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EXHIBIT 10(hh)
FORMER REYNOLDS BUILDING
0000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx
THIS LEASE, made this ____ day of ____________, 1996, by and
between CMS PEACHTREE, L.P., a Delaware limited partnership (hereinafter
referred to as "Lessor" or "Landlord"), and MINDSPRING ENTERPRISES, INC.
(hereinafter referred to as "Lessee" or "Tenant").
WITNESSETH:
I. PREMISES
Lessor, for and in consideration of rents, covenants,
agreements, and stipulations hereinafter set forth, to be
paid, kept and performed by Lessee, has leased and rented, and
does hereby lease and rent, unto Lessee, and Lessee hereby
agrees to lease and take upon the terms and conditions
hereinafter set forth, 39,740 square feet of OFFICE AREA space
(hereinafter referred to as the "Premises"), the location of
which is 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 known as the
Xxxxxxxx Building (hereinafter referred to as the "Building").
No easement for light or air is included in the Premises.
"Office Area" of the Premises means the total gross area of
the Building including common areas, elevators and storage
areas. The premises shall also include the entire deck parking
garage area located adjacent to the Building, and the parking
lot located at 0000 Xxxxxxxxx Xxxxxx subject to the Parking
Lot Option set forth in Paragraph XXXII of this Lease.
II. TERM
The term of this Lease shall begin on January 1st, 1997 and
shall end at midnight on March 31st, 2002, unless sooner
terminated as hereinafter provided.
III. RENTAL
Lessee shall pay to Lessor at 0000 Xxxxx Xxxx, Xxxxx 000,
Xxxxxxx, XX 00000 or at such other place or to such other
person or persons as Lessor may from time to time designate in
writing, without demand, deduction or setoff, an initial base
monthly rental of $20.697.92 (such amount to be adjusted from
time to time as set out herein and in Paragraphs and IX and X)
payable in advance on the first day of each calendar month
during the term of this Lease; provided, however, that if the
term hereof begins or ends on other that the first day of a
calendar month, then the monthly rental for such month shall
be prorated on a daily basis. All installments
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of rent not paid within thirty (30) days of the due date shall
bear interest at the rate of one and one-half percent (1 1/2%)
per month from the original due date, or the maximum rate
permitted by law, whichever is lower. Additionally, all rent
paid after the fifth calendar day of the month shall be
subject to a late fee of 5% of the amount due, as additional
rent to compensate Landlord for the additional handling and
collection efforts and expenses. Checks are accepted subject
to collection.
IV. USE
The Premises shall be used for general office use and related
purposes only. The Premises shall not be used for any illegal
purpose, nor in violation of regulation of any governmental
body, nor in any manner to create any nuisance or trespass, to
vitiate the insurance or increase the rate of insurance on the
Premises or the Building, or which would overload the floor of
the Premises.
V. ABANDONMENT
Lessee shall not abandon or vacate the Premises during the
term of this Lease, and agrees to use the Premises for the
purposes herein leased until the expiration of the term
hereof.
VI. LESSEE'S ACCEPTANCE:
Subject to completion of the Landlord's Work in accordance to
Paragraph XXXII, on the Delivery Date, Lessee shall accept
Premises "as is" in their present condition and as suited for
the use intended by Lessee. Except for the Landlord's Work,
Lessor shall not be required to make any repairs or
improvements to Premises, except structural repairs necessary
for safety and tenability.
VII. REPAIRS
Lessor agrees to keep in good repair or to act promptly to
make repairs to the roof, foundations, and exterior walls of
the Premises and underground utility and sewer pipes outside
the exterior walls of the building, except repairs rendered
necessary by the negligence of Lessee, its agents, employees,
or invitees. Lessor firrther agrees to maintain the Building,
the grounds and the parking areas in a condition generally
comparable to other buildings in the area of similar quality
and rental rate.
Lessee shall commit no act of waste and shall take good care
of the Premises and the fixtures and appurtenances therein,
and shall, in the use and occupancy of the Premises, conform
to all lawftil orders, regulations, ordinances, and laws
issued by any duly constituted governmental body or agency.
Lessor shall make all necessary repairs to the Premises,
except fbr repairs rendered necessary by the
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negligence or action of Lessee, its agents, employees, or
invitees, or by failure of Lessee to perform its obligations
under this Lease. Lessor shall be under no obligation to
inspect the Premises. Lessee shall promptly report in writing
to Lessor any defective condition know to Lessee which Lessor
is required to repair hereunder, and failure to so report any
such defective condition shall make Lessee responsible to
Lessor for any liability incurred by Lessor by reason of any
such defect. Except for negligence or action of Lessor, all
personal property upon the Premises shall be at the risk of
Lessee only, and Lessor shall not be liable for any darnage to
the Premises, to Lessee or to the property of Lessee arising
from bursting or leaking of air, gas, water or steam pipes, or
from the negligence of cotenants, other occupants of the
Building or any other person; and Lessor shall in no way be
held responsible to Lessee for any loss, however occurring, or
for any damages therefor, except for damage resulting from
negligence of Lessor.
All systems and machinery throughout the property shall be in
good working order. One passenger elevator and one service
elevator shall be provided in service for the Tenant's use.
VIII. ENTRY
Lessor may enter the Premises at reasonable hours to exhibit
the same to prospective purchasers, lenders, insurers, their
agents, inspectors or representatives, or tenants, to inspect
and examine the same, to make such repairs, additions,
alterations and improvements as Lessor desires to make to the
Building or the Premises, and to remove anything from the
Premises which does not conform to this Lease or any rules and
regulations of the Building. Lessor shall also have the right
of entry into the Premises at reasonable hours to perform
other necessary work; provided, however, that Lessor will be
responsible for any damages to person or property caused by
such work, and provided ftirther that, except for emergencies,
such work shall not be performed during Lessee's normal office
hours.
IX. EXCESS OPERATING EXPENSES AND TAXES
Effective upon the Delivery Date of the Premises, Tenant shall
also pay an additional monthly rental, its proportionate part
of any annual increases in taxes and operating expenses of the
real estate and improvements (herein "Operating Expenses") as
hereinbelow defined over a $5.00 per square foot rentable
expense stop ("Excess Operating Expenses").
On or about January 1st of each calendar year or as soon
thereafter as practical, Landlord shall provide Tenant with a
schedule of projected operating expenses for such current
calendar year and Tenant shall thereafter pay as additional
rent, Tenant's share of projected Excess Operating Expenses,
if any. Tenant's share of
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projected Excess Operating Expenses, if any, shall be payable
in advance on a monthly basis by paying 1/12th of Tenant's
share of such projected Excess Operating Expenses, if any,
during each month of such calendar year. If Landlord has not
ftirnished Tenant estimate by January 1st , Tenant shall
continue to pay on the basis of the prior year's estimate
until the month after estimate is given.
Landlord shall within a period of 120 days (or as soon
thereafter as practical) after the date of each such calendar
year following the initial year, provide Tenant an unaudited
statement of such year's actual Excess Operating Expenses, if
any. If Tenant's share of the actual Excess Operating
Expenses, if any, is greater than the total projected Excess
Operating Expenses actually paid by Tenant, Tenant shall pay
Landlord within 30 days of such statement the difference
thereof. If Tenant's share of such actual Excess Operating
Expenses is less than the total projected Excess Operating
Expenses actually paid by Tenant, Landlord shall credit Tenant
within 30 days of such statement issuance the difference
thereof, such credit to be applied against the next payment
due of Tenant.
Notwithstanding, there shall be no credit to Lessee below the initial expense
stop of $5.00 per rentable square foot. The Excess Operating Expense shall be
adjusted accordingly for partial year's occupancy using standard accounting and
property management procedures.
Operating Expenses as used herein, shall be deemed to be the total cost to
Landlord to properly maintain and operate the Premises including parking,
storage and landscape areas on the Premises and in the and around the Building
and shall include the following:
a) (i) All taxes (ad valorem and otherwise),
assessments, and governmental charges whether
federal, state, county, or municipal, and whether
by taxing districts or authorities presently taxing
the Premises and Building or by others,
subsequently created or otherwise, and any other
taxes (other than federal and state income taxes)
and assessments attributable to this Premises and
Building or its operation and any reasonable
consultant's fees incurred with respect to issues
or concerns including the taxes on the Building,
the Premises, or both;
(ii) Janitorial labor and supplies, including
lavatory and washroom supplies;
(iii) Reasonable gross wages and salaries,
including Social Security, and insurance payable
by Landlord with respect to such wages and
salaries, of all persons directly employed by
Landlord for, and rendering services in, the
normal operation and maintenance and repair of the
Building and the sidewalks, and curbs adjoining
the same; management, bookkeeping and
administrative office expenses of the Landlord
directly related to the operation of Building
shall be properly allocated and considered a part
of the "Operating Expenses";
(iv) Management fees, if any; but not to exceed to
6% of the gross rental;
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(v) Utility expenses, including electricity,
power, gas, water sewage and garbage removal;
(vi) Routine servicing and maintenance of
equipment such as elevators, plumbing, heating,
ventilation and air conditioning, and electrical
systems; window cleaning and gardening services;
security services, rubbish removal; all as may be
performed by employees of Landlord or independent
contractors;
(vii) Fire, casualty, liability insurance carried
by Landlord with respect to the Building and
Premises;
(viii) The cost of contesting ad valorem taxes
assessed against the Premises but only to the
extent of any savings resulting from such
contesting.
b) Expenditures by Landlord for replacement of the
basic components of the Premises such as capital
improvements (as distinguished from repairs and
maintenance expenses) and tenant alterations,
marketing expenses, advertising and lease
commission shall not be included as Operating
Expenses.
X. ADJUSTMENT OF INITIAL BASE MONTHLY RENTAL
The monthly rental shall be increased beginning with the
January, 1998 payment of monthly rental and each January 1st
thereafter, during the term of this Lease (hereinafter called
"Adjustment Dates"), The adjusted monthly rental shall be
determined by multiplying the previous year's monthly rental
as shown in Paragraph III hereof, by 1.05 starting with the
original monthly rent shown below:
Tenant's Monthly Rental Obligation
6.24 1/1/97-6/30/97 -$20,697.92 per month (TENANT TO OCCUPY FLOORS 2&3)
12.50 1/1/97-12/31/97 -$41,395.83 per month (TENANT TO OCCUPY ENTIRE BLDG.)
13.13 1/1/98-12/31/98 -$43,465.63 per month
13.78 1/1/99-12/31/99 -$45,638.91 per month
14.47 1 1/1/2000-12/31/2000 -$47,920.85 per month
15.19 1/1/2001-12/31/2001 -$50,316.89 per month
15.95 1/1/2002-3/31/2002 -$52,832.74 per month
XI. DEFAULT / REMEDIES
In the event: (A) the rental specified in Paragraph III,
above, other money charges or obligations to be paid by Lessee
hereunder are not paid at the time and place when and where
due; or (B) the Premises shall be deserted or vacated prior to
the expiration of the Term of this Lease; or (C) Lessee shall
fail to comply with any term, provision, condition or covenant
of this Lease, other than the payment or rent, or any of the
Rules and Regulations of the Building, or (D) Lessee is
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adjudicated a bankrupt or whether voluntarily or
involuntarily, Lessee shall take advantage of any debtor
relief proceedings under any present or future law, whereby
the rent or any part thereof is, or is proposed to be, reduced
or payment thereof deferred; or (E) Lessee shall become
insolvent or make a transfer in fraud or creditors; or (F)
Lessee shall make an assignment for the benefit of creditors;
or (G) a receiver is appointed for a substantial part of the
assets of Lessee; or (H) the Premises or Lessee's effects
should be levied upon or attached under process against
Lessee; then, in any such events, Lessor shall have the option
to do any of the following in addition to and not in
limitation of any other remedy permitted by law or in equity
or under this Lease: (a) if the Event of Default involves
nonpayment of rental, and Lessee fails to cure such default
within ten (10) days after receipt of written notice thereof
from Lessor, or if the Event of Default involves a default
per~brming any of the terms or provisions of this Lease other
than the payment of rental and Lessee fails to cure such
default within thirty (30) days after the receipt of written
notice of default from Lessor, Lessor may terminate this Lease
by giving written notice to Lessee and, upon such termination,
shall be entitled to recover from the Lessee damages in an
amount equal to all rental which is then due and which would
otherwise have become due throughout the remaining term of
this Lease, or any renewal or extension thereof (as if this
Lease had not been terminated); or (b) if the Event of Default
involves any matter other than those set forth in item (a) of
this Paragraph, the Lessor may terminate this Lease by giving
a written notice to Lessee, and upon such termination, shall
be entitled to recover from the Lessee damages in an amount
equal to all rental which is then due and which would
otherwise have become due throughout the remaining term of
this Lease, or any renewal or extension thereof (as if this
Lease had not been terminated); or (c) upon any Event of
Default, Lessor, as Lessee's agent, without terminating this
Lease may enter upon and rent the Premises, in whole or in
part, at the best price obtainable by reasonable effort,
without advertisement and by private negotiations and for any
term Lessor deems proper, with Lessee being liable to Lessor
for any deficiency, if any, between Lessee's rent hereunder
and the price obtained by Lessor on reletting; provided,
however, that Lessor shall not be considered to be under any
dtity by reason of this provision to take any action to
mitigate damages by reason of Lessee's default.
XII. PERSONALITY OF LESSEE
If Lessee fails to remove all his or her effects from the
Premises upon any termination of this Lease, Lessor may, at
its option, remove all or part of said effects in any manner
that Lessor shall choose and store the same without liability
to Lessee for loss thereof, and Lessee shall be liable to
Lessor for all expenses incurred in such removal and storage
of said effects. Upon any termination of this Lease whereupon
Lessee shall be liable on any amount to Lessor, Lessor shall
have a lien upon the personal property and effects of Lessee
on the Premises, and Lessor may, at its option, without
notice, sell at private sale all or part of said
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property and effects for such price as Lessor may deem best
and apply the proceeds of such sale to any amounts due under
this Lease from Lessee to Lessor, including the expenses of
the removal and sale.
XIII. SERVICES
Except for weekends and Legal Holidays, Lessor shall cause the
Building to be cleaned and generally cared for by the janitors
of the Building in accordance with the standards applicable to
the Building from time to time, a copy of which shall be
furnished to Lessee upon request; will furnish elevator
service; and will furnish electricity for lighting, personal
size computers and other small office machines.
Lessor will provide trash removal service for all non-toxic,
non-infectious, and non-hazardous trash `or refuse which can
be placed in a plastic bag. A dumpster will be provided on the
premises by Landlord for larger items. Tenant will be
responsible for trash removal requiring a dumpster.
Lessor shall not be liable for any damages resulting from the
interruption in any service by any cause not within the
immediate control of Lessor. "Legal Holidays", as used in this
section shall mean any holidays for which the nearest
nationally chartered bank is closed.
XIV. SUBLETTING AND ASSIGNMENTS
Lessee shall not, without prior written consent of Lessor
assign this Lease, or any interest herein, or sublet the
Premises, or any interest herein, or any portion thereof, or
permit the use of the Premises by any party other than Lessee.
Consent to any assignment or sublease shall not destroy this
provision, and all later assignments or subleases shall be
made likewise only upon the prior written consent of Lessor.
Any assignee of sublessee of Lessee, at the option of Lessor,
shall become directly liable to Lessor for all obligations of
Lessee hereunder, but no sublease or assignment by Lessee
shall relieve Lessee of any liability hereunder. Lessor's
consent to any transfer shall not be unreasonably withheld.
XV. DESTRUCTION OR DAMAGE
If the Premises are totally destroyed by storm, fire,
lightning, earthquake or other casualty(ies), so as to be
untenantable, this Lease shall terminate as of the date of
such destruction and rental shall be accounted for as between
Lessor and Lessee as of that date. If the Premises are damaged
but not wholly destroyed by any such casualty(ies) such that
use of a portion of the Premises is interrupted, rental shall
xxxxx in such proportion as use of the Premises has been
interrupted, and Landlord shall, to the extent casualty
insurance proceeds are actually made available to Landlord,
restore or cause to be restored the Premises to substantially
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the same condition as before damage as is practicable,
whereupon full rental shall commence.
XVI. CONDEMNATIONS, ETC.
In the event Lessor, during the term of this Lease, shall be
required by any governmental authority, or the order or decree
of any court, to repair, alter, remove, reconstruct, or
improve any part of the Premises, then such repairing,
alteration, removal, reconstruction or improvement may be made
by and at the expense of Lessor and shall not in any way
affect the obligations or covenants of Lessee herein
contained, and Lessee hereby waives all claims for damages or
abatement or rent because of such repairing, alteration,
removal, reconstruction or improvement required, ordered, or
decreed.
If the whole of the Premises, or such portion thereof as will
make the Premises unusable for the purposes herein leased, be
condemned by any legally constituted authority for any public
use or purpose, then at the option of either Lessor or Lessee
the term hereby granted shall cease from the date when
possession thereof is taken by public authorities, and rental
shall be accounted for as between Lessor and Lessee to recover
compensation and damage caused by condemnation from the
condemnor.
If this Lease is not so terminated, or upon a taking not
within the scope of the foregoing, total rent shall xxxxx for
the period of such taking in proportion to the area of the
Premises taken.
XVII. ATTORNEY'S FEE
Lessee agrees to pay all reasonable attorney's fees and
expenses Lessor incurs in enforcing any of the obligations of
Lessee under this Lease, or in any litigation or negotiation
due to default by Lessee.
XVIII. ESTOPPEL CERTIFICATE
Lessee agrees to certify in writing the status of this Lease
and the rental hereunder, at any time, upon ten (10) days
written notice. Such certificate shall be in form reasonably
satisfactory to any governmental authority or public agency or
to a prospective purchaser from, or assignee of, or holder of
a security instrument executed by Lessor. In addition to any
other matters required, such certificate shall certify the
commencement date of the Lease term and the anticipated
termination date hereof; whether or not this Lease is in full
force and effect; whether or not this Lease has been amended
or modified, and if so, in what manner; the date through which
rental payments have been made; whether of not there are any
defaults under this Lease, and if so, specifying the
particulars of such defaults and the action required to remedy
them; and whether or not there are
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any setoffs against or defenses to the enforcement of the
terms and conditions of this Lease, and if so, specifying the
particulars of such setoffs or defenses.
XIX. ENTIRE AGREEMENT
This Lease contains the entire agreement of the parties and no
representations or agreements, oral or otherwise, between the
parties not embodied herein shall be of any force or effect,
unless modified in writing and signed by both parties.
XX. TIME
Time is of the essence of this Lease.
XXI. RULES AND REGULATIONS
Lessee agrees, at its sole cost and expense, to comply with
all rules, regulations, ordinances, and requirements of
governmental authorities, including those relating to disposal
of hazardous or infectious waste material, and decrees of
courts requiring any action, where such rules, regulations,
ordinances, requirements, orders or decrees result from the
manner in which Lessee uses and occupies the Premises. Lessee
further agrees to abide by and observe the Rules and
Regulations attached to this Lease, if any, and such Rules and
Regulations or amendments thereto as may from time to time be
deemed reasonably necessary by Lessor for the proper
maintenance and operation of the Building and the Premises and
applicable to all Tenants.
XXII. LESSOR/LESSEE RELATIONSHIP
This Lease creates the relationship of Landlord and Tenant
between Lessor and Lessee; no estate shall pass out of Lessor;
Lessee has only a usufruct, not subject to levy and sale.
XXIII. SUBORDINATION
Lessee agrees that this Lease shall be subject and subordinate
to any mortgage or deed to secure debt now in the Premises and
to all advances already made, or which may hereafter be made,
on account of said mortgage or deed to secure debt to the full
extent of all debts and charges secured thereby and to any
renewals or extensions of all or any part thereof, and to any
mortgage or deed to secure debt which any owner of the
Premises or the Building may hereafter at any time elect to
place on the Premises or the Building, and Lessee agrees upon
request to execute hereafter any paper or papers which counsel
for Lessor may deem necessary to accomplish that end and, in
default of Lessee so doing, Lessor is hereby empowered to
execute such paper or papers in the name of Lessee, and as the
act and deed of Lessee, and this authority is hereby declared
to be coupled
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with an interest and not revocable. It is expressly understood
and agreed that Lessor shall not be liable to Lessee for
breach of covenant of quiet enjoyment by reason of the
foreclosure or sale of the Premises or the Building under any
mortgage or deed to secure debt now or hereafter affecting the
Premises or the Building. If any such mortgage or deed to
secure debt shall hereafter be foreclosed, or if the Building
shall be sold under power of sale contained in any such deed
to secure debt, upon the request of the mortgagee of the
purchaser at foreclosure or by deed in lieu thereof, Lessee
will attorn to such purchaser and will execute such
attornment. Notwithstanding the foregoing, Lessee agrees that
such mortgage shall have the right to declare this Lease prior
and superior to any such mortgage or deed to secure debt and
Lessee agrees, upon request, to execute any instrument or
instruments requested by such mortgage to confirm the same.
XXIV. HOLDING OVER
If Lessee remains in possession after expiration of the term
hereof, without any distinct agreement between the parties,
Lessee shall be deemed to be a tenant at sufferance at one &
one-half times the rental rate in effect during the month
prior to the expiration date hereof. There shall be no renewal
of this Lease by operation of law. In addition, as additional
rent, Lessee shall reimburse Lessor for all costs and damages
due to Lessee's failure to vacate and/or to deliver the
Premises to Lessor at the expiration of the term of this Lease
in accordance with the various provisions (including those
related to the condition of the Premises) of this Lease.
XXV. SURRENDER OF PREMISES
Upon termination of this Lease, Lessee shall surrender the
Premises to Lessor in the same condition as at the
commencement of the term hereof, natural wear and tear and
modifications approved by Lessor accepted.
XXVI. NOTICES
Any notice, report, demand, service of process, request,
consent, approval or other communication under this Lease
shall be in writing and shall be deemed to have been duly
given or made: (A) when deposited, postage prepaid, in the
United States mail, certified or registered, with return
receipt requested, addressed to Lessor or Lessee (as the case
may be) at the addresses of each party shown below; or (B)
when delivered personally to Lessor or Lessee (as the case may
be), by a nationally recognized courier service or other means
of personal delivery at the addresses of each party shown
below:
If given to Lessor: Xxxxxxx & Xxxx, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
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With a copy to: Xx. Xxxx Xxxxxxxxxx
CMS Peachtree, L.P., a Delaware
limited partnership
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
If given to Lessee: MINDSPRING ENTERPRISES, INC.
Ms. Xxxx Peavlor
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Either party may, by written notice to the other, designate a
different address for receiving notices hereunder. Rejection
or other refusal to accept or inability to deliver because of
changed address of which no notice has been received shall
also constitute receipt.
XXVII. PARTIES AND BINDING EFFECT
"Lessor" and "Landlord", as used in this Lease, shall include
Lessor, and its representatives, successors,
successors-in-title and assigns. "Lessee" and Tenant", as used
in this Lease, shall include Lessee, and its representatives
and successors, and, if this Lease shall be validly assigned
or sublet, shall include also Lessee's assignees or sublessees
as to all or any portion of the Premises covered by any such
assignment or sublease. "Lessor", "Landlord", "Tenant" and
"Lessee" include male and female, singular and plural,
corporation, partnership or individual, as the case may be.
This Lease shall be binding upon and inure to the benefit of
Lessor and Lessee.
XXVIII. AGENCY DISCLOSURE
Landlord and Tenant hereby acknowledge that Xxxxxxx Xxxxxx &
Co. has acted as an agent for Landlord, CMS PEACHTREE, L.P., a
Delaware limited partnership, in this transaction and will be
paid a real estate commission by Landlord and that Xxxx
Xxxxxxx & Co. has acted as an agent for Tenant, Mindspring
Enterprises, Inc. in this transaction and will be paid a real
estate commission by the landlord per a separate commission
agreement.
XXIX. BROKER'S COMMISSION
Broker has rendered valuable service by assisting in the
creation of the landlord- tenant relationship hereunder. The
commission to be paid in conjunction with the creation of the
relationship by this Lease has been negotiated between
Landlord and Broker and Landlord hereby agrees to pay Broker
as compensation for Broker's services in procuring this Lease
and creating the aforesaid landlord- tenant relationship
(X)pursuant to a separate commission agreement.
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XXX. WAIVER OF RIGHTS
No failure of Lessor to exercise any power given Lessor
hereunder, or to insist upon strict compliance by Lessee of
his obligations hereunder, and no custom or practice of the
parties at variance with the terms hereof shall constitute a
waiver of Lessor's right to demand exact compliance with the
terms hereof.
XXXI. DISCLOSURE OF OWNERSHIP
The Landlord is owner of the Premises and has an address at
c/o CMS Companies 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx. Management is by Xxxxxxx & Xxxx, Inc.
XXXII. LANDLORD IMPROVEMENTS
The following alterations or improvements ("Landlord's Work")
will be provided by Landlord at Landlord's expense:
1) Third Floor: Leave the private offices across the front of the
space as they are, install new ceiling and duct work, new
paint and carpet. Erect a wall as specified in the third
floor plan. (See Exhibit "A")
2) Second Floor: Space to be left as is with new paint, carpet,
and ceiling tiles throughout. (See Exhibit "A")
3) First Floor: Demo all walls as marked on first floor drawing.
Demo bathroom in front office and reception desk. Relocate
door and add separation to back room and elevator, otherwise
new paint, carpet, and ceiling tiles throughout. (See "Exhibit
"A")
4) Ground Floor: Demolish partitions as shown, install kitchens
and shower as shown, otherwise new ceiling tiles and fresh
paint and carpet throughout. (See Exhibit "A")
5) Lessor's improvements for the second and third floor as
specified in the contract and exhibits shall be substantially
completed on or before January 1st, 1997. Should Lessor's
improvements not be substantially completed, this lease shall
remain in full force and effect and the commencement date
shall be moved back until substantial completion is achieved.
Lessor's improvements for the lower level and first floors as
specified in the contract and exhibits shall be substantially
completed on or before July 1st, 1997.
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6) Lessee shall be responsible for all electrical improvements
and shall cooperate with general contractor to complete the
electrical portion on the improvements as scheduled.
Additionally Lessee agrees to reimburse Landlord for the
alternate bid outlined in Exhibit "A" marked "Alternate Bid".
Said work shall be conducted in accordance to the specifications attached
hereto as "Exhibit A and made a part hereof. Any additional items required by
inspection authorities shall be paid by Lessor. Other changes required by
Lessee, if any, shall be paid by Lessee at the time such change is ordered.
Capital Expenses/Retrofit: In the event tenant defaults in the payment of rent
(including addiftonal rent payable under Section IV hereof), within the first
year of occupancy of entire Building, Landlord shall be fully reimbursed for
the total capital expenses and commissions paid to broker and co-broker
estimated at $215,000 within 30 days of vacancy of premises or default of
lease.
SPECIAL STIPULATIONS Insofar as the following special stipulations conflict
with any of the foregoing provisions, the following shall control:
1) ADDITIONAL PARKING: Should the adjacent surface parking lot
located at 0000 Xxxxxxxxx Xxxxxx, owned by CMS not be
redeveloped within 18 months, Lessee shall have the right to
obtain additional parking at the prevailing monthly rate if
surface parking is available.
2) LANDLORD PARKING RIGHTS: Should the adjacent vacant parking
lot be developed as contemplated, the Landlord and/or hotel
operator shall have the right at no cost to the parking deck
at 0000 Xxxxxxxxx Xxxxxx after 6:00 p.m. and until 6:00 a.m.
each day as needed. The use of the deck parking lot by the
Lessor shall not unreasonably interfere with the need or use
of the parking deck by the Tenant and be limited to the lower
deck with access of the back alleyway.
3) SIGNAGE: Subject to Landlord's reasonable approval and
compliance with existing signage ordinances, Lessee shall have
signage rights to the property at Lessee's expense.
(4) For the first six months of the lease tenant is only entitled
to half the allocated parking deck for free. Additional
parking shall be leased at the market rate.
ALTERATIONS AND ADDITIONAL IMPROVEMENTS:
Tenant shall not make any alterations, additions, or improvements to the
Premises without Landlord's prior written consent. Tenant shall promptly remove
any alterations, additions, or improvements constructed in violations of the
Special Stipulations Paragraphs upon Landlord's written request. All approved
alterations, additions, and improvements will be accomplished in
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good and workmanlike manner, in conformity with all applicable laws and
regulations, and by a contractor approved by Landlord, free of any liens or
encumbrances. Landlord may require Tenant to remove any alterations, additions
or improvements (whether or not made with Landlord's consent) at the
termination of this Lease and to restore the Premises to its prior condition,
all at Tenant's expense. All alterations, additions and improvements which
Landlord has not required Tenant to remove shall become Landlord's property and
shall be surrendered to Landlord upon the termination of this Lease, except
that Tenant may remove any of Tenant's machinery or equipment which can be
removed without material damage to the Premises. Tenant shall repair, at
Tenant's expense, any damage to the Premises caused by the removal of any such
machinery or equipment.
Lessee, subject to the prior approval by Lessor of plans and specifications
compliance with applicable zoning ordinances and building codes, and purchase
of liability insurance in amounts reasonably acceptable to Lessor, shall have
the ability to perform the additional work at Lessee's expense:
1) Construction of automobile access to the storage area under
the deck for additional parking, provided that such work will
not impair the structural strength or integrity of the
Building or the operation of its systems.
2) At the time Lessee requests approval of its plans, it shall
also furnish to Lessor a report of an engineer acceptable to
Lessor certifying the safety of the design of such structure,
the construction of such deck, if approved, shall be
undertaken by a building contractor acceptable to Lessor, in
its sole discretion and upon completion of such construction
the contractor will warrant to Lessor the fitness of the
structure by applying construction of a wooden observation
deck measuring 30 feet by 50 feet on the roof near the front
parapet wall of the building with the access to the rear
stairwell provided that no alteration shall be made unless
Lessor is fully satisfied that the improvements are safe and
that tenant has full responsibility for liabilities and damage
to the roof and persons entering the deck.
3) Lessee assumes full responsibility for the modifications to
roof deck and wooden observation deck and for maintenance
thereof during the term of this Lease.
(4) Tenant has the right to add necessary HVAC and generators to
upgrade the existing systems for added reliability. Such
improvements shall meet all State and Federal Building Codes &
Specifications. Tenant must obtain Lessor's written consent
before making necessary upgrades, such consent shall not be
unreasonably withheld.
XXXIII. MISCELLANEOUS
A. This Lease shall be governed by and construed in
accordance with the laws of the State of Georgia,
without reference to conflict of laws precipitates.
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B. This Lease may not be executed in separate
counterparts.
C. The undersigned parties hereto, each represent and
warrant that it has the requisite power and authority
to enter into this Lease.
D. The invalidity or unforceability of any particular
provision of this Lease shall be construed in all
respects as if such invalid or unenforceable
provision were omitted.
LESSOR:CMS PEACHTREE, L.P., A
DELAWARE LIMITED PARTNERSHIP
By: CMS PEACHTREE ASSOCIATES,
L.P., its general partner
By: MSPS PEACHTREE, INC., its
general partner
By: /s/ Xxxxxx X. Xxxxx(SEAL)
-------------------
V.P.
LESSEE: MINDSPRING ENTERPRISES, INC.
By: K. Xxxx Xxxxxxx (SEAL)
----------------------------
BROKER: Xxxxxxx Xxxxxx & Company
By: [sig]
-------------------------
CO BROKER:
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RULES AND REGULATIONS OF THE BUILDING
which are referred to in the Lease and made a part thereof.
1. The sidewalks, entry passages, corridors, halls, elevators and
stairways shall not be obstructed by Lessee or used for any purpose other than
those of ingress and egress. The water closets and other water apparatus shall
not be used for any other purpose than those for which they were constructed,
and no sweepings, rubbish, or other obstructing substances shall be thrown
therein. Any damage resulting to them, or any equipment or apparatus required
to serve the building from misuse, shall be borne by Lessee who, or whose
clerks, agents or servants, shall cause it.
2. No advertisement or other notice, shall be inscribed, painted or
affixed on any part of the outside or inside of said building without the
expressed written consent of the Landlord. Such consent shall not be
unreasonably withheld. Signs will be prepared for Lessee by Lessor, the cost of
such to be paid for by Lessee.
3. No Lessee shall do or permit to be done in said premises, or bring or
keep anything therein, which shall in any way increase the rate of fire
insurance on said building, or on property kept therein, or obstruct or
interfere with the rights of other Lessees or in any way inure or annoy them,
or conflict with the laws relating to fires, or with the regulations of the
Fire Department, or any part thereof, or conflict with any rules and ordinances
of the Board of Health. Lessee, his clerks and servants, shall maintain order
in the building, shall not make or permit any improper noise in the building or
interfere in any way with other Lessees or those having business with them.
Nothing shall be thrown by Lessee, his clerks or servants, out of the doors, or
down the passages of the building. No rooms shall be occupied or used as
sleeping or lodging apartments at any time and no cooking shall be allowed. No
part of the building shall be used or in any way appropriated for other
unlawful practices, and no intoxicating liquor shall be sold in said building.
4. Lessor shall not be responsible to any Lessee for any loss of property
from rented premises, however occurring, or for any damage done to the
furniture or other effects of any Lessee by the Janitor or any of its
employees.
5. No animals, or other vehicles shall be allowed in the offices, halls,
corridors, elevators or elsewhere in the building without the expressed written
consent of the Landlord. Such consent shall not be unreasonably withheld.
6. No painting shall be done, nor shall any alterations be made to any
part of the building by putting up or changing any partitions, doors or
windows, nor shall any connection be made to the electric wires, plumbing,
heating, cooling, or electric fixtures, without the consent in writing on each
occasion of Lessor or its agents. All glass, locks and trimmings in or upon the
doors and windows of the Building shall be kept whole and, when any part
thereof shall be broken, the
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same shall be immediately replaced or repaired and put in order under the
direction and to the satisfaction of Lessor, its agents, and shall be left
whole and in good repair. Lessee shall not injure, overload or deface the
building, the woodwork, or the walls of the premises, nor carry on upon the
Premises any noisome, noxious, or offensive business.
7. No additional locks or latches shall be put upon any door without the
expressed written consent of the Landlord. Such consent shall not be
unreasonably withheld.
8. Safes, furniture, boxes, or other bulky articles shall be carried up
into the Premises or removed from the Premises only by means of the elevators,
by the stairways, and at such times and in such manner and by such persons as
the Lessor may direct. Any damage done to the building or to Lessee, or to
other persons by taking a safe or other heavy article in or out of the demised
premises, from overloading a floor, or in any other manner shall be paid for by
the Lessee.
9. The Lessee shall not operate a stove upon the premises, or carry on
any mechanical business thereon, or do any cooking except with microwave or
coffee maker thereon, or use or allow to be used upon the demised premises oil,
burning fluids, camphene, gasoline or kerosene for heating, warrning or
lighting. No article deemed extra hazardous on account of fire and no
explosives shall be brought into said premises. No offensive gases or liquids
will be permitted.
10. No electrical work shall be allowed unless by the written permission
of Lessor. No boring or cutting for wiring shall be done unless approved by
Lessor. The electric current shall not be used for heating unless written
permission to do so shall first have been obtained from Lessor. Wherever
Lessor's approval is required, it will not be unreasonably withheld.
11. If any parking spaces around the building are designated for special
use, such as for service or delivery vehicles, Lessee and all employees of
Lessee agree to refrain from parking in those areas.
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