due hereunder, plus (ii) all Amounts Due (with interest as herein
provided), plus (iii) fees and costs as provided in Section 28 hereof.
It
is the express intent of the parties that the liquidated damages
provided
for in the preceding sentence be treated as a full liquidation of
damages
for such breach, the parties agreeing that said liquidated damages
are a
fair and reasonable pre-estimate of Lessor’s damages and that the actual
amount of damages sustained by Lessor in the event of breach is not
readily ascertainable.
|
| 11.1.3 |
Correct
or cure such default and recover such amount expended as an Amount
Due
hereunder.
|
| 11.1.4 |
Recover
any and all costs incurred by Lessor resulting directly, indirectly,
proximately or remotely from such default, including, but not limited
to
reasonable attorneys’ fees, as an Amount Due
hereunder.
|
| 11.2 |
In
the event of a default or threatened default of this Lease by Lessee,
Lessor shall be entitled to all equitable remedies, including without
limitation injunction and specific performance. 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 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 such default, or any violation or breach of
any of
the terms, provisions, or covenants herein contained, or a waiver
of
Lessor’s right thereafter to insist upon strict compliance with the terms
hereof.
|
| 12. |
DAMAGE
AND CONDEMNATION.
|
| 12.1 |
In
the event during the Lease Term the Premises are damage by fire or
other
casualty, but not to such an extent that repairs and rebuilding cannot
reasonably be completed within one hundred eighty (180) days of the
date
of the event causing such damage, Lessor may, at Lessor’s option, repair
and rebuild the Premises. If Lessor elects to repair and rebuild
the
Premises which said
notice shall be given to Lesssee within sixty (60) days of said
damage,
this Lease shall remain in full force and effect, but Lessor may
require
Lessee to temporarily vacate the Premises while the same are being
repaired and, subject to the provisions of this Paragraph 12.1, rent
shall
xxxxx 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 the Premises are not repaired, rebuilt or otherwise made
suitable for occupancy by Lessee within the aforesaid one hundred
eighty
(180) day period, Lease shall have the right, by written notice to
Lessor,
to terminate this Lease, in which event rent shall be abated for
the
unexpired Lease Term, effective as of the date of such written
notification, but the other terms hereof shall remain in full force
and
effect. If Lessor elects not to repair and rebuild the Premises
said
notice shall be given to Lessee within sixty (60)
days
or
if the Business Park or any part thereof be so damaged that repairs
and
rebuilding cannot reasonably be completed within one hundred eighty
(180)
days of the date of the event causing such damage,
|
| 12.2 |
In
the event the Business Park 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 said Premises or any portion thereof, then Lessor, at its option,
may
terminate this Lease as of the date possession is taken by the condemning
authority upon ten (10 ) days prior written notice to Lessee and
prepaid
rent shall be proportionately refunded from the date of possession
by the
condemning authority. All damages or other sums awarded in connection
with
any condemnation or taking of any portion of the Premises or the
Property,
or paid as the purchase price for any conveyance in lieu of formal
condemnation proceedings, whether for the fee or the leasehold interest,
shall belong to and be the property of Lessor. Lessee shall execute
and
deliver any instruments as Lessor may deem necessary to expedite
any
condemnation proceedings or 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 said lands, and Premises or
any
portion thereof. 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 the Premises within a period of six
(6)
months after the date of the physical taking, and such restoration
shall
make the same reasonably tenantable and suitable for the general
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
such restoration and reconstruction on or before six
(6) months
after the date of physical taking or if the Premises (or so much
thereof
as would render them untenantable) are taken in condemnation, Lessee
shall
have the right to cancel this Lease by prompt notice after such
occurrence. If this lease continues in effect after such physical
taking,
the rent payable hereunder shall be equitably adjusted both during
the
period of restoration operations of Lessor and during the unexpired
portion of the Lease Term.
|
| 12.3 |
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 any part of the Premises, such
repairs, alterations, removal reconstruction or improvement shall
not in
any way affect the obligations or covenant of Lessee herein contained,
and
Lessee hereby waives all claims for damages or abatement of rent
because
of such repairs, alterations, removal, reconstruction or improvement,
except that rent shall xxxxx during the period of and to the extent
of
untenantability; provided, if Lessor reasonably concludes that the
work
involved cannot be reasonably accomplished within one hundred eighty
(180)
days, Lessor may at its option terminate this lease by notice to
Lessee;
provided, further, that where the requirement by a governmental authority
to repair, alter, remove, reconstruct or improve any part of the
Premises
arises out of any act of omission or commission by Lessee, then such
repair, alteration, removal, reconstruction or improvement 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.
|
|
|
| 14. |
LIABILITY
OF LESSOR. Notwithstanding that joint or concurrent liability may
be
imposed upon Lessor
or Lessee
by
law, Lessee
and Lessee
shall indemnify, defend and hold harmless the
other party
and the Property at each
parties
expense, against any loss, cost, damage or expense (including attorneys’
fees and court costs) relating to or as a result of (a) any default
or
failure to comply with the terms hereof (whether in connection with
termination hereof or otherwise) by the
other party
or
any permitted sub-tenant hereunder; (b) any act or negligence of
the
other party
or
its agents, contractors, employees, invitees or licensees; and (c)
all
claims for damages to persons or property by reason of the use or
occupancy of the Premises not caused by the
other party.
Moreover, either
party shall
not be liable for any damage or injury to the Premises, the
other party’s
property, to the
other party,
its agents, contractors, employees, invitees or licensees, arising
from
any use or condition of the Property or the act or neglect of co-tenants
or any other person, or the malfunction of any equipment or apparatus
serving the Premises. Any and all claims against either party for
any
damage referred to in this Section 14 are hereby waived and released
by
the other party. Notwithstanding anything contained herein to the
contrary, in the event either
party
incurs any liability to the other party hereunder, such liability
shall be
satisfied only out of the
other party’s
interest in the Premises, it being agreed that the liability of each
party, its venturers, partners (individually and as partners),
shareholders, officers, agents and employees, shall in all events
be
satisfied out of the
other party’s
interest in the Premises.
|
| 15. |
RIGHT
OF ENTRY.Lessor
reserves the right to use at its discretion, the Business Park and
every
part thereof, except the interior of the Premises, in any manner
which
does not materially interfere with the use of the Premises to be
made by
Lessee hereunder. Lessor reserves the right, for itself or its mortgagees
and prospective purchasers, or their respective agents and duly authorized
representatives, to enter and be upon the Premises at any time and
from
time to time to inspect the Premises to see that Lessee is complying
with
all obligations hereunder and to repair, maintain, alter, improve
and
remodel, but Lessor shall not materially interfere with Lessee’s normal
operations 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, alterations, improvements or remodeling.
Except as otherwise provided in this Lease, nothing contained in
this
Section 15 shall imply any duty on the part of Lessor to repair,
maintain,
alter, improve or remodel.
|
| 16. |
BUSINESS
PARK RULES AND REGULATIONS. Lessor reserves the right to establish
reasonable
rules and regulations pertaining to the use and occupancy of the
Business
Park which rules and regulations may be changed by Lessor from time
to
time. As and when established, such rules and regulations will be
deemed
incorporated in this Lease. Lessee shall comply with any such rules
and
regulations established by Lessor.
|
| 17. |
PROPERTY
LEFT ON THE PREMISES. If upon the expiration of this Lease, or if
the
Premises should be vacated or abandoned by lessee at any time, or
this
Lease should terminate for any cause, Lessee or Lessee’s agents, servants,
employees, invitees, licensees, contractors, subcontractors or any
other
person should leave any property of any kind or character in or upon
the
Premises, the fact of such leaving of property in or upon the Premises
shall be conclusive evidence of intent by Lessee or such person to
abandon
such property, and such leaving shall constitute abandonment of the
property unless
Lessee continues to pay rent.
Lessor, its agents or attorneys, shall have the right and authority
upon
one (1) days written
notice to Lessee or anyone else except as required by law, 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 expenses incurred
under
this Section, notwithstanding the expiration or termination of this
Lease.
The proceeds from the sale or other disposition of such property
shall
belong to the Lessor as compensation for the removal and disposition
of
said property.
|
| 18. |
OTHER
INTERESTS.
|
| 18.1 |
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,
security agreement, 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 (all of which are hereinafter called the “Mortgage
|
| 18.2 |
In
the event of a sale or conveyance by Lessor of Lessor’s interest in the
Premises (including a long term ground lease) 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, provided
that the new Owner assumes all obligations and liability of Lessor
from
and after the transfer and
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.
|
| 18.3 |
If
the holder of a Mortgage shall hereafter succeed to the rights of
Lessor
under this Lease, whether through possession of foreclosure action
or
delivery of a new lease, Lesseee shall, at the option of the holder
of
such Mortgage, attorn to and recognize such successor as Lessee’s landlord
under this Lease and shall promptly execute and deliver any instrument
that may be necessary to evidence such attornment. Upon such attornment,
this Lease shall continue in full force and effect as a direct lease
between every successor landlord and Lessee, subject to all of the
terms,
covenants and conditions of this Lease and Lessee’s tenancy hereunder
shall not be disturbed so long as Lessee is in full compliance with
the
terms and conditions hereof.
|
| 18.4 |
In
the event that Lessee is notified of the existence of any Mortgage
and of
the address of the holder of any such Mortgage, Lessee agrees that
it will
give the holder of any such Mortgage notice of any claimed default
by
Lessor under this lease, and will exercise no remedies which it may
have
on account thereof until fifteen
(15)
days have elapsed after the receipt of such notice by the holder
of said
Mortgage without cure thereof.
|
| 18.5 |
Lessee
shall, at Lessor’s request, promptly execute, acknowledge and deliver any
instrument which may be required to evidence or confirm the subordination
and attornment provisions set forth in Paragraphs 18.1, 18.2 and
18.3
hereof and, upon Lessee’s failure to do so, Lessor may, in addition to any
other rights or remedies hereunder, execute, acknowledge, and deliver
any
document needed to accomplish same, as the agent and attorney-in-fact
of
Lessee, and Lessee hereby irrevocably and unconditionally constitutes
Lessor as its attorney-in-fact for such purpose, Lessee acknowledging
that
such appointment is coupled with an
interest.
|
| 19. |
LANDLORD’S
LIEN.
|
|
|
| 19.2 |
Lessee
covenants to occupy the Premises on or before th Commencement Date.
Lessee
shall not abandon or vacate the Premises at any time during the Lease
term, whether by operation of law or otherwise. Notwithstanding
vacating the Premises and being current on Lessee’s rental obligations
shall not constitute a
default.
|
| 20. |
DELAYED
POSSESSION. If Lessor shall fail to deliver to Lessee actual possession
of
the Premises by the Commencement Date rent shall xxxxx until such
possession is given, but Lessor shall not be liable to Lessee for
such
failure nor shall the Lease Term be thereby extended. Notwithstanding
the
foregoing, however, if the Premises are not available for occupancy
by
lessee within sixty (60) days after the Commencement Date through
no
default of Lessee, this lease shall be voidable by either party,
and if
voided, any payments made to Lessor by Lessee hereunder shall be
immediately refunded to Lessee; provided however that such date shall
be
extended to the extent permitted under Section 7 hereof. The Premises
shall be “available for occupancy” when they are so completed that Lessee
may conduct nominal operations, or when a Certificate of Occupancy
has
been issued for the Premises, whichever is
earlier.
|
| 21. |
HOLDING
OVER. In the event of holding over by Lessee after the expiration
or
earlier termination of this Lease, there shall be no renewal of this
Lease
by operation of law but Lessee shall be a tenant at sufferance, and
Lessee
shall pay Lessor for the period of such hold-over an amount equal
to one
and one-half times the Base Rent and rent due under Paragraph 3.5
which
would have been payable by Lessee had the hold-over period been part
of
the original Lease Term, together with any other Amount Due under
this
Lease. Lessee shall vacate and deliver the Premises to Lessor upon
Lessee’s receipt of notice from Lessor to vacate. No holding over by
Lessee, whether with or without consent by Lessor, or acceptance
of rent
by Lessor, shall operate to reinstate, continue or extend the Lease
Term.
|
| 22. |
NO
WAIVER. Lessee understand and acknowledges that no assent, express
or
implied, by Lessor to any breach 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, or of Lessor’s right thereafter to insist
upon strict compliance with the terms
hereof.
|
| 23. |
COMPLIANCE
WITH PROTECTIVE COVENANTS. In addition to and without any way limiting
any
of the foregoing provisions, Lessee shall comply with any reasonable
protective covenants now or hereafter of record against the Property
and
with any changes to such covenants and/or rules and standards duly
adopted
in accordance with the procedures for either
therein.
|
| 24. |
SIGNS.
Lessee shall not install, paint, display, inscribe, place or affix
any
sign, picture, advertisement, notice, lettering or direction (hereinafter
collectively called a “Sign”) which could be visible from outside of the
Premises without first securing written consent from Lessor therefor.
Any
Sing permitted by Lessor shall at all times conform with all municipal
ordinances or other laws, regulations, deed restrictions and protective
covenants applicable thereto. Lessee shall remove all Signs at the
expiration or other termination of this Lease, at Lessee’s sole expense,
and shall in a good and workmanlike manner properly repair any damage
cause by the installation, existence or removal of Lessee’s
Signs.
|
| 25. |
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 without charge a statement in writing
in
such form and substance as may be required by Lessor (a) certifying
that
this Lease is unmodified and in full force and effect and the dates
to
which the rent and other charges are paid in advance, if any; (b)
certifying the Commencement Date of this Lease and the monthly Base
Rent
and additional rent under Paragraph 3.7 hereof being paid by Lessee;
(c)
acknowledging that there are not, to Lessee’s knowledge, any uncured
defaults on the part of Lessor or Lessee hereunder and that Lessee
has no
right of offset, counterclaim or deduction from or against future
rentals;
(d) stating that no rent not yet due and payable as of the date of
the
letter has been paid in advance and no concessions, rebates, allowance
or
other considerations for free or reduced rent in the future have
been
granted; (e) all improvements or other work required to be made or
performed by the Lessor have been fully completed in accordance with
the
plans and specifications therefor and to the satisfaction of the
Lessee;
and (f) the lessee has accepted and occupied the Premises, and Lessee
is
in full and complete possession of the Premises and actively conducting
its business therein. Any such statement may be relied upon by any
prospective purchaser of or Lender upon the security of the
Premises.
|
| 26. |
COMMON
AREA CONTROL.
|
| 26.1 |
Lessee
acknowledges and agrees that all areas outside of the Premises shall
at
all times be subject to the exclusive control and management of
Lessor.
|
| 26.2 |
Lessee
and its servants, agents, employees, contractors, subcontractors,
invitees, and licensees shall not be entitled to use more of the
parking
spaces from the Business Park than four
spaces per thousand square feet of Area of the Premises. Lessor shall
have
the right, but not the duty, to assign parking spares to tenants
of the
Business Park.
|
| 26.3 |
UTILITY
DEREGULATIONS
|
| a. |
Lessor
Controls Selection.
Lessor has advised Lessee that presently Georgia
Power Company
(“Electric Service Provider”) is the utility company selected by Landlord
to provide electric service for the Business Park. Notwithstanding
the
foregoing, if permitted by law, Lessor shall have the right at any
time
and from time to time during the Lease Term to either contract for
service
from a different company or companies providing electric service
(each
such company shall hereinafter be referred as an “Alternate Service
Provider”) or continue to contract for service from the Electric Service
Provider.
|
| b. |
Lessee
Shall Give Lessor Access.
Lessee shall cooperate with Lessor, the Electric Service Provider,
and any
Alternate Service Provider, at all times and, as reasonably necessary,
shall allow Lessor, Electric Service Provider, and any Alternate
Service
Provider reasonable access to the Business Park’s electric lines, feeders,
risers, wiring and any other machinery within the
Premises.
|
| x. |
Xxxxxx
Not Responsible for Interruption of Service.
Unless
due to Lessor’s gross negligence or willful
misconduct,
Lessor shall in no way be liable or responsible for any loss, damage
or
expense that Lessee may sustain or incur by reason of any change,
failure,
interference, disruption, or defect in the supply or character of
the
electric energy furnished to the Premises, or if the quantity or
character
of the electric energy supplied by the Electric Service Provider
or any
Alternate Service Provider is no longer available or suitable for
Lessee’s
requirements, and no such change, failure, defect, unavailability
or
unsuitability shall constitute an actual or constructive eviction,
in
whole or in part, or entitle Lessee to any abatement or diminution
of rent
or relieve Lessee from any of its obligations under the
Lease.
|
| 27. |
NOTICES.
All notices and other communications hereunder shall be in writing
and
shall be deemed to have been given and effective when delivered in
person
or when deposited in the United States mail, return receipt requested,
addressed, if to Lessor, at the address set forth on the first page
of
this Lease, or to such other addresses as lessor may direct from
time to
time by fifteen (15) days prior written notice, and if to Lessee,
at the
Premises. Lessee hereby appoints as its agent to receive service
of all
dispossessory or distraint proceeding and notices in connection therewith,
the person in charge of or occupying the Premises at the time; and
if no
person is in charge of or occupying the Premises, then such service
or
notice may be made by attaching the same on the main entrance to
the
Premises and on the same day enclosing, directing, stamping and marking
by
first class mail a copy of such service or notice to Lessee at the
last
known address of Lessee.
|
| 28. |
ATTORNEY’S
FEES.If
any Amount Due hereunder is collected by or through an attorney,
Lessee
agrees to pay fifteen (15%) percent thereof as attorneys’ fees together
with any costs and expenses which Lessor incurs in attempting to
enforce
any of the obligations of Lessee under this Lease, if Lessee does
not
prevail in such proceedings.
|
| 29. |
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 and
exemption.
|
| 30. |
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
the same 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 such check or payment without
prejudice to Lessor’s fight to recover the balance of such rent or pursue
any other remedy provided in this
lease.
|
| 31. |
BROKERS.
Other than NAI/Xxxxxxx
Xxxxxxx
(hereinafter collectively called “Agent”), Lessee warrants and represents
that it has had no dealings with any broker or agent in connection
with
this Lease and covenants to pay, hold harmless and indemnify Lessor
from
and against any and all cost, expense or liability for any compensation,
commissions and charges claimed by any broker or agent with respect
to
this Lease or negotiations thereof who purports to have been engaged
by
Lessee.
|
| 32. |
MISCELLANEOUS.
|
| 32.1 |
All
the 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 10 hereof. 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.
|
| 32.2 |
The
captions are inserted in this lease for convenience only, and in
no way
define, limit, or describe the scope of intent of this Lease or of
any
provision hereof, nor in any way affect the interpretation of this
Lease.
|
| 32.3 |
This
lease is made and delivered in, and shall be interpreted, construed
and
enforced with, the laws of the State of
Georgia.
|
| 32.4 |
This
Lease and the schedules and exhibits attached hereto and forming
part
hereof set forth all of the covenants, promises, agreements, conditions
and understandings between Lessor and Lessee concerning the Premises
and
the property, and there are no covenants, promises, terms, conditions
or
understandings either oral or written, between them other than as
are
herein set forth. Except as herein otherwise provided, no subsequent
alteration, amendment, change or addition to this Lease shall be
binding
upon Lessor or Lessee unless reduced to writing and signed by the
Party to
be bound thereby.
|
| 32.5 |
The
terms, conditions, covenants and provisions of this Lease shall be
deemed
to be severable and legally independent. 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
such
other clauses or provisions shall remain in full force and
effect.
|
| 32.6 |
This
Lease, or any portion hereof, shall not be recorded, unless both
parties
hereto agree to such recording.
|
| 32.7 |
Time
is of the essence of this Lease.
|
| 32.8 |
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
or
principal and agent or of partnership, or of joint venture, or of
any
relationship other than landlord and tenant, between the parties
hereto;
no estate shall pass out of Lessor; Lessee has only a usufruct not
subject
to levy and sale.
|
For
additional terms and stipulations of this Lease (if any) see Exhibit C, attached
hereto and by this reference incorporated herein.
IN
WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
the
day and year first above written.
LESSOR:
BSRT Phoenix Business Park L.L.C
BSRT
PORTFOLIO CORP.,
its managing members
By:
/s/_______________
Vice
President
LESSEE: LightNetworks,
Inc.
By:
M.
Xxxxx Xxxxx, Xx.
VP
of
Planning
{CORPORATE
SEAL}
EXHIBIT
“A”
EXHIBIT
“B”
Special
Stipulations
Lease
Agreement between BSRT Phoenix Business Park L.L.C., as Lessor, and
LightNetworks, Inc., as Lessee, dated____________________, 19______ for
26,378
rentable
square feet.
These
Special Stipulations are made and entered into contemporaneously with the Lease
Agreement described above. In the case of any conflict between the Special
Stipulations and the Lease, these Special Stipulations shall control. All terms
used herein shall be the same as defined in the Lease.
| 1. |
Base
Rent
|
Lessee’s
Base Monthly Rental shall adjust as follows:
|
Period
|
Rent/SF
|
Annual
Base Rent
|
Monthly
Base Rent
|
|
|
Commencement
Date
|
Month
6
|
$4.13
|
$108,941.14
|
$9,078.43
|
|
Month
7-
|
Month
18
|
8.25
|
217,618.50
|
18,134.88
|
|
Month
19-
|
Month
30
|
8.50
|
224,213.00
|
18,684.42
|
|
Month
31-
|
Month
42
|
8.75
|
230,807.50
|
19,233.96
|
|
Month
43-
|
Month
54
|
9.01
|
237,665.78
|
19,805.48
|
|
Month
55-
|
Month
66
|
9.29
|
245,051.62
|
20,420.97
|
| 2. |
Broker
Disclosure
|
NAI/Xxxxxxx
Xxxxxxx has acted as Agent for the Lessor and Lessee in this transaction and
will be paid a commission by Lessor pursuant to a separate
agreement.
| 3. |
Temporary
Space
|
Upon
the
full execution of the Lease, Lessee may occupy Suite B-450, approximately 7,776
square feet at Phoenix Business Park on a rent free basis until Lessee’s
Premises are ready for occupancy at which time Lessee will relocate to Lessee’s
Premises. Lessee shall abide by all other terms and conditions of Lease during
Lessee’s occupancy of the temporary space. Additionally, Lessee is responsible
for all Lessee’s utility costs to the temporary space during said time. The
temporary space shall be returned to Lessor in the same condition as privded
Lessee, normal wear and tear accepted. Lessor
reserves the right to move Lessee, at Lessor’s expense, to alternative space,
Suite C-200, approximately 7,726 square feet, should Lessor have a new Lessee
for Suite B-450.
| 4. |
Premises
Improvements Allowance
|
Lessor,
at an expense not to exceed $15.00/SF ($395.670.00) (“Improvement Allowance”),
shall complete improvements to the Premises per mutually agreed upon
construction drawings. Lessee
shall provide Lessor permittable drawings no later than February 15, 2000.
Should there be any delay in the delivery of premises to Lessee by May 1, 2000
due to Lessor not receiving permittable plans by February 15, 2000, this Lease
shall commence May 1, 2000.
Said
Improvement Allowance shall go toward the cost of Lessee’s improvements,
architectural fees and a construction management fee equal to five percent
(5%)
of said costs. The Improvement Allowance may not be used to pay for
non-construction items, such as rent, moving expenses, furniture or
telecommunications equipment. Should the actual improvement costs exceed the
Improvement Allowance, Lessee shall pay Lessor said excess amount within 30
days
of the receipt of an invoice from Lessor for said amount. Notwithstanding
Lessor, at Lessor’s expense, and at an expense not be part of the Improvement
Allowance, shall replace all HVAC units.
| 5. |
Irrevocable
Letter of Credit.
|
As
part
of this Lease, Lessee shall provide Lessor an Irrevocable Letter of Credit
(“L.C.”), which is assignable, acceptable to Lessor in the amount of $200,000.00
(two hundred thousand dollars and no cents). Provided Lessee is not in default
of the Lease, the L.C. will be reduced to $100,000.00 (one hundred thousand
dollars and no cents) at the end of the 36th
month of
the Lease term and reduced to $0.00 at the end of the 48th
month of
the Lease term. A copy of the L.C. is attached to and made part of this Lease
as
Exhibit “C”.
6.
First
Right of Offering
Provided
Lessee is not in default and upon receiving interest from a Third Party in
Suite
B-700, approximately 5,198 square feet, Lessor will first offer in writing
to
Lessee said space at terms and conditions as the Premises would be offered
to
any other Third Party. Lessee has three (3) business days to agree with Lessor
on business terms and subsequently three (3) more business days to execute
an
Amendment to Lease said space. Should Lessee not respond to Lessor’s written
notification within three (3) business days, Lessor will be free to lease said
space to said Third Party.
EXHIBIT
“C”
L.C.
