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EXHIBIT 10.21(a)
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), is made and entered into this 2nd day
of August, 1996, by and between Landlord and Tenant.
WITNESSETH:
1. Certain Definitions. For purposes of this Lease, the following terms
shall have the meanings hereinafter ascribed thereto:
(a) Landlord: Fund II, Fund III, Fund VI and Fund VII
Associates, a Georgia general partnership.
(b) Landlord's Address:
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
(c) Tenant: Columbia Management, L.L.C., a Georgia limited
liability company
(d) Tenant's Address:
Initial Address:
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx 000, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
After Rental Commencement Date:
000 Xxxxxxx Xxxxxx Xxxx
Xxxxx X-000
Xxxxxxx, Xxxxxxx 00000
(e) Building Address:
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
(f) Suite Number: C-200
(g) Rentable Floor Area of Demised Premises: 2,979 square feet
(h) Rentable Floor Area of Building: 12,786 square feet
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(i) Lease Term: Thirty-six (36) months
(j) Base Rental Rate: First months rental payable on
lease execution.
Rate Per Square Foot
of Rentable Floor Area
Months of Demised Premises Monthly Annually
------ ------------------- ------- --------
1-12 $20.00 $4,965.00 $59,580.00
13-24 $20.50 $5,089.13 $61,069.50
25-36 $21.00 $5,213.25 $62,559.00
(k) Rental Commencement Date: October 1, 1996 or the date upon
which Tenant commences its business operations in the Demised Premises,
whichever shall first occur.
(1) Construction Allowance for initial Demised Premises:
$18.00 per square foot or $53,622.00.
(m) Security Deposits: $62,559.00
(n) Broker(s): Xxxxx & Associates, Inc., for Landlord;
Xxxxxx-Xxxxxxxx Company, for Tenant.
2. Lease of Premises. Landlord, in consideration of the covenants and
agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain premises (hereinafter referred to
as the "Demised Premises") in the building (hereinafter referred to as
"Building") located on that certain tract of land (the "Land") more particularly
described on Exhibit "A" attached hereto and by this reference made a part
hereof, which Demised Premises comprise all of the Rentable Floor Area in Suite
C-200 of the Building and are outlined on the floor plan attached hereto as
Exhibit "B" and by this reference made a part hereof, with no easement for
light, view or air included in the Demised Premises or being granted hereunder.
The "Project" is comprised of the Building, the Land, the Building's parking
facilities, any walkways, covered walkways or other means of access to the
Building and the Building's parking facilities, all common areas, including any
plazas, and any other improvements or landscaping on the Land,
3. Term. The term of this Lease (hereinafter referred to as the "Lease
Term") shall commence on the date first hereinabove set forth, and, unless
sooner terminated as provided in this Lease, shall end on the expiration of the
period designated in Article l(i) above, which period shall commence on the
Rental Commencement Date, unless the Rental Commencement Date shall be other
than the first day of a calendar month, in which event such period shall
continence on the first day of the calendar month following the month in which
the Rental Commencement Date occurs. Promptly after the Rental Commencement Date
Landlord shall
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send to Tenant a supplemental notice specifying the Rental Commencement Date,
the date of expiration of the Lease Term in accordance with Article l(i) above
and certain other matters as therein set forth. Landlord shall not be liable for
any delay in tendering possession of the Demised Premises to Tenant due to the
failure of Landlord substantially to complete the build-out or design work in
accordance with Exhibit "C" or due to the failure of the previous occupant of
the Demised Premises to vacate upon termination of said occupant's lease or for
delay caused by any other reason not reasonably within the control of Landlord.
4. Possession. The obligations of Landlord and Tenant with respect to
the Building and the initial leasehold improvements to the Demised Premises are
set forth in Exhibit "C" attached hereto and by this reference made a part
hereof. Taking of possession by Tenant shall be deemed conclusively to establish
that Landlord's construction obligations with respect to the Demised Premises
have been completed in accordance with the plans and specifications approved by
Landlord and Tenant and that the Demised Premises, to the extent of Landlord's
construction obligations with respect thereto, are in good and satisfactory
condition.
5. Rental Payments.
(a) Commencing on the Rental Commencement Date, and continuing
thereafter throughout the Lease Tenn, Tenant hereby agrees to pay all
Rent due and payable under this Lease; provided, however, in the event
that Landlord fails to tender possession of the Demised Premises on or
before the Rental Commencement Date for any reason other than an
omission, delay or default of Tenant, then Base Rental shall xxxxx
until Landlord tenders possession. As used in this Lease, the term
"Rent" shall mean the Base Rental, Tenant's Forecast Additional Rental
(as hereinafter defined), Tenant's Additional Rental (as hereinafter
defined), and any other amounts that Tenant assumes or agrees to pay
under the provisions of this Lease that are owed to Landlord, including
without limitation any and all other sums that may become due by reason
of any default of Tenant or failure on Tenant's part to comply with the
agreements, terms, covenants and conditions of this Lease to be
performed by Tenant. Base Rental together with Tenant's Forecast
Additional Rental shall be due and payable in twelve (12) equal
installments on the first day of each calendar month, commencing on the
Rental Commencement Date and continuing thereafter throughout the Lease
Term and any extensions or renewals thereof, and Tenant hereby agrees
to pay such Rent to Landlord at Landlord's address as provided herein
(or such other address as may be designated by Landlord from time to
time) monthly in advance. Tenant shall pay all Rent and other sums of
money as the same shall become due from and payable by Tenant to
Landlord under this Lease at the times and in the manner provided in
this Lease, without demand, set-off or counterclaim.
(b) If the Rental Commencement Date is other than the first
day of a calendar month or if this Lease terminates on other than the
last day of a calendar month, then the installments of Base Rental and
Tenant's Forecast Additional Rental for such month or months shall be
prorated on a daily basis and the installment or installments so
prorated shall be paid in advance. Also, if the Rental Commencement
Date occurs on other than the first day of a calendar year, or if this
Lease expires or is terminated on other than
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the last day of a calendar year, Tenant's Additional Rental shall be
prorated for such commencement or termination year, as the case may be,
by multiplying Tenant's Additional Rental by a fraction, the numerator
of which shall be the number of days of the Lease Term (from and after
the Rental Commencement Date) during the commencement or expiration or
termination year, as the case may be, and the denominator of which
shall be 365, and the calculation described in Article 7 hereof shall
be made as soon as possible after the expiration or termination of this
Lease, Landlord and Tenant hereby agreeing that the provisions relating
to said calculation shall survive the expiration or termination of this
Lease.
6. Base Rental. From and after the Rental Commencement Date Tenant
shall pay to Landlord a base annual rental (herein called "Base Rental") for
each Lease Year equal to the Base Rental Rate set forth for such Lease Year in
Article 1(j)) above multiplied by the Rentable Floor Area of Demised Premises
set forth in Article l(g) above. As used in this Lease, the term "Lease Year"
shall mean the twelve month period commencing on the Rental Commencement Date,
and each successive twelve month period thereafter during the Lease Term, except
that if the Rental Commencement Date is not on the first day of a calendar
month, the first Lease Year shall extend through the end of the twelfth full
calendar month after the Rental Commencement Date.
7. Additional Rental.
(a) For purposes of this Lease, "Tenant's Forecast Additional
Rental" shall mean Landlord's reasonable estimate of Tenant's
Additional Rental for the coming calendar year or portion thereof. If
at any time it appears to Landlord that Tenant's Additional Rental for
the current calendar year will vary from Landlord's estimate by more
than five percent (5 %), Landlord shall have the right to revise, by
notice to Tenant, its estimate for such year, and subsequent payments
by Tenant for such year shall be based upon such revised estimate of
Tenant's Additional Rental. Failure to make a revision contemplated by
the immediately preceding sentence shall not prejudice Landlord's right
to collect the Ml amount of Tenant's Additional Rental. Prior to the
Rental Commencement Date and thereafter prior to the beginning of each
calendar year during the Lease Term, including any extensions thereof,
Landlord shall present to Tenant a statement of Tenant's Forecast
Additional Rental for such calendar year; provided, however, that if
such statement is not given prior to the beginning of any calendar year
as aforesaid, Tenant shall continue to pay during the next ensuing
calendar year on the basis of the amount of Tenant's Forecast
Additional Rental payable during the calendar year just ended until the
month after such statement is delivered to Tenant.
(b) For purposes of this Lease, "Tenant's Additional Rental"
shall mean for each calendar year (or portion thereof) Tenant's Share
(as hereinafter defined) of the amount by which the Operating Expenses
(as defined below) for such calendar year (or portion thereof) shall
exceed the product derived by multiplying the Rentable Floor Area of
Building by $4.00. The "Tenant's Share" shall be twenty-three and three
tenths percent (23.3 %), determined by dividing the Rentable Floor Area
of Demised Premises by the Rentable Floor Area of Building. The
Tenant's Share shall be a adjusted to reflect
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any change in the Rentable Floor Area of Demised Premises or Rentable
Floor Area of Building. In the event the Building is not fully occupied
during any calendar year, the Operating Expenses which are variable in
nature shall be adjusted for the purposes of determining Tenant's
Additional Rental to an amount that would have been incurred by
Landlord for such calendar year if the Building had been fully occupied
during such calendar year. Landlord agrees that only Operating Expenses
which would normally vary depending on the amount of space actually
occupied in the Building, such as costs of utilities, supplies and
janitorial services, shall be adjusted in this manner and that fixed
expenses which are unrelated to occupancy levels shall not be so
adjusted.
(c) Within one hundred fifty (150) days after the end of the
calendar year in which the Rental Commencement Date occurs and of each
calendar year thereafter during the Lease Term, or is soon thereafter
as practicable, Landlord shall provide Tenant a statement showing the
Operating Expenses for said calendar year and a statement prepared by
Landlord showing any adjustment to the Operating Expenses to reflect
full occupancy of the Building during such calendar year, and comparing
Tenant's Forecast Additional Rental with Tenant's Additional Rental. In
the event Tenant's Forecast Additional Rental exceeds Tenant's
Additional Rental for said calendar year, Landlord shall credit such
amount against Rent next due hereunder or, if the Lease Term has
expired or is about to expire, refund such excess to Tenant if Tenant
is not in default under this Lease (in the instance of a default such
excess shall be held as additional security for Tenant's performance of
its duties and obligations under this Lease, may be applied by Landlord
to cure any such default, and shall not be refunded until any such
default is cured). In the event that the Tenant's Additional Rental
exceeds Tenant's Forecast Additional Rental for said calendar year,
Tenant shall pay Landlord, within thirty (30) days of receipt of the
statement, an amount equal to such difference. The provisions of this
Lease concerning the payment of Tenant's Additional Rental shall
survive the expiration or earlier termination of this Lease.
(d) Landlord's books and records pertaining to the calculation
of Operating Expenses for any calendar year within the Lease Term may
be audited by Tenant or its representatives at Tenant's expense, at any
time within twelve (12) months after the end of each such calendar
year; provided that Tenant shall give Landlord not less than thirty
(30) days prior written notice of any such audit. If Landlord's
calculation of Tenant's Additional Rental for the audited calendar year
was incorrect, then Tenant shall be entitled to a prompt refund of any
overpayment or Tenant shall promptly pay to Landlord the amount of any
underpayment, as the case may be.
8. Operating Expenses.
(a) For the purposes of this Lease, "Operating Expenses" shall
mean all expenses, costs and disbursements (but not specific costs
billed to specific tenants of the Building) of every kind and nature,
computed on an accrual basis, relating to or incurred or paid in
connection with the ownership, management, operation, repair and
maintenance of the Project, including but not limited to, the
following:
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(1) reasonable wages, salaries and other reasonable
costs of all on-site and off-site employees engaged in the
operation, management, maintenance or access control of the
Project, including taxes, insurance and benefits relating to
such employees, allocated based upon the time such employees
are engaged directly in providing such services;
(2) the reasonable cost of all supplies, tools,
equipment and materials used in the operation, management,
maintenance and access control of the Project;
(3) the cost of all utilities for the Project,
including but not limited to the cost of electricity, gas,
water, sewer services and power for heating, lighting, air
conditioning and ventilating;
(4) the reasonable cost of all maintenance and
service agreements for the Project and the equipment therein,
including but not limited to security service, window
cleaning, elevator maintenance, janitorial service,
landscaping maintenance and customary landscaping replacement;
(5) the reasonable cost of repairs and general
maintenance of the Project;
(6) amortization of the reasonable cost of
acquisition and/or installation of capital investment items
(including security equipment), amortized over their
respective lives, which are installed for the purpose of
reducing operating expenses, promoting safety, complying with
governmental requirements, or maintaining the first-class
nature of the Project;
(7) the cost of casualty, rental loss, liability and
other insurance applicable to the Project and Landlord's
personal property used in connection therewith;
(8) the reasonable cost of trash and garbage removal,
vermin extermination, and snow, ice and debris removal;
(9) the cost of legal and accounting services
incurred by Landlord in connection with the management,
maintenance, operation and repair of the Project, excluding
the owner's or Landlord's general accounting and fund
accounting, such as partnership statements and tax returns,
and excluding costs excluded by Article 8(b)(14) below;
(10) all taxes, assessments and governmental charges,
whether or not directly paid by Landlord, whether federal,
state, county or municipal and whether they be by taxing
districts or authorities presently taxing the Project or by
others subsequently created or otherwise, and any other taxes
and assessments attributable to the Project or its operation
(and the costs of contesting any of the
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same), including business license taxes and fees, excluding,
however, taxes and assessments imposed on the personal
property of the tenants of the Project, federal and state
taxes on income, death taxes, franchise taxes, and any taxes
(other than business license taxes and fees) imposed or
measured on or by the income of Landlord from the operation of
the Project; provided, however, that if at any time during the
Lease Term, the present method of taxation or assessment shall
be so changed that the whole or any part of the taxes,
assessments, levies, impositions or charges now levied,
assessed or imposed on real estate and the improvements
thereon shall be discontinued and as a substitute therefor, or
in lieu of or in addition thereto, taxes, assessments, levies,
impositions or charges shall be levied, assessed and/or
imposed wholly or partially as a capital levy or otherwise on
the rents received from the Project or the rents reserved
herein or any part thereof, then such substitute or additional
taxes, assessments, levies, impositions or charges, to the
extent so levied, assessed or imposed, shall be deemed to be
included within the Operating Expenses to the extent that such
substitute or additional tax would be payable if the Project
were the only property of Landlord subject to such tax; and it
is agreed that Tenant will be responsible for ad valorem taxes
on its personal property; and
(11) a management fee in the amount of three percent
(3%) of the gross rental income from the Project.
(b) For purposes of this Lease, and notwithstanding anything
in any other provision of this Lease to the contrary, "Operating
Expenses" shall not include the following:
(1) the cost of any special build-out work or service
performed for any tenant (including Tenant) or by any tenant
at such tenant's cost;
(2) the cost of installing, operating and maintaining
any specialty service, such as a restaurant, cafeteria, retail
store, sundry shop, newsstand, or concession, but only to the
extent such costs exceed those which would normally be
expected to be incurred had such space been general office
space;
(3) the cost of correcting defects in construction;
(4) compensation paid to officers and executives of
Landlord;
(5) the cost of any items for which Landlord is
reimbursed by insurance, condemnation or otherwise, except for
costs reimbursed pursuant to provisions similar to Articles 7
and 8 hereof,
(6) the cost of any additions, changes, replacements
and other items which are made in order to prepare for a
tenant's occupancy;
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(7) the cost of repairs incurred by reason of fire or
other casualty to the extent such costs are covered by
insurance carried by Landlord;
(8) insurance premiums to the extent Landlord may be
directly reimbursed therefor, except for premiums reimbursed
pursuant to provisions similar to Articles 7 and 8 hereof,
(9) interest on debt or amortization payments on any
mortgage or deed of trust and rental under any ground lease or
other underlying lease;
(10) any real estate brokerage commissions;
(11) any advertising expenses incurred in connection
with the marketing of any rentable space;
(12) any expenses for repairs or maintenance which
are covered by warranties and service contracts, to the extent
such maintenance and repairs are made at no cost to Landlord;
(13) legal expenses arising out of the construction
of the improvements on the Land or the enforcement of the
provisions of any lease affecting the Land or Building,
including without limitation this Lease; and
(14) costs or amounts paid to parties affiliated with
Landlord or Landlord's managing agent to the extent such costs
or amounts exceed the fair market value of the services or
materials provided.
9. Landlord's Alterations and Improvements. Landlord (or its
successors-in-title) has constructed the Building as the second of a two-phase
development containing one restaurant, one retail/office building and one free
standing office building, parking facilities and other related improvements.
Landlord reserves the right at any time and from time to time (i) to make or
permit changes or revisions in the common areas of the Project, including,
without limitation, additions to, subtractions from, rearrangements of,
alterations of, and modifications or supplements to the common areas of the
Project, (ii) provide for separate ownership of said three (3) buildings and
(iii) to convey the Building and the portion of the Land on which the Building
is located separate from the portion of the Land on which the other building is
located; provided, however, Landlord agrees that no such changes, revisions,
additions, subtractions, rearrangements, alterations, modifications, supplements
or conveyances shall have the effect of reducing the number of parking spaces
available for use by tenants and occupants of the Building below the number
required by governmental laws and ordinances or shall permanently and materially
interfere with access to the Building and the Demised Premises. In the event
Landlord shall elect to divide the Land to accommodate the separate ownership of
the Building and the second building constructed on the Land, the portion of the
Land (and improvements) not owned or leased by Landlord shall automatically be
deemed to be deleted from the definitions of "Land" and "Project" hereunder, and
Landlord and Tenant agree to execute and deliver, each to the other, an
appropriate amendment to this Lease effectuating such deletion.
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Landlord and Tenant further agree that, whether or not the ownership of the
three (3) buildings is separated as contemplated herein, (a) certain of the
costs of management, operation, maintenance, repair and security of the entire
such development may be incurred for the benefit of the buildings, and such
costs shall be allocated between and shared by the three (3) buildings
(including the Building), and (b) Tenant's Share shall continue to be calculated
only with reference to the Rentable Floor Area of the Building. Determination of
such costs and their allocation shall be made by Landlord in a fair and
equitable manner and in accordance with generally accepted accounting
principles. Such costs allocated to the Building shall be included in Operating
Expenses under this Lease.
10. Tenant Taxes. Tenant shall pay promptly when due all taxes directly
or indirectly imposed or assessed upon Tenant's gross sales, business
operations, machinery, equipment, trade fixtures and other personal property or
assets, whether such taxes are assessed against Tenant, Landlord or the
Building. In the event that such taxes are imposed or assessed against Landlord
or the Building, Landlord shall furnish Tenant with all applicable tax bills,
public charges and other assessments or impositions and Tenant shall forthwith
pay the same either directly to the taxing authority or, at Landlord's option,
to Landlord.
11. Payments. All payments of Rent and other payments to be made to
Landlord shall be made on a timely basis and shall be payable to Landlord or as
Landlord may otherwise designate. All such payments shall be mailed or delivered
to Landlord's Address designated in Article l(b) above or at such other place as
Landlord may designate from time to time in writing. If mailed, all payments
shall be mailed in sufficient time and with adequate postage thereon to be
received in Landlord's account by no later than the due date for such payment.
Tenant agrees to pay to Landlord Fifty Dollars ($50.00) for each check presented
to Landlord in payment of any obligation of Tenant which is not paid by the bank
on which it is drawn.
12. Interest and Late Charges. A late charge shall be imposed upon any
installment of rent or other payment required from Tenant which is not paid
within five (5) days of the date in the amount of $10.00 per day from the date
such payment was due until the date such payment is made, and such late charge
shall be payable immediately to Landlord as additional rent hereunder. In
addition, any installment of rent or other payment required from Tenant which is
not paid within ten (10) days of the date when it was due shall bear interest at
the rate of twelve percent (12%) per annum or at the maximum rate allowed by
law, whichever is less. Such interest shall accrue from the date such payment
was due until the date such payment is made, and such interest shall be payable
immediately to Landlord as additional rent hereunder. There will also be a
$50.00 charge by management should any check be returned by a bank for
insufficient funds.
13. Use Rules. The Demised Premises shall be used for executive,
general administrative, office space, and other similar purposes and no other
purposes and in accordance with all applicable laws, ordinances, rules and
regulations of governmental authorities, all nationally recognized industry
standards applicable to such uses and the Rules and Regulations attached hereto
and made a part hereof. Tenant covenants and agrees to abide by the Rules and
Regulations in all respects as now set forth and attached hereto or as hereafter
promulgated by Landlord. Landlord shall have the right at all times during the
Lease Term to publish and
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promulgate and thereafter enforce such rules and regulations or changes in the
existing Rules and Regulations as it may reasonably deem necessary to protect
the tenantability, safety, operation, and welfare of the Demised Premises and
the Project. Tenant hereby expressly agrees that Tenant shall comply in all
respects with all applicable laws, ordinances, rules and regulations of
governmental authorities regarding the handling, storage, transportation and
disposal of biomedical waste and other contaminants in connection with the
operation of Tenant's business in the Demised Premises, including, without
limitation, the applicable provisions of the Georgia Comprehensive Solid Waste
Management Act, Official Code of Georgia Annotated Section 12-8- 20, et seq. and
the regulations promulgated thereunder.
14. Alterations. Except for any initial improvement of the Demised
Premises pursuant to Exhibit "C", which shall be governed by the provisions of
said Exhibit "C", Tenant shall not make, suffer or permit to be made any
alterations, additions or improvements to or of the Demised Premises or any part
thereof, or attach any fixtures or equipment thereto, without first obtaining
Landlord's written consent, which consent shall not be unreasonably withheld.
All such alterations, additions and improvements shall become Landlord's
property at the expiration or earlier termination of the Lease Tenn and shall
remain on the Demised Premises without compensation to Tenant unless Landlord
elects by notice to Tenant to have Tenant remove such alterations, additions and
improvements, in which event, notwithstanding any contrary provisions respecting
such alterations, additions and improvements contained in Article 31 hereof,
Tenant shall promptly restore, at its sole cost and expense, the Demised
Premises to its condition prior to the installation of such alterations,
additions and improvements, normal wear and tear excepted.
15. Repairs.
(a) Landlord shall maintain in good order and repair, subject
to normal wear and tear and subject to casualty and condemnation, the
Building (excluding the Demised Premises and other portions of the
Building leased to other tenants), the Building parking facilities, the
public areas and the landscaped areas. Notwithstanding the foregoing
obligation, the cost of any repairs or maintenance to the foregoing
necessitated by the intentional acts or negligence of Tenant or its
agents, contractors, employees, subtenants or assigns, shall be borne
solely by Tenant and shall be deemed Rent hereunder and shall be
reimbursed by Tenant to Landlord upon demand. Landlord shall not be
required to make any repairs or improvements to the Demised Premises
except for any initial improvements to the Demised Premises pursuant to
the provisions of Exhibit "C" and except structural repairs necessary
for safety and tenantability.
(b) Tenant covenants and agrees that it will take good care of
the Demised Premises and all alterations, additions and improvements
thereto and will keep and maintain the same in good condition and
repair, except for normal wear and tear. Tenant shall at once report,
in writing, to Landlord any defective or dangerous condition known to
Tenant. To the fullest extent permitted by law, Tenant hereby waives
all rights to make repairs at the expense of Landlord or in lieu
thereof to vacate the Demised Premises as may be provided by any law,
statute or ordinance now or hereafter in effect. Landlord has no
obligation and has made no promise to alter, remodel, improve, repair,
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decorate or paint the Demised Premises or any part thereof, except as
specifically and expressly herein set forth.
16. Landlord's Right of Entry. Landlord shall retain duplicate keys to
all doors of the Demised Premises and Landlord and its agents, employees and
independent contractors shall have the right to enter the Demised Premises at
reasonable hours to inspect and examine same, to make repairs, additions,
alterations, and improvements, to exhibit the Demised Premises to mortgagees,
prospective mortgagees, purchasers or tenants, and to inspect the Demised
Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder; provided, however, that Landlord shall, except in case of
emergency, afford Tenant such prior notification of an entry into the Demised
Premises as shall be reasonably practicable under the circumstances. Landlord
shall be allowed to take into and through the Demised Premises any and all
materials that may be required to make such repairs, additions, alterations or
improvements. During such time as such work is being carried on in or about the
Demised Premises, the Rent provided herein shall not xxxxx, and, except with
respect to Landlord's gross negligence or willful misconduct, Tenant waives any
claim or cause of action against Landlord for damages by reason of interruption
of Tenant's business or loss of profits therefrom because of the prosecution of
any such work or any part thereof.
17. Insurance.
(a) Tenant shall procure at its expense and maintain
throughout the Lease Term a policy or policies of fire and extended
coverage insurance insuring the full replacement cost of its furniture,
equipment, supplies, and other property owned, leased, held or
possessed by it and contained in the Demised Premises, together with
the excess value of the improvements to the Demised Premises over the
Construction Allowance, and workmen's compensation insurance as
required by applicable law. Tenant shall also procure at its expense
and maintain throughout the Lease Term a policy or policies of
insurance, insuring Tenant, Landlord, Landlord's managing agent and
Landlord's mortgagee, if any, against any and all liability for injury
to or death of a person or persons and for damage to property
occasioned by or arising out of any construction work being done by
Tenant or Tenant's contractors on the Demised Premises, or arising out
of the condition, use, or occupancy of the Demised Premises, or in any
way occasioned by or arising out of the activities of Tenant, its
agents, contractors or employees in the Demised Premises, or other
portions of the Building or the Project, and of Tenant's guests and
licensees while they are in the Demised Premises, the limits of such
policy or policies to be in combined single limits for both damage to
property and personal injury and in amounts not less than One Million
Dollars ($1,000,000.00) for each occurrence. Such insurance shall, in
addition, extend to any liability of Tenant arising out of the
indemnities provided for in this Lease. Tenant shall also carry such
other types of insurance in form and amount which Landlord shall
reasonably deem to be prudent for Tenant to carry, should the
circumstances or conditions so merit Tenant carrying such type of
insurance and provided that such insurance is then customarily required
to be maintained by landlords of similar projects. All insurance
policies procured and maintained by Tenant pursuant to this Article 17
shall name Landlord and any additional parties designated by Landlord
as additional insureds, shall be carried with
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companies licensed to do business in the State of Georgia reasonably
satisfactory to Landlord and shall be non-cancelable and not subject to
material change except after twenty (20) days written notice to
Landlord. Such policies or duly executed certificates of insurance with
respect thereto, accompanied by proof of payment of the premium
therefor, shall be delivered to Landlord prior to the date Tenant
enters the Demised Premises for the installation of its improvements,
trade fixtures or furniture, and renewals of such policies shall be
delivered to Landlord at least thirty (30) days prior to the expiration
of each respective policy term.
(b) Landlord shall procure at its expense (but with the
expense to be included in Operating Expenses as provided in Article
8[a] hereof) and shall thereafter maintain throughout the Lease Term a
policy or policies of fire and extended coverage insurance with respect
to the Building and the improvements to the Demised Premises, insuring
against loss or damage by fire and such other risks as are from time to
time included in a standard form of fire and extended coverage policy
of insurance available in the State of Georgia. Said Building and
improvements to the Demised Premises shall be insured for the benefit
of Landlord in an amount not less than the full replacement costs
thereof as determined from time to time by the insurance company
(excluding any costs of replacing leasehold improvements in the Demised
Premises in excess of the Construction Allowance, and such insurance
may provide for a reasonable deductible). Landlord shall also procure
at its expense (but with the expense to be included in Operating
Expenses as provided in Article 8[a] hereof) and shall thereafter
maintain throughout the Lease Term a policy or policies of commercial
general liability insurance insuring against the liability of Landlord
arising out of the maintenance, use and occupancy of the Project, with
limits of such policy or policies to be in combined single limits for
both damage to property and personal injury and in amounts not less
than One Million Dollars ($1,000,000.00) for each occurrence. Such
insurance required herein shall be issued by and binding upon an
insurance company approved by the Insurance Commissioner of the State
of Georgia and licensed to do business in the State of Georgia. Upon
reasonable request from Tenant, Landlord will provide a certificate of
insurance evidencing the maintenance of the insurance required herein.
18. Waiver of Subrogation. Landlord and Tenant shall each have included
in all policies of fire, extended coverage, business interruption and other
insurance respectively obtained by them covering the Demised Premises, the
Building and contents therein, a waiver by the insurer of all right of
subrogation against the other in connection with any loss or damage thereby
insured against. Any additional premium for such waiver shall be paid by the
primary insured. To the full extent permitted by law, Landlord and Tenant each
waives all right of recovery against the other for, and agrees to release the
other from liability for, loss or damage to the extent such loss or damage is
covered by valid and collectible insurance in effect at the time of such loss or
damage or would be covered by the insurance required to be maintained under this
Lease by the party seeking recovery.
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19. Default.
(a) The following events shall be deemed to be events of
default by Tenant under this Lease: (i) Tenant shall fail to pay any
installment of Rent or any other charge or assessment against Tenant
pursuant to the terms hereof within ten (10) days after the due date
thereof; (ii) Tenant shall fail to comply with any term, provision,
covenant or warranty made under this Lease by Tenant, other than the
payment of the Rent or any other charge or assessment payable by
Tenant, and shall not cure such failure within twenty (20) days after
notice thereof to Tenant; (iii) Tenant or any guarantor of this Lease
shall make a general assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts as they become due, or
shall file a petition in bankruptcy, or shall be adjudicated as
bankrupt or insolvent, or shall file a petition in any proceeding
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future
statute, law or regulation, or shall file an answer admitting or fail
timely to contest the material allegations of a petition filed against
it in any such proceeding; (iv) a proceeding is commenced against
Tenant or any guarantor of this Lease seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation,
and such proceeding shall not have been dismissed within forty-five
(45) days after the commencement thereof; (v) a receiver or trustee
shall be appointed for the Demised Premises or for all or substantially
all of the assets of Tenant or of any guarantor of this Lease; (vi)
Tenant shall abandon or vacate all or any portion of the Demised
Premises or fail to take possession thereof as provided in this Lease;
(vii) Tenant shall do or permit to be done anything which creates a
lien upon the Demised Premises or the Project and such lien is not
removed or discharged within fifteen (15) days after the filing
thereof; (viii) Tenant shall fail to return a properly executed
instrument to Landlord in accordance with the provisions of Article 27
hereof within the time period provided for such return following
Landlord's request for same as provided in Article 27; or (ix) Tenant
shall fail to return a properly executed estoppel certificate to
Landlord in accordance with the provisions of Article 28 hereof within
the time period provided for such return following Landlord's request
for same as provided in Article 28.
(b) Upon the occurrence of any of the aforesaid events of
default, Landlord shall have the option to pursue any one or more of
the following remedies without any notice or demand whatsoever: (i)
terminate this Lease, in which event Tenant shall immediately surrender
the Demised Premises to Landlord and if Tenant fails to do so, Landlord
may without prejudice to any other remedy which it may have for
possession or arrearages in Rent, enter upon and take possession of the
Demised Premises and expel or remove Tenant and any other person who
may be occupying said Demised Premises or any part thereof, by force,
if necessary, without being liable for prosecution or any claim of
damages therefor; Tenant hereby agreeing to pay to Landlord on demand
the amount of all loss and damage which Landlord may suffer by reason
of such termination, whether through inability to relet the Demised
Premises on satisfactory terms or otherwise; (ii) terminate Tenant's
right of possession (but not this Lease) and enter upon and take
possession of the Demised Premises and expel or remove Tenant and any
other
14
person who may be occupying said Demised Premises or any part thereof,
by entry (including the use of force, if necessary), dispossessory suit
or otherwise, without thereby releasing Tenant from any liability
hereunder, without terminating this Lease, and without being liable for
prosecution or any claim of damages therefor and, if Landlord so
elects, make such alterations, redecorations and repairs as, in
Landlord's judgment, may be necessary to relet the Demised Premises,
and Landlord may, but shall be under no obligation to do so, relet the
Demised Premises or any portion thereof in Landlord's or Tenant's name,
but for the account of Tenant, for such term or terms (which may be for
a term extending beyond the Lease Term) and at such rental or rentals
and upon such other terms as Landlord may reasonably deem advisable,
with or without advertisement, and by private negotiations, and receive
the rent therefor, Tenant hereby agreeing to pay to Landlord the
deficiency, if any, between all Rent reserved hereunder and the total
rental applicable to the Lease Term hereof obtained by Landlord
re-letting, and Tenant shall be liable for Landlord's expenses in
redecorating and restoring the Demised Premises and all costs incident
to such re-letting, including broker's commissions and lease
assumptions, and in no event shall Tenant be entitled to any rentals
received by Landlord in excess of the amounts due by Tenant hereunder;
or (iii) enter upon the Demised Premises by force, if necessary, and do
whatever Tenant is obligated to do under the terms of this Lease; and
Tenant agrees to reimburse Landlord on demand for any expenses
including, without limitation, reasonable attorneys' fees which
Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease.
(c) Pursuit of any of the foregoing remedies shall not
preclude pursuit of any other remedy herein provided or any other
remedy provided by law or at equity, nor shall pursuit of any remedy
herein provided constitute an election of remedies thereby excluding
the later election of an alternate remedy, or a forfeiture or waiver of
any Rent or other charges and assessments payable by Tenant and due to
Landlord hereunder or of any damages accruing to Landlord by reason of
violation of any of the terms, covenants, warranties and provisions
herein contained. No reentry or taking possession of the Demised
Premises by Landlord or any other action taken by or on behalf of
Landlord shall be construed to be an acceptance of a surrender of this
Lease or an election by Landlord to terminate this Lease unless written
notice of such intention is given to Tenant. Forbearance by Landlord to
enforce one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of such
default. In determining the amount of loss or damage which Landlord may
suffer by reason of termination of this Lease or the deficiency arising
by reason of any reletting of the Demised Premises by Landlord as above
provided, allowance shall be made for the expense of repossession.
Tenant agrees to pay to Landlord all costs and expenses incurred by
Landlord in the enforcement of this Lease, including, without
limitation, the fees of Landlord's attorneys as provided in Article 25
hereof.
20. Waiver of Breach. No waiver of any breach of the covenants,
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach thereof,
15
and if any breach shall occur and afterwards be compromised, settled or
adjusted, this Lease shall continue in full force and effect as if no breach had
occurred.
21. Assignment and Subletting. Tenant shall not, without the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
assign this Lease or any interest herein or in the Demised Premises, or
mortgage, pledge, encumber, hypothecate or otherwise transfer or sublet the
Demised Premises or any part thereof or permit the use of the Demised Premises
by any party other than Tenant. Pursuant to this Article 21, consent to a
proposed assignment or sublease shall be determined based on, but not limited
to, the following: (i) the financial responsibility of the proposed assignee or
subtenant, (ii) the identity or business character of the proposed assignee or
subtenant, (iii) the need for alteration of the Demised Premises, and (iv) the
proposed use of the Demised Premises. Consent to one or more such transfers or
subleases shall not destroy or waive this provision, and all subsequent
transfers and subleases shall likewise be made only upon obtaining the prior
written consent of Landlord. Without limiting the foregoing prohibition, in no
event shall Tenant assign this Lease or any interest herein, whether directly,
indirectly or by operation of law, or sublet the Demised Premises or any part
thereof or permit the use of the Demised Premises or any part thereof by any
party if such proposed assignment, subletting or use would contravene any
restrictive covenant (including any exclusive use) granted to any other tenant
of the Building or would contravene the provisions of Article 13 of this Lease.
Notwithstanding the foregoing prohibition, Tenant shall have the right, without
the consent of Landlord but with prior notice to Landlord, to assign this Lease
to an entity which is more than fifty percent (50%) owned, directly or
indirectly, by Tenant, and to sublet portions of the Demised Premises. No
assignment of this Lease or subletting of the Demised Premises shall relieve
Tenant of any liability arising under this Lease. Sublessees or transferees of
the Demised Premises for the balance of the Lease Term shall become directly
liable to Landlord for all obligations of Tenant-hereunder, without relieving
Tenant (or any guarantor of Tenant's obligations hereunder) of any liability
therefor, and Tenant shall remain obligated for all liability to Landlord
arising under this Lease during the entire remaining Lease Term including any
extensions thereof, whether or not authorized herein. If Tenant is a partnership
(which, for purposes of this Article 21 shall include limited liability
companies and limited liability partnerships), a withdrawal or change, whether
voluntary, involuntary or by operation of law, of partners or members owning a
controlling interest in Tenant shall be deemed a voluntary assignment of this
Lease and subject to the foregoing provisions. If Tenant is a corporation, any
dissolution, merger, consolidation or other reorganization of Tenant, or the
sale or transfer of a controlling interest in the capital stock of Tenant, shall
be deemed a voluntary assignment of this Lease and subject to the foregoing
provisions. Landlord may, as a prior condition to considering any request for
consent to an assignment or sublease (when Landlord's consent is required),
require Tenant to obtain and submit current financial statements of any proposed
subtenant or assignee. No assignment of this Lease consented to by Landlord
shall be effective unless and until Landlord shall receive an original
assignment and assumption agreement, in form and substance reasonably
satisfactory to Landlord, signed by Tenant and Tenant's proposed assignee,
whereby the assignee assumes due performance of this Lease to be done and
performed for the balance of the then remaining Lease Term of this Lease. No
subletting of the Demised Premises, or any part thereof, shall be effective
unless and until there shall have been delivered to Landlord an agreement, in
form and substance reasonably satisfactory to Landlord, signed by Tenant and the
proposed sublessee,
16
whereby the sublessee acknowledges the right of Landlord to continue or
terminate any sublease, in Landlord's sole discretion, upon termination of this
Lease, and such sublessee agrees to recognize and attorn to Landlord in the
event that Landlord elects under such circumstances to continue such sublease.
22. Destruction.
(a) If the Demised Premises are damaged by fire or other
casualty, the same shall be repaired or rebuilt as speedily as
practical under the circumstances at the expense of Landlord, unless
this Lease is terminated as provided in this Article 22, and during the
period required for restoration, a just and proportionate part of Base
Rental shall be abated until the Demised Premises are repaired or
rebuilt.
(b) If the Demised Premises are (i) damaged to such an extent
that repairs cannot, in Landlord's judgment, be completed within one
hundred eighty (180) days after the date of the casualty or (ii)
damaged or destroyed as a result of a risk which is not insured under
standard fire insurance policies with extended coverage endorsement, or
(iii) damaged or destroyed during the last eighteen (18) months of the
Lease Term, or if the Building is damaged in whole or in part (whether
or not the Demised Premises are damaged), to such an extent that the
Building cannot, in Landlord's judgment, be operated economically as an
integral unit, then and in any such event Landlord may at its option
terminate this Lease by notice in writing to Tenant within sixty (60)
days after the date of such occurrence. If the Demised Premises are
damaged to such an extent that repairs cannot, in Landlord's judgment,
be completed within one hundred eighty (180) days after the date of the
casualty or if the Demised Premises are substantially damaged during
the last eighteen (18) months of the Lease Term, then in either such
event Tenant may elect to terminate this Lease by notice in writing to
Landlord within thirty (30) days after the date of such occurrence.
Unless Landlord or Tenant elects to terminate this Lease as hereinabove
provided, this Lease will remain in full force and effect and Landlord
shall repair such damage at its expense to the extent required under
subparagraph (c) below as expeditiously as possible under the
circumstances.
(c) If Landlord should elect or be obligated pursuant to
subparagraph (a) above to repair or rebuild because of any damage or
destruction, Landlord's obligation shall be limited to the original
Building and any other work or improvements which were originally
performed or installed at Landlord's expense as described in Exhibit
"C" hereto or with the proceeds of the Construction Allowance. If the
cost of performing such repairs exceeds the actual proceeds of
insurance paid or payable to Landlord on account of such casualty, or
if Landlord's mortgagee or the lessor under a ground or underlying
lease shall require that any insurance proceeds from a casualty loss be
paid to it, Landlord may terminate this Lease unless Tenant, within
thirty (30) days after demand therefor, deposits with Landlord a sum of
money sufficient to pay the difference between the cost of repair and
the proceeds of the insurance available to Landlord for such purpose.
17
23. Services by Landlord. Landlord shall provide the Building Standard
Services described on Exhibit "D" attached hereto and by reference made a part
hereof.
24. Attorneys' Fees and Homestead. In the event Landlord or Tenant
defaults in the performance of any of the terms, agreements or conditions
contained in this Lease and the non-defaulting party places the enforcement of
this Lease, or any part thereof, or the collection of any Rent due or to become
due hereunder, or recovery of the possession of the Demised Premises, in the
hands of an attorney, or files suit upon the same, and should such
non-defaulting party prevail in such suit, the defaulting party, to the extent
permitted by applicable law, agrees to pay the non-defaulting party all
reasonable attorney's fees actually incurred by the non-defaulting party. Tenant
waives all homestead rights and exemptions which it may have under any law as
against any obligation owing under this Lease, and assigns to Landlord its
homestead and exemptions to the extent necessary to secure payment and
performance of its covenants and agreements hereunder.
25. Time. Time is of the essence of this Lease and whenever a certain
day is stated for payment or performance of any obligation of Tenant or
Landlord, the same enters into and becomes a part of the consideration hereof.
26. Subordination and Attornment.
(a) Tenant agrees that this Lease and all rights of Tenant
hereunder are and shall be subject and subordinate to any ground or
underlying lease which may now or hereafter be in effect regarding the
Project or any component thereof, to any mortgage now or hereafter
encumbering the Demised Premises or the Project or any component
thereof, to all advances made or hereafter to be made upon the security
of such mortgage, to all amendments, modifications, renewals,
consolidations, extensions, and restatements of such mortgage, and to
any replacements and substitutions for such mortgage. The terms of this
provision shall be self-operative and no further instrument of
subordination shall be required. Tenant, however, upon request of
Landlord or any party in interest, shall execute promptly such
instrument or certificates as may be reasonably required to carry out
the intent hereof, whether said requirement is that of Landlord or any
other party in interest, including, without limitation, any mortgagee.
Landlord is hereby irrevocably vested with full power and authority as
attorney-in-fact for Tenant and in Tenant's name, place and stead, to
subordinate Tenant's interest under this Lease to the lien or security
title of any mortgage and to any future instrument amending, modifying,
renewing, consolidating, extending, restating, replacing or
substituting any such mortgage.
(b) If any mortgagee or lessee under a ground or underlying
lease elects to have this Lease superior to its mortgage or lease and
signifies its election in the instrument creating its lien or lease or
by separate recorded instrument, then this Lease shall be superior to
such mortgage or lease, as the case may be. The term "mortgage", as
used in this Lease, includes any deed of trust, deed to secure debt, or
security deed and any other instrument creating a lien in connection
with any other method of
18
financing, or refinancing. The term "mortgagee", as used in this Lease,
refers to the holder(s) of the indebtedness secured by a mortgage.
(c) In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under,
any mortgage covering the Demised Premises or the Project, or in the
event the interests of Landlord under this Lease shall be transferred
by reason of deed in lieu of foreclosure or other legal proceedings, or
in the event of termination of any lease under which Landlord may hold
title, Tenant shall, at the option of the transferee or purchaser at
foreclosure or under power of sale, or the lessor of Landlord upon such
lease termination, as the case may be (sometimes hereinafter called
"such person"), attorn to such person and shall recognize and be bound
and obligated hereunder to such person as "Landlord" under this Lease;
provided, however, that no such person shall be (i) bound by any
payment of Rent for more than one (1) month in advance, except
prepayments in the nature of security for the performance by Tenant of
its obligations under this Lease (and then only if such prepayments
have been deposited with and are under the control of such person);
(ii) bound by any amendment or modification of this Lease made without
the express written consent of the mortgagee or lessor of Landlord, as
the case may be; (iii) obligated to cure any defaults under this Lease
of any prior landlord (including Landlord); (iv) liable for any act or
omission of any prior landlord (including Landlord); (v) subject to any
offsets or defenses which Tenant might have against any prior landlord
(including Landlord); or (vi) bound by any warranty or representation
of any prior landlord (including Landlord) relating to work performed
by any prior landlord (including Landlord) under this Lease. Tenant
agrees to execute any attornment agreement not in conflict herewith
requested by Landlord, its mortgagee or such person. Tenant's
obligation to attorn to such person shall survive the exercise of any
such power of sale, foreclosure or other proceeding. Tenant agrees that
the institution of any suit, action or other proceeding by any
mortgagee to realize on Landlord's interest in the Demised Premises or
the Building pursuant to the powers granted to a mortgagee under its
mortgage, shall not, by operation of law or otherwise, result in the
cancellation or termination of the obligations of Tenant hereunder.
Landlord and Tenant agree that notwithstanding that this Lease is
expressly subject and subordinate to any mortgages, any mortgagee, its
successors and assigns, or other holder of a mortgage or of a note
secured thereby, may sell the Demised Premises or the Building, in the
manner provided in the mortgage and may, at the option of such
mortgagee, its successors and assigns, or other holder of the mortgage
or note secured thereby, make such sale of the Demised Premises or
Building subject to this Lease.
27. Estoppel Certificates. Within ten (10) days after request therefor
by Landlord, Tenant agrees to execute and deliver to Landlord in recordable form
an estoppel certificate addressed to Landlord, any mortgagee or assignee of
Landlord's interest in, or purchaser of, the Demised Premises or the Building or
any part thereof, certifying (if such be the case) that this Lease is unmodified
and is in full force and effect (and if there have been modifications, that the
same is in full force and effect as modified and stating said modifications);
that there are no defenses or offsets against the enforcement thereof or stating
those claimed by Tenant; and stating the date to which Rent and other charges
have been paid. Such certificate shall also
19
include such other information as may reasonably be required by such mortgagee,
proposed mortgagee, assignee, purchaser or Landlord. Any such certificate may be
relied upon by Landlord, any mortgagee, proposed mortgagee, assignee, purchaser
and any other party to whom such certificate is addressed.
28. Cumulative Rights. All rights, powers and privileges conferred
hereunder upon the parties hereto shall be cumulative to, but not restrictive
of, or in lieu of those conferred by law.
29. Holding Over. If Tenant remains in possession after expiration or
termination of the Lease Term with or without Landlord's written consent, Tenant
shall become a tenant-at-sufferance, and there shall be no renewal of this Lease
by operation of law. During the period of any such holding over, all provisions
of this Lease shall be and remain in effect except that the monthly rental shall
be one and one-half times the amount of Rent (including any adjustments as
provided herein) payable for the last full calendar month of the Lease Term
including renewals or extensions. The inclusion of the preceding sentence in
this Lease shall not be construed as Landlord's consent for Tenant to hold over.
30. Surrender of Premises. Upon the expiration or other termination of
this Lease, Tenant shall quit and surrender to Landlord the Demised Premises and
every part thereof and all alterations, additions and improvements thereto,
broom clean and in good condition and state of repair, reasonable wear and tear
only excepted. If Tenant is not then in default, Tenant shall remove all
personalty and equipment not attached to the Demised Premises which it has
placed upon the Demised Premises, and Tenant shall restore the Demised Premises
to the condition immediately preceding the time of placement thereof. If Tenant
shall fail or refuse to remove all of Tenant's effects, personalty and equipment
from the Demised Premises upon the expiration or termination of this Lease for
any cause whatsoever or upon Tenant being dispossessed by process of law or
otherwise, such effects, personalty and equipment shall be deemed conclusively
to be abandoned and may be appropriated, sold, stored, destroyed or otherwise
disposed of by Landlord. Tenant shall pay Landlord on demand any and all
expenses incurred by Landlord in the removal of such property, including,
without limitation, the cost of repairing any damage to the Building or Project
caused by the removal of such property and storage charges (if Landlord elects
to store such property). The covenants and conditions of this Article 31 shall
survive any expiration or termination of this Lease.
31. Notices. All notices required or permitted to be given hereunder
shall be in writing and may be delivered in person to either party or may be
sent by courier or by United States Mail, certified, return receipt requested,
postage prepaid. Any such notice shall be deemed received by the party to whom
it was sent (i) in the case of personal delivery or courier delivery, on the
date of delivery to such party, and (ii) in the case of certified mail, the date
receipt is acknowledged on the return receipt for such notice or, if delivery is
rejected or refused or the U.S. Postal Service is unable to deliver same because
of changed address of which no notice was given pursuant hereto, the first date
of such rejection, refusal or inability to deliver. All such notices shall be
addressed to Landlord or Tenant at their respective address set forth
hereinabove or at such other address as either party shall have theretofore
given to the other by notice as herein provided.
20
32. Damage or Theft of Personal Property. All personal property brought
into the Demised Premises by Tenant, or Tenant's employees or business visitors,
shall be at the risk of Tenant only, and Landlord shall not be liable for theft
thereof or any damage thereto occasioned by any act of co-tenants, occupants,
invitees or other users of the Building or any other person, unless such theft
or damage is the result of the Act of Landlord or its employees and Landlord is
not relieved therefrom by Article 18 hereof. Unless caused by the gross
negligence of Landlord or its employees, Landlord shall not at any time be
liable for damage to any property in or upon the Demised Premises which results
from power surges or other deviations from the constancy of the electrical
service or from gas, smoke, water, rain, ice or snow which issues or leaks from
or forms upon any part of the Building or from the pipes or plumbing work of the
same, or from any other place whatsoever.
33. Eminent Domain.
(a) If all or part of the Demised Premises shall be taken for
any public or quasi-public use by virtue of the exercise of the power
of eminent domain or by private purchase in lieu thereof, this Lease
shall terminate as to the part so taken as of the date of taking, and,
in the case of a partial taking, either Landlord or Tenant shall have
the right to terminate this Lease as to the balance of the Demised
Premises by written notice to the other within thirty (30) days after
such date; provided, however, that a condition to the exercise by
Tenant of such right to terminate shall be either (i) that more than
fifteen percent (15 %) of the Demised Premises was taken or (ii) that
the portion of the Demised Premises taken shall be of such extent and
nature as substantially to handicap, impede or impair Tenant's use of
the balance of the Demised Premises. If title to so much of the
Building is taken that a reasonable amount of reconstruction thereof
will not in Landlord's sole discretion result in the Building being a
practical improvement and reasonably suitable for use for the purpose
for which it is designed, then this Lease shall terminate on the date
that the condemning authority actually takes possession of the part so
condemned or purchased.
(b) If this Lease is terminated under the provisions of this
Article 34, Rent shall be apportioned and adjusted as of the date of
termination. Tenant shall have no claim against Landlord or against the
condemning authority for the value of any leasehold estate or for the
value of the unexpired Lease Term providing that the foregoing shall
not preclude any claim that Tenant may have against the condemning
authority for the unamortized cost of leasehold improvements, to the
extent the same were installed at Tenant's expense (and not with the
proceeds of the Construction Allowance), or for loss of business,
moving expenses or other consequential damages, in accordance with
subparagraph (d) below.
(c) If there is a partial taking of the Building and this
Lease is not thereupon terminated under the provisions of this Article
34, then this Lease shall remain in full force and effect, and Landlord
shall, within a reasonable time thereafter, repair or reconstruct the
remaining portion of the Building to the extent necessary to make the
same a complete architectural unit; provided that in complying with its
obligations
21
hereunder Landlord shall not be required to expend more than the net
proceeds of the condemnation award which are paid to Landlord.
(d) All compensation awarded or paid to Landlord upon a total
or partial taking of the Demised Premises or the Building shall belong
to and be the property of Landlord without any participation by Tenant.
Nothing herein shall be construed to preclude Tenant from prosecuting
any claim directly against the condemning authority for loss of
business, for damage to, and cost of removal of, trade fixtures,
furniture and other personal property belonging to Tenant, and for the
unamortized cost of leasehold improvements to the extent same were
installed at Tenant's expense (and not with the proceeds of the
Construction Allowance). In no event shall Tenant have or assert a
claim for the value of any unexpired term of this Lease. Subject to the
foregoing provisions of the subparagraph (d), Tenant hereby assigns to
Landlord any and all of its right, title and interest in or to any
compensation awarded or paid as a result of any such taking.
(e) Notwithstanding anything to the contrary contained in this
Article 34, if, during the Lease Term, the use or occupancy of any part
of the Building or the Demised Premises shall be taken or appropriated
temporarily for any public or quasi-public use under any governmental
law, ordinance, or regulations, or by right of eminent domain, this
Lease shall be and remain unaffected by such taking or appropriation
and Tenant shall continue to pay in full all Rent payable hereunder by
Tenant during the Lease Term. In the event of any such temporary
appropriation or taking, Tenant shall be entitled to receive that
portion of any award which represents compensation for the loss of use
or occupancy of the Demised Premises during the Lease Term, and
Landlord shall be entitled to receive that portion of any award which
represents the cost of restoration and compensation for the loss of use
or occupancy of the Demised Premises after the end of the Lease Term.
34. Parties. The term "Landlord", as used in this Lease, shall include
Landlord and its assigns and successors. It is hereby covenanted and agreed by
Tenant that should Landlord's interest in the Demised Premises cease to exist
for any reason during the Lease Term, then notwithstanding the happening of such
event, this Lease nevertheless shall remain in full force and effect, and Tenant
hereby agrees to attorn to the then owner of the Demised Premises. The term
"Tenant" shall include Tenant and its heirs, legal representatives and
successors, and shall also include Tenant's assignees and sublessees, if this
lease shall be validly assigned or the Demised Premises sublet for the balance
of the Lease Term or any renewals or extensions thereof. In addition, Landlord
and Tenant covenant and agree that Landlord's right to transfer or assign
Landlord's interest in and to the Demised Premises, or any part or parts
thereof, shall be unrestricted, and that in the event of any such transfer or
assignment by Landlord which includes the Demised Premises, Landlord's
obligations to Tenant thereafter arising hereunder shall cease and terminate,
and tenant shall look only and solely to Landlord's assignee or transferee for
performance thereof.
35. Liability of Tenant. Tenant hereby indemnifies and agrees to hold
Landlord, and its partners, shareholders, directors and officers harmless from
and against, any and all liability, loss, cost, damage or expense, including,
without limitation, court costs and reasonable
22
attorney's fees, imposed on Landlord by any person whomsoever, arising from or
in connection with the use or occupancy of the Demised Premises caused in whole
or in part by any negligent act or omission of Tenant, or any of its employees,
contractors, servants, agents, subtenants or assignees, or of Tenant's invitees
while such invitees are within the Demised Premises, or otherwise occurring in
connection with any default of Tenant hereunder. The provisions of this Article
36 shall survive any termination of this Lease.
36. Force Majeure. In the event of strike, lockout, labor trouble,
civil commotion, act of God, or any other cause beyond a party's control
(collectively "force majeure") resulting in Landlord's inability to supply the
services or perform the other obligations required of Landlord hereunder, this
Lease shall not terminate and Tenant's obligation to pay Rent and all other
charges and sums due and payable by Tenant shall not be affected or excused and
Landlord shall NOT be considered to be in default under this Lease. If, as a
result of force majeure, Tenant is delayed in performing any of its obligations
under this Lease, other than Tenant's obligation to take possession of the
Demised Premises on or before the Rental Commencement Date and to pay Rent and
all other charges and sums payable by Tenant hereunder, Tenant's performance
shall be excused for a period equal to such delay and Tenant shall not during
such period be considered to be in default under this Lease with respect to the
obligation, performance of which has thus been delayed.
37. Landlord's Liability. Landlord shall have no personal liability
with respect to any of the provisions of this Lease. If Landlord is in default
with respect to its obligations under this Lease, Tenant shall look for
satisfaction of Tenant's remedies, if any, solely to the equity of Landlord in
and to the Building and the Land described in Exhibit "A" hereto and to the
proceeds of Landlord's insurance policy or policies actually paid to Landlord
and not applied by Landlord by the applicable claim or to the restoration of the
Building as required by the term of this Lease (unless same are not so applied
because such proceeds are required by the holder of a mortgage to be paid to it
to reduce the debt secured by such mortgage). It is expressly understood and
agreed that Landlord's liability under the term of this Lease shall in no event
exceed the amount of its interest in and to said Land and Building and the
aforesaid proceeds of insurance. In no event shall any partner of Landlord nor
any joint venturer in Landlord, nor any officer, director or shareholder of
Landlord or any such partner or joint venturer of Landlord be personally liable
with respect to any of the provisions of this Lease.
38. Landlord's Covenant of Quiet Enjoyment. Provided Tenant performs
the terms, conditions and covenants of this Lease, and subject to the terms and
provisions hereof, Landlord covenants and agrees to take all necessary steps to
secure and to maintain for the benefit of Tenant the quiet and peaceful
possession of the Demised Premises, for the Lease Term, without hindrance, claim
or molestation by Landlord or any other person lawfully claiming under Landlord.
39. Security Deposits.
(a) As additional security for the faithful performance by
Tenant throughout the Lease Term, and any extensions or removals
thereof, of all the terms and conditions of the Lease on the part of
Tenant to be performed, Tenant has deposited with Landlord
23
the sum set forth in Article 1(m) above. Subject to withdrawals for
Base Rental pursuant to subparagraph (c), below, such amount shall be
returned to Tenant on the day set for the expiration of the Lease Term,
or any extension or renewal thereof, provided Tenant has fully and
faithfully observed and performed all of the terms, covenants,
agreements, warranties and conditions hereof on its part to be observed
and performed. Landlord will deposit said security deposit in an
interest bearing account. Landlord will not be required to keep said
security deposit separate from its general funds. Tenant fully and
faithfully performs all of its obligations under this Lease throughout
the Lease Term, without default, then following the expiration of the
Landlord will pay to Tenant any interest that was earned on said
security deposit. Landlord shall have the right to apply all or any
part of said deposit toward the cure of any default of Tenant. If all
or any part of said security deposit is so applied by Landlord, then
Tenant shall immediately pay to Landlord an amount sufficient to return
said security deposit to the balance on deposit with Landlord prior to
said application.
(b) In the event of a sale or transfer of Landlord's interest
in the Demised Premises or the Building or a lease by Landlord of the
Building, Landlord shall have the right to transfer the within
described security deposit to the purchases or Lessee, as the case may
be, and Landlord shall be relieved of all liability to Tenant for the
return of such security deposits. The security deposits shall not be
mortgaged, assigned or encumbered by Tenant. In the event of a
permitted assignment or subletting under this Lease by Tenant, the
security deposits shall be hold by Landlord as a deposit made by the
permitted assignee or subtenant and Landlord shall have no further
liability with respect to the return of said security deposits to the
original Tenant.
(c) Commencing on the first day of the month following the
twenty-fifty (25th) full calendar month of this Lease and continuing on
the first day of each succeeding month during the remainder of the
Lease Term, Landlord shall apply part of the security deposit toward
the payment of Base Rental.
Notwithstanding the foregoing, Landlord shall in no way be prejudiced
by its application of the security deposit toward the payment of Base Rental,
and, in the event that the balance of the security deposit is insufficient to
cure a default of Tenant or to pay Base Rental as set forth above, then Landlord
may pursue any of the remedies under this Lease available to Landlord.
40. Hazardous Substances. Tenant hereby covenants and agrees that
Tenant shall not cause or permit any "Hazardous Substances" (as hereinafter
defined) to be generated, placed, held, stored, used, located or disposed of at
the Project or any part thereof, except for Hazardous Substances as are commonly
and legally used or stored as a consequence of using the Demised Premises for
general office, medical treatment, medical laboratory and administrative
purposes, but only so long as the quantities thereof do not pose a threat to
public health or to the environment or would necessitate a "response action", as
that term is defined in CERCLA (as hereinafter defined), and so long as Tenant
strictly complies or causes compliance with all applicable governmental rules
and regulations concerning the use, storage, production, transportation and
disposal of such Hazardous Substances. For purposes of this Article 41,
"Hazardous Substances" shall mean and include those elements or compounds which
are
24
contained in the list of Hazardous Substances adopted by the United States
Environmental Protection Agency (EPA) or in any list of toxic pollutants
designated by Congress or the EPA or which are defined as hazardous, toxic,
pollutant, infectious or radioactive by any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability (including, without limitation, strict
liability) or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereinafter in effect
(collectively "Environmental Laws"). Tenant hereby agrees to indemnify Landlord
and hold Landlord harmless from and against any and all losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorneys' fees, costs of settlement or judgment and claims of any and every
kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by
any person, entity or governmental agency for, with respect to, or as a direct
or indirect result of, the presence in, or the escape, leakage, spillage,
discharge, emission or release from, the Demised Premises of any Hazardous
Substances (including, without limitation, any losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable attorneys'
fees, costs of any settlement or judgment or claims asserted or arising under
the Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), any so-called federal, state or local "Superfund" or "Superlien"
laws or any other Environmental Law); provided, however, that the foregoing
indemnity is limited to matters arising solely from Tenant's violation of the
covenant contained in this Article. The obligations of Tenant under this Article
shall survive any expiration or termination of this Lease.
41. Submission of Lease. The submission of this Lease for examination
does not constitute an offer to lease and this Lease shall be effective only
upon execution hereof by Landlord and Tenant.
42. Severability. If any clause or provision of the Lease is illegal,
invalid or unenforceable under present or future laws, the remainder of this
Lease shall not be affected thereby, and in lieu of each clause or provision of
this Lease which is illegal, invalid or unenforceable, there shall be added as a
part of this Lease a clause or provision as nearly identical to the said clause
or provision as may be legal, valid and enforceable.
43. Entire Agreement. This Lease contains the entire agreement of the
parties and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein shall be of any force or
effect. No failure of Landlord to exercise any power given Landlord hereunder,
or to insist upon strict compliance by Tenant with any obligation of Tenant
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof. This Lease may not be altered, waived, amended or
extended except by an instrument in writing signed by Landlord and Tenant. This
Lease is not in recordable form, and Tenant agrees not to record or cause to be
recorded this Lease or any short form or memorandum thereof.
44. Headings. The use of headings herein is solely for the convenience
of indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of this Lease.
25
45. Broker. Xxxxx & Associates, Inc. is acting solely as agent for
Landlord in this transaction and is to be paid a commission by Landlord.
Xxxxxx-Xxxxxxxx Company is acting solely as agent for Tenant in this transaction
and is to be paid a commission by Landlord.
46. Governing Law. The laws of the State of Georgia shall govern the
validity, construction, performance and enforcement of this Lease.
47. Special Stipulations. The special stipulations attached hereto as
Exhibit "E" are hereby incorporated herein by this reference as though fully set
forth.
48. Authority. Each of the persons executing this Lease on behalf of
Tenant does hereby personally represent and warrant that Tenant is a duly
organized and validly existing limited liability company and is fully authorized
and qualified to do business in the State of Georgia, that Tenant has full right
and authority to enter into this Lease, and that each person signing on behalf
of Tenant is an authorized representative of Tenant and is authorized to sign on
behalf of Tenant. Upon the request of Landlord, Tenant shall deliver to Landlord
documentation satisfactory to Landlord evidencing Tenant's compliance with this
Article, and Tenant agrees to promptly execute all necessary and reasonable
applications or documents as reasonably requested by Landlord, required by the
jurisdiction in which the Demised Premises is located, to permit the issuance of
necessary permits and certificates for Tenant's use and occupancy of the Demised
Premises.
26
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the day, month and year first above written.
"LANDLORD":
FUND II, FUND III, FUND VI AND FUND VII
ASSOCIATES, a Georgia general partnership
By: XXXXX REAL ESTATE FUND II, L.P., a
Georgia limited partnership
By:
----------------------------------
Xxx X. Xxxxx, III, general partner
By: XXXXX PARTNERS, L.P., a Georgia
limited partnership, general partner
By: XXXXX CAPITAL, INC., a Georgia
corporation
By:
-----------------------------
Xxx X. Xxxxx, III, President
[CORPORATE SEAL]
By: XXXXX REAL ESTATE FUND III, L.P.,
a Georgia limited partnership
By:
----------------------------------
Xxx X. Xxxxx, III, general partner
By: XXXXX PARTNERS, L.P., a Georgia
limited partnership, general partner
By: XXXXX CAPITAL, INC., a Georgia
corporation
By:
----------------------------------
Xxx X. Xxxxx, III, President
[CORPORATE SEAL]
27
By: XXXXX REAL ESTATE FUND VI, L.P.,
a Georgia limited partnership
By:
----------------------------------
Xxx X. Xxxxx, III, general partner
By: XXXXX PARTNERS, L.P., a Georgia
limited partnership, general partner
By: XXXXX CAPITAL, INC., a Georgia
corporation
By:
----------------------------------
Xxx X. Xxxxx, III, President
[CORPORATE SEAL]
By: XXXXX REAL ESTATE FUND VII, L.P.,
a Georgia limited partnership
By:
----------------------------------
Xxx X. Xxxxx, III, general partner
By: XXXXX PARTNERS, L.P., a Georgia
limited partnership, general partner
By: XXXXX CAPITAL, INC., a Georgia
corporation
By:
----------------------------------
Xxx X. Xxxxx, III, President
[CORPORATE SEAL]
"TENANT":
COLUMBIA MANAGEMENT, L.L.C., a Georgia
limited liability company
By: (SEAL)
----------------------------------
Title:
---------------------------
28
RULES AND REGULATIONS
1. No sign, picture, advertisement or notice visible from the exterior of
the Demised Premises shall be installed, affixed, inscribed, painted or
otherwise displayed by Tenant on any part of the Demised Premises or
the Building unless the same is first approved by Landlord. Any such
sign, picture, advertisement or notice approved by Landlord shall be
painted or installed for Tenant at Tenant's cost by Landlord or by a
party approved by Landlord. No awnings, curtains, blinds, shades or
screens shall be attached to or hung in, or used in connection with any
window or door of the Demised Premises without the prior consent of
Landlord, including approval by Landlord of the quality, type, design,
color and manner of attachment. See attached Sign Criteria Exhibit "F".
2. Tenant agrees that its use of electrical current shall never exceed the
capacity of existing feeders, risers or wiring installation.
3. The Demised Premises shall not be used for storage of merchandise held
for sale to the general public. Tenant shall not do or permit to be
done in or about the Demised Premises or Building anything which shall
increase the rate of insurance on said Building or obstruct or
interfere with the rights of other lessees of Landlord or annoy them in
any way, including, but not limited to, using any musical instrument
making loud or unseemly noises, or singing, etc. The Demised Premises
shall not be used for sleeping or lodging. No cooking or related
activities shall be done or permitted by Tenant in the Demised Premises
except with permission of Landlord. Tenant will be permitted to use for
its own employees within the Demised Premises approved equipment for
brewing coffee, tea, hot chocolate and similar beverages, provided that
such use is in accordance with all applicable federal, state, county
and city laws, codes, ordinances, rules and regulations. No vending
machines of any kind will be installed, permitted or used on any part
of the Demised Premises without the prior consent of Landlord. No part
of said Building or Demised Premises shall be used for gambling,
immoral or other unlawful purposes. No intoxicating beverage shall be
sold in said Building or Demised Premises without prior written consent
of Landlord. No area outside of the Demised Premises shall be used for
storage purposes at any time. Tenant may bring in food to xxxx in a
microwave oven and have a refrigerator.
4. No birds or animals of any kind shall be brought into the Building
(other than trained seeing-eye dogs required to be used by the visually
impaired). No bicycles, motorcycles or other motorized vehicles shall
be brought into the Building.
5. The sidewalks, entrances, passages, corridors, halls, elevators, and
stairways in the Building shall not be obstructed by Tenant or used for
any purposes other than those for which same were intended as ingress
and egress. No windows, floors or skylights that reflect or admit light
into the Building shall be covered or obstructed by Tenant. Toilets,
wash basins and sinks shall not be used for any purpose other than
those for which they are constructed, and no sweeping, rubbish, or
other obstructing or improper substances
29
shall be thrown therein. Any damage resulting to them, or to heating
apparatus, from misuse by Tenant or its employees, shall be borne by
Tenant.
6. Five (5) keys for the front door and five (5) keys for the rear door
will be furnished Tenant without charge. Landlord may make a reasonable
charge for any additional keys. No additional lock, latch or bolt of
any kind shall be placed upon any door nor shall any changes be made in
existing locks without written consent of Landlord and Tenant shall in
each such case furnish Landlord with a key for any such lock. At the
termination of the Lease, Tenant shall return to Landlord all keys
furnished to Tenant by Landlord, or otherwise procured by Tenant, and
in the event of loss of any keys so furnished, Tenant shall pay to
Landlord the cost thereof.
7. Landlord shall have the right to prescribe the weight, position and
manner of installation of heavy articles such as safes, machines and
other equipment brought into the Building. No safes, furniture, boxes,
large parcels or other kind of freight shall be taken to or from the
Demised Premises or allowed in any elevator, hall or corridor except at
times allowed by Landlord. In no event shall any weight be placed upon
any floor by Tenant so as to exceed the design conditions of the floors
at the applicable locations.
8. Tenant shall not cause or permit any gases, liquids or odors to be
produced upon or permeate from the Demised Premises, and, except in the
case of normal and customary medical supplies, n o flammable,
combustible or explosive fluid, chemical or substance shall be brought
into the Building.
9. Unless agreed to in writing by Landlord, Tenant shall not employ any
person other than Landlord's contractors for the purpose of cleaning
and taking care of the Demised Premises. Cleaning service will not be
furnished on nights when rooms are occupied after 8:00 p.m., unless, by
agreement in writing, service is extended to a later hour for
specifically designated rooms. Landlord shall not be responsible for
any loss, theft, mysterious disappearance of or damage to, any
property, however occurring.
10. No connection shall be made to the electric wires or gas or electric
fixtures, without the consent in writing on each occasion of Landlord.
All glass, locks and trimmings in or upon the doors and windows of the
Demised Premises shall be kept whole and in good repair. Tenant shall
not injure, overload or deface the Building, the woodwork or the walls
of the Demised Premises, nor permit upon the Demised Premises any
noisome, noxious, noisy or offensive business.
11. If Tenant requires wiring for a xxxx or buzzer system, such wiring
shall be done by the electrician of Landlord only, and no outside
wiring men shall be allowed to do work of this kind unless by the
written permission of Landlord or its representatives. Any wiring for
telephone service must be approved by Landlord, and no boring or
cutting for wiring shall be done unless approved by Landlord or its
representatives, as stated.
30
12. Tenant and its employees and invitees shall observe and obey all
parking and traffic regulations as imposed by Landlord. All vehicles
shall be parked only in areas designated for vehicle parking by
Landlord.
13. Canvassing, peddling, soliciting and distribution of handbills or any
other written materials in the Building are prohibited, and Tenant
shall cooperate to prevent the same.
14. Landlord shall have the right to change the name of the Building and to
change the street address of the Building, provided that in the case of
a change in the street address, Landlord shall give Tenant not less
than 180 days' prior notice of the change, unless the change is
required by governmental authority.
15. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular lessee, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor
of any other lessee, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the other lessees of
the Building.
16. These Rules and Regulations are supplemental to, and shall not be
construed to in any way modify or amend, in whole or in part, the
terms, covenants, agreements and conditions of any lease of any
premises in the Building.
17. Landlord reserves the right upon fifteen (15) days' prior written
notice to Tenant to make such other and reasonable Rules and
Regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building and the Land, and for the
preservation of good order therein.
