EXHIBIT 10.13
SUBLEASE AGREEMENT
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THIS SUBLEASE AGREEMENT (the "Sublease"), made as of this 11th day of
October, 1996, by and between Atlantic Steel Industries, Inc., having an office
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Sublessor"); and
ViewTech, Inc., a California corporation, having an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Sublessee").
W I T N E S S E T H:
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WHEREAS, Sublessor, as "Tenant", entered into a lease (the "Prime Lease")
with State of California Employees Retirement System, agency of State of
California (the "Prime Landlord"), dated November 1, 1993, leasing certain space
on the 19th floor of that certain building known as "Overlook III" at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the "Building"). Said Prime Lease to which
reference is made above is incorporated herein by this reference and made a part
hereof as attachment "A".
WHEREAS, Sublessor and Sublessee have agrees that Sublessor shall sublet
approximately 5,946 square feet of such space as rented under the Prime Lease to
Sublessee, as such space is shown on Exhibit "B" attached hereto and by this
reference incorporated herein, upon the terms and conditions as herein
described.
NOW, THEREFORE, for Ten and No/100 Dollars ($10.00) and other good and
valuable consideration, paid by the parties hereto to one another, the receipt
and sufficiency of which are hereby acknowledged by the parties hereto, the
parties hereto hereby covenant and agree as follows:
1. Premises, Rent and Term. (a) Sublessor hereby leases to Sublessee the
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5,946 square feet, more or less, of space on the 19th floor of the Building,
shown on Exhibit "B: (the "Sublease Premises"), beginning on December 1, 1996
and ending on December 31, 1999, (the "Term").
(b) The base rent ("Base Rent") for such Sublease Premises shall be
Ten Thousand Six Hundred Fifty Three and 25/100 Dollars ($10,653.25) per month,
plus the additional rent (the "Additional Rent") described in Paragraph 3 of
this Sublease.
(c) Sublessee shall pay the Base Rent and Additional Rent
(collectively the "Rent") provided for hereunder in advance on the first day of
every month during the Term.
2. No Assignment. Sublessee shall not assign this Sublease nor sublet
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the Premises in whole or in part and shall not permit Sublessee's interest in
this Sublease to be vested in any third party by operation of law or otherwise.
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3. Other Charges. If Sublessor shall be charged for Additional Rent or
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any other sums pursuant to the provisions of the Prime Lease, including, but not
limited to, Paragraph 3 thereof, Sublessee shall be liable for all of such
Additional Rent or other sums. If Sublessee shall procure any additional
services from the Building, such as alterations or after-hour air conditioning,
Sublessee shall pay for same at the rates charged therefor by the Prime Landlord
and shall make such payment to the Sublessor or Prime Landlord, as Sublessor
shall direct. Any Rent or other sums payable by Sublessee under this Paragraph
3 shall be Additional Rent and collectible by Sublessor as such. If Sublessor
shall receive any refund from Prime Landlord, Sublessee shall be entitled to the
return of so much thereof as shall be attributable to prior payments by
Sublessee.
3.1 Payment of Operating Costs by Sublessee: In addition to Base Rent,
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Sublessee agrees to pay as Additional Rent to Sublessor all Operating Costs as
described in paragraph 2 of Exhibit "D" and in Exhibit "E" of the Prime Lease.
For the purposes of this Sublease, Base Year Operating Costs, as defined in
Paragraph 2(a) of Exhibit D to the Prime Lease, shall be the actual Operating
Costs, on a per square foot per annum basis, for the calendar year 1996, as
adjusted in accordance with Exhibit "E" of the Prime Lease. Such payments shall
begin on January 1, 1997.
4. Subordinate to Prime Lease. This Sublease is subject and subordinate
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in all instance and under all circumstances to the Prime Lease. Except as may
be inconsistent with the terms hereof, all the terms, covenants and conditions
in the Prime Lease contained shall be applicable to this Sublease with the same
force and affect as if Sublessor were the "Landlord" under the Prime Lease and
sublessee were the "Tenant" thereunder; and in case of any breach hereof by
Sublessee, Sublessor shall have all the rights against Sublessee as would be
available to Prime Landlord against Sublessor as "Tenant" under the Prime Lease
for purposes of this Sublease. Base Year Operating Costs, as defined in
Paragraph 2(a) of Exhibit "D" to the Prime Lease, shall be the actual Operating
Costs, on a per square foot per annum basis, for the calendar year 1996, as
adjusted in accordance with Exhibit "E: of the Prime Lease. Such payments shall
begin on January 1, 1997.
4.1 The following provisions of the Master Lease are not incorporated
herein and, as between Sublessor and Sublessee, are deemed deleted:
(i) Paragraphs 3, 4, and 5 of Exhibit "D."
5. Services. Notwithstanding anything to the contrary contained herein,
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the only services or rights to which Sublessee is entitled hereunder are those
to which Sublessor is entitled to as "Tenant" under the Prime Lease and that for
all such services and rights Sublessee will look to Prime Landlord under Prime
Lease.
6. No Acts. Sublessee shall neither do nor permit anything to be done
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which would cause the Prime Lease to be terminated or forfeited or any claims to
accrue to the benefit of Prime Landlord by reason of any right of termination or
forfeiture reserved or vested in Prime Landlord under the Prime Lease, or any
rights to damages accruing to or for the benefit of Prime Landlord under the
Prime Lease, and Sublessee shall indemnify and hold Sublessor harmless from and
against all loss, cost, incurred by Sublessor by reason of any default on the
part of Sublessee by
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reason of which the Prime Lease may be terminated or forfeited, or any claims
shall accrue to the benefit of or for Prime Landlord under the Prime Lease.
7. First Months Rent and Security Deposit: Sublessee has paid Sublessor,
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upon the execution and delivery of this Sublease, the sum of Twenty One Thousand
Three Hundred Six and 50/100 Dollars ($21,306.50) one-half of which shall be
applied to Sublessee's first months rent obligation and one-half of which shall
be held as security for the full and faithful performance of the terms,
covenants and conditions of this Sublease on Sublessee's part to be performed or
observed, including, but not limited to, payment of Rent or for any other sum
which Sublessor may expend or be required to expend by reason of Sublessee's
failure to comply with the terms and conditions of the Prime Lease or this
Sublease, including, but not limited to, any damages or deficiency incurred by
Sublessor as "Tenant" under the Prime Lease in reletting the Sublease Premises,
in whole or in part, whether such damages shall accrue before or after summary
proceedings or other re-entry by Sublessor. If Sublessee shall fully and
faithfully comply with all the terms, covenants and conditions of this Sublease
on Sublessee's part to be performed or observed, the security, or any unapplied
balance thereof, shall be applied to Sublessor's last month of Base Rent.
8. Sublease Premises. Sublessee shall take the Sublease Premises "as is,
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where is", and Sublessor makes and has made no representations or warranties
whatsoever with respect to the Sublease Premises or the fitness thereof for
Sublessee's intended purpose.
9. Brokerage. ▇▇▇▇▇▇▇ & Wakefield of Georgia, Inc. has acted as agent
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for Sublessor in this transaction. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ is to be paid a
commission by the Sublessor. ▇▇▇▇ & Associates has acted as agent for Sublessee
in this transaction. ▇▇▇▇ & Associates is to be paid a commission by Sublessor.
Sublessor is obligated to pay commission in accordance with a separate written
agreement between Sublessor and ▇▇▇▇▇▇▇ & Wakefield of Georgia, Inc.
10. No Other Agreement. All prior understandings and agreements between
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the parties are merged within this Sublease, which alone fully and completely
sets forth the understanding of the parties hereto. This Sublease may not be
changed or terminated in any manner other than by an agreement in writing,
executed by the party against whom enforcement of the change or termination is
sought.
11. Notice. Any notice of demand which either party may or must give to
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the other hereunder shall be in writing and delivered personally or sent by
certified mail, return receipt requested, addressed if to Sublessor, as follows:
▇▇▇ ▇▇▇▇
SIVACO Georgia
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
and if to Sublessee, as follows:
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▇▇▇▇▇▇ ▇▇▇▇▇▇
ViewTech, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Either party may, by notice in writing, direct that future notices or demand be
sent to a different address.
12. Binding. The covenants and agreements herein contained shall bind and
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inure to the benefit of Sublessor, Sublessee, and their respective executors,
administrators, successors and assigns.
SPECIAL STIPULATIONS
1. Sublessor agrees to give Sublessee, at no additional charge, the
refrigerator, microwave and dishwasher.
IN WITNESS WHEREOF, the undersigned have caused this Sublease to be
executed under seal and delivered, on the day and year first above written.
"SUBLESSOR"
By: /s/
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Its: Assistant Secretary
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Attest: /s/
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Its: Office Manager
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(CORPORATE SEAL)
"SUBLESSEE"
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Chief Financial Officer
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Attest: /s/
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Its: Facilities Manager
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(CORPORATE SEAL)
State of California Public Employees'
Retirement System, an agent of the
State of California
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Consented to by:
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By: LaSalle Advisors Limited, Agent
By: /s/
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Its: Vice President
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Attest: /s/
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Its: Asst. Administrator
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(CORPORATE SEAL)
By consenting to this Sublease, State of California Public Employees Retirement
System, an agency of the State of California, as "Prime Landlord", in no way
agrees to perform or be obligated to perform any services on behalf of Sublessee
hereunder, but shall continue to provide any such services to the Sublease
Premises in accordance with the terms and conditions of the Prime Lease.
Sublessee shall have no rights or claims against Prime Landlord, but shall
instead look solely to Sublessor for any such claims.
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OVERLOOK III
OFFICE BUILDING LEASE AGREEMENT
This Lease Agreement (the "Lease") is entered into as of the _____ day of
____________, 199_, by and between the State of California Public Employees'
Retirement System (hereinafter called "Landlord") and Atlantic Steel Industries,
Inc. (hereinafter called "Tenant").
W I T N E S S E T H
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1 Definitions and Basic Provisions. Certain definitions and basic
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provisions (the "Basic Lease Information") of this Lease are:
1.1 Lease Date: __________________, 199_
1.2 Tenant: Atlantic Steel Industries, Inc.
1.3 Tenant's Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact __________________ Telephone: _______________
1.4 Landlord: State of California Public Employees' Retirement
System, an agency of the State of California
1.5 Landlord's Address: LaSalle Advisors Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contact: Calpers Portfolio Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: LaSalle Partners Asset Management Limited
Suite 250
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
1.6 Premises: Suite No. 1900 in the office building located at 2839
Paces Ferry Road (the "Building"), known as Overlook III. The Building and the
land upon which it is situated, which land is more particularly described in
Exhibit "A" hereto, are herein sometimes collectively called the Project.
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1.7 Lease Term: The period commencing on January 1, 199__ (or the
earlier date on which Tenant occupies the Premises with Landlord's prior written
consent), and subject to adjustment as provided in the Lease (the "Commencement
Date"), and continuing until December 31, 1999.
1.8 Base Rent: $9,414.50 per month.
1.9 Security Deposit: $9,414.50
1.10 Tenant's Share: the percentage that expresses the ratio between
the number of rentable square feet comprising the Premises (5,946), and the
number of rentable square feet of the Building (432,312), which, for the
purposes of the Lease, shall be 1.375%.
1.11 Permitted Use: General Office Use.
1.12 Lease Year: The period of twelve (12) calendar months or less
commencing with the Commencement Date and ending at midnight on the following
December 31, each successive period of twelve (12) calendar months thereafter
during the Lease Term, and the final period of twelve (12) calendar months or
less commencing on January 1 of the calendar year in which the Lease Term
expires. During any Lease Year within the Lease Term that is less than twelve
(12) full months, any amount to be paid with respect to such period shall be
prorated, based on the actual number of months and the actual number of days of
any partial month assuming each month to have thirty (30) days.
2 Lease Grant. In consideration of rent to be paid and the other
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covenants and agreements to be performed by Tenant and upon the terms
hereinafter stated, Landlord does hereby lease, demise and let unto Tenant the
Premises, which are outlined in red on the plan attached hereto as Exhibit "A-
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1", commencing on the Commencement Date and ending on the last day of the Lease
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Term, unless sooner terminated as herein provided. If this Lease is executed
before the Premises become vacant, or otherwise available and ready for
occupancy, or if any present tenant or occupant of the Premises holds over, and
Landlord cannot acquire possession of the Premises prior to the Commencement
Date, Landlord shall not be deemed to be in default hereunder, and Tenant agrees
to accept possession of the Premises at such time as Landlord is able to tender
the same, such date shall be deemed to have accepted the same as suitable for
the purposes herein intended and to have acknowledged that the same comply fully
with Landlord's obligations. Within five (5) days after Landlord's architect
shall certify to Tenant that the Premises are substantially complete but prior
to Tenant moving in to the Premises, Tenant shall make an inspection of the
Premises, and except for latent defects, and except for incomplete or defective
items other than latent defects of which Landlord is notified by Tenant within
such period, Tenant shall be deemed t have accepted the Premises in their then
condition. Any latent defects to the Premises which may be claimed by Tenant
shall be claimed by Tenant within twelve (12) months of the Commencement Date,
and any such claims not so raised by Tenant within said
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twelve (12) month period shall be waived by Tenant. Within ten (10) days after
request of Landlord, Tenant agrees to give Landlord a letter confirming the
Commencement Date and certifying that Tenant has accepted delivery of the
Premises and that the condition of the Premises complies with Landlord's
obligations hereunder.
3 Rent.
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3.1 Tenant agrees to pay to Landlord in advance on or before the
first day of each month starting with January 1, 199_, the Base Rent, subject to
adjustment as hereinafter provided, without deduction or set off, for each month
thereafter for the remainder of the entire Lease Term. One such monthly
installment together with the Security Deposit shall be due and payable by
Tenant to Landlord upon execution of this Lease, and a like monthly installment
shall be due and payable without demand on or before the first day of each
calendar month succeeding the Commencement Date during the Lease Term. Rent for
any period of less than a full month shall be prorated, based on one thirtieth
(1/30) of the current monthly rent for each day of the partial month this Lease
is in effect.
3.2 If any installment of the Base Rent, or any other sums which
become owing by Tenant to Landlord under the provisions hereof, is not received
within ten (10) days after the date of notice from Landlord of such late
payment, without in any way implying Landlord's consent to such late payment,
Tenant, to the extent permitted by law, agrees to pay, in addition to said
installment of the Base Rent or such other sums owed, it being understood that
said late payment charge shall constitute liquidated damages and shall be for
the purpose of reimbursing Landlord for additional costs and expenses which
Landlord presently expects to incur in connection with the handling and
processing of late installment payments of the Base Rent and such other sums
which become owing by Tenant to Landlord hereunder: provided, however, if more
than one (1) payment due of Tenant hereunder in any one (1) calendar year is not
made until after notice of such late payment is received by Tenant, then the
late charge in this Paragraph shall be due by Tenant if any subsequent payments
due of Tenant hereunder in the same calendar year are not made within five (5)
days within the date when due (without the requirement for prior notice).
Landlord and Tenant expressly covenant and agree that in the event of any such
late payment by Tenant, the damages so resulting to Landlord will be difficult
to ascertain precisely, and that the foregoing charge constitutes a reasonable
and good faith estimate by the parties of the extent of such damages and does
not constitute interest. Notwithstanding the foregoing, the foregoing late
charges shall not apply to any sums which may have been advanced by Landlord to
or for the benefit of Tenant pursuant to the provisions of this Lease.
Notwithstanding the above, the late charge shall not be due unless the amount
due is not paid by Tenant within ten (10) days of the date notice from Landlord
of such late payment is received by Tenant; provided, however, if more than one
(1) payment due of Tenant hereunder in any one (1) calendar year is not made
until after notice of such late payment is received by Tenant, then the late
charge in this paragraph shall be due by Tenant if any subsequent payments due
of Tenant hereunder in the same calendar year are not made within five (5) days
of the date when due.
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3.3 The Security Deposit shall be held by Landlord without liability
and as security for the performance by Tenant of Tenant's covenants and
obligations under this Lease, it being expressly understood that such deposit
shall not be considered an advance payment of rent or a measure of Landlord's
damages in case of default by Tenant. Upon the occurrence of any event of
default by Tenant, Landlord may (but shall not be obligated to), from time to
time, without prejudice to any other remedy, use the Security Deposit to the
extent necessary to make good any arrearage of Rent and any other damage, injury
expense or liability caused to Landlord by such event of default. Following any
such application of the Security Deposit, Tenant shall pay to Landlord on demand
the amount so applied in order to restore the Security Deposit to its original
amount. If Tenant is not then in default hereunder, any remaining balance of
the Security Deposit shall be returned by Landlord to Tenant upon termination of
this Lease. If Landlord transfers its interest in the Premises during the Lease
Term, Landlord may assign the Security Deposit to the transferee and thereafter
shall have no further liability for the return of the Security Deposit.
3.4 All sums other than Base Rent payable by Tenant to Landlord under
any provision of this Lease shall constitute Additional Rent. Base Rent and
Additional Rent are herein referred to collectively as "Rent". All Rent due
hereunder shall bear interest from the due date until paid in full at a rate
equal to the lesser of: (a) the prime interest rate in effect from day to day at
the First National Bank of Atlanta, Georgia plus three (3) percentage points; or
(b) the maximum legal rate allowed by law. If more than the maximum legal rate
of interest should ever be collected with regard to any sum due hereunder, said
excess amount shall be credited against future payments of Rent thereafter first
accruing hereunder. If no such further Rent accrues hereunder, said excess sums
shall be promptly refunded by Landlord to Tenant upon written demand by Tenant.
3.5 No payment by Tenant or receipt by Landlord of a lesser amount
than the correct Rent shall be deemed to be other than a payment on account, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment be deemed an accord and satisfaction. Landlord may accept such
check of payment without prejudice to Landlord's right to recover the balance or
to pursue any other remedy in this Lease or otherwise provided by law or equity.
4 Consumer Price Index Increases. INTENTIONALLY DELETED. (See Special
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Provision #2 of Exhibit "D").
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5 Landlord's Obligations.
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5.1 Subject to the limitations hereinafter set forth, Landlord agrees
to furnish Tenant while occupying the Premises facilities to provide (a) water
at those points of supply provided for general use of tenants of the Building;
(b) heated and refrigerated air conditioning in season, from 8:00 a.m. to 6:00
p.m. Monday through Friday and from 8:00 a.m. to 1:00 p.m. on Saturdays, except
for holidays (the "Building Hours"), at such temperatures and in such amounts as
are comparable to other first-class buildings in the area
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of the Building, such service at night and on Saturday afternoons, Sundays and
holidays to be furnished only at the written request of Tenant, who shall pay
upon demand Landlord's customary charges for such services; (c) janitorial
services to the Premises on weekdays other than holidays and such window
washing, all such being comparable to the janitorial services and window washing
services provided in other first-class buildings in the area of the Building;
and (d) operatorless passenger elevators for ingress and egress to the floor on
which the Premises are located, in common with other tenants, provided that
Landlord may reasonably limit the number of elevators to be in operation at
times other than during customary business hours for the Building and on
holidays. In addition, Landlord agrees to maintain the public and common areas
(the "Common Facilities") of the Building, such as lobbies, stairs, corridors
and restrooms, in reasonably good order and condition, except for damage
occasioned by Tenant, or its employees, agents or invitees. If Tenant shall
desire any of the services specified in this Section 5.1 at any time other than
times herein designated, such service or services shall be supplied to Tenant
only at the written request of Tenant delivered to Landlord before 3:00 p.m. on
the business days preceding such extra usage, and Tenant shall pay to Landlord
as Additional Rent the cost of such service or services immediately upon receipt
of a ▇▇▇▇ therefor.
5.2 Without additional cost to Tenant, Landlord shall provide
standard electric lighting and current for Tenant's use and occupancy of the
Premises and shall make available electric lighting and current for the common
areas of the Building in the manner and to the extent deemed by Landlord to be
standard. If Tenant's use of electric current (a) exceeds 110 volt power, or
(b) exceed that required for routine lighting and operation of general office
machines (such as typewriters, dictating equipment, desk model adding machines
and the like) which use 110 volt electrical power, then the Tenant shall pay on
demand the cost (as determined in good faith by the Landlord) of any such
excess. Without Landlord's prior written consent, Tenant shall not install any
data processing or computer equipment in the Premises or any other equipment
which it shall require for its use other than the normal electric current or
other utility service. When heat generating machines or equipment (other than
general office machines as described hereinbefore) are used in the Premises by
Tenant which affect the temperature otherwise maintained by the air conditioning
system or otherwise overload any utility, Landlord shall have the right to
install supplemental air conditioning units or other supplemental equipment in
the Premises, and the cost thereof (as determined in good faith by Landlord),
including without limitation, the cost of installation, operation, use and
maintenance, shall be paid by Tenant to Landlord on demand. The rate charged by
Landlord shall not exceed the rate prevailing for Tenant as a user as
established by the applicable rate classification published from time to time by
the local electric power company or other utility supplier. The obligation of
the Landlord hereunder to make available such utilities shall be subject to the
rules and regulations of the supplier of such utilities and of any municipal or
other governmental authority regulating the business of providing such utility
service. Tenant will be billed monthly for such additional utility service and
all such charges shall be considered due upon delivery of such ▇▇▇▇ and be
deemed as so much Additional Rent due from Tenant to Landlord.
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5.3 Landlord shall not in any way be liable or responsible to Tenant
for any loss or damages or expense which Tenant may sustain or incur if either
the quantity or character of any utility service is changed or is no longer
available or is no longer suitable for Tenant's requirements. Tenant covenants
and agrees that at all times its use of electric current shall never exceed the
capacity of existing feeders to the Building or the risers or wiring
installations. Any riser or risers or wiring required or necessary to meet
Tenant's excess electrical requirements upon written request of Tenant will be
installed by Landlord at the sole cost and expense of Tenant (if, in Landlord's
sole judgment, the same are necessary and will not cause permanent damage or
injury to the Building or the Premises or cause or create a dangerous or
hazardous condition or entail excessive or unreasonable alterations, repairs or
expense or interfere with or disturb other tenants or occupants). At any time
when Landlord is making such additional utility service available to the
Premises pursuant to this Section, Landlord may, at its option, upon not less
than thirty (30) days' prior written notice to Tenant, discontinue the
availability of such additional utility service. If Landlord gives any such
notice of discontinuancy, Landlord shall make all the necessary arrangements
with the public utility supplying the utilities to the Premises with respect to
obtaining such additional utility service to the Premises, but Tenant will
contract directly with such public utility for the supplying of such additional
utility service to the Premises).
5.4 Failure to any extent to make available, or any slow-down,
stoppage or interruption of, these defined services resulting from any cause
(including, but not limited to, Landlord's compliance with (a) any voluntary or
similar governmental or business guideline now or hereafter published or (b) any
requirements now or hereafter established by any governmental agency, board or
bureau having jurisdiction over the operation and maintenance of the Building)
shall not render Landlord liable in any respect for damages to either person,
property, or business, nor be construed as an eviction of the Tenant or work an
abatement of Rent, nor relieve Tenant from fulfillment of any covenant or
agreement hereof. Should any equipment or machinery furnished by Landlord break
down or for any cause cease to function properly, Landlord shall use reasonable
diligence to repair same promptly, but Tenant shall have no claim for abatement
of rent or damages on account of any interruptions in service occasioned thereby
or resulting therefrom. Notwithstanding the above, if any services described
above are interrupted for a period of ten (10) or more consecutive business days
for an occurrence within Landlord's control or as a result of Landlord's gross
negligence or willful misconduct, and such interruption materially and adversely
affects Tenant's use of or access to the Premises or the Building, Rent due
hereunder for the portion of the Premises actually affected shall ▇▇▇▇▇ after
such period until such service is restored.
5.5 Tenant's obligations to pay any and all Additional Rent pursuant
to this Article 5 shall continue and shall cover all periods up to the actual
date of expiration or termination of this Lease; provided, however, if Landlord
terminates this Lease without waiving Landlord's right to seek damages against
Tenant, Tenant's obligation to pay any and all Additional Rent pursuant to this
Article 5 shall not terminate as a result thereof.
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6 Leasehold Improvements.
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6.1 Intentionally deleted.
6.2 Intentionally deleted.
6.3 Final working drawings of all improvements that Tenant desires to
be installed in the Premises, whether or not all or any of the work is to be
done by Landlord, must have been submitted to and approved by Landlord no later
than October 19, 1993. The final working drawings shall evidence improvements
that comply with applicable law, shall be in a form commonly used in the
Building for construction purposes and shall be signed by Tenant and Landlord.
6.4 If there are any changes by Tenant, Tenant's contractors,
subcontractors, subcontractors or agents from the improvements set forth in the
final working drawings approved by Landlord, each such change must receive the
prior written approval of Landlord, and in the event of any such approved change
in the working drawings, Tenant shall, upon completion of the improvements,
furnish Landlord with an accurate "as-built" plan of the improvements as
constructed, which plans shall be incorporated into this Lease by this reference
for all intents and purposes.
6.5 Any contractors and subcontractors engaged by Tenant shall be
subject to Landlord's approval and shall comply with all standards and
regulations established by Landlord. Such contractors and subcontractors shall
coordinate their efforts to insure timely completion of all work. Contractors
or subcontractors engaged by Tenant shall employ labor, materials, and funds to
insure the progress of the work without interruption on account of strikes, work
stoppage, or similar causes for delay. During construction of any improvements,
contractors and subcontractors shall coordinate with Landlord the movement of
equipment and materials. Tenant's work shall be conducted in such manner so as
to maintain harmonious labor relations and not to interfere with or delay
Landlord's contractors or Landlord's operation of the Building or the use of the
Building by other tenants.
6.6 All design, construction and installation shall conform to the
requirements of applicable building, plumbing and electrical codes and the
requirements of any authority having jurisdiction over or with respect to such
work.
6.7 If Tenant, with Landlord's prior written permission, employs its
own contractors or decorators, or if Tenant or Tenant's agents makes changes in
the work after approval of the plans by Landlord, and if such contractor or
decorator or such changes shall delay the work to be performed hereunder, or if
Tenant shall otherwise delay the completion of said work, then, notwithstanding
any provision to the contrary in this Lease, Tenant's obligation to pay Rent
hereunder shall nevertheless commence on the Commencement Date. If the Premises
are not ready for occupancy on the Commencement Date for any reason other than
the reasons specified in the immediately preceding sentence, the obligations of
Landlord
7
and Tenant shall nevertheless continue in full force and effect, in which event
the Rent provided for herein shall ▇▇▇▇▇ and not commence, and the Commencement
Date shall not occur, until the date the leasehold improvements to the Premises
are substantially complete (as determined by Landlord's architect), such
abatement of Rent to constitute full settlement of all claims that Tenant might
otherwise have against Landlord by reason of the Premises not being ready for
occupancy by Tenant on the Commencement Date.
6.8 Tenant shall bear the entire cost of any improvements to be
installed by Landlord in the Premises in excess of the "Allowance" (as herein
defined) and shall pay for such as hereinafter provided. Tenant shall pay to
Landlord upon Landlord's approval of the working drawings referred to herein, an
advance payment equal to fifty percent (50%) of the cost (including labor,
material and overhead) of such improvements in excess of the Allowance, as
estimated by Landlord. Notwithstanding any provision contained herein to the
contrary, it is understood and agreed that Landlord shall have no obligation to
commence installation of such improvements in excess of the Allowance until (a)
Tenant shall have furnished to Landlord and Landlord shall have approved the
final working drawings as required by the provisions hereof, and (b) Landlord
shall have received Tenant's advance payment for the portion of the cost of the
installation of the improvements in excess of the Allowance as required by the
immediately preceding sentence. After the commencement of the installation of
the leasehold improvements referred to herein, Tenant agrees to make progress
payments in advance to Landlord for the remainder of the cost (including labor,
material and overhead as aforesaid) of the improvements in excess of the
Allowance as estimated from time to time by Landlord and set forth in interim
invoices therefor submitted by Landlord to Tenant at such intervals as Landlord
may determine. Tenant shall pay to Landlord the amount specified in each such
invoice upon delivery of each such invoice to Tenant, and upon substantial
completion of the installation of such improvements, Tenant shall pay to
Landlord the remainder of the actual cost of such work in excess of the
Allowance, or Landlord shall refund to Tenant the amount, if any, by which all
prior progress payments by Tenant exceed the actual cost of the installation of
such improvements in excess of the Allowance, as the case may be. In no event
credit be given to Tenant for any Building standard allowances not used.
7 Permitted Use. Tenant shall use the Premises only for the Permitted
-------------
Use. Tenant will not occupy or use the Premises, or permit any portion of the
Premises to be occupied or use, for any business or purpose other than the
Permitted Use or for any use or purpose which is unlawful in part or in whole or
deemed to be disreputable in any manner or extra hazardous on account of fire,
nor shall Tenant use, store, or discharge any "Hazardous Material" as defined in
Section 46 hereof, nor permit anything to be done which will in any way increase
the rate of insurance on the Building or contents; and in the event that, by
reasons of acts of the Tenant, there shall be any increase in the rate of
insurance on the Building or contents created by Tenant's acts or conduct of
business, then such acts of Tenant shall be deemed to be an event of default
hereunder and Tenant hereby agrees to pay to Landlord the amount of such
increase on demand, and acceptance of such payment shall not constitute a waiver
of any of Landlord's other rights provided herein. Tenant will
8
conduct its business and control its agents, employees and invitees in such a
manner as not to create any nuisance, nor interfere with, annoy or disturb other
tenants or Landlord in the management of the Building. Tenant will maintain the
Premises in a clean, healthful and safe condition and will comply with all laws,
ordinances, orders, rules and regulations (state, federal, municipal and other
agencies of bodies having jurisdiction thereof) with reference to Tenant's
specific use, specific condition or specific occupancy of the Premises. Tenant
will not, without the prior written consent of the Landlord, which consent shall
not be unreasonably withheld or delayed, paint, install lighting or decorations,
or install any signs, window or door lettering or advertising media of any type
on or about the premises or any part thereof.
8 Tenant's Repairs and Alterations. Tenant will not in any manner
--------------------------------
deface or injure the Building, and will pay the cost of repairing any damage or
injury done to the Building or any part thereof by Tenant or Tenant's agents,
employees or invitees. Tenant shall throughout the Lease Term take good care of
the Premises and keep them free from waste and nuisance of any kind. Tenant
agrees to keep the Premises, including all fixtures installed by Tenant, in good
condition, and to make all necessary non-structural repairs except those caused
by fire, casualty or acts of God covered by Landlord's fire insurance policy
covering the Building, or which would be covered under a standard fire insurance
policy. The performance by Tenant of its obligations to maintain and make
repairs shall be conducted only by contractors and subcontractors approved in
writing by Landlord, it being understood that Tenant shall procure and maintain
and shall cause such contractors and subcontractors engaged by or on behalf of
Tenant to procure and maintain insurance coverage against such risks, in such
amounts and with such companies as Landlord may require in connection with any
such maintenance and repair. If Tenant fails to make such repairs within
fifteen (15) days after the occurrence of the damage or injury, Landlord may at
its option make such repair, and Tenant shall, upon demand therefor, pay
Landlord for the cost thereof. At the end or other termination of this Lease,
Tenant shall deliver up the Premises with all improvements located thereon
(except as otherwise herein provided)in good repair and condition, reasonable
wear and tear excepted; and shall deliver to Landlord all keys to the Premises.
Tenant will not make or allow to be made any alterations or physical additions
in or to the Premises without the prior written consent of Landlord. All
alterations, additions or improvements (whether temporary or permanent in
character) made in or upon the Premises without either by Landlord or Tenant,
shall be the Landlord's property on termination of this Lease and shall remain
on the Premises without compensation to Tenant, provided that Landlord, at its
option, may by written notice to Landlord, require Tenant to remove any such
alterations, additions or improvements at Tenant's cost which Landlord has not
consented to or which Landlord has not stated, at the time of Landlord's consent
to the making of such improvements, that such improvement need not be removed by
Tenant at the end of the Term or Lease. Tenant shall, subject to the above,
restore the Premises to the condition of the Premises at the Commencement Date,
normal wear and tear excepted. All furniture, movable trade fixtures and
equipment installed by Tenant may be removed by Tenant at the termination of
this Lease if Tenant so elects, and shall be so removed if required by Landlord,
or if not so removed shall, at the option of Landlord, become the
9
property of Landlord. All such installations, removals and restoration shall be
accomplished in a good workmanlike manner so as not to damage the Premises or
the primary structure or structural qualities of the Building or the plumbing,
electrical lines or other utilities.
9 Subletting and Assigning.
------------------------
9.1.1 Tenant shall not assign, mortgage or encumber this Lease, nor
sublet, suffer or permit the Premises or any part thereof to be used by others,
without the prior written consent of Landlord in each instance, which consent of
Landlord shall not be unreasonably withheld. Tenant shall have the right to
assign the Lease or sublet the Premises, or any part thereof, without Landlord's
consent, but subject to Landlord's rights to notice and prohibition contained
herein, to any parent, subsidiary, affiliate or controlled corporation or to
corporation which Tenant may be converted or which it may merge as a result of a
consolidation, reorganization or merger or to any transferee of substantially
all of the stock or assets of Tenant. Tenant shall have the obligation to
notify Landlord if its intent of any such arrangement, and if Landlord
reasonably determines that the proposed assignee or sublessee is engaged in a
business which would materially interfere with the operation of the Property or
its obligations under lease covering a portion of the Property, Landlord shall,
within Landlord's sole reasonable consent, have the right to prohibit such
arrangement based upon the issue of the business of the proposed assignee or
sublessee of the compatibility of the proposed assignee or sublessee with the
businesses in the Building.
9.1.2 For the purposes of this Lease, an "assignment" prohibited by
this Section 9 shall be deemed to include the following: if Tenant is a
partnership, a withdrawal or change (voluntary, involuntary, by operation of
law) of any one or more of the partners thereof, or the dissolution of the
partnership; or, if Tenant is a corporation, any dissolution, merger
consolidation or other reorganization of Tenant, or any change in the ownership
(voluntary, involuntary, by operation of law, creation of new stock or
otherwise) of fifty percent (50%) or more of its capital stock from the
ownership existing on the date of execution hereof, or, the sale of fifty
percent (50%) of the value of the assets of Tenant.
9.1.3 Notwithstanding the foregoing, without Landlord's consent, but
upon ten (10) days' notice to Landlord, this Lease may be assigned, or the
9.2 No less than thirty (30) days prior to the effective date of a
proposed assignment or sublease other than one made pursuant to Subsection
9.1.3), Tenant shall offer to reconvey to Landlord, as of said effective date,
that portion of the Premises which Tenant is seeking to assign or sublet, which
offer shall contain an undertaking by Tenant to accept, as full and adequate
consideration for the reconveyance, Landlord's release of Tenant from all future
Rent and other obligations under this Lease with respect to the Premises or the
portion thereof so reconveyed. Landlord, in its absolute discretion, shall
accept or reject the offered reconveyance within thirty (30) days of the offer
and if Landlord accepts, the reconveyance shall be evidenced by an agreement to
Landlord in form and substance. If
10
Landlord fails to accept or reject the offer within the thirty (30) day period,
Landlord shall be deemed to have rejected the offer.
9.3 If Landlord rejects or is deemed to have rejected Tenant's offer
of reconveyance and if Landlord gives its consent to any assignment of this
Lease or to any sublease, or if Tenant is otherwise permitted to make any
assignment or sublease pursuant to this Lease, Tenant shall in consideration
therefor, pay to Landlord, as Additional Rent:
9.3.1 In the case of an assignment, an amount equal to all sums
and consideration paid to Tenant by the assignee for or by reason of such
assignment (including any sums paid for the sale, rental, or use of Tenant's
Property in excess of the then unamortized value of Tenant's Property as
reflected in Tenant's federal income tax returns) less the reasonable brokerage
commissions and legal fees, if any, actually paid by Tenant in connection with
such assignment; and
9.3.2 In the case of a sublease, any rents, additional charge or
other consideration payable under the sublease to Tenant by the subtenant
(including any sums paid for the sale, rental or use of Tenant's Property in
excess of the then unamortized value of Tenant's Property as reflected in
Tenant's federal income tax returns) that are in excess of the Rent during the
term of the sublease with respect to the sublease space, less the reasonable
brokerage commissions and legal fees, if any, actually paid by Tenant in
connection with such subletting.
The sums payable hereunder shall be paid to Landlord as and when
payable by the assignee or subtenant to Tenant.
9.4 Tenant shall reimburse Landlord on demand for any reasonable
costs that Landlord may incur in connection with said assignment or sublease,
including the reasonable costs of investigating the acceptability of the
proposed assignee or subtenant, and reasonable legal costs incurred in
connection with the granting of any requested consent.
9.5 No assignment or subletting shall affect the continuing primary
liability of Tenant (which, following assignment, shall be joint and several
with the assignee), and Tenant shall not be released from performing any of the
terms, covenants and conditions of this Lease.
10 Indemnity. (a) Landlord shall not be liable for and Tenant will
---------
indemnify and save harmless Landlord of and from any fines, suits, demands,
losses and actions (including attorneys' fees) for any injury to person or
damage to or loss of property on or about the Premises caused by the gross
negligence or willful misconduct of, or breach of the Lease by Tenant, its
employees or subtenants, or arising out of Tenant's use of the Premises.
Landlord shall not be liable or responsible for any loss or damage to any
property or death or injury to any person occasioned by theft, fire, act of God,
public enemy, criminal conduct of third parties, injunction, riot, strike,
insurrection, war, court order, requisition of other
11
governmental body or authority, by other tenants of the Building or any other
matter, or for any injury or damage or inconvenience which may arise through
repair or alteration of any part of the Building, or failure to make repairs, or
from any cause whatever except Landlord's willful misconduct.
(b) Landlord will indemnify and save harmless Tenant of and
from all fines, suits, demands, losses and actions (including attorney's fees)
for any injury to person or damage to or loss of property by Tenant, if such is
caused by the gross negligence or willful misconduct of Landlord.
11 Subordination and Mortgagee's Right to Cure Landlord's Defaults.
---------------------------------------------------------------
11.1 Landlord currently owns the Building free and clear of any
mortgages, deeds to secure debt or other like instruments. This Lease and all
rights of Tenant hereunder are subject and subordinate to any deeds to secure
debt, mortgages or any other instruments of security, as well as to any ground
leases or primary leases, that hereafter cover all or any part of the Building,
the land situated beneath the Building or any interest of Landlord therein, and
to any and all advances made on the security thereof, and to any and all
increases, renewals, modifications, consolidations, replacements and extensions
of any such deeds to secure debt, mortgages, instruments of security or leases.
This provision shall be self-operative and no further instrument shall be
required to effect such subordination of this Lease. Tenant shall, however,
upon demand at any time or times execute, acknowledge and deliver to Landlord
any and all instruments and certificates that in the judgment of Landlord may be
necessary or proper to confirm or evidence such subordination. Notwithstanding
the generality of the foregoing provisions of the Section 11, Tenant agrees that
any such mortgagee shall have the right at any time to subordinate any such
deeds to secure debt, mortgages or other instruments of security, or sale of the
Building pursuant to any such deeds to secure debt, mortgages or other
instruments of security, or sale of the Building pursuant to any such deeds to
secure debt, mortgages or other instruments of security, to attorn to such
purchaser upon any such sale and to recognize such purchaser as Landlord under
this Lease. The agreement of Tenant to attorn upon demand of Landlord's
mortgagee contained in the immediately preceding sentence shall survive any such
foreclosure sale. Tenant shall upon demand at any time or times before or after
any such foreclosure sale, execute, acknowledge and deliver to Landlord's
mortgagee any and all instruments and certificates that in the judgment of
Landlord's mortgagee may be necessary or proper to confirm all instruments and
certificates that in the judgment of Landlord's mortgagee may be necessary or
proper to confirm or evidence such attornment, and Tenant hereby irrevocably
appoints Landlord's mortgagee as Tenant's agent and attorney-in-fact for the
purpose of executing, acknowledging and delivering any such instruments and
certificates.
11.2 Anything contained in this Lease to the contrary
notwithstanding, if Tenant is leasing more than ten percent (10%) of the
Building, in the event of a breach or default hereunder on the part of the
Landlord, Tenant shall not terminate this Lease, assert any claim for damages
against the Landlord, or assert any right of setoff against of Rent,
12
because of such breach or default without first giving to any mortgagee, from
time to time, of the property of which the Premises is part, written notice of
and the right, but not the obligation, for a reasonable time, not to exceed
sixty (60) days, to cure such breach or default, provided Tenant has been
notified in writing of the name and address of such mortgagee.
12 Rules and Regulations. Tenant and Tenant's agents, employees and
---------------------
invitees will comply fully with all requirements of the rules and regulations of
the Building and related facilities which are attached hereto as Exhibit "C",
-----------
and made a part hereof as though fully set forth herein. Landlord in its sole
judgment shall at all times have the right to change such rules and regulations
or to promulgate other rules and regulations in such manner as may be deemed
advisable for safety, care, or cleanliness of the Building and related
facilities or premises, and for preservation of good order therein, all of which
rules and regulations, changes and amendments will be forwarded to Tenant in
writing and shall be carried out and observed by Tenant. Tenant shall further
be responsible for the compliance with such rules and regulations by the
employees, servants, agents, visitors and invitees of Tenant.
13 Inspection. Landlord or its officers, agents, and representatives
----------
shall have the right to enter into and upon any and all parts of the Premises at
all reasonable hours (or, in any emergency, at any hour) and (a) inspect same or
clean or make repairs or alterations or additions as Landlord may deem necessary
(but without any obligation to do so, except as expressly provided for herein)
or (b) show the Premises to prospective tenants, purchasers or lenders; and
Tenant shall not be entitled to any abatement or reduction of Rent by reason
thereof, nor shall such be deemed to be an actual or constructive eviction.
14 Condemnation. If the Premises, or any part thereof, or if the
------------
Building or any portion of the Building, leaving the remainder of the Building
unsuitable for use as an office building comparable to its use on the
Commencement Date of this Lease, shall be taken or condemned in whole or in part
for public purposes, or sold in lieu of condemnation, then the Lease Term shall,
at the sole option of Landlord, forthwith cease and terminate. All compensation
awarded for taking (or sale proceeds in lieu thereof) shall be the property of
Landlord, and Tenant shall have no claim thereto, the same being hereby
expressly waived by Tenant.
15 Fire or Other Casualty. In the event the Building should be totally
----------------------
destroyed by fire, tornado or other casualty or in the event the Premises or the
Building should be so damaged that rebuilding or repairs cannot be completed
within one hundred eighty (180) days after the date of such damage, Landlord or
Tenant may at its option terminate this Lease, in which event the Rent shall be
abated during the unexpired portion of this Lease effective from the date of
such damage, or if the damage should be more serious but neither Landlord nor
Tenant elects to terminate this Lease, in either such event Landlord shall
within ninety (90) days after the date of such damage commence to rebuild or
repair the Building and/or Premises and shall proceed with reasonable diligence
to restore the Building
13
and/or Premises to not less than substantially the same condition in which it
was immediately prior to the happening of the casualty except that Landlord
shall not be required to rebuild, repair or replace any part of the furniture,
equipment, fixtures and other improvements which may have been placed by Tenant
or other tenants within the Building on the Premises. Landlord shall allow
Tenant a fair diminution of Rent during the time the Premises are unfit for
occupancy, on the basis of the portion of the Premises which is unfit for
occupancy. In the event any mortgagee under a deed to secure debt, security
agreement or mortgage on the Building should require that the insurance proceeds
be used to retire the mortgage debt, Landlord shall have no obligation to
rebuild and this Lease shall terminate upon notice to Tenant. Except as
hereinafter provided, any insurance which may be carried by Landlord or Tenant
against loss or damage to the Building or to the Premises shall be for the sole
benefit of the party carrying such insurance and under its sole control.
16 Holding Over. Should Tenant hold over the Premises, or any part
------------
thereof, after the expiration of the Lease Term, unless otherwise agreed in
writing by Landlord, such holding over shall constitute and be construed as a
tenancy at will only, at a daily rental equal to one hundred fifty percent
(150%) of the daily Rent payable for the last month of the Lease Term. The
inclusion of the preceding sentence shall not be construed as Landlord's consent
for Tenant to hold over.
17 Taxes on Tenant's Property. Tenant shall be liable for all taxes
--------------------------
levied or assessed against personal property, furniture or fixtures placed by
Tenant in the Premises (herein called "Tenant's Property"). If any such taxes
for which Tenant is liable are levied or assessed against Landlord or Landlord's
property and if Landlord elects to pay the same or if the assessed value of
Landlord's property and if Landlord elects to pay the same or if the assessed
value of Landlord's property is increased by inclusion of personal property,
furniture or fixtures placed by Tenant in the Premises, and Landlord elects to
pay the taxes based on such increase, Tenant shall pay to Landlord upon demand
that part of such taxes for which Tenant is primarily liable hereunder.
18 Events of Default. The following events shall be events of default by
-----------------
Tenant under this Lease.
18.1 Tenant shall fail to pay when due any Rent or other sums payable
by Tenant hereunder (or under any other lease now or hereafter executed by
Tenant in connection with space in the Building), which failure is not cured
within ten (10) days after written notice thereof is given by Landlord to
Tenant; provided, however, that Landlord shall not be required to give a notice
of default under this Section 18.1 more than one (1) time in any period of
twelve (12) consecutive months with respect to any repeated or reoccurring
default.
18.2 Tenant shall fail to comply with or observe any other provision
of this Lease (or any other lease now or hereafter executed by Tenant in
connection with space in the Building); provided, however, that, except as
provided in the following sentence, it shall
14
not be an event of default if Tenant immediately commences to cure the matter
for which notice of default was given under this Paragraph 18.2 with all due
diligence and all reasonable effort, and successfully cures such matter as soon
as is reasonably possible, and in any event within fifteen (15) days of the date
notice of such default was given; provided, however, if Tenant is continuously,
diligently pursuant such cure to completion, and such cure cannot be
accomplished in fifteen (15) days, Tenant shall have up to forty-five (45) days
to accomplish such cure, prior to such failure being an event of default
hereunder. Notwithstanding the above, it shall be an immediate event default on
the part of Tenant if the matter in question is such that it presents a danger
of life or the possibility of substantial property damage.
18.3 Tenant or any guarantor of Tenant's obligations hereunder shall
make an assignment for the benefit of creditors.
18.4 Any petition shall be filed by or against Tenant or any
guarantor of Tenant's obligations hereunder under any section or chapter of the
Federal Bankruptcy Act, as amended from time to time, or under any similar law
or statute of the United States or any State thereof; or Tenant or any guarantor
of Tenant's obligations hereunder shall be adjudged bankrupt or insolvent in
proceedings filed thereunder; provided, however, that with respect to any such
petition filed against, but not by, Tenant, it shall not be an event of default
unless Tenant does not have such petition dismissed within sixty (60) days of
the filing thereof.
18.5 A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant or any guarantor of Tenant's
obligations hereunder.
18.6 Tenant shall desert or vacate any portion of the Premises.
Notwithstanding the terms and conditions of Paragraph 18.6 of the Lease, if
Tenant has abandoned or vacated the Premises, then Landlord's sole remedy shall
be in such instance to terminate the Lease (which Landlord shall have the
option, but not the obligation, to do). In the event of such a termination,
Tenant shall not be liable for damages for such early termination of the Lease;
provided, however, in no event shall such termination eliminate or otherwise
limit any claims which Landlord might have against Tenant for any acts,
omissions or defaults on the part of Tenant occurring on or prior to the date of
such termination.
18.7 Any writ of execution, attachment, or garnishment shall be
levied against any interest of Tenant in this Lease, the Premises, or any
property located in the Premises.
19 Remedies. If Tenant defaults under this Lease, then without any
--------
notice or demand to Tenant whatsoever, Landlord shall have the right (but not
any duty) to exercise, on a cumulative basis, any or all of the following
remedies:
15
19.1 Landlord may continue this Lease in full force and effect, and
proceed to collect all Rent when due.
19.2 Landlord may continue this Lease in full force and effect and
may enter the Premises and relet all or any part of them to other parties for
Tenant's account. Tenant shall be liable to pay on demand to Landlord all costs
Landlord incurs in entering the Premises and reletting them, including, without
limitation, brokers' commissions, expenses of repairs and remodeling, attorneys'
fees, and all other actual costs. Reletting may be for a period shorter or
longer than the remaining term of this Lease. During the term of any reletting,
Tenant shall pay to Landlord the Rent due under this Lease on the dates due,
less any net rents Landlord receives from any reletting.
19.3 Landlord may, without any notice or demand whatsoever, terminate
Tenant's rights under this Lease at any time. On termination, Landlord shall
have the right to recover from Tenant all costs, expenses, losses and damages
caused by said default and termination including, but not limited to:
19.3.1 An amount equal to all unpaid Rent that had accrued at
the time of termination of this Lease;
19.3.2 An amount equal to (a) the amount of Rent that would have
accrued under this Lease between (i) the date of termination of this Lease, and
(ii) the date the calculation is made under this subsection 19.3.2 if this Lease
had been prematurely terminated; less (b) any net amounts of rent actually
received by Landlord with respect to such time period; plus
19.3.3 An amount equal to (a) the present value of all Rent
(assuming that the Additional Rent payable hereunder for the future will be the
same as for the most recent Lease Year) which would have accrued under this
Lease had this Lease not been terminated, for the period of time between (i) the
date of calculation of Rent under subsection 19.3.2, and (ii) the date the Lease
Term would have ended if this Lease had not been prematurely terminated; less
(b) the present value of rent at that time being actually collected for
comparable leases in the immediate geographic area of the Project; plus
19.3.4 An amount equal to (a) all actual costs and expenses,
including but not limited to attorneys' fees that have at that time been
incurred by Landlord, plus the present value of all actual costs and expenses,
including, but not limited to, attorneys' fees, that with reasonable certainty
are likely to have to be incurred thereafter by Landlord, which are reasonably
necessary to compensate Landlord for all economic losses proximately caused by
Tenant's default.
In computing the present value of amounts for purposes of this subsection
19.3, a capitalization rate of eight percent (8%) per annum shall be used.
16
19.4 Without any showing of need or the presence of any
statutory or common law grounds, all of which requirements are hereby expressly
waived, Landlord may have a receiver appointed to take possession of the
Premises and relet in accordance with subsection 19.2.
19.5 Landlord may cure any default at Tenant's cost. If Landlord
at any time, by reason of Tenant's default, the sum so paid by Landlord shall be
immediately due from Tenant to Landlord on demand, and shall bear interest from
the date paid by Landlord until Landlord shall have been reimbursed by Tenant.
Said sum, together with interest thereon, shall be Additional Rent.
19.6 Landlord may apply all or part of the Security Deposit, as
provided in Section 3.3.
19.7 Landlord may exercise any or all other rights or remedies
available at law or equity, including, without limitation, the right to
restraining orders, injunctions and decrees of specific performance.
20 Attorneys' Fees. If either party should bring any action under this
---------------
Lease against the other, then the party found liable, responsible or guilty, as
applicable, in such action agrees in such case to pay to the other, prevailing
party all costs, including but not limited to court costs and a reasonable
attorney's fee occurred in connection therewith.
21 Security Interest. In addition to the statutory landlord's lien,
-----------------
Landlord shall have, at all times, and Tenant hereby grants to Landlord, a valid
security interest to secure payment of damages or loss which Landlord may suffer
by reason of the breach of Tenant of any covenant, agreement or condition
contained herein, upon all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Tenant presently or which may
hereafter be situated on the Premises, and all proceeds therefrom, and such
property shall not be removed therefrom without the consent of Landlord until
all arrearages in Rent as well as any and all sums of money then due to Landlord
hereunder shall first have been paid and discharged and all the covenants,
agreements and conditions hereof have been fully complied with and performed by
Tenant. Upon the occurrence of an event of default by Tenant, Landlord may, in
addition to any other remedies provided herein, enter upon the Premises and take
possession of any and goods, wares, equipment, fixtures, furniture, improvements
and other personal property of Tenant situated on the Premises, without
liability for trespass or conversion, and sell the same at public or private
sale, with or without having such property at the sale, after giving Tenant
reasonable notice of the time and place of any public sale or of the time after
which any private sale is to be made, at which sale Landlord or its assigns may
purchase said property unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving
Tenant reasonable notice, the requirement of reasonable notice shall be met if
such notice is given in the manner prescribed in Section 28 of this Lease at
least five (5) days before the time of sale. The proceeds from any such
disposition, less any and all expenses
17
connected with the taking of possession, holding and selling of the property
(including reasonable attorneys' fees and other expenses), shall be applied as a
credit against the debts secured by the security interest granted in this
Section 21. Any surplus shall be paid to Tenant or as otherwise required by
law; and Tenant shall pay any deficiencies forthwith. Upon request by Landlord,
Tenant agrees to execute and deliver to Landlord a financing statement in form
sufficient to perfect the security interest of Landlord in the said property and
the proceeds thereof under the provisions of the Uniform Commercial Code in
force in the State of Georgia. The statutory lien for rent is not hereby
waived, the security interest herein granted being in addition and supplementary
thereto.
22 Mechanic's Lien. Tenant will not permit any mechanic's lien to be
---------------
placed upon the Premises, the Building or any improvements thereon during the
Lease Term caused by or resulting from any work performed, materials furnished
or obligation incurred by or at the request of Tenant, and in the case of the
filing of any such lien, Tenant will promptly pay or otherwise discharge the
same. If default in payment or discharge thereof shall continue for twenty (20)
days after written notice thereto from Landlord to Tenant, Landlord shall have
the right and privilege at Landlord's option of paying the same or any portion
thereof without inquiry as to the validity thereof, and any amounts so paid,
including expenses and interest, shall be so much Additional Rent hereunder due
from Tenant to Landlord and shall be repaid to Landlord immediately on demand.
23 Waiver of Subrogation. Each party to this Lease (the "Waiving Party")
---------------------
hereby waives any cause of action it might have against the other party hereto
on account of any loss or damage that is covered by any insurance policy that
covers the Premises, Tenant's fixtures, personal property, leasehold
improvements or business and which names Tenant as a party insured, it being
understood and agreed that this provision is cumulative of Section 10 hereof.
Tenant agrees that it will request its insurance carrier to endorse all
applicable policies waiving the carrier's rights of recovery under subrogation
or otherwise against Landlord.
24 Liability Insurance. Tenant shall procure and maintain throughout the
-------------------
Lease Term a policy or policies of insurance at its sole cost and expense and in
amounts of not less than a combined single limit of $2,000,000 or such other
amounts as Landlord may from time to time require, insuring Tenant and Landlord
against any and all liability to the extent obtainable for injury to or death of
a person or persons or damage to property occasioned by or arising out of or in
connection with the use, operation and occupancy of the Premises and
specifically providing coverage for Tenant's indemnification obligations imposed
by Section 10 of this Lease. Landlord retains the right in its sole reasonable
discretion to increase the amount of insurance required not more frequently than
annually based on such factors as inflation, Tenant's insurance claims history,
the advice of Landlord's insurance advisors and any other relevant factors.
Tenant shall furnish a certificate of insurance and such other evidence
satisfactory to Landlord of the maintenance of all insurance coverages required
hereunder, and Tenant shall obtain a written obligation on the part of each
insurance
18
company to notify Landlord at least thirty (30) days prior to cancellation or
material change of any such insurance.
25 Brokerage. Tenant warrants that it has had no dealings with any
---------
broker or agent in connection with the negotiation or execution of this Lease,
other than with ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ of Georgia, Inc. ("CW") and Tenant agrees
to indemnify Landlord against all costs, expenses, attorneys' fees or other
liability for commissions or other compensation or charges claimed by any broker
other than CW claiming the same by, through or under Tenant.
26 Change of Building Name. Landlord reserves the right to change the
-----------------------
name by which the Building is designated.
27 Estoppel Certificates. Tenant agrees to furnish from time to time
---------------------
when requested by Landlord or the holder of any deed to secure debt or mortgage
covering all or any part of the Building or the improvements therein or the
Premises or any interest of Landlord therein, a certificate signed by Tenant
confirming and containing such factual certifications and representations deemed
appropriate by Landlord or the holder of any deed to secure debt or mortgage
covering all or any part of the Building or the improvements therein or the
Premises or any interest of Landlord therein, and Tenant shall, within ten (10)
days following receipt of said proposed certificate from Landlord, return a
fully executed copy of said certificate to Landlord. In the event Tenant shall
fail to return a fully executed copy of such certificate to Landlord within the
foregoing ten (10) day period, then Tenant shall be deemed to have approved and
confirmed all of the terms, conditions and representations contained in such
certificate.
28 Notices. Each provision of this Lease, or of any applicable laws,
-------
ordinances, regulations, and other requirements with reference to the sending,
mailing or delivery of any notice, or with reference to the making of any
payment by Tenant to Landlord, shall be deemed to be compiled with when and if
the following steps are taken:
28.1 All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at Landlord's Address set forth
in section 1.5 or at such other address as Landlord may specify from time to
time by written notice delivered in accordance herewith, and
28.2 Any notice or document required to be delivered hereunder shall
be deemed to be delivered if actually received and whether or not received when
deposited in the United States mail, postage prepaid, certified or registered
mail (with or without return receipt requested), addressed to the parties hereto
at the respective addresses set forth in Article 1 or at such other address as
either of said
19
parties shall have theretofore specified by written notice delivered in
accordance herewith.
29 Force ▇▇▇▇▇▇. When a period of time is herein prescribed for any
------------
action to be taken by Landlord, Landlord shall not be liable or responsible for
and there shall be excluded from the computation for any such period of time,
any delays due to strikes, riots, acts of God, shortages or labor or materials,
war, laws, regulations or restrictions or any other causes of any kind
whatsoever which are beyond the control of Landlord.
30 Severability. If any clause or provision of this Lease is illegal,
------------
invalid or unenforceable under present or future laws effective during the Lease
Term, then and in that event, it is the intention of the parties hereto that the
remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
31 Amendments; Binding Effect. This Lease may not be altered, changed or
--------------------------
amended, except by instrument in writing signed by both parties hereto. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord and addressed to Tenant, nor shall
any custom or practice which may evolve between the parties in the
administration of the terms hereof be construed to waive or lessen the right of
Landlord to insist upon the performance by Tenant in strict accordance with the
terms hereof. The terms and conditions contained in this Lease shall apply to,
inure to the benefit of, and be binding upon the parties hereto, and upon their
respective successors in interest and legal representatives, except as otherwise
herein expressly provided.
32 Quiet Enjoyment. Provided Tenant has performed all of the terms and
---------------
conditions of this Lease, including the payment of Rent, to be performed by
Tenant, Tenant shall peaceably and quietly hold and enjoy the Premises for the
Lease Term, without hinderance from Landlord, subject to the terms and
conditions of this Lease.
33 Gender. 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.
34 Joint and Several Liability. If there be more than one Tenant, the
---------------------------
obligations hereunder imposed upon Tenant shall be joint and several. If there
be a guarantor of Tenant's obligations hereunder, the obligations hereunder
imposed upon Tenant shall be the joint and several obligations of Tenant and
such guarantor
20
and Landlord need not first proceed against Tenant before proceeding against
such guarantor nor shall any such guarantor be released from its guaranty for
any reason whatsoever, including without limitation, in case of any amendments
hereto, waivers hereof or failure to give such guarantor any notices hereunder.
35 Captions. The captions contained in this Lease are for convenience or
--------
reference only, and in no way limit or enlarge the terms and conditions of this
Lease.
36 Exhibits and Attachments. All exhibits, attachments, riders and
------------------------
addenda referred to in this Lease are incorporated into this Lease and made a
part hereof for all intents and purposes.
37 No Joint Venture. Landlord and Tenant are not and shall not be deemed
----------------
to be, for any purpose, partners or joint venturers with each other.
38 Time of the Essence. Time is of the essence with regard to each
-------------------
provision of this Lease.
39 Evidence of Authority. If Tenant is other than a natural person,
---------------------
Tenant shall deliver to Landlord such legal documentation as Landlord may
request to evidence the authority of those signing this Lease to bind the
Tenant.
40 Governing Law. This Lease shall be construed and interpreted in
-------------
accordance with and governed by the laws of Georgia.
41 Entire Agreement. This Lease constitutes the entire agreement between
----------------
the parties, and there is no other agreement between the parties relating in any
manner to the Project.
42 Exculpation. The term Landlord as used in this Lease so far as
-----------
covenants or obligations on the part of Landlord are concerned shall be limited
to mean and include only the owner or owners at the time in question of the
Landlord's interest in the Building. Tenant acknowledges and agrees, for itself
and its successors and assigns, that no trustee, director, officer, employee or
agent of Landlord shall be personally liable for any of the terms, covenants or
obligations of Landlord hereunder, and Tenant shall look solely to Landlord's
interest in the Building for the collection of any judgment (or enforcement or
any other judicial process) requiring the payment of money by Landlord with
respect to any of the terms, covenants and conditions of this Lease to be
observed or performed by Landlord and no other property or assets of Landlord
shall be subject to levy, execution or other enforcement for the satisfaction of
any obligation due Tenant or its successors or assigns.
21
43 Covenants are Independent. Each covenant of Landlord and Tenant under
-------------------------
this Lease is independent of each other covenant under this Lease, and no
default by either party in performance of any covenant shall excuse the other
party from the performance of any other covenant.
44 Usufruct. The rights of Tenant hereunder constitute a usufruct, which
--------
is not subject to levy or sale. No estate shall pass out of Landlord.
45 Right to Relocate Tenant. (a) Except as provided below, at any time
------------------------
during the Term, Landlord shall have the right upon thirty (30) days' prior
notice to Tenant, to relocate Tenant from the Premises to any other portion of
the Project which is constructed with a floor plan and tenant finishes
substantially equivalent to the Premises; provided, however, that Landlord may
not locate Tenant to a floor below the 8th floor, unless such space is located
on the south side of the Building. As to any relocation to the 8th floor or
higher of the Building, such relocation may be to any location on said floor.
Notwithstanding the above, so long as Tenant is still leasing and occupying at
least 5946 rentable square feet in the Building and is in full compliance with
the terms of the Lease, then Landlord shall not relocate Tenant in the first
eighteen (18) months of the Term.
(b) Landlord shall bear the expenses of said relocating, plus the
expense of any renovation or alterations necessary to make said substituted
space substantially equivalent to the Premises. If Landlord exercises either of
its rights set forth in this Section 45, then the substituted space shall for
all purposes constitute the Premises and all other terms and conditions of this
Lease shall continue in full force and effect and shall apply to the substituted
space.
46 Hazardous Materials.
-------------------
46.1 Tenant shall not cause or permit any Hazardous Material (as
defined in Section 46.3 below) to be brought, kept or used in or about the
Building by Tenant, its agents, employees, contractors or invitees. Tenant
hereby indemnifies Landlord from and against any breach by Tenant of the
obligations stated in the preceding sentence, and agrees to defend and hold
Landlord harmless from and against any and all loss, damage, cost and/or
expenses (including, without limitation, diminution in value of the Building,
damages for the loss or restriction on use of rentable or usable space or of any
amenity of the Building, damages arising from any adverse impact on marketing of
space in the Building, and sums paid in settlement of claims, attorneys' fees,
consultant fees, and expert fees) which arise during or after the term of this
Lease as a result of such breach. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Material present
22
in the soil or ground water on or under the Building which results from such a
breach. Without limiting the foregoing, if the presence of any Hazardous
Material in the Building caused or permitted by Tenant results in any
contamination of the Building, Tenant shall promptly take all actions at its
sole expense as are necessary to return the Building to the conditions existing
prior to the introduction of such Hazardous Material to the Building; provided
that the Landlord's approval of such actions, and the contractors to be used by
Tenant in connection therewith, shall first be obtained.
46.2 Notwithstanding any provision in this Lease to the contrary, it
shall not be unreasonable for Landlord to withhold its consent to any proposed
transfer, assignment, or subletting of the Premises if (i) the proposed
transferee's anticipated use of the Premises involves the generation, storage,
use, treatment or disposal of Hazardous Material; (ii) the proposed transferee
has been required by any prior Landlord, lender, or governmental authority to
take remedial action in connection with Hazardous Material contaminating a
property if the contamination resulted from such transferee's actions or use of
the property in question; or (iii) the proposed transferee is subject to an
enforcement order issued by any governmental authority in connection with the
use, disposal, or storage of a Hazardous Material.
46.3 As used herein, the term "Hazardous Material" means any hazardous
or toxic substance, material, or waste which is or becomes regulated by any
local governmental authority or the United States Government. The term
"Hazardous Material" includes, without limitation, any material or substance
which is (i) defined as a "hazardous waste", "extremely hazardous waste", or
"restricted hazardous waste" or similar term under the law of the jurisdiction
where the property is located, or (ii) designated as a hazardous substance"
pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.
(S) 1317), (iii) defined as a "hazardous substance" pursuant to Section 101 of
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. (S) 9601 et. seq. (42 U.S.C. (S) 9601).
46.4 As used herein, the term "Laws" means any applicable federal,
state or local laws, ordinances, or regulation relating to any Hazardous
Material affecting the Building, including, without limitation, the laws,
ordinances, and regulations referred to in Section 46.3 above.
46.5 Landlord and its employees, representatives and agents shall have
access to the Building during reasonable hours and upon reasonable notice to
Tenant in order to conduct periodic environmental inspections and tests of
Hazardous Material contamination of the Building.
23
Special Provisions. The special provisions set forth in Exhibit "D" herein are
------------------ -----------
made a part hereof.
SIGNED, SEALED AND DELIVERED as of the date first above written.
LANDLORD:
By: State of California Public Employees'
Retirement System, an agency of the State of
California
By: [insert name] , Agent
By:
TENANT:
[insert name]
By:
Its:
Attest:
Its:
24
EXHIBIT "A"
-----------
ALL THAT TRACT or parcel of land lying and being in Land ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and being more particularly
described as follows:
TO FIND THE POINT OF BEGINNING commence at an iron pin located at the
intersection of the southern right of way of Mt. ▇▇▇▇▇▇▇▇▇ Parkway (160 foot
public right of way) with eastern right of way of Overlook Lane (a 60 foot
public right of way); thence South 54 degrees 40' 17" East 12.53 feet to a
marble monument located on the eastern right of way of Overlook Parkway (a 70
foot private right of way); thence South 02 degrees 58' 17" East along said
right of way of Overlook Parkway 173.70 feet to a marble monument which is the
POINT OF BEGINNING; thence leaving said eastern right of way of Overlook Parkway
run South 75 degrees 55" 27" East 178.85 feet to a marble monument; thence South
61 degrees 24' 13" East 28.86 feet to a marble monument; thence South 89 degrees
19' 24" East 31.12 feet to a marble monument; thence North 75 degrees 16' 20"
East 197.60 feet to an iron pin; thence South 02 degrees 47' 13" East 703.01
feet to a point; thence South 48 degrees 27' 35" West 212.29 feet to a point;
thence North 82 degrees 13' 45" West 124.66 feet to a point located on the
eastern right of way of Overlook Parkway; thence in a generally northerly
direction along said eastern right of way to Overlook Parkway and following the
curvature thereof the following courses and distances:
along the arc of a curve to the left having a radius of 195.00 feet, said arc
being subtended by a chord bearing North 35 degrees 20' 53" west for 146.11
feet, an arc distance of 149.76 feet to a point; North 56 degrees 21' 106" West
39.34 feet to a point; along the arc of a curve to the right having a radius of
80.00 feet, said arc being subtended by a chord bearing north 13 degrees 38' 55"
West for 110.55 feet, an arc distance of 122.04 feet to a point; North 30
degrees 03' 16" East 9490 feet to a point; along the arc of a curve to the left
having a radius of 215.00 feet, said arc being subtended by a chord bearing
North 13 degrees 20' 32" East for 123.65 feet, an arc distance of 125.43 feet to
a point; North 02 degrees 27' 46" West 371.44 feet to a marble monument, being
the POINT OF BEGINNING.
being property designated as Parcel "A" and containing 7.92 acres according to
that certain Boundary Survey of the Overlook #3 Office Building for Atlanta
Overlook Associates #3. United States Fidelity and Guaranty Company, BA
Mortgage and International Realty Corporation. The First National Bank of
Atlanta and Lawyers Title Insurance Corporation, prepared by Planners and
Engineers Collaborative, dated May 15, 1985, last revised July 26, 1985, and
bearing the certification of ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, Georgia Registered Land Surveyor
No. 2080.
25
EXHIBIT "A-1"
Attached to and made a part of this Lease
Dated:__________________________
Landlord: State of California Public
Employees' Retirement System
Tenant: Atlantic Steel Industries, Inc.
26
EXHIBIT "B"
-----------
INTENTIONALLY DELETED
27
EXHIBIT "C"
-----------
Attached to and made part of
Lease Agreement dated: November 1, ▇▇▇▇
▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ Public Employees' Retirement System
Tenant: Atlantic Street Industries, Inc.
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking garage associated therewith, the land
situated beneath the Building and the appurtenances thereto:
1 Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by tenants or used by any tenant for any purpose
other than ingress and egress to and from the leased premises and for going from
one to another part of the Building.
2 Plumbing, fixtures and appliances shall be used only for the purpose
for which designed, and no sweepings, rubbish, rags, Hazardous Material as
defined herein, or other unsuitable material shall be thrown or placed therein.
Damage resulting to any such fixtures or appliances from misuse by a tenant or
such tenant's agents, employees or invitees, shall be paid by such tenant, and
Landlord shall not in any case be responsible therefore.
3 No signs, advertisements or notices shall be painted or affixed on or
to any windows or doors or other part of the Building except of such color, size
and style and in such places as shall be first approved in writing by Landlord.
No nails, books, or screws shall be driven or inserted in any part of the
Building except by the building maintenance personnel and except for the hanging
of ordinary and customary sized art or other like objects on the walls of the
interior of the Premises, nor shall any part of the Building be defaced by
tenants. No curtains or other window treatments shall be placed between the
glass and the Building standard window treatments.
4 Landlord will provide and maintain an alphabetical directory board for
all tenants in the main lobby of the Building and no other directory shall be
permitted unless previously consented to by Landlord in writing.
5 Landlord shall provide all locks for doors in each tenant's leased
premises, such initial locks to be at Landlord's cost, and for any subsequent
replacement thereof at the cost of such Tenant, and no Tenant shall place any
additional lock or locks on any door in its leased area without Landlord's prior
28
written consent. A reasonable number of keys to the locks on the doors in each
tenant's leased premises shall be furnished by Landlord to each tenant, such
initial keys to be at Landlord's cost, and for any subsequent replacement
thereof at the cost of such tenant, and the tenants shall not have any duplicate
keys made.
6 With respect to work being performed by tenants in any leased premises
with the approval of Landlord, all tenants will refer all contractors,
contractors' representatives and installation technicians rendering any service
to them to Landlord for Landlord's supervision, approval and control before the
performance of any contractual services. This provision shall apply to all work
performed in the building including, but not limited to, installations of
telephones, telegraph equipment, electrical devices and attachments, and any and
all installations of every nature affecting floors, walls, woodwork, trim,
windows, ceilings, equipment and any other physical portion of the Building.
7 Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by tenants of any bulky material, merchandise or
materials which requires the use of elevators or stairways, or movement through
the Building entrances or lobby shall be restricted to such hours as Landlord
shall designate. All such movement shall be under the supervision of Landlord
and in the manner agreed between the tenants and Landlord by prearrangement
before performance. Such prearrangement initiated by a tenant will include
determination by Landlord, and subject to its decision and control, as to the
time, method, and routing of movement and as to limitations for safety or other
concern which may prohibit any article, equipment or any other item from being
brought into the Building. The tenants are to assume all risks as to the damage
to articles moved and injury to persons or public engaged or not engaged in such
movement, including equipment, property and personnel of Landlord if damaged or
injured as a result of acts in connection with carrying out this service for a
tenant from the time of entering the Project to completion of work; and Landlord
shall not be liable for acts of any person engaged in, or any damage or loss to
any of said property or persons resulting from, and act in connection with such
service performed for a tenant.
8 Landlord shall have the power to prescribe the weight and position of
safes and other heavy equipment or items, which shall in all cases, to
distribute weight, stand on supporting devices approved by Landlord. All
damages done to the Building by the installation or removal of any property of a
tenant, or done by a tenant's property while in the Building, shall not be
repaired at the expense of such tenant.
9 A tenant shall notify the Building manager when safes or other heavy
equipment are to be taken in or out of the Building, and the moving shall be
done under the supervision of the Building manager, after written permission
from
29
Landlord. Persons employed to move such property must be acceptable to
Landlord.
10 Corridor doors which are not the main entrance to the Premises, when
not in use, shall be kept closed. The main entrance door to the Premises may be
kept open during the Building Hours.
11 Each tenant shall cooperate with Landlord's employees in keeping its
leased premises neat and clean. Tenants shall not employ any person for the
purposes of such cleaning other than the Building's cleaning and maintenance
personnel. Landlord shall be in no way responsible to the tenants, their
agents, employees, or invitees for any loss of property from the leased premises
or public areas or for any damages to any property thereon from any cause
whatsoever.
12 To insure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers and the like shall be delivered to any leased area
during times outside the Building Hours, except by persons appointed or approved
by Landlord in writing.
13 Should a tenant require telegraphic, telephone, annunciator or other
communication service, Landlord will direct the electrician where and how wires
are to be introduced and placed and none shall be introduced or placed except as
Landlord shall direct. Electric current shall not be used for power of heating
without Landlord's prior written permission.
14 Tenants shall not make or permit any improper, objectionable or
unpleasant noises or odors in the Building or otherwise interfere in any way
with other tenants or persons having business with them.
15 Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairway. No birds or animals shall be brought into or kept in, on or
about any tenant's leased premises.
16 Machinery not typically found in a commercial or professional office
shall not be operated by any tenant in its leased premises without the prior
written consent of Landlord, nor shall any tenant use or keep in the Building
any inflammable or explosive fluid or any other Hazardous material.
17 No portion of any tenant's leased premises shall at any time be used
or occupied as sleeping or lodging quarters.
18 Landlord reserves the right to rescind any of these rules and
regulations and to make such other and further rules and regulations as in its
sole judgment shall from time to time be deemed appropriate for the safety,
protection,
30
care and cleanliness of the Building, the operation thereof, the preservation of
good order therein and the protection and comfort of the tenants and their
agents, employees and invitees, which rules and regulations, when made and
written notice thereof is given to tenant, shall be binding upon it in like
manner as if originally herein prescribed.
19 Landlord will not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
20 Any additional services, not required by lease to be performed by
Landlord, which Tenant request Landlord to perform and which are performed by
Landlord shall be billed to Tenant at Landlord's cost plus fifteen percent
(15%).
31
EXHIBIT "D"
-----------
SPECIAL PROVISIONS INVOLVING LEASE
BETWEEN STATE OF CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT
SYSTEM AND ATLANTIC STEEL INDUSTRIES, INC.
1 Early Occupancy. The Lease Term shall not commence until January
---------------
1, 1994, provided, however, if the Premises are available prior to that date
(with no representation or warranty whatsoever as to whether or not such
Premises shall be so available). Landlord will permit Tenant to occupy the
Premises prior to the Commencement Date, under the terms and conditions of the
Lease.
2 Operating Costs. (a) The initial Operating costs shall be, as to
---------------
the Premises, the actual Operating Costs, on a per square foot per annum basis,
for the calendar year 1994 (the "Base Year Operating Costs"), adjusted in
accordance with Exhibit "E" of the Lease.
-----------
(b) Notwithstanding the terms and conditions of paragraph 3 of this
Lease, except as described below, in no event shall Tenant's Share of Operating
Costs for any year exceed the amount which would have been due in such year had
such costs increased in each and every year by one hundred ten percent (110%) of
Tenant's Share of Operating costs for each prior year of the Lease Term (such
increases being cumulative and compounding); provide, however, and
notwithstanding the above limitation, that for the purposes of determining
whether or not the aforesaid limit on increases in Tenant's Share of Operating
Costs from year to year is exceeded or not, the components of Operating Costs
related to taxes and assessments attributable to the property or Building or its
operation, utilities costs to the Building, property or Premises and insurance
premiums related to or payable in connection with the Building, Property or
Premises shall not be considered or factored in to such determination, and there
shall be no limit on the amounts of Operating Costs related to taxes, utilities
and insurance premiums for the Building, Property or Premises that can be passed
on by Landlord to Tenant or that shall be due of Tenant at any time and from
year to year, except as expressly provided for in this Lease.
3 Tenant Improvements. Landlord shall cause the tenant fit-up and
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finish work in the Premises to be completed in accordance with construction
documents (the "Construction Documents") dated October 18, 1993 (the
"Allowance") and shall provide an allowance of $15.75 per rentable square foot
of space in the Premises. To the extent the costs to complete the tenant fit-up
and finish work int eh Premises are less than the Allowance, then the difference
shall be applied to the first installments of Monthly Rental Due from Tenant.
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4 Renewal of Lease. Provided this Lease is then in full force and
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effect and there has been no assignment of this Lease by Tenant or a sublease of
the Premises or any portion thereof, and Tenant is in full compliance with the
terms and conditions of this Lease, landlord hereby grants to tenant an option
to renew this Lease for one (1) period of five (5) years, at a rental rate equal
to the then prevailing per rentable square foot rate payable by tenants having a
credit standing substantially similar to that of Tenant for office space which
is comparable in quality, size, utility and location to the Premises being
leased Project, as evidenced by recent transactions in the Building and Project
and/or in comparable buildings and projects located within a three (3) mile
radius of the Building and Project. Tenant shall notify Landlord not less than
twelve (12) months prior to the end of the Term if Tenant desires to renew this
Lease under the terms of this Special Provision 4. If Tenant does give such
notice, Landlord shall indicate to Tenant within thirty (30) days after Tenant's
notice as described above, with the rental rate which shall be in effect for the
Term as extended, on the basis as above-described. Tenant shall have thirty
(30) days from the date Landlord make such offer to either accept or reject such
offer. If Tenant rejects such offer or fails to respond within such thirty (30)
day period, then this Lease shall terminate as of the end of the Term as
established herein. If Tenant accepts such offer, then the Term shall be
extended by said five (5) year period, upon the same terms and conditions as
contained in this Lease, and the rent for such period shall be the rent as
offered by Landlord and accepted by Tenant pursuant to the terms and conditions
of this Special Provision 4.
5 Vinings Club Memberships. (a) As long as Tenant is in full
------------------------
compliance with the terms and conditions of this Lease and this Lease is in full
force and effect. Landlord will pay the initiation fee at the Vinings Club for
up to three (3) full individual memberships.
(b) Nothing contained herein shall mean or be construed to mean that
Landlord shall be obligated to pay any additional or special charges or fees
which Tenant might incur in or with respect to the Club and all such charges and
fees shall be the responsibility of Tenant.
(c) Nothing contained herein shall mean or be construed to mean that
landlord guarantees that the Club shall remain open for business, or that
Landlord would have an obligation to provide access or memberships in another
club if the Club ceases to operate or changes its method of operation.
6 Conference Room. Tenant shall have the right to use the conference
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room in the Building, upon such rules for such use as Landlord shall adopt from
time to time, without additional charge or expense to Tenant only as long as
Landlord makes available to al the tenants in the Building said conference room.
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7 Failure to Deliver Premises. Notwithstanding anything to the
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contrary contained herein, in the event the Premises are not ready on or before
July 1, 1994 (as extended by one (1) day for every day Landlord is delayed due
to causes created by, through or under Tenant or due to any causes as described
in Paragraph 29 herein), then Tenant shall, before July 1, 1994 (as such date
may be extended for every day Landlord is delayed due to causes created by,
through or under Tenant or due to any causes as described in Paragraph 29
herein) be entitled to terminate the Lease. If Tenant has the right to so
terminate the Lease for said reason, than Tenant shall make such election within
ten (10) days of the date Tenant first has the right to so terminate the lease.
If Tenant does not deliver such notice within said period, then Tenant shall be
deemed to have waived its right to cancel this Lease for the aforesaid reasons,
unless Landlord and Tenant agree otherwise in writing.
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EXHIBIT "E"
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Lease Agreement dated: November 1, ▇▇▇▇
▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ Public Employees' Retirement System
Tenant: Atlantic Steel Industries, Inc.
1 Reimbursement for Operating Costs.
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1.1 Definitions. The definitions set forth in this section 1.1 shall
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be applied whenever any of the following terms are used in this special
Stipulation 1.
1.1.1 Operating Costs: shall mean all costs paid by Landlord or
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its representatives in connection with the ownership, management,
maintenance, operation, insuring, repairing, redecorating, cleaning,
and securing of the Building, as determined by Landlord to be
necessary or appropriate for a first-class building, including, but
not limited to, all of the following costs:
1.1.1.1 All wages, salaries, and related expenses of all
on-site and off-site agents, employees and contractors engaged in
the management, operation, maintenance, repair, redecoration,
cleaning, and security of the Building, plus the cost of all
management, maintenance, and security offices in the Building.
Agents, employees and contractors who do not spend their time
exclusively on the Building shall have their aforesaid charges
pro-rated by landlord, based upon the time spent on, in
connection with or in relation to the Building.
1.1.1.2 All supplies and materials used and labor charges
incurred in the management, operation, maintenance, repair,
redecoration, cleaning and security of the Building.
1.1.1.3 All equipment purchased or leased for the
performance of Landlord's obligations hereunder.
1.1.1.4 All management, maintenance, cleaning, security,
promotional and other service agreements for the Building and the
equipment therein, including, but not limited to, alarm service,
security service, window cleaning, and elevator and escalator
maintenance.
1.1.1.5 All accounting, legal and engineering fees and
expenses, including, but not limited to, the cost of audits by
certified public accountants for the Building.
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1.1.1.6 All insurance premiums, including, but not limited
to, fire, casualty, extended coverage, public liability, rent
abatement, boiler, and worker's compensation insurance applicable
to the Building, Landlord's employees and Landlord's personal
property used in connection therewith.
1.1.1.7 All redecorating (including painting, wallpapering
and floor coverings), maintaining and repairing of the Building,
except for space leased to a particular tenant, structural or
non-structural, including, but not limited to, the mechanical,
electrical, heating, ventilating and air conditioning equipment,
landscape maintenance and the replacement of trees and shrubbery.
1.1.1.8 All removing of trash, rubbish, garbage and other
refuse from the Building, as well as removal of ice and snow from
the sidewalks, driveways and parking lots.
1.1.1.9 All amortization of capital improvements
(including, but not limited to, accounting, legal, architectural
and engineering fees incurred in connection therewith) made to
the Building subsequent to the Commencement Date which will
improve operating efficiencies (but only to the extent of the
savings achieved thereby) or which may be required by any law.
1.1.1.10 All charges for electricity, gas, water, sewer,
and other utilities furnished by the Building.
1.1.1.11 All ad valorem property taxes covering all real
and personal property constituting a part of the Building,
including, but not limited to, all general and special
assessments of every kind.
1.1.1.12 All other expenses of owning, maintaining,
operating, insuring, securing, managing, cleaning, redecorating
or repairing the Building.
1.1.2 Notwithstanding any of the foregoing to the contrary, Operating
Costs shall not include:
1.1.2.1 Costs which are directly reimbursed to Landlord by
other tenants.
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1.1.2.2 Payments on mortgages or ground leases owned by
Landlord.
1.1.2.3 Costs of leasehold improvements for which Landlord
has agreed to pay.
1.1.2.4 Payment of any return on equity to any owner of the
Building.
1.1.2.5 Costs reimbursed by proceeds of insurance.
1.1.2.6 Costs of the initial construction of the Building
or any depreciation thereof.
1.1.2.7 Payments of claims, damages or expenses resulting
from any willful misconduct of Landlord or any of its authorized
representatives.
1.1.3 Tenant's Share. Shall mean the percentage that expresses
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the ratio between the number of rentable square feet comprising the
Premises (5946), and the number of rentable square feet of the
Building (432,312), which, for the purposes of the Lease, shall be
1.375". This figure shall be adjusted if the number of rentable
square feet comprising the Premises changes.
1.2 Payment of Operating Costs by Tenant. In addition to the Base Rent,
------------------------------------
tenant agrees to pay as additional Rent to Landlord tenant's Share of Operating
Costs in excess of the Operating Costs for the Building for 1994, on a per
square foot per annum basis and adjusted as required herein (the "Initial
Operating Costs"), which Additional Rent shall be due in twelve (12) equal
installments in each Lease Year, beginning in January, 1995 and continuing each
month thereafter throughout the remainder of the Lease. One monthly installment
of Tenant's Share of estimated Operating Costs shall be due and payable by
Tenant to Landlord upon the execution of this Lease. All subsequent payments of
Tenant's Share of Operating Costs in excess of Initial Operating Costs shall be
due and payable without demand, deduction or set off in advance on or before the
first day of each month of the Lease Term. During any Lease Year within the
Lease Term that is less than twelve (12) full months, any amount to be paid with
respect to such period shall be proportionately adjusted based on that portion
of the Lease Year that this Lease is in effect.
1.3 Calculation of Operating Costs. On or before December 15 of each
------------------------------
Lease Year, Landlord shall provide Tenant with Landlord's estimate of Tenant's
Share of Estimated Operating Costs for the following Lease Year. Beginning on
the
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January 1 of each Lease Year the amount of Tenant's Share of Estimated Operating
Costs shall be adjusted tot he amount set forth in Landlord's notice. As
promptly as practicable after the end of each Lease Year, Landlord shall compute
the actual Operating Costs for the previous Lease Year. If Tenant's Share of
the actual Operating Costs is greater than the amount Tenant paid to Landlord as
Tenant's Share of the Estimated Operating Costs for the previous Lease Year,
Tenant shall, within fifteen (15) days after receipt of notice of Tenant's Share
of actual Operating Costs, pay to Landlord as Additional Rent an amount equal to
the difference between tenant's Share of actual Operating Costs and tenant's
Share of Estimated Operating Costs. If Tenant's Share of the actual Operating
Costs for such Lease Year, such excess amount shall be applied against the
installment of Additional Rent next coming due until the same has been fully
applied.
1.4 Adjustments to Operating Costs. Notwithstanding anything to the
------------------------------
contrary contained herein, if the Building is not fully occupied during any
calendar year, appropriate adjustments shall be made to determine Operating
Costs as though the Building has been fully occupied in such calendar year.
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