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EXHIBIT 10.4
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT (the "AMENDMENT"), entered into
as of the 7th day of July, 1998, by and between ATLANTA PARKWAY INVESTMENT
GROUP, INC., a Delaware corporation having Westmark Realty Advisors, L.L.C., a
Delaware limited partnership, as its duly authorized agent (hereinafter referred
to as the "Landlord"), and E3 NORTH AMERICA, INC. (F/K/A E3 ASSOCIATES, LTD.), a
Georgia corporation (hereinafter referred to as the "TENANT").
W I T N E S S E T H:
WHEREAS, Two Park, Inc. ("FORMER LANDLORD") and Tenant have entered
into that certain Two Parkway Center Lease Agreement, dated November 8, 1990, as
amended by Amendment to Lease dated August 14, 1995 and Second Amendment to
Lease dated April 22, 1996 (the "Lease"), with respect to certain premises
consisting, as of the date hereof, of 29,038 square feet of Rentable Area and
known as Suites 315, 320, 600 and 605, 0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx, as
more particularly described in the Lease (the "EXISTING PREMISES") upon terms
and conditions more particularly set forth therein; and
WHEREAS, Landlord has acquired the Building from Former Landlord and
succeeded to Former Landlord's interest as Landlord under the Lease; and
WHEREAS, Landlord and Tenant desire to amend the lease to provide for
an expansion of the Existing Premises and in certain other respects;
NOW THEREFORE, for and in consideration of the premises and the sum of
TEN AND NO/00 DOLLARS ($10.00) and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, Landlord and
Tenant do hereby covenant and agree as follows:
1. DEFINITIONS. The Lease is hereby modified as provided below. Except
as otherwise provided herein, all capitalized terms used in this Amendment which
are not defined herein shall have the meanings ascribed to such terms in the
Lease. All references in the Lease or in this Amendment to "the Lease" or "this
Lease" shall be deemed references to the Lease as amended by this Amendment.
2. EXPANSION.
(a) Effective on May 1, 1998 (the "EXPANSION DATE"), the Existing
Premises shall be expanded to include space, consisting of 4,047 square feet of
Rentable Area in Suite 310 on the third (3rd) floor of the Building, as outlined
on the floor plan attached hereto and made a part hereof as EXHIBIT "A", and
identified thereon as the "NEW SPACE." From and after the Expansion Date, the
term "Rentable Area" of the Premises," as defined in Section 1.4, of the Lease,
shall mean for all purposes, including without limitation the calculation of
Base Rental, 33,085 square feet, and "Tenant's Percentage Share," as defined in
Section 1.6(b) of the Lease, shall be 14.575%.
(b) Effective on September 30, 2000 (the "ADDITIONAL EXPANSION DATE"),
the Existing Premises shall be expanded to include the space, consisting of
20,265 square feet of rentable area on the 5th floor of the Building, and more
particularly described in that certain Sublease dated February 24,
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1998 by and between E3 North America, Inc. as "Subtenant" and Circuit City
Stores, Inc. as "Sublessor", as the "Subleased Premises" (the "ADDITIONAL NEW
SPACE"). From and after the Additional Expansion Date, the term "Rentable Area
of the Premises", as defined in Section 1.4 of the Lease, shall mean for all
purposes, including without limitation, the calculation of Base Rental, 53,350
square feet, and "Tenant's percentage share", as defined in Section 1.6(b) of
the Lease, shall be 23.502%.
3. BASE RENTAL; ADDITIONAL RENT; REIMBURSEMENTS.
(a) Section 1.1 of the Lease is hereby amended to provide that the
annual Base Rental for the New Space, effective on the Expansion Date, shall be
$22.25 per square foot of Rentable Area within the New Space per year, payable
monthly as provided in Section 4.1 of the Lease. Accordingly, the Base Rental
for the New Space (4,047 square feet) shall be as follows:
RESULTING ANNUAL RESULTING MONTHLY
PERIOD EFFECTIVE */RSF BASE RENTAL BASE RENTAL
---------------- ----- ----------- -----------
May 1, 1998 $22.25 $90,045.75 $7,503.81
through
February 18, 2001
The Base Rental for the New Space shall be subject to increase pursuant to
Paragraph 4.2 of the Lease, commencing with the year 1999; provided, however,
that such increase shall be determined by multiplying the Base Rental in force
at the end of each calendar year times fifty percent (50%) of the percentage
increase in the Index for the month of December of the immediately preceding
calendar year, subject to a maximum annual increase in the Index of two percent
(2%).
(b) Section 1.1 of the Lease is hereby amended to provide that the
annual Base Rental for the Additional New Space, effective on the Additional
Expansion Date, shall be an amount equal to the average rental rate per square
foot for the Existing Premises (excluding the New Space) multiplied by the
number of square feet of rentable area within the Additional New Space. Said
annual Base Rental shall be payable monthly as provided in Section 4.1 of the
Lease. The Base Rental for the Additional New Space shall be subject to increase
pursuant to paragraph 4.2 of the Lease, commencing with the year 2001; provided,
however, that such increase shall be determined by multiplying the Base Rental
in force at the end of each calendar year times fifty percent (50%) of the
percentage increase in the Index for the month of December of the immediately
preceding calendar year, subject to a maximum annual increase in the Index of
two percent (2%).
(c) The Base Year for purposes of Sections 1.6(c) and 4.3 of the Lease
shall be 1998 for the New Space and 2000 for the Additional New Space.
Accordingly, for each calendar year during the Lease Term commencing with the
year 1999 for the New Space and 2001 for the Additional New Space, Tenant shall
pay to Landlord, as additional rent under Paragraph 4.3 of the Lease with
respect to the New Space and the Additional New Space, an amount equal to
Tenant's Percentage Share of the total dollar increase, if any, in Operating
Expenses paid or incurred by Landlord in such Adjustment Year over the Base
Operating Expenses. Anything to the contrary herein notwithstanding, the Base
Rental and other sums due Landlord under the Lease with respect to the Existing
Premises shall continue to be due and payable in accordance with the terms of
the Lease.
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4. TENANT IMPROVEMENTS.
(a) Tenant takes and accepts the New Space from Landlord in its present
as-is condition and as suited for the use intended by Tenant, except for such
improvements as may be expressly provided for in the Tenant Improvement
Agreement attached hereto and made a part hereof as EXHIBIT "B." No delay in
delivery of the Tenant Improvements shall render the Lease (including this
Amendment) void or violable, nor shall Landlord be liable to Tenant for any loss
or damages resulting therefrom. No such delay shall operate to relieve Tenant of
Tenant's obligations (including the obligation to pay Base Rental and additional
rent under the Lease) to Landlord as provided in the Lease, and the Expansion
Date and the Expiration Date, as defined in this Amendment, shall not be
postponed. Notwithstanding the foregoing, the Base Rental payable with respect
to the New Space shall xxxxx for the time period beginning on the date that
Landlord's Contractor commences construction of the Tenant Improvements and
ending on the earlier of (i) the date on which said Tenant Improvements are
substantially complete or Tenant takes delivery of or otherwise occupies the New
Space or (ii) the date which is sixty (60) days after the commencement of
construction of said Tenant Improvements; provided, however, that Tenant shall
not be entitled to any such rent abatement if and to the extent that any delay
in completing the Tenant Improvements is attributable to Tenant, its employees
or agents, or any such party's failure to comply with the provisions hereof, and
provided further that Tenant shall be entitled to no such rent abatement at any
time during which Tenant occupies all or a portion of the New Space.
(b) Landlord agrees to construct or install in the Premises the "Tenant
Improvements," as defined in and to be constructed or installed pursuant to the
provisions of the Tenant Improvement Agreement which is attached hereto as
EXHIBIT "B". Subject to the terms of paragraph 4(a) above, Landlord agrees to
use its reasonable good faith efforts to cause Landlord's Contractor to commence
construction of the Tenant Improvements within ten (10) business days after a
building permit is issued with respect to the same, and to complete said Tenant
Improvements within a reasonable period of time thereafter, taking into account
the nature and extent of said Tenant Improvements. Tenant agrees to comply with
all the terms and provisions of the Tenant Improvement Agreement, including,
without limitation, the obligation to pay, as additional rent, all amounts due
Landlord under Paragraph 3 thereof according to the payment provisions contained
in said Paragraph 3. Upon request of Landlord, within twenty (20) days after the
Premises has been substantially completed in accordance with the Tenant
Improvement Agreement, Tenant will execute and deliver to Landlord a Tenant
Acceptance Agreement in the form attached to the Lease, dated October 23, 1991,
as Exhibit "B" thereto. All other Landlord allowances provided in the Lease with
respect to the Existing Premises or the New Space shall have no further force or
effect.
5. INSURANCE. Section 8.1(b) of the Lease is hereby deleted in its
entirety and the following new Section 8.1(b) is inserted in lieu thereof.
Notwithstanding anything to the contrary contained herein, on and after the
Expansion Date, Tenant shall maintain on the entire Premises the amounts and
types of insurance required by Section 8.1 of the Lease, as amended hereby.
"8.1(b) Tenant shall carry policies of insurance as follows: workers'
compensation in form and amounts as required by the state of Georgia;
employers liability in an amount of not less than $500,000 bodily
injury by accident, each accident, $500,000 bodily injury by disease,
policy limit, and $500,000 bodily injury by disease, each employee; and
commercial general liability, which shall include but not be limited to
bodily injury, property damages, personal injury, and broad form
contractual coverage in an amount of not less than $1,000,000 per
occurrence and in the aggregate combined single limit. Said commercial
general liability insurance policy shall name the Landlord and its
agent as additional insureds, and shall, as regards to this contract,
be considered to be primary and noncontributory. All policies shall be
with insurers licensed to do business in the
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state of Georgia and shall carry an A.M. Best rating of not less than A
- XII (A minus 12). Certificates of Insurance evidencing the required
insurance shall be issued no later than 10 days prior to the
Commencement Date of this Lease and no later than 10 days prior to each
renewal. Certificates shall provide that thirty (30) days written
notice of cancellation or nonrenewal be given to the Landlord. The
certificate evidencing commercial general liability coverage shall note
that the Landlord and its agent are additional insureds. The
certificate of insurance evidencing the insurance required by
subparagraph 8.1(a) shall be in the form of ACCORD Form 27.
6. BROKER. Tenant represents and warrants to Landlord that (except
with respect to Xxxxxxx Xxxxx GVA who has represented Tenant and whose
commission is to be paid by Landlord pursuant to separate agreement) no broker,
agent, commissioned salesman, or other person has represented Tenant in the
negotiations for and procurement of this Third Amendment and of the New Space
and that no commissions, fees, or compensation of any kind are due and payable
in connection herewith to any broker, agent, commissioned salesman, or other
person. With respect to the broker(s) or other person(s) or firm(s) excluded
above from Tenant's representation and warranty of no broker, and with respect
to LaSalle Partners, Landlord agrees to pay to Such broker all commissions,
fees, or compensation of any kind which are due and payable to such broker.
Tenant agrees to indemnify and hold Landlord harmless from any and all claims,
suits, or judgments (including, without limitation, reasonable attorneys' fees
and court costs incurred in connection with any such claims, suits, or
judgments) for any fees, commissions or compensation of any kind which arise out
of or are in any way connected with any claimed agency relationship with Tenant.
Landlord represents and warrants to Tenant that any broker, agent, commissioned,
salesman or other person who has represented Landlord in the negotiations for
and procurement of this Third Amendment will be paid by Landlord.
7. NOTICE ADDRESS. Paragraph 1.8 of the Lease, entitled "Notice
Addresses," is hereby amended to provide that the address of Landlord shall be
as follows:
As to Landlord:
Atlanta Parkway Investment Group, Inc.
c/o Westmark Realty Advisors, L.L.C.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx
With a copy to:
LaSalle Partners Management Services, Inc.
Two Parkway Center
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
8. RIGHT OF FIRST OPPORTUNITY. Until February 28, 2001, and provided
this Lease is then in full force and effect and that Tenant is not in default
under this Lease, either at the time of Tenant's election to lease the First
Opportunity Space or as of the commencement of this Lease as it relates to the
First Opportunity Space, Tenant shall have a right of first opportunity (the
"RIGHT OF FIRST OPPORTUNITY") to lease all (but not less than all) of the
approximately 6,184 rentable square feet on the
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third floor of the Building shown as the "First Opportunity Space" on EXHIBIT
"A" hereto (the "FIRST OPPORTUNITY SPACE"), in its then as-is condition, on the
following terms and conditions:
(a) Should Landlord, prior to February 28, 2001, receive interest in
leasing all or any portion of the First Opportunity Space from a bona fide third
party prospect, Landlord shall notify Tenant thereof in writing, which notice
shall set forth, as the Base Rental for the First Opportunity Space, the
then-prevailing rental rate on a per square foot basis as then announced by
Landlord for the Building, but without any allowances for tenant improvements or
other "moving" concessions.
(b) Tenant shall have five (5) days after receipt of Landlord's notice
to respond as to whether or not Tenant desires to lease the entire First
Opportunity Space at the Base Rental stated by Landlord in its written notice.
If Tenant elects not to lease the First Opportunity Space or fails to respond
within such five (5) day period, then this Right of First Opportunity shall
automatically terminate and Tenant shall have no further right to lease the
First Opportunity Space or any portion thereof.
(c) Tenant elects to lease the First Opportunity Space, the "Base
Rental" for the First Opportunity Space, for purposes of Paragraph 1.1 of this
Lease, shall be an amount equal to the Base Rental set forth in Landlord's
notice as set forth above, and shall be subject to adjustment pursuant to
Paragraph 4.2 of the Lease. Base Rental for the First Opportunity Space shall
commence on the earlier to occur of (i) thirty (30) days after Tenant's notice
of election to lease the First Opportunity Space, or (ii) the date Tenant first
occupies the First Opportunity Space. Except as expressly set forth to the
contrary in this Lease, from and after the date Tenant is required to pay Base
Rental hereunder with respect to First Opportunity Space, all other terms and
conditions of this Lease shall apply to the First Opportunity Space, and the
First Opportunity Space shall be deemed to be a part of the Premises for the
remainder of the Term of the Lease.
(d) Tenant's right to lease the First Opportunity Space pursuant to
this Paragraph is and shall at all times be subject and subordinate to the
rights of others currently in effect with respect to such space, whether
exercised or unexerclsed. This Right of First Opportunity is personal to Tenant
and shall become null and void upon the occurrence of an assignment of this
Lease or a sublet of all or any portion of the Premises.
(e) Within thirty (30) days after the commencement of Base Rental for
the First Opportunity Space as set forth above, Landlord and Tenant shall enter
into a written amendment to this Lease setting forth the commencement date of
Base Rental for such space, the location and square footage of such space, the
annual rent for such space and the increased "Tenant's Percentage Share" for
purposes of Paragraph 1.6(b) of the Lease. The "Base Year" with respect to the
First Opportunity Space, for purposes of Paragraph 1.6(c) of the Lease, shall be
the calendar year during which Base Rental for such space shall commence.
9. ASSIGNMENT AND SUBLETTING. Section 3.1(a) of the Lease is hereby
deleted in its entirety and the following new Section 3.1(a) is inserted in lieu
thereof.
(a) The Tenant shall not, without the Landlord's prior written consent,
which shall not be unreasonably withheld or delayed, (i) assign,
convey, mortgage, pledge, encumber, or otherwise transfer (whether
voluntarily, by operation of law, or otherwise) this Lease or any
interest under it; (ii) allow any transfer thereof or any lien upon
Tenant's interest by operation of law; (iii) sublet the Premises or any
part thereof; or (iv) permit the use or occupancy of the Premises or
any part thereof by anyone other than
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Tenant, and any attempt to consummate any the foregoing without
Landlord's consent shall be void. Tenant shall have the right to assign
all or any portion of the Premises to any parent of Tenant or to a
corporation into which Tenant 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 (and Paragraphs 3.1(b), (c), (d) and (e),
below, shall have no force or effect) so long as such assignee assumes
and agrees to perform all obligations of Tenant under this Lease;
provided, however, that Tenant shall notify Landlord of any such
proposed assignment at least twenty (20) days in advance of the
effective date thereof and that Tenant shall not be in default
hereunder at the time of such proposed assignment or at the time of
such notice, and provided further that Tenant and such assignee shall
execute such documents as Landlord shall reasonably request reflecting
the terms of such assignment, and provided further that the following
conditions shall be satisfied to the reasonable satisfaction of
Landlord:
(i) the net worth of such assignee is an amount not less
than the greater of Tenant's net worth as of the date
hereof or as of the date of such assignment;
(ii) the use of the Premises by the proposed assignee
shall be for general office purposes only, and shall
be of a kind and a quality which is typically located
or found in first class office buildings in
metropolitan Atlanta, Georgia;
(iii) such assignee shall not be detrimental to the
integrity of the tenant base in the Building, and the
business of such assignee shall be compatible with
the businesses of other tenants in the Building and
will not materially interfere with the operation of
the Building or other tenants located therein; and
(iv) such assignment would not adversely affect the
marketability of the remaining unoccupied portions of
the Building and would not cause a violation by
Landlord of its obligations under any other lease
covering any portion of the Building.
Tenant shall submit to Landlord, promptly upon request by Landlord,
such information concerning the proposed assignee as may be requested
by Landlord in order to satisfy the foregoing conditions. No such
assignment shall release or relieve Tenant of any of its liabilities or
obligations thereunder and all of the terms and provisions of this
Paragraph 3 shall continue to be applicable to any subsequent
assignment, subletting or other disposition by the assignee permitted
pursuant to the foregoing provisions. Notwithstanding anything in this
Paragraph 3.1 to the contrary, under no circumstances shall any
Sublessee or assignee of Tenant approved by Landlord as provided herein
have any right to further assign or sublet the Premises, or any part
thereof, without Landlord's consent, which consent may be granted or
withheld by Landlord in its sole and absolute discretion.
10. MISCELLANEOUS. Section 3.1 of the Original Lease is hereby
modified and amended to add, as a condition to any assignment or subletting of
all or a portion of the Premises, that there not be a material event of default
under this Lease in existence at the time of Tenant's election to so
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assign or sublet or as of the effective date of such assignment or subletting,
and to provide that Tenant shall pay all Landlord's costs associated with the
Landlord's review and approval of any sublet or assignment requested by Tenant.
It is understood that, for purposes of the previous sentence, any obligation of
Tenant under the Lease, as amended hereby, to pay any monies to Landlord
thereunder, including all payments of Base Rental and additional rent, shall be
deemed to be a material event of, default. Tenant acknowledges that it is in
possession of, and has accepted, the Existing Premises and the Additional New
Space and acknowledges that all tenant improvement work to be performed by
Landlord in said Existing Premises and Additional New Space as required by the
terms of the Lease (or the lease pursuant to which Tenant currently occupies the
Additional New Space, hereinafter referred to as the Circuit City Lease) has
been satisfactorily completed. Tenant further certifies to Landlord that, to its
best knowledge and belief, all conditions of the Lease and the Circuit City
Lease required of Landlord as of this date have been fulfilled and there are no
defenses or setoffs against the enforcement of the Lease or the Circuit City
Lease by Landlord. Except as expressly modified herein, the Lease and the
Circuit City Lease shall remain in full force and effect. Landlord and Tenant do
hereby ratify and confirm the terms and conditions of the Original Lease, as
amended by the First Amendment, the Second Amendment and this Third Amendment.
In the event of any conflict between the terms of this Third Amendment and the
terms of the Original Lease, as amended by the First Amendment and Second
Amendment, the terms of this Third Amendment shall govern and control. This
Third Amendment constitutes and contains the sole and entire agreement of
Landlord and Tenant with respect to the subject matter hereof and no prior or
contemporaneous oral or written representations or agreements between the
parties and affecting the subject matter hereof shall have any force or effect.
This Third Amendment shall be binding upon the executors, administrators, heirs,
successors and assigns of Landlord and Tenant, to the extent permitted under the
Lease.
11. GOVERNING LAW. This Third Amendment shall be governed by and
construed in accordance with the laws of the State of Georgia.
12. TIME IS OF THE ESSENCE OF ALL OF THE PROVISIONS HEREOF OF WHICH
TIME IS A FACTOR.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to
be executed under seal by their duly authorized officers or representatives as
of the day and year first above written.
"TENANT"
E3 NORTH AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Title: Executive Vice President
----------------------------------
Date: June 10, 1998
-----------------------------------
Attest: /s/ Xxxxxx Xxxxxxx
---------------------------------
Title: CEO
----------------------------------
Date: 6/10/98
-----------------------------------
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(CORPORATE SEAL)
(Signatures continued on next page)
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"LANDLORD"
ATLANTA PARKWAY INVESTMENT
GROUP, INC., a Delaware corporation
By: WESTMARK REALTY
ADVISORS, L.L.C., its authorized
agent
By: /s/ Xxxxx X. Xxxxxxxxx, XX (SEAL)
-------------------------------
Print Name: Xxxxx X. Xxxxxxxxx, XX
-----------------------------
Title: Authorized Signatory
----------------------------------
Attest: /s/ Xxxxxxx Xxxxx (SEAL)
---------------------------
Print Name: Xxxxxxx Xxxxx
-----------------------------
Title: Authorized Signatory
----------------------------------
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EXHIBIT B
TENANT IMPROVEMENT AGREEMENT
WHEREAS, the undersigned Landlord and Tenant have executed, sealed, and
delivered a certain Third Amendment to Lease Agreement (the "AMENDMENT") to
which this Agreement is attached, and into which this Agreement is fully
incorporated by reference, as Exhibit B;
WHEREAS, the Lease, as defined in the Amendment (the "LEASE"), provides
for the letting of space within Xxx Xxxxxxx Xxxxxx, 0000 Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxx (the "BUILDING") and the Amendment provides for the letting of
an additional 4,047 square feet of Rentable Area in the Building (the "NEW
SPACE") located at Two Parkway Center;
WHEREAS, the terms "LANDLORD" and "TENANT," "PREMISES," "EXISTING
PREMISES," "NEW SPACE," "RENTABLE AREA OF THE PREMISES," and "BUILDING" as used
herein shall have the same meanings ascribed thereto as set forth in the Lease,
as amended by the Amendment; and
WHEREAS, Landlord and Tenant desire to set forth herein their
respective agreements regarding the improvement of the Premises;
NOW THEREFORE, in consideration of the premises, the execution and
delivery of the Lease by the parties hereto, the mutual covenants contained
herein, and other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant, intending to be legally
bound, hereby agree as follows:
Section 1. TENANT IMPROVEMENTS.
Section 1.01 DEFINITION.
The term "TENANT IMPROVEMENTS" shall mean all improvements to be
constructed or installed in or on the New Space in accordance with the Drawings
and Specifications, as hereinafter defined.
Section 1.02 BASE BUILDING CONDITION.
The term "BASE BUILDING CONDITION" shall mean the condition of the New
Space prior to commencement of the work of constructing and installing the
Tenant Improvements.
Section 2. DRAWINGS AND SPECIFICATIONS.
Section. 2.01 DEFINITION.
The term "DRAWINGS AND SPECIFICATIONS" shall mean (i) the initial
drawings, specifications, and finish schedules utilized for pricing of the
Tenant Improvements which have been approved by Landlord and Tenant, as more
particularly described on EXHIBIT "A-1" attached hereto (the "PRICING PLANS"),
together with (ii) final construction drawings, specifications, finish schedules
and the like necessary to commence construction of the Tenant Improvements,
which are to be prepared by Landlord's architect ("LANDLORD'S ARCHITECT") and
approved by Landlord and Tenant (the "CONSTRUCTION DRAWINGS").
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(a) Tenant desires that Landlord use Landlord's Architect to prepare
final working drawings, specifications, finish schedules, and the like necessary
to commence construction of the Tenant Improvements. As provided in Section 3.01
hereof, Landlord shall pay the cost of preparing the Pricing Plans. The cost of
preparing the Construction Drawings, including any revisions to same (except as
provided in Section 3.03(c)), shall be paid by Landlord and shall be a part of
the Tenant Improvement Costs (as defined below). Landlord and Tenant shall
cooperate with Landlord's Architect in the prompt preparation of the
Construction Drawings. Notwithstanding anything to the contrary contained
herein, Landlord shall not charge any construction management fee or similar
charge to Tenant or to the Landlord's Allowance for Tenant Improvement Costs.
(b) As soon as reasonably possible following Tenant's notifying
Landlord that Tenant is ready for Landlord to proceed with the construction of
the Tenant Improvements, which notice must be received by Landlord prior to
September 30, 1998, Landlord shall cause Landlord's Architect to prepare the
Construction Drawings. During the preparation of the Construction Drawings,
Tenant shall supply Landlord's Architect, within two (2) business days following
written request therefor, with any information necessary for the completion of
the Construction Drawings. Upon completion of the Construction Drawings,
Landlord shall deliver the Construction Drawings to Tenant for approval, which
approval may not he withheld by Tenant so long as the Construction Drawings are
substantially in accordance with the Pricing Plans. Tenant's approval or
disapproval must be provided, in writing, within three (3) business days of
Tenant's receipt of the Construction Drawings. If Tenant validly disapproves the
Construction Drawings, Landlord will cause Landlord's Architect to revise the
Construction Drawings and will resubmit the Construction Drawings to Tenant for
approval or disapproval, which must be provided by Tenant within two (2)
business days. If Landlord and Tenant have a dispute about whether the
Construction Documents are substantially in accordance with the Pricing Plans,
the parties agree to submit the dispute to an independent third-party architect
for resolution. The parties agree that the decision of the third-party architect
shall be final and binding on the parties.
(c) On or before the seventh (7th) business day following Tenant's
receipt of the Construction Drawings, Landlord shall obtain from Landlord's
contractor ("LANDLORD'S CONTRACTOR") a price schedule for the Tenant
Improvements and shall submit the same to Tenant for its approval. Tenant shall
have three (3) business days to approve or disapprove such price schedule and
failure to respond within such period shall be deemed Tenant's approval of same.
If Tenant disapproves such price schedule, Tenant agrees to work promptly with
Landlord's Architect and Landlord's Contractor to alter the Construction
Drawings as necessary to cause the price quotation based thereon to be
acceptable to Tenant. The aggregate cost for the Tenant Improvements, once
approved by Tenant, shall hereinafter be referred to as "TENANT IMPROVEMENT
COSTS." Upon approval of said price schedule by Tenant, Tenant shall be deemed
to have given final approval to the Construction Drawings and Landlord shall he
deemed to have been authorized to proceed, through Landlord's Contractor, with
the work of constructing and installing the Tenant Improvements in accordance
with the Drawings and Specifications. Notwithstanding anything to the contrary
contained herein, Landlord's Contractor and the Tenant Improvement Costs
described above shall be a contractor and the guaranteed bid amount that are
chosen through the following Bid Procedure, and the Landlord's Contractor and
Tenant Improvement Costs shall not be modified or increased thereafter without
the approval of Tenant. "Bid Procedure" shall mean that: (i) within five (5)
business days after Landlord's receipt of the Construction Drawings, Landlord
shall deliver complete bid submission requests with all appropriate bid and
construction information ("Bid Request Package") to Tenant and to two (2)
competent general contractors chosen by Landlord and to one (1) competent
general contractor chosen by Tenant (collectively "Biding General Contractors");
(ii) Landlord shall require bid submissions from the Biding General Contractors
within ten (10) days thereafter stating the amount of the guaranteed price to
fully complete all work described in the
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Bid Request Package; (iii) Landlord shall require all bids submitted by the
Biding General delivered to tenant in their entirety; (iv) the Landlord's
Contractor shall be the Biding General Contractor chosen by Tenant to have
submitted the lowest bid that complies with the requirements of the Bid Request
Package. The Landlord's Contractor shall use the subcontractors that submitted
the lowest bid that was in compliance with the Bid Request Package. If any of
such lowest biding subcontractors is not approved by the Landlord for performing
work in the Building, then Landlord shall approve that subcontractor within ten
(10) days unless, in Landlord's reasonable judgment, such subcontractor is not
competent to perform work in the Building. If, in Landlord's reasonable
judgment, the subcontractor chosen in the Bid Procedure is not competent, then
Landlord shall choose one (1) other competent subcontractor and Tenant shall
choose one (1) other competent subcontractor to perform the Bid Procedure again
for that trade and the lowest bidder as determined by a third party architect
chosen by the American Arbitration Association shall be the subcontractor to be
used for performing the Tenant Improvements of that trade.
Section 3. PAYMENT OF COSTS.
Section 3.01 LANDLORD'S COSTS FOR INITIAL DRAWINGS AND SPECIFICATIONS.
Landlord shall bear the cost of preparing the Pricing Plans utilized
for pricing of the Tenant Improvements, which costs shall not be included as
part of the Tenant Improvement Costs.
Section 3.02 LANDLORD'S ALLOWANCE FOR TENANT IMPROVEMENT COSTS.
Landlord shall pay the Tenant Improvement Costs up to $5.00 per square
foot of Rentable Area in the New Space, or $20,235.00 based upon 4,047 square
feet of Rentable Area in the New Space (the "LANDLORD'S ALLOWANCE FOR TENANT
IMPROVEMENT COSTS"). The Landlord's Allowance for Tenant Improvement Costs must
be expended on permanent and semi-permanent finishes and improvements (not
eligible are items such as furniture, telecommunications and/or computer wiring
or equipment, moving expenses etc.). All improvements made from concrete slab to
concrete deck shall be deducted from this allowance. Any unused portion of this
allowance shall belong to Landlord.
Section 3.03 TENANT'S COSTS.
The aggregate of all costs described in the following subparagraphs (a)
through (c) of this Section 3.03 are hereinafter referred to collectively as
"TENANT'S COSTS."
(a) The Tenant Improvement Costs over and above the Landlord's
Allowance for Tenant Improvement Costs;
(b) Fees for architects, engineers, interior designers, and other
professionals and design specialists engaged by Tenant in connection with the
Tenant Improvements;
(c) The cost of making any and all changes in and to the Drawings
and Specifications and any and all increased costs in the Tenant Improvement
Costs resulting therefrom after the Construction Drawings are completed and
mutually agreed upon by Landlord and Tenant; and in the event the aggregate of
Tenant Costs, as defined above, exceeds Landlord's Allowance for Tenant
Improvement Costs, as specified in Section 3.02 above, then Tenant shall
promptly pay the excess to Landlord as additional rent, as set forth in Section
3.04.
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Section 3.04 PAYMENT SCHEDULE FOR TENANT'S COSTS.
Tenant shall pay to Landlord the Tenant's Costs within thirty (30)
calendar days after Tenant's receipt of invoices for the work of constructing
and installing the Tenant Improvements from Landlord.
Section 3.05 CHANGES IN DRAWINGS AND SPECIFICATIONS.
If at any time after the Tenant Improvement Costs are determined Tenant
desires to make changes in the Drawings and Specifications, Tenant shall submit
to Landlord for approval working drawings, specifications, and finish schedules
for any and all such desired changes. Once any and all changes and modifications
are approved by Landlord, Landlord shall promptly submit the same to Landlord's
Contractor for pricing. The procedure for determining an approved cost for such
changes shall be as set forth in Section 2 above. Once a cost for such changes
has been approved, all references in this Agreement to "Drawings and
Specifications" shall be to the Drawings and Specifications as changed and
modified pursuant to this Section 3.05, and all references to "Tenant
Improvement Costs" shall be deemed to include the aggregate approved cost for
the changes as determined in this Section 3.05. Once the changes and the costs
therefore have been approved, Tenant shall be deemed to have given full
authorization to Landlord to proceed with the work of constructing and
installing the Tenant Improvements in accordance with the Drawings and
Specifications, as changed and modified. Any delays in completing the Tenant
Improvements which result from either changes in the Drawings and Specifications
made by Tenant or from the unavailability of materials specified by Tenant,
shall not operate to delay or extend the Expansion Date nor the payment of the
Base Rental or other charges due under the Lease.
Section 3.06 FAILURE TO PAY TENANT'S COSTS.
Provided that the Tenant Improvements are substantially completed in
accordance with the Construction Drawings, failure by Tenant to pay Tenant's
Costs in accordance with this Section 3 will constitute a failure by Tenant to
pay rent when due under the Lease and shall therefore constitute an event of
default by Tenant under the Lease, and Landlord shall have all of the remedies
available to it under this Lease and at law or in equity for nonpayment of rent.
Section 3.07 LANDLORD'S DISBURSEMENT OBLIGATIONS.
Landlord agrees to pay the Tenant Improvement Costs as and when the
same become due and payable, subject to Tenant's obligations to reimburse
Landlord for Tenant's Costs as provided in Section 3.04. Landlord shall be
entitled to rely on the accuracy of any and all invoices and fee statements for
labor and materials performed on or furnished to the Premises in connection with
the Tenant Improvements, and to rely, to the extent submitted, on any and all
certifications as to Tenant Improvement Costs submitted by Landlord's Contractor
and/or Landlord's Architect. Notwithstanding the foregoing, the within release
and indemnification of Landlord by Tenant shall not release any other third
parties, nor shall it waive any and all rights which Tenant may have against
other third parties in connection with the payment or nonpayment of Tenant
Improvement Costs.
Section 4. FINISH WORK IN ADDITION TO TENANT IMPROVEMENTS.
All work in or about the Premises which is not within the scope of the
work necessary to construct and install the Tenant Improvements, such as
delivering and installing furniture, telephone equipment, and wiring, and office
equipment and computer wiring, shall be furnished and installed by
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Tenant entirely at Tenant's expense. Tenant shall adopt a schedule for
performing such additional work consistent with the schedule of Landlord's
Contractor and shall see that such work is conducted in such a manner as to
maintain harmonious labor relations and as not to interfere unreasonably with
or to delay the work of constructing or installing the Tenant Improvements.
Landlord shall give access and entry to the Premises to Tenant and its contract
parties performing such additional work and reasonable opportunity and time to
enable Tenant and such contract parties to perform and complete such work. All
of such additional work and Tenant's use (and the use by its contract parties)
of the Premises for such purposes shall be entirely in accordance with the
Lease, including without limitation this Agreement.
Section 5. TIME IS OF THE ESSENCE.
Time is of the essence of this Agreement. Unless specifically provided
otherwise, all references to days or months shall be construed as references to
calendar days or months, respectively.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement in duplicate, individually or through their respective authorized
officers, partners, agents of attorneys-in-fact, as the case may be, and sealed
this Agreement or caused their respective seals to be affixed hereto, the day
and year set forth below their respective exclusions, the latest of which is and
shall be deemed to be the date of this Agreement.
"TENANT"
E3 NORTH AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Print Name: Xxxxx X. Xxxxxxxx
-----------------------------
Title: Executive Vice President
----------------------------------
Date:
-----------------------------------
Attest: /s/ Xxxxxx Xxxxxxx
---------------------------------
Print Name: Xxxxxx Xxxxxxx
-----------------------------
Title: CEO
----------------------------------
Date: 6/10/98
-----------------------------------
[CORPORATE SEAL]
"LANDLORD"
ATLANTA PARKWAY INVESTMENT
GROUP, INC., a Delaware corporation
By: WESTMARK REALTY
ADVISORS, L.L.C., its authorized
agent
By: /s/ Xxxxx X. Xxxxxxxxx, XX (SEAL)
-------------------------------
Print Name: Xxxxx X. Xxxxxxxxx, XX
-----------------------------
Title: Authorized Signatory
----------------------------------
Attest: /s/ Xxxxxxx Xxxxx (SEAL)
---------------------------
Print Name: Xxxxxxx Xxxxx
-----------------------------
Title: Authorized Signatory
----------------------------------
