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Exhibit 10.1
NET BUILDING LEASE
BETWEEN
PERIMETER CENTER INVESTORS, L.L.C.
("Landlord")
AND
NET2000 COMMUNICATIONS REAL ESTATE, INC.
("Tenant")
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), made and entered into this 11th day
of April, 2000, by and between PERIMETER CENTER INVESTORS, L.L.C., a Georgia
limited liability company, and DOUBLE FEATURE, L.L.C., a Georgia limited
liability company (collectively, the "Landlord"), and NET2000 COMMUNICATIONS
REAL ESTATE, INC., a Delaware corporation (the "Tenant"):
W I T N E S S E T H:
WHEREAS, Landlord desires to demise, lease and rent unto the Tenant,
and Tenant desires to rent and lease from Landlord, that certain real property
("Land") located at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ more particularly
described in Exhibit A hereto, together with the building ("Building") and all
improvements thereon and appurtenant rights thereto including, without
limitation, parking areas, easements, declarations and rights of way (together
with the Land and the Building, the "Premises"), all of which are shown on the
plan attached hereto as Exhibit B.
WHEREAS, the Building is a two (2) story building containing
approximately twenty-three thousand three hundred thirty-four (23,334) rentable
square feet, and includes without limitation, all heating, venting, air
conditioning, mechanical, electrical, elevator and plumbing systems, roofs,
walls and foundations and fixtures, and the Premises shall include an
approximately ninety (90) space parking lot;
NOW, THEREFORE, for and in consideration of the mutual covenants,
promises and agreements herein contained, Landlord does hereby demise, lease and
rent unto Tenant and Tenant does hereby rent and lease from Landlord the
Premises, under and pursuant to the following terms and conditions:
1. Term. The term ("Term") of the Lease shall be ten (10) years
beginning on the later of (i) the date Landlord delivers possession of the
Premises to Tenant in the condition required herein or (ii) April 1, 2000 (the
"Commencement Date") and ending at midnight on the last day of the calendar
month in which the tenth (10th) anniversary of the Rent Commencement Date (as
such term is hereinafter defined) occurs (as the same may be extended, the
"Termination Date"), unless renewed as hereinafter provided. "Lease Year" shall
mean the twelve (12) month period beginning on the Rent Commencement Date and
each twelve (12) month period thereafter, provided however, that if the Rent
Commencement Date does not occur on the first day of a month, then the first
Lease Year shall expire on the last day of the month in which the one-year
anniversary of the Rent Commencement Date occurs.
2. Rent. As of the Rent Commencement Date (hereinafter defined), Tenant
agrees to pay as an annual base rent ("Rent") the amount set forth in the table
attached hereto as Schedule I and made a part hereof by this reference. Tenant
shall pay the Rent in monthly installments, in advance on the first day of each
calendar month for each and every month during the Term, any such monthly
installment to be prorated for any partial calendar month in which the Rent
Commencement
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Date or Termination Date shall occur. All amounts (unless otherwise provided
herein) other than the Rent owed by Tenant to Landlord hereunder shall be deemed
additional rent ("Additional Rent").
The installments of Rent and Additional Rent for any initial partial
calendar month shall be prorated based on actual days elapsed, and shall be paid
in advance on the Rent Commencement Date.
Except as expressly provided to the contrary in this Lease,
installments of Rent and Additional Rent shall be payable without notice,
demand, reduction, set off, or other defense. Installments of Rent and
Additional Rent and payments of other sums owing to Landlord pursuant to this
Lease shall be made to Landlord located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at whatever other account or address that Landlord
may designate from time to time by written notice delivered to Tenant not less
than thirty (30) days in advance of the effective date of any such change.
If any installment of Rent or Additional Rent, or any other sum due and
payable pursuant to this Lease, remains unpaid for more than five (5) days after
the date due, Tenant shall pay Landlord a late payment charge equal to the
greater of (i) Fifty and No/100 Dollars ($50.00), or (ii) five percent (5%) of
the unpaid installment or other payment. The late payment charge is intended to
compensate Landlord for administrative expenses associated with responding to
late payment, and shall not be considered liquidated damages or interest. All
Rent, Additional Rent and other sums of whatever nature owed by Tenant to
Landlord under this Lease that remain unpaid for more than ten (10) days shall
bear interest from the date due until paid at the lesser of (iii) five percent
(5%) in excess of the prime or general reference rate of interest of Chase
Manhattan Bank of New York (or its successors) in effect from time to time, or
(iv) the maximum interest rate per annum allowed by law.
The "Rent Commencement Date" shall be the later of (i) August 1, 2000
or (ii) the date on which Landlord delivers possession of the First Floor Space
(as defined in Section 5) to Tenant free and clear of any leases, occupancy or
related agreements or tenancies, broom clean and free of all personal property
and equipment.
Except as otherwise provided in this Lease, it is the intention of the
parties that Landlord shall receive the Rent, Additional Rent, and all other
sums payable to Landlord by Tenant under this Lease free of all taxes, expenses,
charges, damages and deductions of any nature whatsoever and Tenant covenants
and agrees to pay all sums which except for this Lease would have been
chargeable against the Premises and payable by Landlord. Tenant shall, however,
be under no obligation to pay principal or interest on any mortgage on the fee
of the Premises, any franchise or income tax payable by Landlord or any other
tax is imposed upon or measured by Landlord's income or profits, or any gift,
inheritance, transfer, estate, or succession tax by reason of any present or
future law which may be enacted during the Term.
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Notwithstanding anything to the contrary contained in this Section 2,
for the first four (4) months after the Rent Commencement Date, Tenant shall pay
Rent at one-half (1/2) the monthly rate set forth in the table above.
Upon the execution of this Lease, Tenant shall deliver to Landlord the
first and last month's Rent hereunder, together with the monthly amounts
estimated by Landlord totaling S2,510.00 relative to Tenant's obligations
hereunder for reimbursement to Landlord of Real Estate Taxes and Landlord's
Insurance Costs for the Premises (i.e., $26,038.45 and $31,249.71,
respectively).
3. Renewals. Provided Tenant is not then in default under this Lease
(beyond any applicable notice and cure periods), Tenant shall have the right and
option to renew this Lease for two (2) additional periods of five (5) years
each, next immediately ensuing after the expiration of the initial Term of
this Lease and the subsequent renewal period by notifying Landlord in writing
not less than six (6) months before the expiration of the immediately preceding
initial Term or subsequent renewal Term of this Lease. In the event that Tenant
so elects to extend this Lease, then, for such extended period of the Term, all
of the terms, covenants and conditions of this Lease shall be in full force and
effect during such extended period of the Term hereof.
4. Use of Premises, Compliance with Legal Requirements. Tenant may use
and occupy the Premises during the Term for the operation of a
telecommunications switch site (including collocation with third party
telecommunications providers) and related office and operations facilities, and
for any other lawful purpose. Tenant may install, use and maintain in the
Premises cabinets, racks, switches, risers, feeders, conduits and such other
telecommunications facilities and equipment necessary or desired by Tenant for
such purposes. Tenant shall, at its sole cost and expense, comply with all laws,
ordinances and regulations of any governmental authority relating to Tenant's
use or occupancy of the Premises, with the requirements of insurance
underwriters or rating bureaus applicable to the Property.
5. Condition of Premises. Tenant accepts the Premises in "as is"
condition, subject only to Landlord's maintenance and repair obligations set
forth herein, free of all leases, occupancy or related agreements or tenancies
other than a lease (the "First Floor Lease") for space on the first floor of the
Building (the "First Floor Space"), which First Floor Lease expires on July 31,
2000. Landlord does hereby agree to use all commercially reasonable efforts
(including the initiation of dispossessory proceedings, if required) to cause
the occupants of the First Floor Space to vacate the premises subject to the
First Floor Lease as soon after the expiration of the term of the First Floor
Lease as is possible. For the period beginning on the Commencement Date and
continuing for so long as the tenant under the First Floor Lease shall remain in
possession of any portion of the First Floor Space, Landlord shall promptly pay
to Tenant, on or before the tenth (10th) calendar day of each calendar month,
the sum of $5,712.50, prorated for any partial month. Notwithstanding the
foregoing, in the event that the activities of Tenant in and around the Premises
shall give rise to a claim by the tenant under the First Floor Lease that its
rights under the First Floor Lease (including, without limitation, the right to
quiet enjoyment of its demised premises) shall have been breached or violated,
and as a result thereof, said tenant under the First Floor Lease shall refuse to
pay all or any portion of the rent payable with respect to the period commencing
on the Commencement Date
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and ending on the Rent Commencement Date; then in such event, Landlord's
obligation to pay to Tenant the sum of $5,712.50 per month as described
immediately hereinabove shall be extinguished and eliminated, and instead,
Landlord shall promptly pay, within five (5) calendar days after receipt, all
rents actually collected by Landlord under said First Floor Lease, together with
the security deposit (or last month's rent) held by Landlord (subject, however,
to any claims of said tenant). Subject to the foregoing, in the event Landlord
shall fail to pay such amount when due, Tenant shall have the right to offset or
credit such amount against any Rent, Additional Rent or other sum payable to
Landlord by Tenant under this Lease.
6. Assignment/Subletting. The Tenant shall not assign this Lease, or
sublet the Premises, or any part thereof, without Landlord's prior written
consent which consent shall not be unreasonably withheld or delayed. Prior to
any sublease or assignment, Tenant shall first notify Landlord in writing of its
election to sublease all or a portion of the Premises or to assign this Lease or
any interest thereunder. At any time within fifteen (15) days after said notice,
Landlord shall notify Tenant that it consents or refuses to consent to the
sublease or assignment. A failure by Landlord to respond within such
fifteen (15) day period shall be deemed to be a consent.
Any assignment or subletting shall not release Tenant of its liability
under this Lease nor permit any subsequent assignment, subletting or other
prohibited act, unless specifically provided in such consent.
Notwithstanding the foregoing, no consent of Landlord is required for
Tenant to assign, sublet or otherwise transfer (by operation of law or
otherwise) this Lease or any of its rights hereunder: (a) to any person,
corporation, partnership or other entity which acquires all or substantially all
of the business or assets of Tenant or stock in Tenant, or (b) to any person,
corporation, partnership or other entity which controls, is controlled by or is
under common control with Tenant, or (c) in connection with any merger,
consolidation or reorganization of Tenant with or into another entity. In each
of such events (except only where, as a result of a merger, consolidation or
reorganization of Tenant, Tenant ceases to exist as a separate and distinct
legal entity), Tenant shall remain liable on this Lease for the entire Term
hereof (including any extension periods), and Tenant shall in no way whatsoever
be relieved of any liability for performance of any of the terms, conditions,
covenants and agreements contained herein to be performed by Tenant upon such
assignment, transfer or conveyance. Notwithstanding the foregoing, in the event
that as a result of a proposed merger, consolidation or reorganization of
Tenant, it is contemplated that Tenant shall cease to exist as a separate and
distinct legal entity, then in such event Tenant's successor or surviving entity
shall, as a precondition to the assignment of Tenant's rights in and to the
Lease in connection with any such merger, consolidation or reorganization of
Tenant, (i) assume, in a writing reasonably acceptable to Landlord, all of the
obligations of Tenant under the terms of this Lease, (ii) cause Net2000
Communications Group, Inc., if it shall be a surviving entity, and if not,
another entity with a net worth not less than the net worth of said Net2000
Communications Group, Inc. to guaranty the obligations of said successor or
surviving entity under the Lease; and upon the receipt by Landlord of such
assumption agreement and such guaranty, the transferring tenant shall be
relieved of any further liability for the performance of any of the terms,
conditions, covenants and
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agreements contained herein to be performed by Tenant from and after the date of
such merger, consolidation or reorganization.
Nothing contained herein shall be deemed to prohibit, limit or restrict
Tenant from, or require Landlord's consent to, collocating telecommunications
equipment at the Premises or from licensing or subletting cabinets, racks,
risers, feeders, conduits, chases or other equipment.
Landlord hereby consents to a collateral assignment or mortgage of this
Lease by Tenant to a lender of Tenant's choice, provided, however, Tenant shall
be and remain liable for the performance of this Lease.
7. Tenant to Pay Taxes, Utilities and Operating Expenses.
(a) In addition to the Rent described in Section 2 hereinabove, Tenant
shall, commencing with the Commencement Date and thereafter during the Term
hereof, be responsible for all "Real Estate Taxes" (as hereinafter defined)
imposed upon the Premises; and in this regard Tenant does hereby agree to pay to
Landlord, as Additional Rent, the Real Estate Taxes in the amounts and manner
described hereinbelow.
For the purposes of this Lease, the phrase "Real Estate Taxes" shall
mean all ad valorem real estate taxes and currently due installments of
assessments and all other governmental levies made with respect to real property
and payable by owners of such property which are due and payable for any tax
year falling in whole or in part within the Term. In the event the present
system of real estate taxation changes so that a new or different tax in
assessed against the Premises in lieu of or in addition to the existing real
estate taxes, Tenant shall also pay such new or additional real estate taxes,
provided that (i) such taxes are unique to owners of real property and are based
on such ownership (including, without limitation, a rents tax) and (ii) Tenant
shall pay no more than would be payable if the Premises was the only property
owned by Landlord. Notwithstanding the foregoing, Real Estate Taxes shall not
include any income, capital stock, gift, estate, transfer or inheritance tax.
All special assessments shall be included in Real Estate Taxes as if paid in the
maximum number of installments permissible. Real Estate Taxes on any partial tax
year at the beginning or end of the Term shall be prorated on the basis of the
number of days within the Term.
Landlord shall from time to time estimate the Real Estate Taxes on a
"Lease Year" basis, and Tenant shall pay one-twelfth (1/12th) of such estimated
amount in advance in equal monthly installments, together with Tenant's monthly
payments of Rent (provided, however, that with respect to installments due for
the period prior to the Rent Commencement Date, said monthly installments shall
be due and payable in the same manner as is described in Section 2. hereinabove
with respect to the payment of Rent). Within ninety (90) days following each
Lease Year, Landlord shall calculate the actual amount of Real Estate Taxes and
Landlord shall furnish Tenant copies of all tax bills. In the event the
aggregate of Tenant's installments during any such period shall be less than the
actual amount of the Real Estate Taxes, such deficiency shall be paid to
Landlord within thirty (30) days after demand therefor. In the event the
aggregate of Tenant's installments during any such period shall exceed the
amount of Real Estate Taxes, such excess shall be a credit against subsequently
occurring installments of estimated Real Estate Taxes due from Tenant until such
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credit is exhausted and if said installments of estimated Real Estate Taxes
subsequently owed by Tenant are insufficient to absorb Tenant's overpayment,
Landlord shall refund to Tenant the unabsorbed portion of the overpayment if no
Event of Default on the part Tenant is then in existence. For any period within
the Term, which is less than twelve (12) months, the Real Estate Taxes shall be
appropriately prorated. Tenant will be allowed to pay taxes in the event
Landlord does not pay them.
Subject to adjustment as contemplated above, Tenant shall, commencing
on the Commencement Date, pay Landlord in advance on the first (1st) day of each
calendar month a monthly installment of Landlord's initial estimate of the Real
Estate Taxes in an amount equal to $2,300.00.
Tenant may contest the amount or validity of any Real Estate Taxes by
appropriate proceedings. However, Tenant shall promptly pay all such Real Estate
Taxes unless such proceedings shall operate to prevent or stay the collection of
the Real Estate Taxes so contested. Landlord, at Tenant's sole expense, shall
join in any such contest if any Law shall so require.
(b) In addition to the Rent described in Section 2. hereinabove, Tenant
shall, commencing on the Commencement Date and continuing thereafter for the
entire Term hereof, pay for all utilities and other services necessary in the
operation of the Premises, including, but not limited to, gas, fuel oil,
electrical, telephone, water, sanitary sewer and other utility charges,
janitorial services (if Tenant shall contract for such services), grounds
maintenance and Building maintenance (except as otherwise provided for in
Section 18. hereinbelow).
(c) All sums (other than the Rent) which may be due and payable to
Landlord under this Lease shall be deemed to be Additional Rent hereunder and in
the event that Rent shall be prorated or shall ▇▇▇▇▇ pursuant to the terms of
this Lease then such Additional Rent shall be prorated or ▇▇▇▇▇ to the same
extent and in the same manner, unless otherwise specifically provided for in
this Lease.
8. Insurance. In addition to the Rent described in Section 2
hereinabove, commencing with the Commencement Date and continuing thereafter
during the entire Term hereof, Tenant shall pay to Landlord, as Additional Rent
and in the manner described hereinbelow, an amount equal to Landlord's Insurance
Costs.
For the purpose of this Lease, "Landlord's Insurance Costs" shall mean
any and all premiums for the insurance required to be obtained and maintained by
Landlord in accordance with the provisions of Section 16. hereinbelow.
Landlord shall from time to time estimate the amount of Landlord's
Insurance Costs on a "Lease Year" basis, and Tenant shall pay one-twelfth (1/12)
of such estimate in advance in equal installments, together with Tenant's
monthly payments of Rent (provided, however, that with respect to installments
due for the period prior to the Rent Commencement Date, said monthly
installments shall be due and payable in the same manner as is described in
Section 2. hereinabove with respect to the payment of Rent). Within ninety (90)
days following each Lease Year, Landlord will furnish to Tenant a statement
showing in reasonable detail the amount of Landlord's Insurance Costs for the
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preceding period and the actual amount due by Tenant. In the event the aggregate
of Tenant's installments during any such period shall be less than the actual
amount due by Tenant of Landlord's Insurance Costs, such deficiency shall be
paid to Landlord within thirty (30) days after demand therefore. In the event
the aggregate of Tenant's installments during any such period shall exceed the
actual amount of Landlord's Insurance Costs, such excess shall be a credit
against subsequently occurring payments by Tenant of Landlord's Insurance Costs
until such credit is exhausted, and if the amount of Landlord's Insurance Costs
subsequently owned by Tenant is insufficient to absorb Tenant's overpayment,
Landlord shall refund to Tenant the unabsorbed portion of such overpayment if no
Event of Default on the part of Tenant is then in existence. For any period
within the Term, which is less than a full year, amount due by Tenant of
Landlord's Insurance Costs shall be appropriately prorated.
Subject to adjustment contemplated above, Tenant shall, commencing on
the Commencement Date, pay Landlord in advance on the first (1st) day of each
calendar month a monthly installment of Landlord's initial estimate of
Landlord's Insurance Costs in an amount equal to $210.00.
Tenant further agrees to pay on demand any increase in premiums that
may be charged on insurance carried by Landlord resulting from Tenant's use or
occupancy of the Premises.
9. Alterations. Tenant, at its own expense, may from time to time
during the term of this Lease make any interior alterations, additions and
improvements in and to the Building which it may deem necessary or desirable and
which do not adversely affect the structural integrity thereof, but it shall
make them in good workmanlike manner and in accordance with all valid
requirements of municipal or other governmental authorities. Tenant shall not
make any structural alterations, additions, modifications or improvements to the
Building or the Premises other than the Tenant Alterations (as such term is
hereinafter defined) (such structural alterations, additions, modifications and
improvements [excluding the Tenant Alterations], being hereinafter referred to,
collectively, as "Structural Alterations"), without the prior written consent of
Landlord (which consent shall not be unreasonably withheld or delayed). In the
event that Tenant shall desire to make any such Structural Alterations to the
Building or the Premises, it shall first submit to Landlord a written request
for Landlord's approval of the same, accompanied by a complete set of plans and
specifications relative thereto; Landlord shall, within fourteen (14) calendar
days after its receipt of Tenant's request, notify Tenant whether Landlord
approves or disapproves such request of Tenant (and in the event that Landlord
shall disapprove such request, Landlord shall in writing specify the reason or
all of the reasons for such disapproval). In the event that Landlord shall fail,
prior to the expiration of said fourteen (14) day period, to notify Tenant in
writing of its approval or disapproval of said request, Landlord shall be deemed
to have approved the same. All such approved Structural Alterations shall be
constructed at Tenant's sole cost and expense and shall be effected in
accordance with the plans and specifications approved (or deemed to have been
approved) by Landlord, in a good workmanlike manner and in accordance with all
valid requirements of municipal or other governmental authorities. All permanent
structural improvements shall belong to the Landlord and become a part of the
Premises upon termination or expiration of this Lease. Notwithstanding the
foregoing, Landlord does hereby agree that Tenant shall have the unrestricted
right to perform any alterations,
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additions, repairs or improvements to the Premises ("Tenant Alterations")
necessary or desirable to effect the following:
(a) the installation of Tenant's telecommunications equipment and the
chases, conduits, cabling and connections related thereto;
(b) the installation of a generator (and associated generator pad and
fuel tank) adjacent to the Building either (i) in the "cross-hatched" area shown
on Exhibit D; or (ii) in any area on the Premises no larger than six (6) square
feet located outside the "cross-hatched" area shown on Exhibit D which shall be
in compliance with the requirements of all municipal and other governmental
authorities; provided, however, that in the event that Tenant shall elect so to
install the same outside of the "cross-hatched" area depicted on Exhibit D,
Tenant shall, upon request by Landlord and at its sole cost and expense, cause
the same to be removed from the Premises at the termination or prior expiration
of the Term hereof and shall repair and restore any portion of the Premises
damaged as a result thereof;
(c) the installation of Tenant's Dry Coolers and Liebert Glycol units
and any vents associated therewith;
(d) the installation of HVAC equipment and any drains associated
therewith;
(e) the removal of the HVAC system currently servicing the Building
(provided the same does not interfere with the HVAC services that Landlord is
obligated to supply to the First Floor Space under the First Floor Lease);
(f) the installation of a GPS antenna (and related base site cabinets
associated therewith), in an area on the roof of the Building being no larger
than six (6) square feet;
(g) the installation of an independent fire suppression system; and
(h) the removal and capping of any portion of the heating system.
In addition to the Tenant Alterations and as a material inducement for
Landlord's entering into this Lease with Tenant, Tenant does hereby agree, at
its sole cost and expense and utilizing plans and specifications reasonably
acceptable to Landlord, that Tenant will, on or before the Rent Commencement
Date, replace the roof of the Building with a replacement "20 year" roof (the
"Roof Replacement") meeting the minimum standards hereafter mutually agreed upon
in advance of construction by Landlord and Tenant, each acting reasonably and in
good faith, with such minimum standards to be integrated into the plans and
specifications for the Roof Replacement described herein.
Upon completion of the Roof Replacement, Tenant shall promptly assign
to Landlord all warranties and guaranties relative to the installation of and
materials utilized in said Roof Replacement which shall have been obtained by
Tenant in connection with the Roof Replacement.
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Prior to construction, but in no event later than the sixtieth (60th)
calendar day following the Commencement Date, Tenant shall deliver to Landlord a
complete set of plans and specifications relative to the Tenant Alterations and
the Roof Replacement. All of the Tenant Alterations, the Roof Replacement, and
any future Structural Alterations shall be installed and maintained in
accordance with all applicable governmental rules, regulations, codes, laws and
ordinances. Tenant shall also be responsible for all repairs, replacements
and/or upgrades required, to the structure and roof of the Building caused by
the installation and/or maintenance of the Tenant Alterations, the Roof
Replacement, any Structural Alterations and Tenant's specific use. Any and all
of Tenant's contractors must be properly licensed, insured and bonded.
Except for those portions of the Tenant Alterations consisting of fire
suppression demising walls, the cabling for Tenant's telecommunications
equipment and the sprinkler system (which Tenant shall not be obligated to
remove from the Premises upon the expiration or earlier termination of this
Lease, and if not so removed, shall be deemed abandoned by Tenant and shall
automatically become the property of Landlord), all of the Tenant Alterations
shall remain the property of Tenant and will be removed from the Premises by
Tenant upon the expiration or earlier termination of this Lease provided Tenant
repairs any damage done to the Building and the Premises by such removal.
Notwithstanding the foregoing, all permanent structural improvements (including
the Roof Replacement) and any new HVAC units installed by Tenant (including,
without limitation, those referred to in [d] immediately hereinabove) shall
remain the property of Landlord upon the expiration or earlier termination of
this Lease.
On or before the tenth (10th) calendar day after Tenant delivers to
Landlord a written request for reimbursement, together with reasonably
satisfactory substantiating documentation, Landlord shall reimburse Tenant for
any cost incurred by Tenant, up to a total of $5,000.00, in connection with any
structural analysis of the Premises. In the event Landlord shall fail to pay
such amount, Tenant shall have the right to offset or credit such amount against
any Rent, Additional Rent or other sum payable to Landlord by Tenant under this
Lease.
To the maximum extent permitted by applicable Laws, Landlord hereby
waives any rights which Landlord may have, as to any of Tenant's furniture,
fixtures, equipment and personal property and Tenant Alterations, in the nature
of a landlord's lien, security interest or otherwise and further waives the
right to enforce any such lien or security interest. Landlord further
acknowledges that certain equipment to be installed by Tenant in the Premises
is leased and subject to the ownership rights of third-party equipment
landlords. Landlord hereby agrees that such third-party landlords may enter into
the Premises and remove such equipment, provided any damage to the Premises
caused thereby is restored. Notwithstanding the foregoing, in the event that
neither Tenant nor any such third-party landlord shall remove from the Premises,
on or before the thirtieth (30th) calendar day after the expiration or earlier
termination of the Lease, such furniture, fixtures, equipment or personal
property or those items of the Tenant Alterations which Tenant is required to
remove from the Premises in accordance with the provisions of this Section 9.,
all such items shall be deemed abandoned by Tenant and such third-party
landlords and, at the option of Landlord, shall become the property of Landlord,
or at Landlord's option, may be removed by Landlord at Tenant's expense, or sold
or otherwise disposed of, in which event the proceeds of such sale or other
disposition shall
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belong to Landlord, and Tenant shall be liable to pay Landlord's costs and
expenses in connection therewith, together with a sum equal to fifteen percent
(15%) of such costs and expenses to cover Landlord's overhead therefore. Upon
request, Landlord agrees to execute and deliver a Landlord's Consent and
Subordination Agreement for the benefit of Tenant's equipment landlord in
substantially the form set forth in Exhibit C hereto; and, in addition, Landlord
does hereby also agree that it will act reasonably and in good faith to reach a
mutually acceptable Landlord's Consent and Subordination Agreement with Tenant's
equipment landlord.
10. Environmental. Tenant shall not cause or permit any hazardous or
toxic substances, materials or waste ("Hazardous Substances") to be used,
generated, stored or disposed of in, on or under, or transported to or from the
Premises in violation of any local, state, and federal laws, ordinances, rules,
regulations and orders, whether now in existence or hereafter adopted relating
to Hazardous Substances or otherwise pertaining to the environment (the
"Environmental Laws").
Tenant shall indemnify, defend (by counsel reasonably acceptable to
Landlord), protect, and hold Landlord harmless, from and against any and all
claims, liabilities, penalties, fines, judgment, forfeitures, losses, costs
(including clean-up costs) or expenses (including attorney's fees, consultant's
fees and expert's fees), including, without limitation, those related to the
death of or injury to any person or damage to any property whatsoever, arising
from or caused in whole or in part, directly or indirectly, by (a) the presence
after the Commencement Date in, on, under, or about the Premises of any
Hazardous Substances caused by Tenants or its agents, servants, employees,
guests, invitees and/or independent contractors, (b) any discharge or release by
Tenant or its agents, servants, employees, guests, invitees and/or independent
contractors after the Commencement Date in or from the Premises of any Hazardous
Substances, (c) Tenant's use, storage, transportation, generation, disposal,
release or discharge after the Commencement Date of Hazardous Substances, to,
in, on, under, about or from the Premises, (d) Tenant's failure after the
Commencement Date to comply with any Environmental Law; or (e) the disturbance,
handling, removal or treatment by Tenant or any of Tenant's employees, agents,
servants, guests, invitees and/or independent contractors, of any Hazardous
Substance identified as being present on, in or under the Premises in either
that certain Phase I Environmental Assessment dated October, 1997, prepared by
▇▇▇ ▇. ▇▇▇▇▇▇, Inc. for The Austin Company or that certain Hazardous Materials
Survey Report dated October, 1997, prepared by ▇▇▇ ▇. ▇▇▇▇▇▇, Inc. for The
Austin Company, copies of which have been delivered to Tenant (collectively, the
"Environmental Reports").
Except only to the extent arising from the disturbance, handling,
removal or treatment of any Hazardous Substance identified as being present in,
on or under the Premises in the Environmental Reports by Tenant or any of
Tenant's employees, agents, servants, guests, invitees and/or independent
contractors, Landlord shall indemnify, defend (by counsel reasonably accepted to
Tenant), protect, and hold Tenant harmless, from and against any and all claims,
liabilities, penalties, fines, judgment, forfeitures, losses, costs (including
clean-up costs) or expenses (including attorney's fees, consultant's fees and
expert's fees), including, without limitation, those related to the death of or
injury to any person or damage to any property whatsoever, arising from or
caused in whole or in part, directly or indirectly, by (a) the presence prior to
the Commencement Date in, on, under, or about the Premises of any Hazardous
Substances, (b) any discharge or release prior to the
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Commencement Date in or from the Premises of any Hazardous Substances, (c) the
use, storage, transportation, generation, disposal, release or discharge of
Hazardous Substances by Landlord or Landlord's prior Tenant(s) prior to the
Commencement Date, to, in, on, under, about or from the Premises, or (d)
Landlord's failure prior to the Commencement Date to comply with any
Environmental Law.
Landlord represents and warrants to Tenant that, except as set forth in
the Environmental Reports, as of the Commencement Date and to the best of
Landlord's knowledge there are no Hazardous Substances in, on, under, about or
flowing from the Premises. Landlord has received no notice from any governmental
or private entity relating to Hazardous Substances on the Premises. Tenant shall
promptly deliver to Landlord copies of all notices made by Tenant to, or
received by Tenant from, any state, county, municipal or other agency having
authority to enforce any Environmental Law ("Enforcement Agency") or from the
United States Occupational Safety and Health Administration concerning
environmental matters or Hazardous Substances at the Premises. Landlord shall
promptly deliver to Tenant copies of all notices received by Landlord from any
Enforcement Agency or from the United States Occupational Safety and Health
Administration concerning environmental matters or Hazardous Substances at the
Premises.
11. Casualty Damage.
(a) Should the Premises be partially destroyed by fire or other
casualty, the Landlord will, with all due diligence and in not less than
one-hundred fifty (150) days at its own expense, (i) repair or restore the same
so that thereafter the Premises shall be substantially in the same condition as
originally delivered to Tenant; and (ii) repair and restore any of the Tenant
Alterations covered by Landlord's Property Insurance. In such event, Rent and
Additional Rent shall equitably ▇▇▇▇▇ in proportion to the nature and extent of
interference to Tenant's use and occupancy of the Premises from the date of such
damage until Landlord's repair or restoration is complete, and for such
reasonable additional time not to exceed ninety (90) days as is required for
Tenant to complete its work and prepare for the recommencement of its business
in the Premises.
(b) Should the Premises be so extensively damaged by fire or other
casualty as to require rebuilding, then the Landlord shall promptly, at its own
expense, (i) restore or rebuild the same so that thereafter the Premises shall
be in substantially the same condition as originally delivered to Tenant; and
(ii) repair and restore any of the Tenant Alterations covered by Landlord's
Property Insurance. Rent and Additional Rent shall ▇▇▇▇▇ equitably in proportion
to the nature and extent of interference to Tenant's use and occupancy of the
Premises from the date of damage to the date such possession is tendered to the
Tenant, and for such reasonable additional time not to exceed ninety (90) days
as is required for Tenant to complete its work and prepare for the
recommencement of its business in the Premises.
(c) Notwithstanding the foregoing or anything to the contrary herein
contained, (i) if more than thirty percent (30%) of the Building shall be
destroyed by fire or other casualty in the last five (5) years of the initial
Term (or any extended Term hereof) and Tenant does not exercise any renewal
options available to it or negotiate a new Lease to extend the remaining Term to
at least five (5) years, or (ii) if any mortgagee of the Premises requires
application of insurance proceeds to the
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reduction of the mortgage debt, or if any material uninsured loss occurs (i.e. a
loss not covered by the insurance required to be maintained by Landlord under
the provisions of Section 16. hereinbelow), then Landlord, at its option, may
terminate this Lease by giving written notice to Tenant within sixty (60) days
after the occurrence of such damage or destruction. Any such termination shall
be effective on the date specified therefor in Landlord's notice to Tenant. If
Tenant does not elect to terminate this Lease as provided in (d) hereinbelow,
and if Landlord elects to or is required to repair or rebuild the Premises as
herein provided, Tenant shall repair or replace its Tenant Alterations, trade
fixtures, furnishings and equipment.
(d) Notwithstanding the foregoing or anything to the contrary herein
contained, (i) if more than thirty percent (30%) of Building shall be destroyed
by fire or other casualty, and (ii) if such damage occurs in the last two (2)
years of the initial Term (or any extended Term hereof) then Tenant, at its
option, may terminate this Lease by giving written notice to Landlord within
sixty (60) days after the occurrence of such damage or destruction. Any such
termination shall be effective on the date specified therefor in Tenant's notice
to Landlord. If the Tenant does not elect to terminate this Lease as herein
provided, and if Landlord is required to repair or rebuild the Premises as
herein provided, Tenant shall repair or replace its Tenant Alterations, trade
fixtures, furnishings and equipment.
(e) In the event Landlord is required to or elects to restore the
Premises, as the case may be pursuant to Paragraphs (a), (b) and (c) above,
Landlord shall deliver the restored Premises to Tenant no later than one-hundred
eighty (180) days from the date of casualty, and if Landlord fails to so deliver
the restored Premises, Tenant shall have a continuing right to terminate the
Lease, in addition to all other remedies available to it.
12. Condemnation. If all or substantially all of the Premises is
condemned or is sold in lieu of condemnation, then this Lease shall terminate on
the date the condemning authority takes possession. If less than all of the
Premises is so condemned or sold and in Landlord's judgment, the Premises cannot
be restored to an economically viable condition, or if any mortgagee of the
Premises requires application of the condemnation proceeds to the reduction of
the mortgage debt, Landlord may terminate this Lease by written notice to Tenant
effective on the date the condemning authority takes possession. If the
condemnation will render any substantial part of the Building untenantable,
Tenant may terminate this Lease by written notice to Landlord effective on the
date the condemning authority takes possession of the affected part of the
Building. If this Lease is not so terminated by Landlord or Tenant, Landlord
shall, to the extent feasible, restore the Premises to substantially their
former condition. Landlord shall not, however, be required to restore any
alterations (including the Tenant Alterations), additions, or improvements or to
spend any amount in excess of the condemnation proceeds actually received by
Landlord. Landlord shall allow Tenant an equitable abatement of Rent and
Additional Rent during the time and to the extent the Building is untenantable
as the result of any condemnation, but such abatement shall not extend the term.
Except only to the extent that the unamortized cost of the Tenant Alterations is
included in the condemnation award or proceeds received by Landlord (in which
event the amount identified as separately payable for said unamortized Tenant
Alterations [or, if not separately identified, an amount reasonably allocable to
said unamortized Tenant Alterations] shall promptly after receipt be paid by
Landlord to Tenant),
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all condemnation awards and proceeds shall belong exclusively to Landlord, and
Tenant shall not be entitled to, and expressly waives and assigns to Landlord,
all claims for any compensation of condemnation; provided, however, if Tenant is
permitted by applicable law to maintain a separate action that will not reduce
condemnation awards or proceeds to Landlord, Tenant shall be permitted to pursue
such separate action, but only for loss of business, moving expenses, and
Tenant's trade fixtures, equipment and the Tenant Alterations.
13. Liens. Tenant shall not permit to be created nor to remain
undischarged any lien, encumbrance or charge arising out of any work or work
claim of any contractor, mechanic, laborer of Tenant or material supplied by a
materialman to Tenant which might be, or become, a lien or encumbrance or charge
upon the Premises. If any lien or notice of lien on account of an alleged debtor
of Tenant or any notice of contract by a party engaged by Tenant or Tenant's
contractor to work in the Premises shall be filed against the Premises, Tenant
shall, within thirty (30) days after notice of the filing thereof, cause the
same to be discharged of record by payment, bonded or insured over by Landlord's
title company.
14. Indemnity. Tenant agrees to indemnify Landlord and save Landlord
harmless from any and all liability, claims and loss for personal injury or
property damage, or both, sustained or claimed to have been sustained by any
person or persons, or property in or upon the Premises accruing or arising from
and after the Commencement Date. Landlord agrees to indemnify Tenant and save
Tenant harmless from any and all liability, claims and loss for personal injury
or property damage, or both, sustained or claimed to have been sustained by any
person or persons, or property in or upon the Premises accruing or arising on or
before the Commencement Date.
15. Events of Default by Tenant.
A. Tenant Default. Each of the following constitutes an event of
default (an "Event of Default") by Tenant:
(a) Tenant fails or refuses to pay any installment of Rent, Additional
Rent, or any other sum payable under this Lease when due, and the failure or
refusal continues for at least five (5) days after the due date; provided,
however, that, with respect to the first (1st) two (2) such failures to timely
pay during any Lease Year only, no Event of Default on the part of Tenant shall
be deemed to have occurred if Tenant cures such failure on or before the fifth
(5th) business day after the delivery of written notice of such failure from
Landlord to Tenant.
(b) Tenant fails or refuses to comply with any provision of this Lease
not requiring the payment of money, and the failure or refusal continues for at
least thirty (30) days after written notice from Landlord; provided, however, if
any failure by Tenant to comply with this Lease cannot be corrected within such
30-day period solely as a result of nonfinancial circumstances outside of
Tenant's control, and if Tenant has commenced substantial corrective actions
within such 30-day period and is diligently pursuing such corrective actions,
such 30-day period shall be extended for such additional time as is reasonably
necessary to allow completion of actions to correct Tenant's noncompliance.
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(c) Tenant's leasehold estate is taken on execution or other process of
law in any action against Tenant.
(d) Tenant fails or refuses to take occupancy of the Premises on or
before the ninetieth (90th) calendar day following the Rent Commencement Date.
(e) Tenant files a petition under any chapter of the United States
Bankruptcy Code, as amended, or under any similar law or statute of the United
States or any state, or petition is filed against Tenant or any such guarantor
under any such statute and not dismissed with prejudice within twenty (20) days
of filing, or a receiver or trustee is appointed for Tenant's leasehold estate
or for any substantial part of the assets of Tenant and such appointment is not
dismissed with prejudice within sixty (60) days, or Tenant makes an assignment
for the benefit of creditors.
B. Landlord's Remedies. If an Event of Default by Tenant occurs,
Landlord shall be entitled at any time thereafter to exercise any right or
remedy available to Landlord under the laws of the State of Georgia as a result
thereof, including, without limitation, at Landlord's option, the actions
described hereinbelow:
(a) Enter the Premises if need be, and take whatever curative actions
are necessary to rectify Tenant's noncompliance with this Lease; and in that
event Tenant shall reimburse Landlord on written demand for any expenditures by
Landlord to effect compliance with Tenant's obligations under this Lease.
(b) Terminate this Lease, in which event Tenant shall immediately
surrender possession of the Premises to Landlord, or without terminating this
Lease, terminate Tenant's right to possession of the Premises, and in either
case, Landlord may re-enter and take possession of the Premises, evict Tenant
and all parties then in occupancy or possession, and if permitted under
applicable law, change the locks on the doors of the Premises without making
keys to the changed locks available to Tenant.
(c) If Landlord has terminated this Lease, recover all Rent, Additional
Rent, and other sums owing and unpaid under this Lease as of the date of
termination plus damages measured by the difference (discounted to a present
value) in the rental value of the Premises if this Lease had been fully
performed for the balance of the term and the rental value of the Premises
following the Event of Default by Tenant (taking into account probable
remodeling, lease commission, allowance, inducement, and other costs of
reletting).
(d) If Landlord has not terminated this Lease (whether or not Landlord
has terminated Tenant's right to possession of the Premises or actually retaken
possession), recover (in one or more suits from time to time or at any time
before or after the end of the term) all Rent, Additional Rent, and other sums
then or thereafter owing and unpaid under this Lease, together with all costs,
if any, incurred in reletting the Premises (including remodeling, lease
commission, allowance, inducement, and other costs), less all rent, if any,
actually received from any reletting of the Premises during the remainder of the
term. Landlord shall have the night following an Event of Default by Tenant to
relet the Premises on Tenant's account without terminating the Lease, and agrees
to use reasonable efforts
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to do so; provided, however, that any such reletting shall be on such terms as
Landlord, in its sole and absolute discretion, considers reasonable under the
circumstances.
(e) Recover all costs of retaking possession of the Premises and any
other damages incidental to the Event of Default by Tenant.
(f) Terminate all of Tenant's rights to any allowances or under any
renewal, extension, expansion, refusal, or other options granted to Tenant by
this Lease.
(g) Exercise any and all other remedies available to Landlord at law or
in equity, including injunctive relief of all varieties.
If Landlord elects to retake possession of the Premises without
terminating this Lease, it may nonetheless at any subsequent time elect to
terminate this Lease and exercise the remedies provided above on termination of
the Lease. Nothing done by Landlord or its agents shall be considered an
acceptance of any attempted surrender of the Premises unless Landlord
specifically so agrees in writing. No re-entry of taking of possession of the
Premises by Landlord, nor any reletting of the Premises, shall be considered an
election by Landlord to terminate this Lease unless Landlord gives Tenant
written notice of termination.
16. Insurance.
(a) Landlord agrees to carry, or cause to be carried, during the Term
hereof, as primary general liability insurance, Commercial General Liability
("Landlord's Liability Insurance") on the Premises, naming Tenant as an
additional insured, providing coverage of not less than Three Million Dollars
($3,000,000.00) in the aggregate for combined bodily injury and property damage
liability, with separate limits for each of not less than One Million Dollars
($1,000,000.00) per occurrence. Landlord, upon request, shall furnish Tenant a
certificate of such Landlord's Liability Insurance.
Landlord also agrees to carry, during the Term hereof, all risk
property insurance ("Landlord's Property Insurance") covering fire and extended
coverage, vandalism and malicious mischief, sprinkler leakage and all other
perils of direct physical loss or damage insuring the improvements and
betterments located on the Premises and all appurtenances thereto (excluding
Tenant's property and the Tenant's Alterations) for the full replacement value
thereof (including rent loss insurance for a period reasonably determined by
Landlord as necessary to protect its interests). Landlord, upon request, shall
furnish Tenant a certificate of such Landlord's Property Insurance.
Landlord agrees to use good faith efforts to obtain Landlord's
Liability Insurance and Landlord's Property Insurance at commercially reasonable
rates; and will, upon request by Tenant, obtain additional bids for the same.
During the Term of this Lease, Tenant agrees to reimburse Landlord for
Landlord's Insurance Costs in the manner described in Section 8. hereinabove.
(b) Tenant agrees to carry, or cause to be carried, Commercial General
Liability on the Premises during the Term hereof covering both Tenant and
Landlord as their interests may appear, giving Landlord and Tenant a minimum of
thirty (30) days written notice by the insurance company
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prior to cancellation or termination of such insurance. Such insurance shall be
for limits of not less than Three Million Dollars ($3,000,000.00) in the
aggregate for combined bodily injury and property damage, with separate limits
of not less than One Million Dollars ($1,000,000.00) per occurrence.
Tenant further agrees to carry all risk property insurance ("Tenant's
Property Insurance") covering, fire and extended coverage, vandalism and
malicious mischief, sprinkler leakage and all other perils of direct physical
loss or damage for at least eighty percent (80%) of the replacement value, all
of Tenant's property (including, without limitation, the Tenant Alterations)
located on or within the Premises. Tenant shall provide Landlord certificates
evidencing that Tenant's Property Insurance is in full force and effect.
Landlord agrees that it shall not have any right, title or interest in and to
Tenant's Property Insurance, or any proceeds therefrom.
(c) All of the insurance coverage to be maintained by Tenant or
Landlord as described herein, shall be procured and maintained with insurance
companies having at least a B++ rating.
17. Waiver of Subrogation. Each of the parties hereto hereby releases
the other and the other's partners, members, agents and employees, to the extent
of each party's insurance coverage, from any and all liability for any loss or
damage which may be inflicted upon the property of such party even if such loss
or damage shall be brought about by the fault or negligence of the other party,
its partners, members, agents or employees; provided, however, that this release
shall be effective only with respect to loss or damage occurring during such
time as the appropriate policy of insurance shall contain a clause to the effect
that this release shall not affect said policy or the right of the insured to
recover thereunder. If any policy does not permit such a waiver, and if the
party to benefit therefrom requests that such a waiver be obtained, the other
party agrees to obtain an endorsement to its insurance policies permitting such
waiver of subrogation if it is commercially available and if such policies do
not provide therefor.
18. Repairs and Maintenance. Landlord, at its sole cost and expense,
shall maintain and keep in good order and repair and make any necessary
replacements to the roof, foundation, structural components, and exterior walls
of the Building; provided, however, that Landlord shall not be required to make
any repairs or replacements required as a result of the act or neglect of
Tenant, its employees, contractors, licensees, agents and/or invitees
(including, without limitation, the Tenant Alterations). Except for Landlord's
obligations set forth above and any repairs required as a result of a fire or
other casualty to which the provisions of Section 11. are applicable, Tenant
agrees, at its sole cost and expense, to keep in good order and operating
condition and repair all portions of the Building and the Premises, including,
but not limited to, all day-to-day maintenance and repair (and, if necessary,
replacement) of the Building, HVAC system, plumbing, electrical system, grounds
and parking lot, and shall take good care of the Premises and permit no waste
thereto.
If Landlord shall not commence such repairs within the fifteen (15)
days following written notice from Tenant that such repairs are necessary then
Tenant may, at its option, cause such Landlord repairs to be made and shall
furnish Landlord with a statement of the reasonable and actual cost of such
repairs upon substantial completion thereof. Landlord shall reimburse Tenant for
the
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reasonable and actual cost of such repairs within thirty (30) days of the date
of the statement from Tenant setting forth the amount due, provided, however,
should Landlord fail to reimburse Tenant with said thirty (30) day period, then
Tenant may, at its option, offset such amount against subsequent Rent and
additional rent due under this Lease.
19. Brokers. With the exception of Corporate Property Advisors, Inc.,
who represented the Landlord, and ▇▇▇▇▇▇ & Company, who represented the Tenant,
Landlord and Tenant warrant and represent, each to the other, that it has had no
dealings with any broker or agent in connection with this Lease, and Landlord
and Tenant hereby indemnify each other against, and agree to hold each other
harmless from, any liability or claim (and all expenses, including, attorney's
fees incurred in defending any such claim or in enforcing this indemnity) for a
real estate brokerage commission or similar fee or compensation arising out of
or in any way connected with any claimed dealings with the indemnitor and
relating to this Lease or the negotiating thereof. Corporate Property Advisors,
Inc. and ▇▇▇▇▇▇ & Company will be paid a commission by Landlord pursuant to a
separate commission agreement.
20. Emergency. If Landlord is unable or unwilling to take action which
it is obligated to take hereunder where an emergency has occurred with respect
to the Premises, then Tenant may take such action as is reasonably necessary to
protect the Premises and persons or property in the Premises and Landlord shall,
within thirty (30) days after written notice thereof from Tenant reimburse
Tenant for its reasonable and actual out-of-pocket expenses incurred in curing
such emergency; provided, however, should Landlord fail to reimburse Tenant
within said thirty (30) day period, then Tenant may, at its option, offset such
amount against subsequent rent due under this Lease.
21. Title. Landlord hereby represents that Landlord is the owner in fee
simple of the Premises, including the Building and all improvements thereon free
from any liens or encumbrances (other than the encumbrances and other matters
identified as exceptions in the Owner's Policy of Title Insurance issued to
Landlord by Chicago Title Insurance Company dated April 7, 1998 [Policy Number
11-0107-106-00000083]), a copy of which has been delivered by Landlord to
Tenant, which Landlord represents will not prohibit or interfere with Tenant's
intended use of the Premises as a telecommunications switch site). Landlord
further represents that Landlord has the right and authority to enter into this
Lease and that those signatories executing this Lease on behalf of Landlord have
full power and authority to execute this Lease.
Landlord agrees that Landlord will not make any modifications to the
Premises which would interfere with Tenant's use of the Premises as a
telecommunications switch site.
22. Compliance with Laws. Landlord represents and warrants to Tenant
that, to the best of its actual knowledge without investigation or inquiry, as
of the Commencement Date, the Premises are in compliance with applicable
federal, state and local laws, ordinances, rules and regulations ("Laws"),
including, without limitation, applicable zoning laws, ordinances, rules and
regulations and with applicable instruments affecting title to the Premises.
Notwithstanding the foregoing, Landlord represents that the Premises are not and
to date have not been required to be in compliance with the Americans with
Disabilities Act.
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If at any time or from time to time any Alterations, including, without
limitation, structural Alterations, are required in order for the Premises to
comply with any Laws from time to time applicable to the Premises, Tenant shall
immediately make such Alterations at its sole cost and expense.
23. Tenant to Subordinate. Tenant shall, upon request of the holder of
a mortgage or deed of trust in the nature of a mortgage, which holder is a
commercial or institutional lender ("Mortgagee") subordinate any interest which
it has by virtue of this Lease, and any extensions and renewals thereof to any
mortgages or deeds of trust placed upon the Premises by Landlord, if and only if
such Mortgagee shall execute, deliver and record in the appropriate registry of
deeds a recognition and non-disturbance agreement in form and content generally
used in commercial loan transactions and approved by Tenant, such approval not
to be unreasonably withheld. Such Agreements shall provide by their terms that
notwithstanding any foreclosure of such mortgage or deeds of trust Tenant may
continue to occupy the Premises during the Term or any extensions or renewals
thereof under the same terms, conditions and provisions of this Lease unless
Tenant shall be in default beyond any applicable grace periods provided for
herein. Landlord shall at or prior to the sixtieth (60th) calendar day following
the Commencement Date, secure from Landlord's present mortgagee of the Premises
a non-disturbance agreement in a form reasonably acceptable to Tenant.
24. Quiet Enjoyment. Landlord agrees that, that so long as no Event of
Default on the part of Tenant shall be in existence, Tenant shall have
continuous, peaceful, uninterrupted and exclusive possession and quiet enjoyment
of the Premises during the Term of this Lease, as such Term may be extended.
25. Memorandum of Lease. Landlord agrees to enter into and record a
memorandum or notice of this Lease reasonably satisfactory to Tenant and
Landlord. Tenant shall be responsible for the preparation thereof and the cost
of recording the same.
26. Notices. All notices, demands and requests which may be or are
required to be given by either party to the other shall be in writing and shall
be either (i) sent by registered or certified mail, return receipt requested,
postage prepaid or (ii) delivered, by hand, or (iii) sent by overnight courier
such as Federal Express. All notices to Landlord should be addressed to Landlord
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
P.C., One Premier Plaza, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other place as Landlord may from time to time designate in
written notice to Tenant. All notices to Tenant shall be addressed to Tenant c/o
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department, with a
copy to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to any
such other place as Tenant may from time to time designate in written notice to
Landlord. All notices, demands and requests which shall be served upon Landlord
and Tenant in the manner aforesaid shall be deemed sufficiently served or given
for all purposes hereunder.
27. Estoppel Certificate. Each of Landlord and Tenant agrees at any
time and from time to time upon not less than ten (10) days prior written
request by the other to execute, acknowledge
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and deliver to the other a statement in writing certifying that (a) this Lease
is unmodified and in full force and effect (or if there have been modifications
that the same is in full force and effect as modified and stating the
modifications), (b) the dates to which the Rent and other charges have been paid
in advance, if any, and (c) all of the defaults of Landlord or Tenant hereunder,
if any, (and if there are no defaults a statement to that effect) and any other
information reasonably requested, it being intended that any such statement
delivered pursuant to this Section 27 may be relied upon by any prospective
purchaser of the Premises or any mortgagee or assignee of any mortgage upon the
fee or leasehold of the Premises or by any prospective assignee of this Lease or
subtenant of the whole or any portion of the Premises and/or by other party
interested in the Premises or any part thereof.
28. Holding Over. If Tenant remains in possession of any part of the
Premises after the expiration of the Term of this Lease, whether with or without
Landlord's consent, Tenant shall be only a tenant at will, the monthly
installments of Rent payable during such holdover period shall be one hundred
fifty percent (150%) of the monthly installments of Rent payable immediately
preceding such expiration, and all Additional Rent and other sums payable under
this Lease shall continue to be due and payable. The acceptance of any Rent,
Additional Rent or other payments from Tenant with respect to any holdover
period shall not serve to extend the term or waive any rights of Landlord, but
Landlord may at any time refuse to accept Rent or other payments from Tenant,
and may re-enter the Premises, evict Tenant and all parties then in occupancy or
possession, take possession of the Premises, and if permitted under applicable
law, change the locks on the doors of the Premises without making keys to the
changed locks available to Tenant. Tenant shall indemnify and hold Landlord
harmless against any loss, liability, damage, cost, or expense (including
attorneys' fees and costs of litigation), or any claim therefor, related to
Tenant's holding over, including liabilities to any person to whom Landlord may
have leased any part of the Premises.
29. Binding Effect. All covenants, agreements, stipulations,
provisions, conditions and obligations herein expressed and set forth shall
extend to, bind and inure to the benefit of, as the case may require, the
successors and assigns of Landlord and Tenant respectively, as fully as if such
words were written wherever reference to Landlord or Tenant occurs in this Lease
30. Complete Agreement. Any stipulations, representations, promises or
agreements, oral or written, made prior to or contemporaneously with this
agreement shall have no legal or equitable consequences and the only agreement
made and binding upon the parties with respect to the leasing of the Premises is
contained herein, and it is the complete and total integration of the intent and
understanding of Landlord and Tenant with respect to the leasing of the
Premises.
31. Landlord's Right of Entry. Landlord and persons authorized by
Landlord may enter the Premises, after first having attempted to notify Tenant
by telephone, in the event of emergency involving possible injury to property or
persons in or around the Premises or the Building; and in the event of any such
emergency, Landlord and persons authorized by Landlord agree to be escorted in
and around the Premises by an employee of Tenant, if at the time such an
employee is available to do so. Subject to the restrictions described herein,
Landlord and persons authorized by Landlord shall have the right to enter the
Premises at all reasonable times and upon not less than forty-eight
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(48) hours advance written notice, for the purposes of making repairs or
connections, making alterations, additions, or improvements to the Building,
installing utilities, providing services to the Premises or for making
inspections, or showing the Premises to prospective purchasers or lenders of the
Premises. During the last six (6) months of the initial or any extended Term,
Landlord and persons authorized by Landlord shall have the right at reasonable
times and upon reasonable notice to show the Premises to prospective tenants and
Landlord shall have the right to place a "For Lease" sign on the Property.
Landlord acknowledges that the Building, including, without limitation, Tenant's
switch site area, shall constitute a secure area. Tenant will be installing
elaborate security systems, which may include a palm-reader and a card access
system, to safeguard entry and access to the Building. Such being the case,
Landlord agrees, notwithstanding the provisions of this Section to the contrary,
that in all instances (except for an emergency situation, the protocol for which
is specifically addressed in a different manner immediately hereinabove),
Landlord will only enter and move in and about the Premises with an escort
designated by Tenant. In any instance where Landlord or any agents thereof
enters upon the Premises, whether to make repairs, alterations or improvements
or otherwise, Landlord and any such agents shall use all reasonable efforts to
prevent any disruption to or interference with the business activities being
conducted by Tenant in the Premises.
32. Limitation of Liability.
(a) Tenant agrees to look solely to the Landlord's then current
interest in the Premises for the payment of any monetary damages arising out of
this Lease; it being specifically understood and agreed that neither Landlord
nor any trustee, shareholder, director, officer, partner, member or joint
venturer of any of the foregoing shall ever be personally liable for any such
monetary obligation or judgment. In no event shall Landlord be liable for any
indirect, incidental, special, consequential, exemplary or punitive damages
(including, but not limited to damages for lost profits or lost revenues),
whether or not caused by the acts, or omissions or negligence of its employees
or agents, and regardless of whether Landlord has been informed of the
possibility or likelihood of such damages.
(b) In addition, it is hereby specifically understood and agreed that
no trustee, director or officer of Tenant shall ever be personally liable for
any such monetary obligation or judgment; provided, however, that the foregoing
shall not be deemed to release, modify or affect in any way the obligations of
Net2000 Communications Group, Inc., a Delaware corporation (the parent of
Tenant) under the terms of that certain Guaranty executed by said Net2000
Communications Group, Inc. in favor of Landlord in connection with the execution
of this Lease by Landlord and Tenant and as a material inducement therefor.
33. Severability. If any term, covenant or condition of this Lease or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
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34. Applicable Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Georgia, excluding its conflict of law
principles. The parties specifically waive jury trial.
35. Time of the Essence. Time is of the essence with respect to the
performance of each of the covenants and agreements of this Lease.
36. Transfer by Landlord. Landlord shall have the unrestricted right to
sell, assign, mortgage, encumber or otherwise dispose of all or any part of the
Premises or any interest therein. Tenant's obligations under this Lease shall
not be affected by any sale, assignment, mortgage, encumbrance or other
disposition of the Premises by Landlord, and Tenant shall attorn to anyone who
thereby becomes the successor to Landlord's interest in this Lease.
37. Attorney's Fees. In the event that at any time during the Term of
this Lease either Landlord or Tenant shall institute any action or proceeding
against the other relating to the provisions of this Lease, or any default
hereunder, the unsuccessful party in such action or proceeding agrees to
reimburse the successful party for the reasonable expenses of attorney's fees
and paralegal fees and disbursements incurred therein by the successful party.
Such reimbursement shall include all legal expenses incurred prior to trial, at
trial and at all levels of appeal and post judgment proceedings, including
reasonable efforts to collect a judgment.
38. Waiver. The failure of a party to insist upon the strict
performance of any provision of this Lease or to exercise any remedy for an
event of default shall not be construed as a waiver. The waiver of any
noncompliance with this Lease shall not prevent subsequent similar noncompliance
from being or becoming an event of default. No waiver shall be effective unless
expressed in writing signed by the waiving party. No waiver shall affect any
condition other than the one specified in the waiver and then only for the time
and in the manner stated. Landlord's receipt of any rent or other sums with
knowledge of noncompliance with this Lease by Tenant shall not be considered a
waiver of the noncompliance. No payment by Tenant of a lesser amount than the
full amount then due shall be considered to be other than on account of the
earliest amount due. No endorsement or statement on any check or any letter
accompanying any check or payment shall be considered an accord and
satisfaction, and Landlord may accept any check or payment without prejudice to
Landlord's right to recover the balance owing and to pursue any other available
remedies.
39. Miscellaneous.
(a) The relationship created by this Lease is that of Landlord and
Tenant. Landlord and Tenant are not partners or joint ventures, and neither has
any agency powers on behalf of the other. Tenant is not a beneficiary of any
other contract or agreement relating to the Property to which Landlord may be a
party, and Tenant shall have no right to enforce any such other contract or
agreement on behalf of itself, Landlord or any other party.
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(b) No consent or approval by Landlord shall be effective unless given
in writing signed by Landlord or its duly authorized representative. Any consent
or approval by Landlord shall extend only to the matter specifically stated in
writing.
(c) Whenever this Lease requires Landlord's consent to or approval of
any item, Landlord may condition such consent or approval on payment or
reimbursement of all costs and expenses incurred by Landlord (including legal,
architectural, engineering, and other consulting services) as well as reasonable
administrative processing fee to compensate Landlord for its additional
administrative and overhead costs.
(d) The captions appearing in this Lease are included solely for
convenience and shall never be given any effect in construing the Lease.
(e) This Lease is being executed in multiple counterparts, each of
which shall be considered an original for all purposes.
(f) All references to "business days" in this Lease shall refer to days
that national banks are open for business in the city where the Property is
located. Time is of the essence of this Lease.
(g) All references to "mortgage(s)" in this Lease shall include deeds
of trust, deeds to secure debt, other security instruments, and any ground or
other lease under which Landlord may hold title to the Property as lessee. All
references to "mortgagee(s)" in the Lease shall include trustee, beneficiaries,
secured parties, ground or other lessors, and other parties secured by any
mortgage.
(h) Any liability or obligation of Landlord or Tenant arising during or
accruing with respect to the term of this Lease shall survive the expiration or
earlier termination of this Lease, including without limitation, obligations and
liabilities relating to (i) the final adjustment of estimated installments of
Additional Rent to actual Additional Rent owed, (ii) the condition of the
Premises or the removal of Tenant's property, and (iii) indemnity and hold
harmless provisions of this Lease.
(i) Tenant shall not record this Lease. Landlord and Tenant do hereby
agree to join in the execution of a memorandum or so called "short-form" of this
lease for the purposes of recordation. Any recording costs associated with the
recording of said memorandum or short form of this Lease shall be borne by the
party requesting the same.
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IN TESTIMONY WHEREOF, the Landlord and Tenant have caused this
agreement to be executed as a sealed instrument, as of the day and year first
above written.
LANDLORD:
PERIMETER CENTER INVESTORS, L.L.C., a Georgia
limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
DOUBLE FEATURE, L.L,C., a Georgia limited
liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
TENANT:
NET2000 COMMUNICATIONS REAL ESTATE, INC.
By: /s/ MA ▇▇▇▇▇▇
_________________________________________
Title: COO
_________________________________
24
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SCHEDULE I
RENT SCHEDULE
ANNUAL RENT RATE
LEASE YEAR (PER RSF) ANNUAL RENT MONTHLY RENT
---------- --------- ----------- ------------
1 $12.10 $282,341.40 $23,528.45
2 $12.37 $288,641.58 $24,053.46
3 $12.65 $295,175.10 $24,597.92
4 $12.94 $301,941.96 $25,161.83
5 $13.23 $308,708.82 $25,725.74
6 $13.52 $315,475.68 $26,289.64
7 $13.83 $322,709.22 $26,892.44
8 $14.14 $329,942.76 $27,495.23
9 $14.46 $337,409.64 $28,117.47
10 $14.78 $344,876.52 $28,739.71
(if applicable)
11 $15.12 $352,810.08 $29,400.84
12 $15.46 $360,743.64 $30,061.97
13 $15.80 $368,677.20 $30,723.10
14 $16.16 $377,077.44 $31,423.12
15 $16.52 $385,477.68 $32,123.14
16 $16.89 $394,111.26 $32,842.60
17 $17.27 $402,978.18 $33,581.52
18 $17.66 $412,078.44 $34,339.87
19 $18.06 $421,412.04 $35,117.67
20 $18.47 $430,978.98 $35,914.92
26
EXHIBIT A
LEGAL DESCRIPTION
All that tract or parcel of land lying and being in Land ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at the point formed by the
intersection of the easterly line of the right-of-way of ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Road
as shown on that certain road dedication plat dated February 11, 1971, and
recorded March 24, 1971, in Plat Book 56, Page 144, Records of DeKalb County,
Georgia (such right-of-way being at such time a 40 foot right-of-way), and
the southerly right-of-way line of Perimeter Center East; running thence
easterly, southeasterly, southerly, easterly, northeasterly, and northerly
along the southerly, southwesterly, westerly, southerly, southeasterly, and
easterly lines of said right-of-way of Perimeter Center East, and following the
curvature thereof, a distance of 3,870.50 feet to an iron pin on said easterly
line of said right-of-way, said iron pin being at a point which is the POINT OF
BEGINNING. FROM THE TRUE POINT OF BEGINNING AS THUS ESTABLISHED, running
thence northerly along said easterly line of said right-of-way, and following
the curvature thereof, a distance of 214.15 feet to an iron pin on said
easterly line of said right-of-way, said distance being measured along an arc
having a chord bearing north 08 degrees 30 minutes 58 seconds west a distance
of 213.21 feet; running thence north 17 degrees 49 minutes west a distance of
33.01 feet to an iron pin on said easterly right-of-way line; running thence
northwesterly along the northeasterly line of said right-of-way, and following
the curvature thereof, a distance of 31.50 feet to an iron pin on said
northeasterly line of said right-of-way, said distance being measured along an
arc having a chord bearing north 19 degrees 49 minutes 31 seconds west a
distance of 31.49 feet; running thence north 65 degrees 49 minutes 29 seconds
east a distance of 224.19 feet to an iron pin; running thence south 25 degrees
50 minutes 42 seconds east a distance of 298.02 feet to an iron pin; running
thence south 08 degrees 05 minutes 32 seconds west a distance of 115.57 feet to
an iron pin; running thence north 85 degrees 55 minutes 55 seconds west a
distance of 266.50 feet to an iron pin at a point on said easterly line of said
right-of-way of Perimeter Center East, being the Point of Beginning.
Said tract or parcel being 2.00000 acres and being shown on that certain survey
prepared for SouthTrust Bank, N.A., Double Feature, L.L.C., Perimeter Center
Investors, L.L.C. and Chicago Title Insurance Company dated February 11, 1998,
revised March 16, 1998, prepared by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Georgia RLS #2317.
27
EXHIBIT B
PLAN OF PREMISES
PAGE 1 OF 2
[FLOOR PLAN]
28
EXHIBIT B
PAGE 2 OF 2
[FLOOR PLAN]
29
SCHEDULE A
LEGAL DESCRIPTION OF PREMISES
30
EXHIBIT D
48 PERIMETER CENTER EAST / GENERATOR LOCATION
[DIAGRAM]
31
GUARANTY
FOR AND IN CONSIDERATION of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and to induce PERIMETER CENTER INVESTORS, L.L.C., a Georgia
limited liability company, and DOUBLE FEATURE, L.L.C., a Georgia limited
liability company (collectively "Landlord"), to enter into the attached Lease
(the "Lease") with NET2000 COMMUNICATIONS REAL ESTATE, INC., a Delaware
corporation (hereinafter referred to as "Guarantor"), being the parent
corporation of Tenant, hereby absolutely and unconditionally guarantees to
Landlord, its successors and assigns, the payment of all Rent, Additional Rent
and any other sums due or to be due and payable in accordance with the terms of
the Lease and the performance by Tenant of all of its covenants and agreements
therein contained. Guarantor hereby expressly waives notice of all Events of
Default, and hereby waives all suretyship defenses. Guarantor agrees that the
waiver of any rights by Landlord against Tenant arising out of an Event of
Default by Tenant shall not in any way modify or release the obligations of
Guarantor.
This Guaranty and the obligations of Guarantor hereunder shall not be
released, modified or affected in any way by any future assignment of the
Lease or any amendment or modification thereof.
This Guaranty shall inure to the benefit of Landlord, and its legal
representatives, successors and assigns; and shall be binding on the Guarantor
and its successors and assigns.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed by
its duly authorized officer, this 11th day of April, 2000.
GUARANTOR:
NET2000 COMMUNICATIONS GROUP,
INC., a Delaware corporation
By: [SIG]
-----------------------------
Title: COO
-----------------------------
Attest: [SIG]
------------------------------
Title: Director of Reg. & Law
------------------------------
