BASIC LEASE INFORMATION
LEASE DATE: _________ day of ____________, 19__
LANDLORD: CK WINDWARD #1, LLC, a North Carolina limited liability
company
ADDRESS OF 000 Xxxxxxxx Xxxxxxx, Xxxxx 000
XXXXXXXX: Xxxxxxx, Xxxxxxx 00000
TENANT: ClientLink, Incorporated, a Delaware corporation
ADDRESS OF 0000 Xxxxxxxx Xxxxx
XXXXXX: Xxxxx 000
Xxxxxxxxxx, XX 00000
CONTACT: Office Manager
TELEPHONE:
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PREMISES: On the second floor, suite 200 of the Windward Fairways
I office building as outlined in red on Exhibit "B"
hereto. The approximate rentable area of the Premises
for purposes of this Lease is 18,691 square feet.
The approximate percentage of the Building occupied by
Tenant based on the above-referenced calculations
equals 13.99%. Such percentage shall change in the
event Tenant's premises increases or decreases in size.
The rentable area of the Premises is the product of the
usable area of the premises as reasonably determined by
Xxxxxxxx's architect using BOMA standards (ANSI Z65 1-
1980, July 31, 1980) multiplied by a factor of 1.095.
Tenant shall have the right to conduct field
measurements of the Premises prior to commencement of
tenant improvements to verify the rentable area.
Commencement of Tenant improvements shall establish
conclusively that the Premises contains the square
footage indicated by this lease. Any dispute between
Landlord and Xxxxxx as to the BOMA field measurement of
the Premises shall be resolved by an independent
architecture firm mutually selected by Landlord and
Tenant. Landlord shall not be responsible for any
delays in the substantial completion of the Premises
due to dispute by Tenant over such field measurement.
Paragraph 1 BUILDING: The approximate rentable area of the Building is
133,540 square feet.
PROPERTY: The land on which the Building is to be erected,
per the legal description of the Property attached
hereto as Exhibit "G".
Paragraph 2 USE: General office purposes
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Paragraph 3 LEASE TERM: Sixty (60) months commencing on the Commencement
Date as specified in Paragraph 3(b) herein.
Paragraph 4 RENT: Thirty-Two Thousand Three Hundred Twenty Dollars
($32,320) per month. Said monthly rental consists
of Net Rent and the Expense Stop Rent. The Net
Rent is $14.75 per rentable square foot per year
or Twenty-Two Thousand Nine Hundred Seventy-Four
Dollars ($22,974) per month. The Expense Stop Rent
is $6.00 per rentable square foot per year or Nine
Thousand Three Hundred Forty-Six Dollars ($9,346)
per month. The Net Rent and Expense Stop Rent
shall be adjusted in accordance with Paragraph 27
of the Lease.
Paragraph 32 SECURITY N/A Dollars ($ )
DEPOSIT: ------------------------ ------------
The foregoing Basic Lease Information is hereby
incorporated into and made a part of this Lease.
Each reference in this Lease to any of the Basic
Lease Information shall mean the respective
information hereinabove set forth and shall be
construed to incorporate all of the terms provided
under the particular Lease paragraph pertaining to
such information. In the event of any conflict
between any Basic Lease Information and the Lease,
the latter shall control.
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LEASE
THIS LEASE made as of this ___ day of _________, 19___, between CK WINDWARD #1,
LLC, a North Carolina limited liability company, hereinafter called "Landlord"),
and ClientLink, Incorporated, a Delaware corporation (hereinafter called
"Tenant").
W I T N E S S E T H:
1. PREMISES AND PROPERTY
Landlord hereby demises and leases to Tenant and Tenant hereby accepts and
leases from Landlord those premises (hereinafter called "Premises") outlined in
red on Exhibit "B" attached hereto, made a part hereof, and specific in the
Basic Lease Information, being a portion of a multi-story office building (the
"Building") constructed or being constructed on a parcel of land (the
"Property") located as described in the Basic Lease Information.
2. USE
Tenant shall use and occupy the Premises for the purpose specified in the
Basic Lease Information and for no other use or purpose without the prior
written consent of Landlord. Tenant shall not do or permit anything to be done
in or about the Premises which will in any way obstruct or interfere with the
rights of other tenants or occupants of the Building or injure or annoy them,
nor use or allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose or for any business, use or purpose deemed to be
disreputable or inconsistent with the operation of a first-class office
building, nor shall Tenant cause, maintain or permit any nuisance in, on, or
about the Premises. Tenant shall not commit or suffer the commission of any
waste in, on, or about the Premises.
3. TERM AND POSSESSION
(a) The term of this Lease shall be for the period specified in the Basic
Lease Information (or until sooner terminated as herein provided) beginning on
the "Commencement Date" as hereinafter defined, except that if the Commencement
Date is other than the first day of a calendar month, the term hereof shall be
extended for the remainder of that calendar month at the end of the term unless
otherwise specified in the Basic Lease Information.
(b) The Commencement Date shall be the date, if any, specified in the
Basic Lease Information, or, if no such date is specified, the earlier of (A)
the date upon which the Premises have been substantially completed as defined in
subparagraph 3(c) below in accordance with the plans and specifications of
Landlord (other than any work which cannot be completed on such date provided
such incompletion will not substantially interfere with Tenant's use of the
Premises), or (B) the date on which Tenant takes possession of, or commences the
operation of its business in, any or all of the Premises; provided, however,
that if Landlord shall be delayed in such substantial completion as a result of:
(i) Tenant's failure to agree to plans, specifications, and cost estimates
before the dates referred to in the Office Lease Improvement Agreement attached
hereto as Exhibit "C" and made a part hereof; (ii) Tenant's request for
materials, finishes or installations other than Landlord's standard; (iii)
Tenant's changes in plans; or (iv) the performance or completion by a part
employed by Tenant, the date of substantial completion for purposes of
determining the Commencement Date and the payment of rent hereunder shall be
accelerated by the number of days of such delay, and provided further that if
Landlord cannot substantially complete the Premises as a result of any of events
(i) through (iv) above, Landlord may, at its election complete so much of
Landlord's work as may be practical under the circumstances and, by written
notice to Xxxxxx, establish the Commencement Date as the date of such partial
completion, subject to any applicable accelerations due to delays resulting from
events (i) through (iv) above. Landlord shall notify Tenant in writing as soon
as Landlord deems the Premises to be substantially completed and ready for
occupancy as aforesaid. In the event that the Premises have not in fact been
substantially completed as aforesaid, Tenant shall notify Landlord in writing of
its objections within five (5) days after Tenant received the aforesaid notice
from Landlord. Landlord shall have reasonable time after delivery of such notice
in which to take such corrective action as Landlord deems necessary and shall
notify Tenant in writing as soon as it deems such corrective action, if any, has
been completed so that the Premises are substantially completed and ready for
occupancy. Landlord shall use reasonable
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best efforts to substantially complete Premises on or about December 20, 1996
(the "Scheduled Date") and Tenant shall have the right to enter the Premises or
any portion thereof prior to the Commencement Date for work to be performed by
Tenant under the provisions of the Office Lease Improvement Agreement. If the
Commencement Date occurs after December 31, 1996, Landlord shall, as liquidated
damages, xxxxx Xxxxxx's rental one day for each day the Commencement Date is
delayed. The parties hereto acknowledge that the amount of actual damages in
such event would be difficult, if not impossible, to determine and that the
foregoing amount of liquidated damages is a reasonable pre-estimate of the
amount of damages and not a penalty. The Scheduled Date shall be automatically
extended by the period of any delay in substantial completion of construction
caused by (a) Acts of God; casualty (except for any damage or destruction caused
by the neglect, fault, or omission of Landlord, its agents, servants, employees,
or contractors acting under authority of Landlord) damage, extraordinary delays
in obtaining necessary ______ material resulting from causes outside of
Landlord's control (in the event of labor shortages or delays, Landlord will use
diligent efforts to ______ qualified labor to perform professional tasks; in the
event of supply shortages or delays, Landlord will use diligent efforts to
obtain like materials or equivalent quality from alternative sources or
supplies), taking by eminent domain of any part of the Premises which
materially, substantially, and actually causes such delay, or changes in laws,
codes, or ordinances which materially affect Landlord's ability to adhere to the
contemplated construction schedule, or (b) delays caused by Tenant, including
delays in approving plans or changes thereto, change orders initiated by Tenant
which actually delay Landlord's required construction, and failure to coordinate
any work done by Xxxxxx or Xxxxxx's contractors with Xxxxxxxx's contractors.
(c) Xxxxxxxx agrees to complete the Building if now under construction and
shall perform the work required to be performed by Landlord under Exhibit "C"
with diligence, subject to events and delays due to causes beyond its reasonable
control. The Premises shall be deemed substantially completed and possession
delivered when Landlord has substantially completed the work to be constructed
or installed pursuant to the provisions of the Office Lease Improvement
Agreement, subject only to the completion of items on Landlord's punch list and
all latent defects, except for those latent defects which are not reported to
Landlord within a reasonable period of time after Xxxxxx's discovery thereof
(and exclusive of the installation of all telephone and other communications
facilities and equipment and other finish work to be performed by parties other
than Landlord). In the event of any dispute as to when and whether the work
performed or required to be performed by Landlord has been substantially
completed, the certificate of an A.I.A. registered architect or a temporary or
final certificate of occupancy issued by the local governing authority shall be
conclusive evidence of such completion, effective on the date of the delivery of
a copy of any such certificate to Tenant.
(d) If substantial completion of the Premises or possession thereof by
Tenant is delayed because any tenant or other occupant thereof holds over, and
the Landlord is delayed, using good faith efforts to Landlord's discretion, in
acquiring possession of the Premises, Landlord shall not be deemed in default,
nor in any way liable to Tenant because of such delay, and Xxxxxx agrees to
accept possession of the Premises at such time as Landlord is able to tender the
same, which date shall thenceforth be deemed the Commencement Date
notwithstanding any other provision hereof to the contrary.
(e) The taking of possession by Tenant shall be deemed conclusively to
establish that the Building, other improvements, and the Premises have been
completed in accordance with the plans and specifications and are in good and
satisfactory condition as of when possession was so taken (except for such items
as Landlord is permitted to complete at a later date, which items shall be
specified by Landlord to Tenant in writing). Upon the Commencement Date, Tenant
shall execute and deliver to Landlord a letter of acceptance of delivery of the
Premises, such ________ to be on Landlord's standard form therefor.
4. RENT
(a) Tenant shall pay to Landlord throughout the term of this Lease rent as
specified in the Basic Lease Information, payable monthly in advance on or
before the first day of each month during the term hereby demised in lawful
money of the United States, without demand, deduction or offset whatsoever, to
Landlord at the address specified in the Basic Lease Information or to such
other firm or to such other place as Landlord may from time to time designate in
writing. Said rental is subject to adjustment as provided in Paragraph 27
hereof. If this Lease commences on a day other than the first day
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of a calendar month or ends on a day other than the last day of a calendar
month, the monthly rental for the fractional month shall be appropriately
prorated.
(b) Xxxxxx agrees that if rent or any other payment due hereunder from
Tenant to Landlord remains unpaid ten (10) days after said amount is due, the
amount of such unpaid rent or other payment shall be increased by a late charge
to be paid to Landlord by Tenant in an amount equal to five percent (5%) of the
amount of the delinquent rent or other payment). The amount of the late charge
to be paid to Landlord by Tenant for any month shall be computed on the
aggregate amount of delinquent rents and other payments, including all accrued
late charges then outstanding. Tenant agrees that such amount is a reasonable
estimate of the loss and expense to be suffered by Landlord as a result of such
late payment by Xxxxxx and may be charged by Landlord to defray such loss and
expense. The provisions of this paragraph in no way relieve Tenant of the
obligation to pay rent or other payments on or before the date on which they are
due, nor do the terms of this paragraph in any way affect Xxxxxxxx's remedies
pursuant to Paragraph 19 of this Lease in the event said rent or other payment
is unpaid after the date due.
5. COMPLIANCE WITH LAWS
Tenant shall not use the Premises or permit anything to be done in or about
the Premises which will in any way conflict with any law, statute, ordinance, or
governmental rule or regulation now in force or which may hereafter be enacted
or promulgated. Tenant shall not do or permit anything to be done on or about
the Premises or bring or keep anything therein which will in any way increase
the rate of any insurance upon the Building or any of its contents or cause a
cancellation of said insurance or otherwise affect said insurance in any manner,
and Tenant shall at its sole cost and expense promptly comply with all laws,
statutes, ordinances, and governmental rules, regulations, or requirements now
in force or which may hereafter be in force and with the requirements of any
board of fire underwriters or other similar body now or hereafter constituted
contributing to or affecting the condition, use, or occupancy of the Premises,
excluding structural changes not related to or affected by alterations or
improvements made by or for Tenant or Xxxxxx's acts. The judgment of any court
of competent jurisdiction or the admission of Tenant in an action against
Tenant, whether Landlord be a party thereto or not, that Tenant has so violated
any such law, statute, ordinance, rule, regulation, or requirement, shall be
conclusive evidence of such violation as between Landlord and Tenant. Landlord
agrees to make, at its sole cost and expense, any structural changes within the
Premises that (i) are not related to or affected by alterations or improvements
made by or for Tenant or Tenant's acts, and (ii) are necessary to comply with
any laws, statutes, ordinances, and governmental rules, regulations, or
requirements in force on the Commencement Date.
6. ALTERATIONS
Tenant shall not make or suffer to be made any alterations, additions, or
improvements in, on, or to the Premises or any part thereof without the prior
consent of Landlord, which consent shall not be unreasonably withheld or
delayed. However, it shall not be unreasonable for Landlord to withhold its
consent under this paragraph 6 if the proposed alteration will adversely affect
the Building's mechanical, electrical, plumbing, or structural systems. Any
such alterations, additions, or improvements in, on, or to said Premises, except
for Tenant's movable furniture and equipment, shall immediately become
Landlord's property and, at the end of the term hereof, shall remain on the
Premises without compensation to Tenant. In the event Landlord consents to the
making of any such alteration, addition, or improvement by Tenant, the same
shall be made by Tenant, at Tenant's sole cost and expense, in accordance with
all applicable laws, ordinances, and regulations and all requirements of
Landlord's and Tenant's insurance policies, and in accordance with plans and
specifications approved by Landlord and any contractor or person selected by
Tenant to make the same and all subcontractors must first be approved in writing
by Landlord, or, at Landlord's option, the alteration, addition or improvement
shall be made by Landlord for Tenant's account and Tenant shall reimburse
Landlord for the reasonable market cost thereof within twenty (20) days after
receipt of a statement. Upon the expiration or sooner termination of the term
herein provided, and provided that Landlord has specified in its notice of
consent to Tenant that subject alteration, addition, or improvement made by or
for the account of Tenant shall be removed upon such expiration or termination.
Tenant shall, upon demand by Landlord, at Xxxxxx's sole cost and expense,
forthwith and with all due diligence, remove any or all alterations, additions,
or improvements made by
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or for the account of Tenant and designated by Landlord to be removed, and
Tenant shall forthwith and with all due diligence, at its sole cost and expense,
repair and restore the Premises to their condition as of the Commencement Date
of this Lease.
7. REPAIR
(a) By taking possession of the Premises, Xxxxxx accepts the Premises as
being in the condition in which Landlord is obligated to deliver ______ and
otherwise in good order, condition and repair. Tenant shall, at all times
during the term hereof at Tenant's sole cost and expense, keep the Premises and
every part thereof in good order, condition and repair, excepting ordinary wear
and tear, damage thereto by fire, earthquake, Act of God or the elements. Tenant
shall upon the expiration or sooner termination of the term hereof, unless
Landlord demands otherwise as in Paragraph 6 hereof provided, surrender to
Landlord the Premises and all repairs, changes, alterations, additions and
improvements thereto in the same condition as when received, or when first
installed, ordinary wear and tear, damage by fire, earthquake, Act of God or the
elements excepted. It is hereby understood and agreed that Landlord has no
obligation to alter, remodel, improve, repair, decorate, or paint the Premises
or any part thereof except as specified in Exhibit "C", and that no
representations respecting the condition of the Premises or the Building have
been made by Landlord to Tenant, except as specifically herein set forth.
(b) Tenant shall repair all damage to the Building, including common
areas, restrooms, hallways, elevators, or any other area, fixture, or equipment
of the Building caused by Tenant's installation or removal of its property or
resulting from any act or conduct of Tenant, its employees, contractors, agents,
licensees or invitees.
(c) All maintenance or repairs made by Tenant shall be made in accordance
with all applicable laws, ordinances and regulations, and all requirements of
Landlord's and Tenant's insurance policies and any contractor or person
selected by Tenant to make the same, and all subcontractors must first be
approved in writing by Landlord, or, at Landlord's option, the maintenance or
repair shall be made by Landlord for Tenant's account and Tenant shall reimburse
Landlord for the reasonable cost thereof within twenty (20) days after receipt
of a statement. In any event, all repairs shall be equal in quality and
workmanship to the original work.
8. LIENS
Tenant shall keep the Premises free from any liens arising out of any work
performed, material furnished, or obligations incurred by Tenant. In the event
that Tenant shall not, within ten (10) days, or so long as Tenant uses best
efforts to do so as soon as possible within thirty (30) days following the
imposition of any such lien, cause the same to be released of record by payment
or posting of a proper bond, Landlord shall have, in addition to all other
remedies provided herein and by law, the right, but not the obligation, to cause
the same to be released by such means as it shall deem proper, including payment
of the claim giving rise to such lien. All such sums paid by Landlord and all
expenses incurred by it in connection therewith shall be considered additional
rent and shall be payable to it by Tenant on demand and with interest at the
rate of eighteen percent (18%) per annum or the rate four percent (4%) higher
than the prime commercial lending rate from time to time of Wachovia Bank of
Georgia; whichever is more, provided however that if such rate exceeds the
maximum rate permitted by law, the maximum lawful rate shall apply; the interest
rate so determined is hereinafter called the "Agreed Interest Rate." Landlord
shall have the right at all times to post and keep posted the Premises any
notices permitted or required by law, or which Landlord shall deem proper for
the protection of Landlord, the Premises, the Building, and any other party
having an interest therein, from mechanics' and materialmen's liens, and Tenant
shall give to Landlord at least five business days prior written notice of
commencement of any construction on the Premises.
9. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not sell, assign, encumber or otherwise transfer by
operation of law or otherwise this Lease or any interest herein, sublet the
Premises or any portion thereof, or suffer any other person to occupy or use the
Premises or any portion thereof, without the prior written consent of Landlord
as provided herein, nor shall Tenant permit any lien to be placed on the
Tenant's interest by operation of law. Tenant shall, by written notice, advise
Landlord of its desire from and after a stated date (which shall not be less
than thirty (30) days nor more than ninety (90) days after the date of Tenant's
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notice) to sublet the Premises or any portion for any part of the term hereof;
and in such event Landlord shall have the right, to be exercised by giving
written notice to Tenant within fifteen (15) business days after receipt of
Tenant's notice, to terminate this Lease as to the portion of the Premises
described in Tenant's notice and such notice shall, if given, terminate this
Lease with respect to the portion of the Premises therein described as of the
date stated in Tenant's notice. Said notice by Xxxxxx shall state the name and
address of the proposed subtenant, and Xxxxxx shall deliver to Landlord a true
and complete copy of the proposed sublease with said notice. If said notice
shall specify all of the Premises and Landlord shall give said termination
notice with respect thereto, this Lease shall terminate on the date stated in
Tenant's notice. If, however, this Lease shall terminate pursuant to the
foregoing with respect to less than all the Premises, the rent, as defined and
reserved hereinabove and as adjusted pursuant to Paragraph 27, shall be adjusted
on a pro rata basis to the number of square feet retained by Tenant, and this
Lease as so amended shall continue thereafter in full force and effect. If
Landlord, upon receiving said notice by Xxxxxx with respect to any of the
Premises, shall not exercise its right to terminate, Landlord will not
unreasonably withhold its consent to Tenant's subletting the Premises specified
in said notice. Tenant shall, at Xxxxxx's own cost and expense, discharge in
full any outstanding commission obligation on the part of Landlord with respect
to this Lease, and any commissions which may be due and owing as a result of any
proposed assignment or subletting, whether or not the Lease is terminated
pursuant hereto and rented by Landlord to the proposed subtenant or any other
tenant. Tenant shall pay to Landlord immediately upon receipt fifty percent
(50%) of all rent or other consideration received by Tenant from any such
assignee or subtenant, either initially or over the term of the assignment or
sublease which is in excess of the rental obligation required under the terms of
this Lease for the premises or portion for which consent is granted, unless such
assignee or subtenant is an "Affiliate" as defined below, or the Guarantor
_______ Lease as specified in the Guaranty attached hereto as Exhibit "F", in
which case Tenant shall have the right to retain one hundred percent (100%) of
all rent or other consideration received by Tenant.
(b) Any subletting hereunder by Tenant shall not result in Tenant being
released or discharged from any liability under this Lease. As a condition to
Xxxxxxxx's prior written consent as provided for in this Paragraph 9, the
subtenant or subtenants shall agree in writing to comply with and be bound by
all of the terms, covenants, conditions, provisions and agreements of this
Lease, and Tenant shall deliver to Landlord promptly after execution, an
executed copy of each sublease and an agreement of said compliance by each
subtenant. If an event of default, as hereinafter defined, should occur while
the Premises or any part thereof are then sublet, Landlord, in addition to any
other remedies herein provided or provided by law, may at its option collect
directly from the subtenant all rents and other sums becoming due to Tenant
under the sublease and apply the rent against any sums due to Landlord by Tenant
hereunder, and Xxxxxx hereby authorizes and directs any such subtenant to make
payments of rent directly to Landlord upon receipt of notice from Landlord. No
direct collection by Landlord from any subtenant will be construed to constitute
a novation or a release of Tenant from the further performance of its
obligations hereunder. Receipt by Landlord of rent from any assignee, subtenant
or occupant of the Premises will not be deemed a waiver of the covenants
contained in this Lease or a release of Tenant under the Lease. The receipt by
Landlord from any subtenant obligated to make payments of rent will be a full
and complete release, discharge and acquittance to the subtenant of its
obligations to Tenant to the extent of any such amount of rent so paid to
Landlord. Xxxxxxxx is authorized and empowered, on behalf of Tenant, to endorse
the name of Tenant upon any check, draft or other instrument payable to Tenant
with respect to the Premises and evidencing payment of rent, and any part
thereof, and to receive and apply the proceeds therefrom in accordance with the
terms hereof.
(c) Xxxxxxxx's consent to any sale, assignment, encumbrance, subletting,
occupation, lien or other transfer shall not release Tenant from any of Tenant's
obligations hereunder or be deemed to be consent to any subsequent occurrence.
Any sale, assignment, encumbrance, subletting, occupation, lien or other
transfer of this Lease which does not comply with the provisions of this
Paragraph 9 shall be void.
(d) Any transfer of this Lease by merger, consolidation, or liquidation or
any change in ownership of or power to vote the majority of outstanding voting
stock of Tenant or, if Tenant is a partnership, any withdrawal, replacement or
substitution of any partner or partners, either general or limited, shall
constitute an assignment, whether the result of a single or series of
transactions, and shall be subject to Landlord's approval under Paragraph 9(a).
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(e) Tenant may assign (or the parent company that wholly owns Tenant may
cause Tenant to assign) the Lease at any time, or sublease all or part of the
Premises, without receipt of Landlord's consent, to any entity which acquires
all or substantially all of Tenant, or which is acquired in whole or
substantially in whole by Tenant, or which entity controls or is controlled by,
directly or indirectly, Tenant, or which is a wholly owned subsidiary of the
parent company that wholly owns Tenant ("Affiliate"), so long as such
transaction was not entered into as of subterfuge to avoid obligations and
restrictions of the Lease and provided that the Affiliate assumes, in writing,
all of Tenant's obligations under this Lease, and provided further, that Tenant
notifies Landlord in writing at least thirty (30) days prior to such assignment
or subletting. Notwithstanding anything to the contrary herein, in no event
shall the Guarantor of this Lease be relieved of its liability for the
obligations of Tenant or an Affiliate of this Lease.
10. INSURANCE AND INDEMNIFICATION
(a) Landlord shall not be liable to Tenant and Tenant hereby waives all
claims against Landlord and any of its partners for any injury or damage to any
person or property in or about the Premises by or from any cause whatsoever,
excepting Landlord's gross negligence or willful acts, and, without limiting the
generality of the foregoing, whether caused by water leakage of any character
from the roof, walls, basement, or other portion of the Premises or the
Building, or caused by gas, fire, Acts of God, discharge of sprinklers,
excessive heat or cold, sewage, odors, noise, bursting or leakage of pipes or
plumbing fixtures, riot, strike, court order, governmental body or authority,
other tenants, or explosion of the Building or the complex of which it may be a
part or any part thereof. Tenant will hold Landlord harmless from damages due
to the interruption of Xxxxxx's business caused by any damage whatsoever.
(b) Tenant shall hold Landlord harmless from and defend Landlord against
any and all claims or liability from any injury or damage to any person or
property whatsoever: (i) occurring in, on, or about the Premises or any part
thereof, (ii) occurring in, on, or about any facilities (including without
limitations, elevators, stairways, passageways or hallways), the use of which
Tenant may have in conjunction with other tenants of the Building, when such
injury or damage shall be caused in part or in whole by the act, neglect, fault
of, or omission of any duty with respect to the same by Xxxxxx, its agents,
servants, employees, or any other person entering the Premises with express or
implied invitation of Xxxxxx. Tenant further agrees to indemnify and save
harmless the Landlord against and from any and all claims by or on behalf of any
person, firm, or corporation, arising from the conduct or management of any work
or thing whatsoever done by the Tenant in or about the Premises, and will
further indemnify and save the Landlord harmless against and from any and all
claims arising from any breach or default on the part of the Tenant in the
performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to the terms of this Lease, or arising from any act or
negligence of the Tenant, or any of its agents, contractors, servants, employees
or licensees, and from and against all costs, counsel fees, expenses and
liabilities incurred in connection with any such claim or action or proceeding
brought thereon. All property in the Building or Premises belonging to Tenant,
its agents, employees or invitees shall be there at the risk of Tenant. Xxxxxx
agrees to indemnify and save harmless Landlord against claims for damage to,
theft, misappropriation, or loss of said property. Furthermore, in case any
action or proceeding be brought against Landlord by reason of any claims or
liability, Xxxxxx agrees to defend such action or proceeding at Xxxxxx's sole
expense by counsel reasonably satisfactory to Landlord. The provisions of this
Paragraph 10 shall survive the expiration or termination of this Lease with
respect to any claims or liability occurring prior to such expiration or
termination.
(c) Tenant agrees to purchase at its own expense and to keep in force
during the term of this Lease a policy or policies of worker's compensation and
comprehensive general liability insurance, including personal injury and
property damage, with contractual liability endorsement in the amount of Five
Hundred Thousand Dollars ($500,000.00) for property damage and One Million
Dollars ($1,000,000.00) per occurrence for personal injuries or deaths of
persons occurring in or about the Premises and a policy or policies of contents'
insurance to protect Xxxxxx's personal property, and all improvements and
alterations provided by Landlord or Tenant for Tenant, and any other fixtures or
equipment controlled or in use by Tenant within the Premises, in the amount of
the replacement cost of said property, such amount being subject to Landlord's
approval. Said policies shall: (i) name Landlord as an additional named
insured and insure Landlord's
8
contingent liability under this Lease (except for the worker's compensation
policy, which shall instead include a waiver of subrogation endorsement in favor
of Landlord), (ii) be issued by an insurance company which is acceptable to
Landlord and licensed to do business in the State of Georgia, and (iii) provide
that said insurance shall not be canceled unless thirty (30) days prior written
notice shall have been given to Landlord. Said policy or policies or certificate
thereof shall be delivered to Landlord by Tenant upon commencement of the term
of the Lease and upon each renewal of said insurance. The purchase of such
insurance shall not release Tenant of any legal obligations contained within
this Lease.
(d) Landlord agrees to purchase at its own expense and to keep in force
during the term of this Lease a policy or policies of comprehensive general
liability insurance, including bodily injury and property damage, with
contractual liability endorsement, in the amount of Five Hundred Thousand
Dollars ($500,000.00) for property damage and One Million Dollars
($1,000,000.00) per occurrence for bodily injuries or deaths of persons
occurring in or about the Property exclusive of the Premises and to insure the
Building and work to be done pursuant to the terms of Exhibit "C" against damage
with insurance, in such amounts commercially reasonable (but with respect to
property insurance covering the Building not less than 90% of the full
replacement cost thereof).
11. WAIVER OF SUBROGATION
Each of Landlord and Tenant hereby releases the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of insurance covering
such property, even if such loss or damage shall have been caused by the fault
of the other party, or anyone for whom such party may be responsible, including
any other tenants or occupants of the remainder of the Building; provided,
however, that this release shall be applicable and in force and effect only to
the extent that such release shall be lawful at that time and in any event only
with respect to loss or damage occurring during such times as the releaser's
policies shall contain a clause or endorsement to the effect that any such
release shall not adversely affect or impair said policies or prejudice the
right of the releaser to recover thereunder and then only to the extent of the
insurance proceeds payable under such policies. Each of Landlord and Xxxxxx
agrees that it will request its insurance carriers to include in its policies
such a clause or endorsement. Failure to obtain such an endorsement shall not
release the waiver contained in this Lease.
12. SERVICES AND UTILITIES
(a) Landlord shall maintain the public and common areas of the Building,
including lobbies, stairs, elevators, corridors and restrooms, the windows in
the Building, the mechanical, plumbing and electrical equipment serving the
Building, and the structure itself, and the land, appurtenances, grounds,
surface parking lots, sidewalks, public and common areas of the property in a
manner that is, in Landlord's judgment, customarily furnished in comparable
first class office buildings in the immediate market area in reasonably good
order and condition except for damage occasioned by the act of Tenant, which
damage shall be repaired by Landlord at Tenant's expense.
(b) Provided the Tenant shall not be in default hereunder and Subject to
the provisions elsewhere herein contained, including the Rules and Regulations
of the Building, Landlord agrees to furnish to the Premises during ordinary
business hours:
(1) heating and air conditioning required to maintain temperature inside
the Premises as follows: to an inside temperature of seventy-five
(75) degrees Fahrenheit when the outside temperature is seventeen (17)
degrees Fahrenheit and to an inside temperature of seventy-five (75)
degrees Fahrenheit when the outside temperature is not above ninety-
five (95) degrees Fahrenheit.
(2) elevator service to Tenant's floor, which shall mean service either by
automatic elevators or elevators with attendants, or both, at the
option of the Landlord;
(3) hot or cold water to the restrooms and water to the drinking
fountains;
(4) electric current in reasonably sufficient amounts for normal business
use, including operation of building standard lighting and general
office machines of a type which require no more than a 110 volt duplex
9
outlet, including desk top personal computers, desk top personal
printers, and desk top calculators, but excluding mainframe computers,
telephone switching equipment, and other non-standard office machines;
and
(5) janitorial services during the times and in a manner that such
services are in Landlord's judgment customarily furnished in
comparable office buildings in the immediate market area (generally as
outlined in Exhibit "H" attached hereto).
(6) Building's freight elevator with reasonable notice to Landlord.
(c) Provided the Tenant shall not be in default hereunder and Subject to
the provisions elsewhere herein contained, including the Rules and Regulations
of the Building, Landlord agrees that with respect to the Premises, and only
during normal business hours or, at Landlord's option, after normal business
hours, it will maintain and adjust at its expense.
(1) All building standard fluorescent lighting. All incandescent and
nonstandard fluorescent lights shall be maintained at Tenant's
expense;
(2) All temperature control devices and air diffusers; and
(3) All Tenant entry door hardware including locks, hinges and closures.
(d) For the purpose of this Lease, normal business hours shall be from
8:00 A.M. to 6:00 P.M. Monday through Friday and from 8:00 A.M. to 1:00 P.M. on
Saturday, excluding the following holidays: New Year's Day, Memorial Day,
Independence Day (4th of July), Labor Day, Thanksgiving Day, Christmas Day and
any other holidays generally recognized from time to time by owners of office
buildings in the Atlanta, Georgia metropolitan area.
(e) Landlord may, at its option, provide additional or after hours heating
or air conditioning at Tenant's request upon reasonable notice, Tenant shall pay
the building standard charge for such services as determined from time to time
by Landlord. The obligation hereunder to ___ such additional utilities will be
subject to the rules and regulations of any municipal or any other governmental
authority regulating the business of providing such utility service. Xxxxxx
agrees to keep closed all window coverings, if any, when necessary because of
the sun's position, and Xxxxxx also agrees at all times to cooperate fully with
Landlord and to abide by all regulations and requirements which Landlord may
prescribe for the proper functioning and protection of said heating,
ventilating, and air conditioning system. Tenant will not without the written
consent of Landlord use any heat generating equipment, machines, or excess
lighting in the Premises which affects the amount of energy required to maintain
the temperature otherwise maintained by the heating, ventilating and air
conditioning system. In the event of such consent, Landlord reserves the right
to install supplementary air conditioning equipment and the cost thereof,
including the ongoing cost of additional electricity, chilled water (if
available at a nominal charge), and/or domestic water (at a nominal charge)
consumed as a result of the use of such equipment, shall be paid by Tenant to
Landlord upon demand. The type, size and location of such supplemental air
conditioning equipment shall be determined or approved by Landlord.
(f) Tenant will not, without written consent of Landlord, use within the
Premises or Building any device or machine, in any number or combination thereof
or for any number of hours, which will in any way increase the amount of
electricity or water normally furnished for use of the Premises as general
office space as defined in Paragraph 12(b)(4). If Tenant in Landlord's judgment
shall require such additional water or electrical current, Tenant shall first
procure the consent of Landlord, which Landlord may refuse, and Landlord may
cause a special meter to be installed so as to measure such additional domestic
water, chilled water (if available), or electrical current. The cost of any
such meters and of installation, maintenance, and repair thereof shall be paid
for by Tenant, and Xxxxxx agrees to pay Landlord or the utility company, as the
case may be, on demand, for the ongoing cost of consumption of such additional
water or electricity. In the event that Xxxxxxxx is responsible for reading the
meter and invoicing the Tenant, Landlord shall be entitled to charge the Tenant
the reasonable additional expenses for so doing. The Building electrical system
shall be capable of providing a maximum of seven and one-half (7 1/2) xxxxx
live load of power per square foot of Tenant's Premises, exclusive of building
standard lighting. This Paragraph 12(f) only establishes the maximum power
available and does not alter the provisions of Paragraph
10
12(f) or Landlord's ability to charge Tenant for electricity use above that
normally furnished (in comparable office buildings in the immediate market area)
for use of the Premises as general office space.
(g) Landlord shall not be in default hereunder or be liable for any damage
directly or indirectly resulting from, nor shall the rental herein reserved be
abated by reason of, the (i) installation, use or interruption of use of any
equipment in connection with the furnishing of any of the following services or
utilities, or (ii) failure to furnish or delay in furnishing any such services
or utilities when such failure is caused by Acts of God or the elements,
strikes, governmental orders, accidents, or other conditions beyond the
reasonable control of he Landlord or by the making of repairs or improvements to
the Premises or to the Building in which case Landlord shall diligently work to
mitigate such interruption in services.
(h) It shall be Tenant's responsibility and expense to install, move,
maintain, adjust, and repair its property and fixtures, including but not
limited to, its: signage, pictures, bulletin boards, plaques, furniture, filing
cabinets, computer cables, computer equipment, business machines, draperies,
blinds, kitchen appliances, special water heaters, kitchen cabinets, private
restroom fixtures, special air conditioning or power conditioning equipment,
locks for furniture and filing cabinets, paging systems, modular furniture
components (including task lighting, flat wiring, and power distribution
cables), combination locks, specialty electrical devices, exhaust fans, fire
extinguishers, carpet squares, and/or other furniture, fixtures, or equipment
installed by Tenant, or which were supplied, specified or requested by Tenant
and installed by Landlord.
(i) Any sums payable under this Paragraph shall be considered additional
rent, and Landlord shall have the same remedies for a default in payment of such
sums as for a default in the payment of rent.
(j) Tenant shall not provide any janitorial services to the Premises
without Landlord's written consent and then only subject to the terms and
conditions of Landlord.
(k) If, in order to protect Xxxxxx's property in the building, it shall be
necessary to make emergency repairs to any portion thereof which is the
responsibility of Landlord to repair, and if Landlord, after receipt of notice,
is unable to make such emergency repairs in sufficient time to protect Xxxxxx's
property, Tenant shall have the right to make such repairs. Landlord shall
fully reimburse Tenant for the reasonable costs of such emergency repairs by
direct payment to Tenant. Such payment shall be due within thirty (30) days of
receipt of an invoice from Tenant, and if paid at a later date by Landlord,
shall bear interest at the lesser of twelve percent (12%) per annum or the
maximum rate authorized by law from the date the sum is paid by Xxxxxx until
Xxxxxx is fully reimbursed by Landlord. Landlord, at Xxxxxxxx's sole option,
may elect to reimburse Tenant by an adjustment in the amount of rent payable by
making written notice of such election to Tenant.
13. ESTOPPEL CERTIFICATE
Within ten (10) days following any written request which Landlord may make
from time to time, Tenant shall execute and deliver to Landlord a certificate
substantially in the form attached hereto as Exhibit "D" and made a part hereof,
indicating thereon any exceptions thereto that may exist at that time. Failure
of the Tenant to execute and deliver such certificate shall constitute an
acceptance of the Premises and acknowledgment by Tenant that the statements
included in Exhibit "D" are true and correct without exception. Landlord and
Xxxxxx intend that the statement delivered pursuant to this paragraph may be
relied upon by any mortgage, beneficiary, purchaser, or prospective purchaser of
the Building or any interest therein.
14. HOLDING OVER
Tenant will, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant retains
possession of the Premises or any part thereof after such termination or if any
of Tenant's property remains which Landlord has previously requested be removed,
then Landlord may, at its option, serve written notice upon Tenant that such
holding over constitutes any one of (i) creation of a month to month tenancy,
upon the terms and conditions set
11
forth in this Lease, or (ii) creation of a tenancy at sufferance, in any case
upon the terms and conditions set forth in this Lease; provided, however, that
the monthly rental [or daily rental under (ii)] shall, in addition to all other
sums which are to be paid by Tenant hereunder, whether or not as additional
rent, be equal to one hundred and fifty percent (150%) of the rental being paid
monthly to Landlord under this Lease immediately prior to such termination
[prorated in the case of (iii) on the basis of a 365 day year for each day
Tenant remains in possession]. If no such notice is served, then a tenancy at
sufferance shall be deemed to be created at the rent in the preceding sentence.
Tenant shall also pay to Landlord all damages sustained by Landlord resulting
from retention of possession by Xxxxxx, including the loss of any proposed
subsequent tenant for any portion of the Premises. The provisions of this
paragraph shall not constitute a waiver by Landlord of any right of entry as
herein set forth; nor shall receipt of any rent or any other act in apparent
affirmance of the tenancy operate as a wavier of the right to terminate this
Lease for a breach of any of the terms, covenants, or obligations herein on
Tenant's part to be performed.
15. SUBORDINATION
Without the necessity of any additional document being executed by Tenant
for the purpose of effecting a subordination, this Lease shall be subject and
subordinate at all times to: (a) all ground leases or underlying leases which
may now exist or hereafter be executed affecting the Building, the Property, or
any part thereof, and (b) the lien of any first mortgage or deed of trust which
may now exist or hereafter be executed in any amount for which said Building,
land, ground leases or underlying leases, or Landlord's interest or estate in
any of said items is specified as security together with all renewals,
modifications, consolidations, partitions, replacements, and extensions of any
such first mortgage or deed of trust. Notwithstanding the foregoing, Landlord
or the holder of any first mortgage or deed of trust on the Building or the
Property or any part thereof shall have the right to subordinate or cause to be
subordinated in whole or in part any such ground leases or underlying leases or
any such _______ to this Lease (but not in respect to priority of entitlement of
insurance or condemnation proceeds). In the event that any ground lease or
underlying lease terminates for any reason or any first mortgage or deed of
trust is foreclosed or a conveyance in lieu of foreclosure is made for any
reason, Tenant shall, notwithstanding any subordination, attorn to and become
the Tenant of the successor in interest to Landlord at the option of such
successor in interest. Tenant covenants and agrees to execute and deliver, upon
demand by Landlord or the holder of any first mortgage or deed of trust on the
Building or the Property or any part thereof and in the form requested by
Landlord or the holder of any first mortgage or deed of trust on the Building
or the Property or any part thereof any additional documents evidencing the
priority of subordination of this Lease with respect to any such ground leases
or underlying leases or the lien of any such mortgage or deed of trust. Tenant
hereby irrevocably appoints Landlord as attorney-in-fact of Tenant to execute,
deliver and record any such documents in the name and on behalf of Xxxxxx.
16. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the Rules and Regulations
annexed to this lease as Exhibit "A" and all reasonable modifications thereof
and additions thereto from time to time put into effect by Landlord so long as
the modifications do not materially increase Tenant's obligations or diminish
Tenant's rights granted in this Lease. Landlord shall not be responsible for
the nonperformance by any other tenant or occupant of the Building of any said
Rules and Regulations; however, Landlord shall use good faith efforts to enforce
said rules and regulations for all tenants of the Building.
17. ENTRY BY LANDLORD
Landlord reserves and shall at all times have the right to enter the
Premises to inspect the same to determine if Tenant is complying with all terms
and provisions of this Lease, to perform Tenant's obligations under this Lease
in accordance with Paragraph 23 hereof, to supply janitorial service and any
other service to be provided by Landlord to Tenant hereunder, to show said
Premises to prospective purchasers, mortgagees or tenants, to post notices of
nonresponsibility, and to alter, improve, or repair the Premises and any portion
of the Building of which the Premises are a part or to which access is
conveniently made through the Premises, without abatement of rent, and may for
that purpose erect, use, and maintain scaffolding, pipes, conduits, and other
necessary structures in and through the Premises where reasonably required by
the character of the work to be performed, provided that entrance to the
Premises shall not be blocked thereby, and further provided that the business of
Tenant shall not be interfered with unreasonably. Except during emergencies,
Landlord will provide Tenant with notice of intent to make repairs within
Premises. Tenant hereby waives any claim for damages for any
12
injury or inconvenience to or interference with Xxxxxx's business, any loss of
occupancy or quiet enjoyment of the Premises and any other loss occasioned
thereby. For each of the aforesaid purposes Tenant agrees that its doors shall
be keyed to Landlord's building standard master keying system and that Landlord
shall at all times have and retain master or pass keys with which to unlock all
of the doors in, upon, and about the Premises, excluding Tenant's vaults and
safes, or special security areas (designated in advance), and Landlord shall
have the right to use any and all means which Landlord may deem necessary or
proper to open said doors in an emergency, in order to gain entry to any portion
of the Premises, and any entry to the Premises, or portions thereof obtained by
Landlord by any of said means, or otherwise, shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into, or a detainer
of, the Premises, or an eviction, actual or constructive, of Tenant from the
Premises or any portions thereof. Landlord shall also have the right at any
time, without the same constituting an actual or constructive eviction and
without incurring any liability to Tenant therefor, to change the arrangement
and/or location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets, or other public parts of the Building.
18. INSOLVENCY OR BANKRUPTCY
The appointment of a receiver to take possession of all or substantially
all of the assets of Tenant, or an assignment of Tenant for the benefit of
creditors, or any action taken or suffered by Tenant under any insolvency,
bankruptcy, or reorganization act, shall at Landlord's option constitute a
breach of this Lease by Xxxxxx. Upon the happening of any such event or at any
time thereafter, this Lease shall terminate five (5) days after written notice
of termination from Landlord to Tenant. In no event shall this Lease be
assigned or assignable by operation of law or by voluntary or involuntary
bankruptcy proceedings or otherwise and in no event shall this Lease or any
rights or privileges hereunder be an asset of Tenant under any bankruptcy,
insolvency, or reorganization proceedings.
19. DEFAULT
(a) The following events shall be deemed to be events of default by Tenant
under this Lease:
(1) Tenant shall fail to pay when or before due any sum of money becoming
due to be paid to Landlord hereunder, whether such sum be any installment of the
rent herein reserved, any other amount treated as additional rent hereunder, or
any other payment or reimbursement to Landlord required herein, whether or not
treated as additional rent hereunder, and such failure shall continue for a
period of five (5) days after receipt of written notice of default from Landlord
(however, Landlord shall not be required to give such notice when Landlord has
already given such notice at least once in a twelve (12) month period); or
(2) Tenant shall fail to comply with any term, provision or covenant of
this Lease other than by failing to pay when or before due any sum of money
becoming due to Landlord hereunder, and shall not cure such failure within ten
(10) days (forthwith, if the default involves a hazardous condition) after
written notice thereof to Tenant; provided, however, that if the nature of the
cure of the failure is such that it cannot be reasonably completed within such
ten (10) days, then so long as Tenant commences such cure within ten (10) days
and thereafter diligently and in good faith pursues completion of the cure, the
time to do so will be extended; or
(3) Tenant shall abandon or vacate any substantial portion of the
Premises, unless Tenant is satisfying all its obligations of this Lease except
those associated with occupying the Premises; or
(4) Tenant shall fail to vacate the Premises immediately upon termination
of this Lease, by lapse of time or otherwise, or upon termination of Tenant's
right to possession only; or
(5) The leasehold interest of Tenant shall be levied upon under execution
or be attached by process of law or Tenant shall fail to contest diligently the
validity of any lien or claimed lien and give sufficient security to Landlord to
insure payment thereof or shall fail to satisfy any judgment rendered thereon
and have the same released, and such default shall continue for ten (10) days
after written notice thereof to Tenant; or
13
(6) Tenant shall fail to perform any of its obligations under any
agreement with Landlord; or
(7) Default by any guarantor of this Lease of the terms of its
guaranty, or the bankruptcy or insolvency of any guarantor.
(b) Upon the occurrence of any such events of default described in this
Paragraph or elsewhere in this Lease, Landlord shall have the option to pursue
any one or more of the following remedies without any notice or demand
whatsoever:
(1) Landlord may, at its election, terminate this Lease or terminate
Tenant's right to possession only, without terminating the Lease;
(2) Upon any termination of this Lease, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession without
termination of the Lease. Tenant shall surrender possession and vacate the
Premises immediately, and deliver possession thereof to Landlord, and Tenant
hereby grants to landlord full and free license to enter into and upon the
Premises in such event with or without process of law and to repossess Landlord
of the Premises as of Landlord's former estate and to expel or remove Tenant and
any others who may be occupying or within the Premises and to remove any and all
property therefrom, without being deemed in any manner guilty of trespass,
eviction or forcible entry or detainer, and without incurring any liability for
any damage resulting therefrom, Tenant hereby waiving any right to claim damage
for such re-entry and expulsion, and without relinquishing Landlord's right to
rent or any other right given to Landlord hereunder or by operation of law;
(3) Upon termination of this Lease, whether by lapse of time or
otherwise, Landlord shall be entitled to recover as damages, all rent, including
any amounts treated as additional rent hereunder, and other sums due and payable
by Tenant on the date of termination, plus the sum of: (1) an amount equal to
the then present value of the entire amount of the rent calculated using a
discount rate equal to the average discount rate of auctioned 3-month Treasury
Bills as of the date of termination of this Lease, including any amounts treated
as additional rent hereunder, and other sums provided herein to be paid by
Tenant for the residue of the stated term hereof, less the fair rental value of
the Premises for such residue taking into account the time and expense necessary
to obtain a replacement tenant or tenants, including expenses hereinafter
described in paragraph 19(b)(4) relating to recovery of the Premises,
preparation for reletting and for reletting itself, and (ii) the cost of
performing any other covenants which would have otherwise been performed by
Xxxxxx.
(4) (i) Upon any termination of Tenant's right to possession only without
termination of the Lease, Landlord may, at Landlord's option, enter into the
Premises, remove Xxxxxx's signs and other evidences of tenancy, and take and
hold possession thereof as provided in Paragraph 19(b)(2) above, without such
entry and possession terminating the Lease or releasing Tenant, in whole or in
part, from any obligation, including Tenant's obligation to pay therein,
including any amounts treated as additional rent, hereunder for the full term.
In any such case, Tenant shall pay forthwith to Landlord, if Landlord so elects,
a sum equal to the entire amount of the rent, including any amounts treated as
additional rent hereunder, for the residue of the stated term hereof plus any
other sums provided herein to be paid by Tenant for the remainder of the term of
this Lease;
(ii) Landlord may, but need not, relet the Premises or any part thereof
for such rent and upon such terms as Landlord in its sole discretion shall
determine (including the right to relet the Premises for a greater or lesser
term than that remaining under this Lease, the right to relet the Premises as a
part of a larger area, and the right to change the character or use made of the
Premises) and Landlord shall not be required to accept any tenant offered by
Tenant or to observe any instructions given by Tenant about such reletting. In
any such cases, Landlord may make repairs, alterations and additions in or to
the Premises, and redecorate the same to the extent Landlord deems necessary or
desirable, and Tenant shall, upon demand, pay the cost thereof, together with
Landlord's expenses of reletting including, without limitation, any broker's
commission incurred by Landlord. If the consideration collected by Landlord upon
any such reletting plus any sums
14
previously collected from Tenant are not sufficient to pay the full amount of
all rent, including any amounts treated as additional rent hereunder and other
sums reserved in this Lease for the remaining term hereof, together with the
costs of any repairs, alterations, additions, redecorating, and Xxxxxxxx's
expenses or reletting and the collection of the rent accruing therefrom
(including attorney's fees and broker's commissions). Tenant shall pay to
Landlord the amount of such inconsistency.
(5) Landlord may, at Xxxxxxxx's option, enter into and upon the Premises,
with or without process of law, if Landlord determines in its sole discretion
that Tenant is not acting within a commercially reasonable time to maintain,
repair or replace anything for which Xxxxxx is responsible hereunder and correct
the same, without being deemed in any manner guilty of trespass, eviction or
forcible entry and detainer and without incurring any liability for any damage
resulting therefrom and Xxxxxx agrees to reimburse Landlord, on demand, as
additional rent, for any expenses which Landlord may incur in thus effecting
compliance with Tenant's obligations under this Lease;
(6) Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of the Lease or by law, to which Tenant is or
may be entitled, may be handled, removed and stored, as the case may be, by or
at the direction of Landlord at the risk, cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Xxxxxxxx's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Premises shall, at Landlord's option, be
deemed conveyed by Tenant to Landlord under this Lease as by a bill of sale
without further payment or credit by Landlord to Tenant.
(c) Pursuit of any of the foregoing remedies shall not preclude pursuit
of any of the other remedies herein provided or any other remedies provided by
law (all such remedies being cumulative), nor shall pursuit of any remedy herein
provided constitute a forfeiture or waiver of any rent due to Landlord hereunder
or any damages accruing to Landlord by reason of the violation of any of the
terms, provisions and covenants herein contained. No act or thing done by
Landlord or its agents during the term hereby granted shall be deemed a
termination of this Lease or an acceptance of the surrender of the Premises, and
no agreement to terminate this Lease or accept a surrender of the Premises shall
be valid unless in writing signed by Landlord. Xxxxxxxx's acceptance of the
payment of rental or other payments hereunder after the occurrence of an event
of default shall not be construed as a waiver of such default, unless Landlord
so notifies Tenant in writing. Forbearance by Landlord in enforcing one or more
of the remedies herein provided upon an event of default shall not be deemed or
constitute a waiver of such default or of Landlord's right to enforce any such
remedies with respect to such default or any subsequent default. If, on account
of any breach or default by Tenant in Tenant's obligations under the terms and
conditions of this Lease, it shall become necessary or appropriate for Landlord
to employ or consult with an attorney concerning or to enforce or defend any of
Landlord's rights or remedies hereunder, Xxxxxx agrees to pay attorney's fees so
incurred.
(d) Without limiting the foregoing, Tenant hereby appoints and designates
the Premises as a proper place for service of process upon Tenant, and agrees
that service of process upon any person apparently employed by Tenant upon the
Premises or leaving process in a conspicuous place within the Premises shall
constitute personal service of such process upon Tenant (provide, however,
Landlord does not hereby waive the right to serve Tenant with process by any
other lawful means).
20. DAMAGE BY FIRE, ETC.
(a) If the Building, improvements, or Premises are rendered partially or
wholly untenantable by fire or other casualty, and if such damage cannot, in
Landlord's reasonable estimation, be materially restored within one hundred
twenty (120) days of such damage, then Landlord may, at its sole option,
terminate this Lease as of the date of such fire or casualty. Landlord shall
exercise its option provided herein by written notice to Tenant within sixty
(60) days of such fire or other casualty. For purposes hereof, the Building,
improvements, or Premises shall be deemed "materially restored" if they are
15
in such condition as would not prevent or materially interfere with Xxxxxx's use
of the Premises for the purpose for which it was then being used.
(b) If this Lease is not terminated pursuant to Paragraph 20(a), then
Landlord shall proceed with all due diligence to repair and restore the
Building, at Landlord's cost, or the improvements or Premises at Tenant's cost,
as the case may be (except that Landlord may elect not to rebuild if such damage
occurs during the last year of the term exclusive of any option which is
unexercised at the date of such damage).
(c) If this Lease shall be terminated pursuant to this Paragraph 20(a),
the term of this lease shall end on the date of such damage as if that date had
been originally fixed in this Lease for the expiration of the term hereof. If
this Lease shall not be terminated by Landlord pursuant to this Paragraph 20(a)
and in the event that Landlord should fail to complete such repairs and material
restoration within one hundred fifty (150) days after the date of such damage,
Tenant may at its option and as its sole remedy terminate this Lease by
delivering written notice to Landlord, whereupon the Lease shall end on the date
of such notice as if the date of such notice were the date originally fixed in
this Lease for the expiration of the term hereof; provided, however, that if
construction is delayed because of changes, deletions, or additions in
construction requested by Tenant, strikes, lockouts, casualties, Acts of God,
war, material or labor shortages, governmental regulation or control or other
causes beyond the reasonable control of Landlord, the period for restoration,
repair or rebuilding shall be extended for the amount of time Landlord is so
delayed.
(d) Xxxxxx agrees that during any period of restoration or repair of the
Premises, Tenant shall continue the operation of Tenant's business within the
Premises to the extent practicable. During the period from the date of the
damage until the date that the untenantable portion of the Premises is
materially restored, the rent shall be reduced to the extent of the proportion
of the Premises which is untenantable, however, there shall be no abatement of
other sums to be paid by Tenant to Landlord as required by this Lease.
(e) In no event shall Landlord be required to rebuild, repair or
replace any part of the partitions, fixtures, additions and other improvements
which may have been placed in or about the Premises by Tenant after the
Commencement Date, however Landlord has the right but not the obligation to
rebuild, repair or replace at Tenant's expense so much of the partitions,
fixtures, additions and other improvements as may be necessary to ensure that
the Premises are materially restored. Any insurance which may be carried by
Landlord or Tenant against loss or damage to the Building or Premises shall be
for the sole benefit of the party carrying such insurance and under its sole
control except that Landlord's insurance may be subject to control by (i) the
holder or holders of any indebtedness secured by a mortgage or deed of trust
covering any interest of Landlord in the Premises, the Building, or the Property
and/or (ii) the ground lessor of the Property.
(f) Notwithstanding anything herein to the contrary, in the event the
holder of indebtedness secured by a mortgage or deed of trust covering the
Premises, Building or Property or the ground lessor of the Property requests
that any insurance proceeds be paid to it, then Landlord shall have the right to
terminate the Lease by delivering written notice of termination to Tenant within
fifteen (15) days after such requirement is made by any such person, whereupon
the Lease shall end on the date of such damage as if the date of such damage
were the date originally fixed in this Lease for the expiration of the term.
(g) In the event of any damage or destruction to the Building or he
Premises by any peril covered by the provisions of this Paragraph 20, Tenant
shall, upon notice from Landlord, remove forthwith, at its sole cost and
expense, all or such portion of the property belonging to the Tenant or its
licensees from all of the Building or the Premises, or such portion, as Landlord
shall request. Tenant hereby indemnifies and holds Landlord harmless from any
loss, liability, costs, and expenses, including attorney's fees, arising out of
any claim or damage or injury as a result of any alleged failure to secure the
Premises property prior to such removal and/or during such removal.
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21. CONDEMNATION
(a) If any substantial part of the building, improvements, or Premises
should be taken for any public or quasi-public use under governmental law,
ordinance or regulation, or by right of eminent domain, or by private purchase
in lieu thereof and the taking would prevent or materially interfere with
Tenant's then existing permitted use of the Premises, this Lease shall terminate
effective when the physical taking shall occur in the same manner as if the date
of such taking were the date originally fixed in this Lease for the expiration
of the term hereof.
(b) If part of the Building, improvements, or Premises shall be taken for
any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and this Lease is not terminated as provided in Paragraph 21(a), this
Lease shall not terminate but the rent payable hereunder during the unexpired
portion of this Lease shall be reduced to such extent, if any, as may be fair
and reasonable under all of the circumstances, and Landlord shall undertake to
restore the Building, improvements, and Premises to a condition suitable for
Tenant's use, as near to the condition thereof prior to such taking as is
reasonably feasible under all circumstances.
(c) Tenant shall not share in any condemnation award or payment in lieu
thereof or in any award for damages resulting from any grade change of adjacent
streets, the same being hereby assigned to Landlord by Xxxxxx, provided,
however, that Tenant may separately claim and receive from the condemning
authority, if legally payable, compensation for Xxxxxx's removal and relocation
costs and for Tenant's loss of business and/or business interruption, except
that no such claim shall diminish or otherwise adversely affect Landlord's award
or the awards of any and all ground and underlying lessors and mortgagees
(including deed of trust beneficiaries).
(d) Notwithstanding anything to the contrary contained in this Paragraph
21, if the temporary use or occupancy of any part of the Premises shall be taken
or appropriated under power of eminent domain during the term of this Lease,
this Lease shall be and remain unaffected by such taking or appropriation and
Tenant shall continue to pay in full all rent payable hereunder by Tenant during
the term of this Lease; in the event of any such temporary appropriation or
taking, Tenant shall be entitled to receive that portion of any award which
represents compensation for the use of occupancy of the Premises during the term
of this Lease, and Landlord shall be entitled to receive that portion of any
award which represents the cost of restoration of the Premises and the use and
occupancy of the Premises after the end of the term of this Lease.
22. SALE BY LANDLORD
The covenants and obligations of Landlord hereunder shall be binding upon
the Landlord named herein and its successors and assigns, _______ with respect
to their respective periods of time as Landlord hereunder. In the event of a
sale or conveyance by Landlord of the Building, the ________ shall operate to
release Landlord from any future liability upon any of the covenants or
conditions, express or implied, herein contained in favor of Xxxxxx, and in such
event Xxxxxx agrees to look solely to the successor in interest of Landlord in
and to this Lease. Xxxxxx agrees to attorn to the purchaser or assignee in any
such sale.
23. RIGHT OF LANDLORD TO PERFORM
All covenants and agreements to be performed by the Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If the Tenant shall fail to pay any
sum of money, other than rent, required to be paid by it hereunder or shall fail
to perform any other act on its part to be performed hereunder, and such failure
shall continue for ten (10) days after notice thereof by the Landlord, the
Landlord may, but shall not be obligated so to do, and without waiving or
releasing the Tenant from any obligations of the Tenant, make any such payment
or perform any such act on the Tenant's part to be made or performed as in this
Lease provided. All sums so paid by the Landlord and all necessary incidental
costs, together with interests thereon at the Agreed Interest Rate as defined in
Paragraph 8 hereof from the date of such payments by the Landlord shall be
payable as additional rent to the Landlord on demand, and the Tenant covenants
to pay any such sums, and the Landlord shall have, in addition to any other
right or remedy of the Landlord, the same rights and remedies in the event of
nonpayment thereof by the Tenant as in the case of default by the Tenant in the
payment of the rent.
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24. SURRENDER OF PREMISES
(a) At the end of the term or any renewal thereof or other sooner
termination of this Lease, the Tenant will peaceably deliver up to the Landlord
possession of the Premises, together with all improvements or additions upon or
belonging to the same, by whomsoever made, in the same condition as received, or
first installed, reasonable wear and tear, damage by fire, earthquake, Act of
God, or the elements alone excepted. Tenant may, upon the termination of this
Lease, remove all movable furniture and equipment belonging to Tenant, at
Tenant's sole cost, repairing any damage caused by such removal. Property not
so removed shall be deemed abandoned by the Tenant, and title to the same shall
thereupon pass to Landlord. Upon request by Xxxxxxxx, unless otherwise agreed
to in writing by Landlord, Tenant shall remove, at Tenant's sole cost, any or
all permanent improvements or additions to the Premises installed by or at the
expense of Tenant, provided that Landlord so requested such approval at the time
of giving its consent to the addition or improvement, and all movable furniture
and equipment belonging to Tenant which may be left by Tenant and repair any
damage resulting from such removal.
(b) The voluntary or other surrender of this Lease by Xxxxxx, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of the
Landlord, either terminate all or any existing subleases or subtenancies, or
operate as an assignment to Landlord of any or all such subleases or
subtenancies.
25. WAIVER
If either Landlord or Tenant waives the performance of any term, covenant
or condition contained in this Lease, such waiver shall not be deemed to be a
waiver of any subsequent break or nonperformance of the same or any other term,
covenant or condition contained herein. Furthermore, the acceptance of rent by
Landlord shall not constitute a waiver of any preceding breach by Tenant of any
term, covenant or condition of this Lease, regardless of Landlord's knowledge of
such preceding breach at the time Landlord accepted such rent. Failure by
Landlord to enforce any of the terms, covenants or conditions of this Lease for
any length of time shall not be deemed to waive or to decrease the right of
Landlord to insist thereafter upon strict performance by Xxxxxx. Waiver by
Landlord of any term, covenant or condition contained in this Lease may only be
made by a written document signed by Landlord.
26. NOTICES
All notices and demands which may or are required to be given by either
party to the other hereunder shall be in writing and shall be deemed given when
delivered or mailed as required below. All notices and demands by the Landlord
to the Tenant shall be either delivered to the Premises or sent by a commercial
interstate courier service offering proof of delivery or by United States
Certified or Registered mail, postage and fees prepaid, addressed to the Tenant
at the Premises, with a copy of such notices sent to: CompuCom Systems, Inc.,
Attention: Property Management, 00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx
00000, or to such other place as the Tenant may from time to time designate in a
notice to the Landlord. All notices and demands by the Tenant to the Landlord
shall be sent by United States Certified or Registered mail, postage prepaid,
addressed to the Landlord at each of the addresses specified in the Basic Lease
Information, or to such other firm or to such other place as Landlord may from
time to time designate in a notice to the Tenant. If requested by Landlord,
Xxxxxx shall send copies of any notices and demands by Tenant to the holder or
holders of any mortgage or deed of trust on the Property or any part thereof.
27. RENTAL ADJUSTMENT
The Net Rent is Fourteen Dollars and Seventy-Five Cents ($14.75) per
rentable square foot per year on Twenty-Two Thousand Nine Hundred and Seventy-
Four ($22,974.00) per month and the Expense Stop Rent is Six Dollars ($6.00) per
rentable square foot per year, or Nine Thousand Three Hundred and Forty-Six
Dollars ($9,346.00) per month as set forth in the Basic Lease Information on
Page 2 of the Lease. Said Net Rent and Expense Stop Rent shall be subject to
adjustment on the first day of each January after the Commencement Date (the
"Rental Adjustment Date") in the manner set forth below:
(a) On and as of the Rental Adjustment Date for each year, the monthly
Net Rent shall be multiplied by 1.02 and that product shall be the monthly Net
Rent payable commencing with said Rental Adjustment Date.
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(b) Rental Adjustment, Operating Cost Increases. In addition to the
-------------------------------------------
payment of Net Rent and Expense Stop Rent, and all other charges provided for in
this Lease, Tenant shall pay as Pro Rata Share of any increase in the total
annual Operating Costs of the Building as hereinafter defined:
1. Definitions
(i) Pro Rata Share: Tenant's Pro Rata Share is defined as the ratio
of the rentable square footage of the Premises to the total rentable
square footage of the Building. In this Lease, Xxxxxx's Pro Rata
Share is 13.99 percent (13.99%) subject to increase or decrease due
to an increase or decrease of the rentable square footage of either
the Building or the Premises. Tenant's Pro Rata Share shall be
adjusted for partial years at the beginning and end of the term.
(ii) Expense Stop: The Expense Stop, for purpose of this Paragraph
27 is $6.00 per square foot of rentable area of the Premises. The
Expense Stop is based upon Xxxxxxxx's reasonable best estimates of
the Operating Costs for a fully assessed and ninety-five percent
(95%) occupied building.
(iii) Comparison Year. Each calendar year during the term of this
Lease.
(iv) Operating Costs: All expenses incurred by Landlord as
reasonably determined by Landlord to be necessary or appropriate for
the operation, maintenance, and repair of the Building, the personal
property used in conjunction therewith, the land upon which the
Building is situated, and the parking facility situated on the land.
Operating Costs shall include, but are not limited to, all expenses
incurred by Landlord for heating, cooling, electricity, water, gas,
sewers, refuse collection, telephone services not chargeable to
tenants, and similar utility services; the cost of supplies;
janitorial and cleaning, security services, landscaping maintenance
and replacements, window washing, insurance, management fees,
services of independent contractors performing duties necessary to
the operation of the Building, personal and real property taxes, the
Building's pro rata share of assessments made by the Windward
Property Owner's Association, non-capitalized alterations or
improvements made to the Building by reason of the laws and/or the
requirements of any insurer, mortgagee (only where such requirements
form insurer or mortgagee concern safety or structural features of
the Building and are commercially reasonable in light of requirements
generally imposed in the insurance or real estate lending industries
with respect to similar buildings), or governmental agency, the cost
of any capital improvements (a) which are made to the Building by
Landlord during the term which reduce the Operating Costs to the
extent such Operating Costs are actually reduced in any comparison
Year, or (b) which are made to the Building by Landlord after the
date of this Lease and which are required under any governmental law
or regulation which was not applicable to the Building at the
Commencement Date or was not enacted prior to the Commencement Date
(Operating Costs under (a), (b) or the prior item shall be amortized
over the useful life of the improvements at a market rate of
interest), the cost of compensation (including employment taxes and
fringe benefits) of all persons who perform duties in connection with
such Operating Costs, including the Building Manager, and any other
expense or charge which in accordance with generally accepted
accounting and management principles would be considered an expense
of maintaining, operating, or repairing the Building and the land
upon which it is situated.
Operating Costs shall not include the following items:
Leasing commissions, finders fees, brokerage fees and similar fees,
and costs incurred with the registration or enforcement of leases but
not management fees; Rent under any ground leases; Costs of
furnishing services to other tenants or occupants to the extent that
such services are materially in excess of services Landlord offers to
all tenants at Landlord's expense; Lease takeover costs incurred by
Landlord
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in connection with new leases at the Property, Costs and expenses of
the sale of all or any portion of the Property, Amounts received by
Landlord through the proceeds of insurance to the extent the proceeds
are compensation for expenses which were previously included in
uprooting expenses; Costs incurred by Landlord with respect to
repairs, goods and services (including utilities sold and supplied to
tenants and occupants of the Property) to the extent that Landlord is
entitled to reimbursement for such costs; Except as otherwise
provided herein, costs incurred by Landlord for alterations which are
considered capital improvements and replacements under generally
accepted accounting principles, consistently applied; Except as
otherwise provided herein, costs of a capital nature, including,
without limitation, capital improvements, capital repairs, capital
equipment and capital tools, all as determined in accordance with
generally accepted accounting principles, consistently applied; Costs
incurred by Landlord due to the violation by landlord of the terms
and conditions of any lease of space in the Property; Interest,
points and fees on debt or amortization or for any mortgage or
mortgages encumbering the Property, or any part thereof, and all
principal, escrow deposits and other sums paid on or in respect to
any indebtedness; whether or not secured by a mortgage lien) and on
any equity participations of any lender or lessor, and all costs
incurred in connection with any financing, refinancing or syndication
of the Property, or any part thereof; Depreciation and amortization;
the costs of the original construction of the Property and the
improvements; Income, franchise, transfer, inheritance, capital
stock, estate, profit, gift, gross receipts or succession taxes;
salaries, fringe benefits and other compensation for personnel not
directly involved in the operation or management of the Building;
costs and expenses of the sale of all or a portion of the Property,
costs of repairs or replacements incurred by reason of fire or other
casualty or condemnation in excess of the value of the insurance
deductible; costs for performing tenant installations for any
individual tenant or for performing work or furnishing services to or
for individual tenants at such tenant's expense and any other
contribution by Landlord to the cost of tenant improvements to the
extent such work is reimbursed or capitalized; Landlord's general
corporate overhead and general administrative expenses, except as
related to the operation or maintenance of the Building; rentals and
other related expenses incurred in leasing air-conditioning systems,
elevators or other equipment ordinarily considered to be of a capital
nature except for customary office equipment. All special assessments
by the local governing authority which may be paid by Landlord in
installments, shall be paid by Landlord in the maximum number of
installments permitted by law and charged as operating expenses only
in the year in which the assessment installment is actually paid.
(v) Actual Costs: The actual amount paid or incurred by Landlord
for Operating Costs during any Comparison year.
(vi) Estimated Costs: Landlord's reasonable estimate of Actual Costs
for each Comparison Year which shall be prepared in good faith by
Landlord.
2. Gross Up: In the event that the Building is not at least 95% occupied
--------
during any period of the Comparison Year, Landlord shall make
reasonable adjustments necessary to project what the Actual Costs
would have been had the Building been 95% occupied during the full
term of the year and those projected Operating Costs shall be deemed
to be the Actual Costs for purposes of this Paragraph.
3. Payment of Tenant's Pro Rata Share of Estimated Costs: At least
-----------------------------------------------------
thirty (30) days prior to the commencement of each Comparison Year
during the term hereof, Landlord shall furnish Tenant with a written
statement, prepared in good faith, setting forth the Estimated Costs
for such Comparison Year, and a statement showing the amount by which
Xxxxxx's Pro Rata Share of the Estimated costs exceed the Expense
Stop. Tenant shall pay one-twelfth (1/12) of its Pro Rata Share of
such excess monthly.
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4. Payment of Tenant's Pro Rata Share of Actual Costs: Within forty-five
--------------------------------------------------
(45) days after the close of each Comparison Year, Landlord shall
deliver to Tenant a written statement setting forth the Actual Costs
during that Comparison Year, together with appropriate documentation,
if so requested by Tenant. If such Actual Costs exceed the Estimated
Costs paid by Tenant to Landlord for such Comparison Year, Tenant
shall pay to Landlord its Pro Rata Share of such excess within forty-
five (45) days after receipt of such statement. If the statement
shows such Actual Costs to be less than the Estimated Costs, then
Landlord shall credit the difference against rent due for the
calendar months next following receipt of Landlord's written
statement, or refund the difference to Tenant if the term has
expired.
5. Inspection of Landlord's Books: Tenant shall be entitled to
------------------------------
supporting documentation of operating costs as it shall reasonably
request. Tenant may, upon reasonable notice to Landlord, inspect
Landlord's books and records pertaining to operating cost charges at
their usual location.
28. CERTAIN RIGHTS RESERVED TO THE LANDLORD
The Landlord may enter upon the Premises and/or may exercise any or all of
the following rights hereby reserved without being deemed guilty of an eviction
or disturbance of the Tenant's use or possession and without being liable in any
manner to the Tenant and without abatement of rent or affecting any of the
Tenant's obligations hereunder:
(a) To change the name or street address of the Building;
(b) To install and maintain a sign or signs on the exterior of the
Building;
(c) To designate all sources furnishing sign painting and lettering, food
and beverage vending services, towels, carpet cleaning service, toilet
supplies, lamps and bulbs used on the Premises;
(d) To retain at all times pass keys to the Premises;
(e) To grant to any the exclusive right to conduct any particular
business or undertaking in the Building;
(f) To close the Building after regular working hours and on the legal
holidays subject, however to Tenant's right of admittance, under such
reasonable regulations as Landlord may prescribe from time to time, which
may include by way of example but not of limitation, that persons entering
or leaving the Building identify themselves to a watchman by registration
or otherwise and that said persons establish their right to enter or leave
the Building; and
(g) To take any and all measures, including inspections, repairs,
alterations, decorations, additions and improvements to the Premises or the
Building, and identification and admittance procedures for access to the
Building as may be necessary or desirable for the safety, protection,
preservation or security of the Premises or the Building or the Landlord's
interests, or as Landlord may deem necessary or desirable in the operation
of the Building.
29. ABANDONMENT
Tenant shall not vacate or abandon the Premises at any time during the
term, and if Tenant shall abandon, vacate, or surrender said Premises or be
dispossessed by process of law, or otherwise, any personal property belonging to
Xxxxxx and left on the Premises shall, at the option of Landlord, be deemed to
be abandoned and title thereto shall thereupon pass to Landlord, in addition to
other remedies available to Landlord for Tenant's defaults under this lease.
Notwithstanding the foregoing, so long as Tenant is satisfying all its
obligations of this Lease except those associated with occupying the Premises,
Tenant may vacate the Premises.
30. SUCCESSORS AND ASSIGNS
Subject to the provisions of Paragraph 9 hereof, the terms, covenants, and
conditions contained herein shall be binding upon and inure to the benefit of
the heirs, successors, executors, administrators and assigns of the parties
hereto.
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31. ATTORNEY'S FEES
In the event that any action or proceeding is brought to enforce any term,
covenant or condition of this Lease on the part of Landlord or Tenant, the
prevailing party in such litigation shall be entitled to reasonable attorney's
fees to be fixed by the court in such action or proceeding.
32. SECURITY DEPOSIT
(a) Tenant shall pay to Landlord upon execution of this Lease the
security deposit specified in the Basic Lease Information for the faithful
performance of all terms, covenants and conditions of this Lease. Xxxxxx agrees
that Landlord may apply said security deposit to remedy any failure by Tenant to
repair or maintain the Premises or to perform any other terms, covenants, and
conditions contained herein. If Tenant has kept and performed all terms,
covenants, and conditions of this Lease during the term hereof, Landlord will on
the termination hereof promptly return said sum to Tenant or the last permitted
assignee of Xxxxxx's interest hereunder at the expiration of the Lease term.
Should Landlord use any portion of said sum to cure any default by Tenant
hereunder, Tenant shall forthwith replenish said sum to such original amount.
Landlord shall not be required to keep any security deposit separate from its
general funds, and Tenant shall not be entitled to interest on any such deposit.
Upon the occurrence of any events of default described in Paragraph 19 of this
Lease, said security deposit shall become due and payable to Landlord.
(b) Subject to other terms and conditions contained in this Lease, if
the Building is conveyed by Xxxxxxxx, said security deposit may be turned over
to the Landlord's grantee and, if so, Tenant hereby releases Landlord from any
and all liability with respect to said deposit and its application or return.
33. TENANT AUTHORITY
If Tenant signs as a corporation or partnership, each of the persons
executing this Lease on behalf of Tenant does hereby covenant and warrant that
Tenant is a duly authorized and existing corporation or partnership, as the case
may be, that Tenant has and is qualified to do business in Georgia, that the
corporation or partnership has full right and authority to enter into this
Lease, and that each and all of the persons signing on behalf of the corporation
or partnership are authorized to do so. Upon Landlord's request, Tenant shall
provide Landlord with evidence reasonably satisfactory to Landlord confirming
the foregoing and warranties.
34. MORTGAGEE AND GROUND LESSOR APPROVALS
The approval or consent of Landlord shall not be deemed to have been
unreasonably withheld for purposes of any provisions of this Lease requiring
such consent if any mortgagee (which shall include the holder of any deed of
trust) of the Premises, Building or Property or any portion thereof, or the
ground lessor of the Property, shall refuse or withhold its approval or consent
thereto. Any requirement of Landlord pursuant to this Lease which is imposed
pursuant to the direction of any such mortgagee or ground lessor shall be deemed
to have been reasonably imposed by Landlord if made in good faith.
35. MISCELLANEOUS
(a)(i) The term "Premises" wherever it appears herein includes and shall
be deemed or taken to include (except where such meaning would clearly repugnant
to the context) the office space demised and improvements now or at any time
hereinafter comprising or built in the space hereby demised. (ii) The paragraph
headings herein are for convenience of reference and shall in no way define,
increase, limit, or describe the scope or intent of any provision of this Lease.
(iii) The term "Landlord" in these presents shall include the Landlord, its
successors and assigns. In any case where the Lease is signed by more than one
person, the obligations hereunder shall be joint and several. (v) The term
"Tenant" or the pronoun used in place thereof shall indicate and include the
masculine or feminine, the singular or plural number, individuals, firms or
corporations, and their and each of their respective successors, executors,
administrators, and permitted assigns, according to the context hereof. (vi)
The term "Lease" wherever it appears herein shall be deemed or taken to include
the Basic Lease Information and all paragraphs and exhibits attached hereto and
made a part hereof.
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(b) Time is of the essence of this Lease and all of its provisions.
Periods of time expressed in days for performance, unless otherwise specified,
shall mean calendar days.
(c) This Lease shall in all respects be governed by the laws of the State
of Georgia.
(d) This Lease, together with its exhibits, contains all the agreements
of the parties hereto and supersedes any previous negotiations. There have been
no representations made by the Landlord or understandings made between the
parties other than those set forth in this Lease and its exhibits. This Lease
may not be modified except by a written instrument by the parties hereto.
(e) All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof.
(f) If any clause, phrase, provision or portion of this Lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not affect, impair or
render invalid or unenforceable the remainder of this Lease or any other clause,
phrase, provision or portion hereof, nor shall it affect the application of any
other clause, phrase, provision or portion hereof to other persons or
circumstances, and it is also the intention of the parties to this Lease that in
lieu of each such clause, phrase, provision or portion of this Lease that is
invalid or unenforceable, there be added as a part of this Lease contract a
clause, phrase, provision or portion as similar in terms to such invalid or
unenforceable clause, phrase, provision or portion as may be possible and be
valid and enforceable.
(g) Whenever a period time is herein described for action to be taken by
Landlord, the Landlord shall not be liable for responsible for, and there shall
be excluded from the computation for any such period of time, any delays due to
causes of any kind whatsoever which are beyond the control of Landlord.
(h) Notwithstanding any other provision of this Lease to the contrary, if
the Commencement Date hereof shall not have occurred before the twentieth (20th)
anniversary of the date hereof, this Lease shall be null and void and neither
party shall have any liability or obligation to the other hereunder. The
purpose and intent of this provision is to avoid the application of the rule
against perpetuities to this Lease.
36. QUIET ENJOYMENT
Landlord represents and warrants that it has full right and authority to
enter into this Lease and that Tenant, while paying the rental and performing
its other covenants and agreements herein set forth, shall peaceably and quietly
have, hold and enjoy the Premises for the term hereof without hindrance or
molestation from Landlord subject to the terms and provisions of this Lease. In
the event this Lease is a sublease, then Xxxxxx agrees to take the Premises
subject to the provisions of the prior leases. Landlord shall not be liable for
any interference or disturbance by other tenants or third persons, nor shall
Tenant be released from any of the obligations of this Lease because of such
interference or disturbance.
37. LANDLORD'S LIABILITY
In no event shall Landlord's liability for any breach of this Lease exceed
the amount of rental then remaining unpaid for the current term (exclusive of
any renewal periods which have not then actually commenced). This provision is
not intended to be a measure or agreed amount of the Landlord's liability with
respect to any particular breach, and shall not be utilized by any court or
otherwise for the purpose of determining any liability of Landlord hereunder,
except only as a maximum amount not to be exceeded in any event. Furthermore,
any liability of Landlord hereunder shall be enforceable only out of Landlord's
interest in the Building or Property and in no event out of the separate assets
of any constituent partner of Landlord. No holder or beneficiary of any
mortgage or deed of trust on any part of the Property shall have any liability
to Tenant hereunder for any default of Landlord.
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38. NO ESTATE
This contract shall create the relationship of Landlord and Tenant, and no
estate shall pass out of Landlord. Xxxxxx has only a usufruct, not subject to
levy and sale and not assignable by Xxxxxx, except as provided for herein and in
compliance herewith.
39. SUBSTITUTION OF PREMISES
At any time after the date of this Lease, Landlord may substitute for the
Premises other premises in the Building or premises in another building if such
other building is located within the same business park (the "New Premises"), in
which event the New Premises shall be deemed to be the Premises for all purposes
under this Lease, provided: (i) the New Premises shall be similar to the
Premises in area and appropriateness for the use of Tenant's purposes; (ii) if
Tenant is then occupying the Premises, Landlord shall pay the expense of moving
Tenant, its property and equipment to the New Premises and such moving shall be
done at such time and in such manner so as to cause the least inconvenience to
Tenant; (iii) Landlord shall give to Tenant not less than ninety (90) days'
prior written notice of such substitution; and (iv) Landlord shall, at its sole
cost, improve the New Premises with improvements substantially similar to those
in the Premises.
40. LEASE EFFECTIVE DATE
Submission of this instrument for examination or signature by Xxxxxx does
not constitute a reservation of or option for lease, and it is not effective as
a lease or otherwise until execution by both Landlord and Tenant.
41. HAZARDOUS MATERIALS
Tenant shall not cause or permit the escape, disposal or release of any
biologically or chemically active or other hazardous substances, or materials
in, on, or about the Premises. Tenant shall not allow the storage or use of
such substances or materials in, on, or about the Premises in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Premises in any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice has been given
to Landlord of the identity of such substances or materials excepting, however,
ordinary office and cleaning supplies. Without limitation, hazardous substances
and materials shall include those described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601 et seq., the Resource Conservation and Recovery Act, as amended. 42 U.S.C.
Section 6901 et seq., any applicable state or local laws and the regulations
adopted under these acts. If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any release of
hazardous materials in, on, or about the Premises, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as additional
charges if such requirement applies to Tenant's use and occupancy of the
Premises. In addition, Xxxxxx shall execute affidavits, representations and the
like from time to time at Landlord's request concerning Xxxxxx's best knowledge
and belief regarding the presence of hazardous substances or materials
introduced by Tenant on the Premises. In all events, Xxxxxx shall indemnify
Landlord in the manner elsewhere provided in this Lease from any release of
hazardous materials in, on, or about on the Premises occurring while Tenant is
in possession, or elsewhere if caused by Tenant or persons acting under Tenant.
The within covenants shall survive the depreciation or earlier termination of
the lease term. Landlord represents and warrants that the Building does not,
and will not, on the Commencement Date contain hazardous materials or substances
as defined herein, other than those materials that may have been introduced by
Tenant, Xxxxxx's contractor or Tenant's employees.
42. SCHEDULED EXPANSION
Tenant hereby agrees to lease for a term commencing on the first day of the
nineteenth (19th) month of the Lease Term and coterminous with the Lease Term
for the original Premises, an additional 5,000 rentable square feet, being that
remaining portion of the 2nd floor not already then occupied by Tenant, as
outlined in red on Exhibit "H" (the "Scheduled Expansion Space"), brining the
total area of the Premises to approximately 23,691 rentable square feet, and
Tenant's Pro Rata Share in accordance with Paragraph 27 shall adjust
accordingly. Beginning on the first day of the nineteenth (19th) month of the
Lease Term, the Scheduled Expansion Space shall be added to the Premises without
the need for further amendment to the Lease, and the Net Rent and Expense Stop
Rent, as calculated in Paragraph 27 of this Lease, shall be
24
adjusted to reflect the increase in the Premises. Tenant shall receive no
allowance beyond that provided by Exhibit "C" of this Lease for the improvements
of the Scheduled Expansion Space, it being understood that a portion of the
allowance provided for by Exhibit "C" is for the improvements of the Scheduled
Expansion Space. Improvements to the Scheduled Expansion Space may be made at
the time of improvements to the original Premises in order to take advantage of
construction efficiencies.
43. NON-DISTURBANCE
Landlord shall use reasonable best efforts to secure a Non-Disturbance
Agreement on behalf of Tenant from any present or future mortgages or holders of
other superior interests in the Building.
44. GUARANTY
The guarantee of this Lease ("Guaranty") is set forth as Exhibit "F"
attached hereto and made a part hereof.
45. RENEWAL OPTIONS
Tenant shall have the right and option to renew this Lease for an
additional term of sixty (60) months by delivering written notice thereof to
Landlord at least twelve (12) months prior to the expiration of the primary
term, provided that at the time of such notice, and the end of the Lease Term,
Tenant is not in default hereunder beyond any applicable period for cure. Upon
the delivery of said notice and subject to any conditions set forth in the
preceding sentence, and upon the execution by Landlord and Tenant of an
extension agreement containing such terms and provisions which are consistent
with the provisions of this Paragraph, this Lease shall be extended upon the
same terms, covenants and conditions as provided in this Lease, except that:
(i) the monthly rental payable under Paragraph 4 of the Lease during said
renewal term shall be the prevailing market rate for Premises at the
commencement of such extended term; provided, however, in no event shall the
monthly rental calculated by this Paragraph 46 be less than the monthly rental
payable closest to an prior to the commencement of renewal term;
(ii) any termination of this Lease, any assignment of this Lease or
subletting of the Premises in effect at the time of notice to Landlord of the
exercise of such renewal option (except in the case of assignments or sublets
for which Xxxxxxxx's consent is not required as provided in Paragraph 9) shall
terminate the option of Tenant contained in this Paragraph 46.
47. MICROWAVE ANTENNA
Tenant shall have the right, subject to approvals of Landlord, including,
but not limited to, approvals of Landlord as to placement position, screening
and coloring, to install a satellite dish antenna in an area designated by
Landlord. Tenant shall install the smallest antennas reasonablely available to
it to accomplish its intended use but in no event shall such antenna exceed 6'
in diameter. The installation, maintenance or operation shall not interfere
with the quiet enjoyment or business operations of other tenants in the
Building. The costs of installation, including compliance with Landlord's rules
and all regulations of a governmental entity or regulatory body, shall be borne
solely and exclusively by Tenant. Landlord shall not be responsible for the
suitability of the Building or Property for the proper operation of the
antennas.
48. SIGNAGE
Tenant, at Xxxxxx's sole cost and expense (but Tenant may use a portion of
Landlord's Allowance for the same), shall be entitled to install signage,
including Tenant's corporate name and logo, on the Building monument sign, as
well as in the Building on the walls of elevator lobbies and entrance doors on
any full floors leased by Tenant. Tenant's exterior signage shall be limited to
the Building monument sign, and such signage shall be underneath and smaller
than signage provided on the monument sign for Vanity Fair. Tenant shall first
provide Landlord with detailed specifications for the design and placement of
any signage for Landlord's approval, which shall not be unreasonably withheld or
delayed. It shall not be unreasonable for Landlord to withhold approval of the
submitted signage if such signage is incompatible with the
25
design of the Building monument sign or the Building's standard signage or if
such signage would materially detract from the appearance of the Building or the
Building monument sign. Landlord and the Tenant hereby confirm that all exterior
signage is subject to the ordinances of Xxxxxx County and Alpharetta, Georgia,
as well as restrictions imposed by the Windward Business Park. Landlord shall
assist Xxxxxx, to the extent reasonably possible, in obtaining proper
governmental approvals and permits for the requested signage. Signage on any
floor occupied in its entirety by Tenant is not required to conform to the
Building standard signage.
49. BROKER'S FEES
With the exception of The Xxxxxx Co., 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 attorneys' 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 claim dealings with the indemnitor and relating to this Lease or the
negotiation thereof.
IN WITNESS WHEREOF, the parties have executed this Lease under seal the day
and year first above written.
LANDLORD TENANT
CK WINDWARD #1, LLC, ClientLink, Incorporated, a Delaware
corporation
a North Carolina limited liability
company
By: By: /s/ Xxxxx X. Xxxxxxxx
------------------------------- -------------------------------
(Seal)
Date: Name: Xxxxx X. Xxxxxxxx
---------------------------- -----------------------------
Title: President
----------------------------
Date: September 27, 1996
-----------------------------
ATTEST/WITNESS: ATTEST/WITNESS:
/s/ Xxxxxxx Xxx
------------------------------- ------------------------------
Its: Its: Operations Manager
--------------------------- -------------------------
(Affix Corporate Seal) (Affix Corporate Seal)
26
EXHIBIT "A"
RULES AND REGULATIONS
1. Sidewalks, halls, passages, exits, entrances, elevators and stairways shall
not be obstructed by tenants or used by them for any purpose other than for
ingress to and egress from their respective premises. The halls, passages,
exits, entrances, elevators, escalators and stairways are not intended for
the use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose presence,
in the judgment of Landlord, shall be prejudicial to the safety, character,
reputation and interests of the Building and its tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of such
tenant's business unless such persons are engaged in illegal activities.
No tenant, no employees or invites of any tenant, shall go upon the roof of
the Building, except as authorized by Landlord.
2. No sign, placard, picture, name, advertisement or notice, visible from the
exterior of the premises shall be inscribed, painted, affixed, installed or
otherwise displayed by any tenant either on its premises or any part of the
Building without the prior written consent of Landlord, and Landlord shall
have the right to remove any such sign, placard, picture, name,
advertisement, or notice without notice to and at the expense of that
tenant.
If Landlord shall have given such consent to any tenant at any time,
whether before or after the execution of the lease, such consent shall in
no way operate as a waiver or release of any of the provision hereof or of
such lease, and shall be deemed to relate only to the particular sign,
placard, picture, name, advertisement or notice so consented to by Landlord
and shall not be construed as dispensing with the necessity of obtaining
the specific written consent of Landlord with respect to any other such
sign, placard, picture, name, advertisement or notice.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of the tenant by a person
approved by Landlord.
3. The bulletin board or directory of the Building will be provided
exclusively for the display of the name and location of tenants only and
Landlord reserves the right to exclude any other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awing, hangings or decorations shall be attached to, hung or
placed in or used in connection with, any window or door on the premises of
any tenant without the prior written consent of Landlord. In any event and
with the prior written consent of Landlord, all such items shall be
installed in such a manner that they shall in no way be visible from the
exterior of the Building. No articles shall be placed or kept on the
window xxxxx so as to be visible from the exterior of the Building. No
articles shall be placed against glass partitions or doors which might
appear unsightly from outside the premises of any tenant.
5. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 8 a.m. Monday through Friday and at all hours on Saturdays,
Sundays, and holidays all persons who are not tenants or their accompanied
guests in the Building. Each tenant shall be responsible for all persons
whom it allows to enter the Building and shall be liable to Landlord for
all acts of such persons.
Landlord shall in co case be liable for damages for error with regard to
the admission to or exclusion from the Building of any person.
27
During the continuance of any invasion, mob, riot, public excitement or
other circumstance rendering such action advisable in Landlord's opinion,
Landlord reserves the right to prevent access to the Building by closing
the doors, or otherwise, for the safety of tenants and protection of the
Building and property in the Building.
No tenant shall employ any person or persons other than the janitor or
Landlord for the purpose of cleaning the Premises unless otherwise agreed
to by Landlord in writing. Except with the written consent of Landlord no
person or persons other than those approved by Landlord shall be permitted
to enter the Building for the purpose of cleaning the same. No tenant
shall cause any unnecessary labor by reason of such tenant's carelessness
or indifference in the preservation of good order and cleanliness of the
premises. Landlord shall in no way be responsible to any tenant for any
loss of property on the premises, however occurring, or for any damage done
to the effects of any tenant by the janitor or any other employee or any
other person. Landlord shall not be responsible for the preservation of
good order and cleanliness of the premises when the premises are occupied
after normal business hours.
8. Each tenant shall see that all doors of its premises are closed and
securely locked and must observe strict care and caution that all water
faucets or water apparatus are entirely shut off before the tenant or its
employees leave such premises, and that all utilities shall likewise be
carefully shut off, so as to prevent waste or damage, and for any default
or carelessness the tenant shall make good all injuries sustained by other
tenants or occupants of the Building. On multiple-tenancy floors, all
tenants shall keep the door or doors to the Building corridors closed at
all times except for ingress and egress.
9. As more specifically provided in each tenant's lease, each tenant shall not
waste electricity, water or air conditioning and agrees to cooperate fully
with Landlord to assure the most effective operation of the Building's
heating and air conditioning, and shall refrain from attempting to adjust
any controls. Each tenant shall keep window coverings in its premises
closed when the effect of sunlight or cold weather would impose unnecessary
loads on the Building's heating or air conditioning systems.
10. No tenant shall alter any lock or access device or install a new or
additional lock or access device to any bolt on any door of its premises
without the prior written consent of Landlord. If Landlord shall give its
consent, the tenant shall in each case furnish Landlord with a key for any
such lock.
11. No tenant shall make or have made additional copies of any keys or access
devices provided by Landlord. Each tenant, upon the termination of the
tenancy, shall deliver to Landlord all keys or access devices for the
Building, offices, rooms and toilet rooms which have been furnished to the
tenant or which the tenant shall have made. In the event of the loss of
any keys or access devices so furnished by Landlord, tenant shall pay
Landlord therefor.
12. The toilet rooms, toilets, urinals, wash bowls, and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever, including coffee grounds,
shall be thrown therein, and the expense of any breakage, stoppage or
damages resulting from violation of this rule shall be borne by the tenant
who, or whose employees or invitees, shall have caused it.
13. No tenant shall use or keep on its premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material other than limited
quantities necessary for the operation or maintenance of office equipment.
Such limited quantities shall be only stored in containers approved by
appropriate regulatory agencies. No tenant shall use any method of heating
or air conditioning other than that supplied by Landlord.
14. No tenant shall use, keep or permit to be used or kept in its premises any
foul or noxious gas or substance or permit or suffer such premises to be
occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason or noise, odors and/or vibrations
or interfere in any way with other tenants or
28
those having business therein, nor shall any birds or animals other than
seeing eye dogs and like animals be brought or kept in or about any
premises of the Building.
15. No cooking shall be done or permitted by any tenant on its premises (except
that use by the tenant of Underwriter's Laboratory approved equipment for
the preparation of coffee, tea, hot chocolate and similar beverages for
tenants and their employees shall be permitted, provided that such
equipment and use is in accordance with all applicable federal, state, and
city laws, codes, ordinances, rules and regulations) nor shall its premises
be used for lodging.
16. Except with the prior written consent of Landlord, no tenant shall sell or
permit the sale, at retail, of newspapers, magazines, periodicals, theater
tickets or any other goods or merchandise in or on its premises, nor shall
tenant carry on, or permit or allow any employee or other person to carry
on, the business of stenography, typewriting, printing, photocopying or any
similar business in or from its premises for the service or accommodation
of occupants of any other portion of the Building, nor shall its premises
be used for the storage of merchandise or for manufacturing of any kind, or
the business of a public xxxxxx shop, beauty parlor, nor shall its premises
be used for any improper, immoral or objectionable purpose, or any business
activity other than that specifically provided for in that tenant's lease.
17. If tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
for their installation. No tenant shall operate any television, radio,
recorder or sound system in such a manner as to cause a nuisance to any
other tenant of the Building.
18. Xxxxxxxx will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call boxes and other
office equipment affixed to the premises shall be subject to the written
approval of Landlord.
19. No tenant shall install any radio or television antenna, loudspeaker or any
other device on the exterior walls or the roof of the Building. No tenant
shall interfere with radio or television broadcasting or reception from or
in the Building or elsewhere.
No tenant shall lay linoleum, title, carpet or any other floor covering so
that the same shall be affixed to the floor of its premises in any manner
except as approved in writing by Landlord. The expense of repairing any
damage resulting from a violation of this rule or the removal of any floor
covering shall be borne by the tenant by whom, or by whose contractors,
employees or invitees, the damage shall have been caused.
21. No furniture, freight, equipment, materials, supplies, packages,
merchandise, or other property will be received in the Building or carried
up or down the elevators except between such hours and in such elevators as
shall be designated by Landlord.
Landlord shall have the right to prescribe the weight, size and position of
all safes, furniture, files, bookcases or other heavy equipment brought
into the Building. Safes or other heavy objects shall, if considered
necessary by Landlord, stand on wood strips of such thickness as determined
by Landlord to be necessary to distributed properly the weight thereof.
Landlord will not be responsible for loss of or damage to any such safe,
equipment or property from any cause, and all damage done to the Building
by moving or maintaining any such safe equipment or other property shall be
repaired at the expense of the responsible tenant.
Business machines and mechanical equipment belonging to any tenant which
cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the Building shall be placed and maintained
by tenant, at tenant's expense, on
29
vibration eliminators or other devices sufficient to eliminate noise or
vibration. The persons employed to move such equipment in or out of the
Building must be acceptable to Landlord.
22. No tenant shall place a load upon any floor of its premises which exceeds
the loan per square foot which such floor was designed to carry and which
is allowed by law. No tenant shall mark, or drive nails, screw or drill
into, the partitions, woodwork or plaster or in any way deface its premises
or any part thereof.
23. No tenant shall install, maintain or operate upon its premises any vending
machines without the written consent of Landlord.
24. There shall not be used in any space, or in the public areas of the
Building, either by any tenant or others, any hand trucks except those
equipped with rubber tires and side guards or other such material-handling
equipment as Landlord may approve. No other vehicles of any kind shall be
brought by any tenant into or kept in or about its premises.
25. Each tenant shall store all its trash and garbage within the interior of
its premises. No material shall be placed in the trash boxes or
receptacles if such material is of such nature that it may not be disposed
of in the ordinary and customary manner of removing and disposing of trash
and garbage in the city without violation of any law or ordinance governing
such disposal. All trash, garbage and refuse disposal shall be made only
through entryways and elevators provided for such purposes and at such
times as Landlord shall designate.
26. Canvassing, soliciting, distribution of handbills or any other written
materials, and peddling in the Building are prohibited and each tenant
shall cooperate to prevent the same. No tenant shall make room-to-room
solicitation of business from other tenants in the Building.
27. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs or who is in violation of any of the Rules and
Regulations of the Building.
28. Without the prior written consent of Landlord, no tenant shall use the name
of the Building in connection with or in promoting or advertising the
business of such tenant except as that tenant's address.
29. Each tenant shall comply with all energy conservation, safety, fire
protection and evacuation procedures and regulations established by
Landlord or any governmental agency.
30. Tenant assumes any and all responsibility for protecting its premises from
theft, robbery and pilferage, which includes keeping doors locked and other
me of entry to the premises closed.
31. The requirements of each tenant will be attended to only upon application
at the office of the Building by an authorized individual. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord, and no employees
will admit any person (tenant or otherwise) to any office without specific
instructions from Landlord.
32. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other tenant or tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all tenants of the building.
30
33. Landlord reserves the right to make such other reasonable rules and
regulations as in its judgment may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order therein. Each tenant agrees to abide by all
such Rules and Regulations hereinabove stated and any additional rules and
regulations which adopted.
34. All wallpaper or vinyl fabric materials which any tenant may install on
painted walls shall be applied with a strippable adhesive. The use of
nonstrippable adhesives will cause damage to the walls when materials are
removed and repairs made necessary thereby shall be made by Landlord at
that tenant's expense.
35. Each tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service to such tenant, to Landlord
for Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in
the Building, including installations of telephones, telegraph equipment,
provision shall apply to all work performed in the Building, including
installations of telephones, telegraph equipment, electrical devices and
attachments and installations of any nature affecting floors, trim,
windows, ceilings, equipment or any other physical portion of the Building
37. Each tenant shall give prompt notice to Landlord of any accidents to or
defects in plumbing, electrical fixtures, or heating apparatus so that such
accidents or defects may be attended to promptly.
38. Each tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by its employees, agents, clients, customers,
invitees and guests.
39. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part the terms,
covenants, agreements and conditions of any lease of any premises in the
Building.
31
EXHIBIT "B"
[GRAPHICAL REPRESENTATION OF
OFFICE SPACE - OMITTED]
32
EXHIBIT "C"
OFFICE LEASE IMPROVEMENT AGREEMENT
1. IMPROVEMENTS
(a) At Tenant's expense, Landlord shall furnish and install substantially
in accordance with the construction drawings and specifications approved by
Tenant and landlord, partitions, doors, lighting fixtures, acoustical ceiling,
floor coverings, electrical outlets, telephone outlets, air conditioning, fire
sprinklers, signage, wall finishes, and construction clean-up and other
improvements required by Tenant which are normally performed by the construction
trades. Tenant shall cause to be prepared at Tenant's expense all architectural
plans and specifications, and all structural, mechanical and electrical
engineering plans and specifications (the "Plans") required for Tenant's
occupancy. The preparation of the Plans shall not include selection of non-
building standard finishes, or any fixtures or furniture, or any other elements
of interior design. Xxxxxx has selected, and Landlord hereby approves, Xxxxxx &
Associates ("Tenant's Architect") to prepare the Plans.
(b) At Landlord's expense, Landlord shall or has provided the following
(hereinafter referred to as "Landlord's Work"):
1. HEATING, VENTILATION AND AIR-CONDITIONING: Building standard primary
duct work and perimeter supply and return grilles served by a central air system
to provide normal air conditioning and heating. The cost of changes
necessitated by Xxxxxx's work shall be paid by Xxxxxx.
2 CEILING GRID AND STANDARD LIGHTING: Building standard ceiling grid.
Building standard acoustical ceiling tiles in crates stacked on floor. Twenty-
four (24) fluorescent building standard lighting fixtures per 2,000 rentable
square feet in vacuum packed containers stacked on floor. All costs to install
ceiling tiles and light fixtures to be at Tenant's expense.
3. SUBFLOOR: Concrete floor, finished, ready for application of carpet,
vinyl composition tile or other floor covering.
4. FIRE SPRINKLERS: Building standard sprinkler heads in a general
protective pattern as required by code. The cost of changes necessitated by
Xxxxxx's work shall be paid by Xxxxxx.
2. LANDLORD'S ALLOWANCE
As Xxxxxxxx's contribution to work provided in paragraph 1, Landlord shall
provide Tenant with an allowance of Four Hundred Seventy-Three Thousand Eight
Hundred and Twenty Dollars ($473,820.00), hereinafter referred to as "Landlord's
Allowance"). Notwithstanding the above, Tenant may, at Xxxxxx's discretion, use
all or any portion of the Landlord Allowance for costs related to design and
construction of the Tenant Improvements, Xxxxxx's signage costs, moving expenses
and installation of Tenant's furniture. Any unused portion of the Landlord
Allowance, not to exceed $2.00 per rentable square foot will be used as a credit
towards the initial rent.
3. TENANT'S COST
(a) Tenant shall bear the cost, if any, of the work described in Paragraph
1 over and above the Allowance provided by Landlord under Paragraph 2 (Paragraph
3 work is hereinafter referred to as "Tenant's Cost"). Any modifications of any
part of the work described in Paragraph 1 already completed that are requested
by Tenant shall constitute part of Tenant's Cost.
(b) Tenant shall pay for all costs associated with any Tenant-requested
changes or modifications of the improvements as defined by the Plans in
Paragraph 1 of this Exhibit "C" after the Plans have been approved by Tenant.
Tenant will be liable for any increase in construction costs if Tenant causes
delays as defined in Paragraph 3(b) of this Lease.
33
(c) Tenant shall pay one-half (1/2) of the amounts payable by Tenant to
Landlord pursuant to this Exhibit "C" immediately following Xxxxxx's approval of
the price to be paid to Landlord as per Paragraph 4(b) hereof, and Tenant shall
pay the remaining amounts immediately upon the Commencement Date of the Lease.
4. PLANNING SCHEDULE
(a) Preparation and Approval of Plans:
(i) Landlord and Tenant shall diligently pursue the preparation of the
Plans. Tenant, at its expense, shall provide Landlord with Preliminary Plans
and Pricing Notes no later than August 19, 1996. Failure of Tenant to provide
said instructions by the date specified above shall constitute a delay by the
Tenant in accordance with the provisions of Paragraph 3(b) of the Lease.
Landlord shall obtain preliminary pricing for Xxxxxx's review based on the
Preliminary Plans and Pricing Notes and deliver such pricing to Tenant within
seven (7) days.
(ii) The Plans shall then be prepared in conformance with Landlord's
requirements and all applicable codes and shall be subject to approval by the
City of Alpharetta Building and Inspections Department. Tenant shall submit
complete construction plans to Landlord no later than October 7, 1996. Failure
of Tenant to provide said plans shall constitute a delay by Tenant in accordance
with Paragraph 3(b) of the Lease.
(b) Upon receipt of the approved Plans, Landlord shall provide a quotation
based upon competitively bid sub-contract pricing for the work to Tenant for
approval as the price to be paid by Tenant to Landlord for Tenant's Cost. Upon
written approval of such price by Tenant, Landlord and Tenant shall be deemed to
have given final approval to the Plans as the basis on which the quotation was
made, and Landlord shall be authorized to proceed with the improvements of the
Premises in accordance with such Plans. Tenant will not unreasonably withhold
its approval of such price. Failure of Tenant to approve or disapprove such
price within seven (7) days after submission thereof by Landlord, or
unreasonable disapproval of such price, shall constitute a delay by Tenant in
accordance with the provisions of Paragraph 3(b) of the Lease. Landlord shall
not be obligated to proceed with any improvements of the Premises until such
time as Tenant approves a price for the Tenant's Cost. Exhibit "C-1" provides
the intermediate actions required of both Landlord and Tenant to satisfy the
schedule hereof.
5. TENANT'S WORK
All work not within the scope of the normal construction trades employed in
the Building, including, but not limited to, furnishing and installing of
telephones, furniture, and office equipment, shall be furnished and installed by
Tenant at Tenant's expense. Tenant shall adopt a schedule in conformance with
the schedule of Landlord's contractors and conduct its work in such a manner as
to maintain harmonious labor relations and as not to interfere unreasonably with
or delay the work of Xxxxxxxx's contractors. Tenant's contractors,
subcontractors, and labor shall be acceptable to and approved by Landlord and
shall be subject to the administrative supervision of Landlord. Contractors and
subcontractors engaged by Tenant shall employ persons and means to insure so far
as may be possible the progress of the work without interruption on account of
strikes, work stoppages or similar causes for delay. Landlord shall give access
and entry to the Premises to Tenant and its contractors and subcontractors and
reasonable opportunity and time and reasonable use of facilities to enable
Tenant to adapt the Premises for Tenant's use; provided, however, that if such
entry is prior to the Commencement Date, such entry shall be subject to all the
terms and conditions of the Lease, except the payment of rent.
34
EXHIBIT "C-1"
THE FOLLOWING SCHEDULE MORE CLEARLY DEFINES THE INTERMEDIATE STEPS ESSENTIAL TO
MEET THE DATES AS PROVIDED IN EXHIBIT "C".
ACTION DATE
1. PRELIMINARY SPACE PLAN PRICING NOTES AUGUST 19
DELIVERED TO LANDLORD BY TENANT NO LATER
THAN:
2. DETAILED PRELIMINARY ESTIMATE COMPLETED BY
XXXXXXXX AND DELIVERED TO TENANT WITHIN
SEVEN (7) CALENDAR DAYS OF RECEIPT OF TENANT'S
PRELIMINARY SPACE PLAN AND PRICING NOTES.
3. 50% CONSTRUCTION DOCUMENTS DELIVERED TO SEPTEMBER 13
LANDLORD BY TENANT NO LATER THAN:
4. BUDGET PRICING AND PRELIMINARY LANDLORD
COMMENTS ON 50% CONSTRUCTION DOCUMENTS
DELIVERED TO TENANT BY LANDLORD WITHIN TEN
(10) CALENDAR DAYS FROM RECEIPT OF TENANT'S
DOCUMENTS.
5. 100% CONSTRUCTION DOCUMENTS DELIVERED TO OCTOBER 7
LANDLORD BY TENANT NO LATER THAN:
6. FINAL PRICING AND LANDLORD'S COMMENTS ON
100% CONSTRUCTION DOCUMENTS DELIVERED TO
TENANT BY LANDLORD WITHIN TEN (10) DAYS FROM
RECEIPT OF TENANT'S DOCUMENTS.
7. TENANT'S FINAL ACCEPTANCE OF ALL PLANS AND OCTOBER 24
PRICING DELIVERED TO LANDLORD NO LATER THAN:
8. SUBSTANTIAL COMPLETION AND START OF DECEMBER 20
WORKSTATION INSTALLATION ON OR ABOUT:
9. OCCUPANCY AND COMMENCEMENT OF RENT
WITHIN SEVEN (7) CALENDAR DAYS OR
SUBSTANTIAL COMPLETION.
NOTE: SCHEDULE ASSUMES ALL MATERIALS, EQUIPMENT, AND FINISHES ARE IN STOCK OR
AVAILABLE IN A TIMELY MANNER SO AS TO NOT DELAY THE JOB PROGRESS. SUBSTITUTION
OR DELETION OF SPECIFIED ITEMS MAY BE REQUIRED TO MAINTAIN SCHEDULE.
35
EXHIBIT "D"
TENANT LEASE ESTOPPEL CERTIFICATE
---------------------------------
Landlord: XX XXXXXXX #1, LLC. a North Carolina limited liability company
Tenant: ClientLink, Incorporated, a Delaware corporation
Premises:
-----------------------------------------------------------------
Area: Sq. Ft. Lease Date:
---------------------- ----------------------------
The undersigned Tenant under the above-referenced lease (the "Lease")
hereby ratifies the Lease and certifies to ________________________ ("Landlord")
as owner of the real property of which the premises demised under the Lease (the
"Premises") is a part, as follows:
1. That the term of the Lease commenced on _________, 19____ and the
Tenant is in full and complete possession of the Premises demised under the
Lease and has commenced full occupancy and use of the Premises, such possession
having been delivered by Xxxxxxxx and having been accepted by the Tenant.
2. That the Lease call for monthly rent installments of $_________ to
date, and that the Tenant is paying monthly installments of rent of $______
which commenced to accrue on the day of ________________, 19____.
3. That no advance rental or other payment has been made in connection
with the Lease, except rental for the current month. There is no "free rent" or
other concession under the remaining term of the Lease, and the rent has been
paid to and including ___________________, 19___.
4. That a security deposit in the amount of $______________ is being held
by Landlord, which amount is not subject to any set off reduction or to any
increase for interest or other credit due to Tenant.
5. That all obligations and conditions under said Lease to be performed
to date by Landlord or Tenant have been satisfied, free of defenses and set-offs
including all construction work in the Premises.
6. That the Lease is a valid lease and in full force and effect and
represents the entire agreement between the parties; that there is no existing
default on the part of Landlord or the Tenant in any of the terms and conditions
thereof and no event has occurred which, with the passing of time or giving of
notice to both, would constitute an event of default, and that said Lease has:
(Initial One)
( ) not been amended, modified, supplemented, extended, renewed
or assigned.
( ) been amended, modified, supplemented, extended, renewed or
assigned as follows by the following described agreements:
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
36
7. That the Lease provides for a primary term of ______ months; the term
of the Lease expires on the ______ day of ___________, 19____; and that:
(Initial One)
( ) neither the Lease nor any of the documents listed in Paragraph 6
(if any), contain an option for any additional term or terms.
( ) the Lease and/or the documents listed under Paragraph 6, above,
contain an option for _________ additional term(s) of ________ year(s)
and _________ month(s) (each) at a rent to be determined as follows:
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
8. That Landlord has not rebated, reduced or waived any amounts due from
Tenant under the Lease, whether orally or in writing, nor has Landlord provided
financing for, made loans or advances to, or invested in the business of Tenant.
9. That, to the best of Xxxxxx's knowledge, there is no apparent or
likely contamination of the real property or the Premises by hazardous
materials, and Tenant does not use, nor has Tenant disposed of, hazardous
materials in violation of environmental laws on the real property or the
Premises.
10. That there are no actions, voluntary or involuntary, pending against
the Tenant under the bankruptcy laws of the United States or any state thereof.
11. That this certification is made knowing that the Landlord is relying
upon the representation herein made.
12. That this certification is made knowing that the Landlord is relying
upon the representation herein made.
Tenant:
-----------------------------
Dated: ---------------- By: ----------------------------
Typed Name: -------------------
Title: --------------------------
37
CLIENTLINK, INC.
SECRETARY'S CERTIFICATE
The undersigned, Xxxxxx X. Xxxxxx, certifies that he is the duly elected
and qualified Secretary of ClientLink, Inc., a Delaware corporation (the
"Company"), and further certifies that the preambles and resolutions attached
hereto as Exhibit A were adopted by the Board of Directors of the Company in
---------
accordance with applicable law. Such resolutions have been entered in the
minute book of the Company, have not been amended, altered or repealed and
remain in full force and effect on the date hereof.
The undersigned further certifies that the following individuals are as of
the date hereof officers of the Company holding the offices indicated below:
Xxxxx X. Xxxxxxxx President
Xxxxxx X. Xxxxxx Secretary
IN WITNESS WHEREOF, I have hereunto signed this Certificate on the 26th day
of September, 1996.
CLIENTLINK, INC.
By: -----------------------------
Xxxxxx X. Xxxxxx,
Secretary
38
EXHIBIT A
---------
New Lease Agreement
-------------------
A discussion then took place with respect to the Possibility of the Company
entering into a lease agreement for new office space. Upon motion duly made and
seconded, the following resolutions were unanimously adopted:
RESOLVED, that the Company is hereby authorized and directed to
enter into a lease agreement with CK Windward #1, LLC providing for
the lease by the Company of new office space for a term of up to 60
months at a rental rate of $32,320 per month (the "Lease Agreement").
FURTHER RESOLVED, that any officer of the Company is hereby
authorized, directed and empowered, acting either alone or together
with another officer of the Company, to execute and deliver all
documents necessary or appropriate, including, but not limited to,
the Lease Agreement, and to take any such other action as any such
officer may deem necessary to effect the intent of the foregoing
resolution, the taking of any such action, for, on behalf or in the
name of the Company, and/or the execution and delivery for, on behalf
and in the name of the Company, of any such document or instrument to
be conclusive evidence that such officer did so deem the same to be
necessary or desirable and in the best interests of the Company.
FURTHER RESOLVED, that any and all actions heretofore taken by the
officers or representatives of the Company, for, on behalf or in the
name of the Company with respect to the foregoing resolutions, be,
and they are hereby ratified, confirmed and approved in all respects
for all purposes.
39
EXHIBIT E
GENERAL CLEANING SPECIFICATIONS
-------------------------------
Page Two
Item Procedure Frequency
-------------------------------------------------------------------------------------------
6. Wet mop all floors using germicidal detergent Daily
7. Refill all towel, tissue holders and soap dispensers Daily
8. Spot clean toilet partitions with germicidal cleaner Weekly
9. Spot scrub floors with band brush Monthly
10. Wash all restroom walls (ceiling to floor and partitions) Monthly
11. Clean air vents Monthly
12. Squeegee clean mirrors Monthly
ELEVATORS
---------
Item Procedure Frequency
-------------------------------------------------------------------------------------------
1. Clean and polish finishes (brass, chrome, wood) Daily
2. Vacuum carpets Daily
3. Clean elevator tracks Daily
4. Dust elevator doors Daily
5. Clean carpets As needed
6. Steam extract carpets As needed
7. Edge vacuum carpets Daily
BUILDING EXTERIOR
-----------------
Item Procedure Frequency
-------------------------------------------------------------------------------------------
1. Police area around building, parking lot, shrubbery Daily
and dumpster pad
2. Remove cigarette butts from sidewalk entrance Daily
3. Clean building first floor reachable atrium exterior
glass inside and out Weekly
4. Polish entrance sign Monthly
5. Clean mailbox area Daily
6. Clean light bollard and front door entrance Weekly
7. Wash windows Twice annually
ATRIUM AND ELEVATOR LOBBIES
---------------------------
Item Procedure Frequency
-------------------------------------------------------------------------------------------
1. Spot clean all entrance glass Daily
2. Polish all metal and wood trim Daily
3. Clean and polish building directory on each floor Daily
4. Vacuum all carpet Daily
5. Spot clean carpet Daily
40
6. Low dust Weekly
7. Dust walls within reach Monthly
8. Completely clean entrance door glass Weekly
9. Clean elevator carpet As needed
10. Damp mop hard surface floors Daily
11. Dust mop hard surface floors Daily
12. Clean ash urns in elevator lobbies Daily
41
EXHIBIT "F"
LEASE GUARANTY
--------------
Annexed to and forming a part of Lease dated ___________, by and between CK
Windward #LLC, a North Carolina limited liability company, as Landlord, and
ClientLink, Incorporated, a Delaware corporation, as Tenant.
The undersigned, CompuCom Systems, Inc., whose address is 00000 Xxxxx
Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx 00000 (hereinafter sometimes referred to as
"Guarantor"), in consideration of the leasing of the leased Premises described
in the annexed Lease ("Lease") to the above-named Tenant ("Tenant"), and for Ten
Dollars ($10.00) in hand paid and other good and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, does hereby covenant
and agrees as follows:
A. The undersigned does hereby unconditionally and irrevocably guarantee the
full, faithful and timely payment by Tenant of all the payments, under or
pursuant to the Lease. If Tenant shall default at any time in the payment of
any rent or other sums, costs or charges whatsoever, under or pursuant to the
Lease (and such default shall remain uncured after notice to Tenant and the
undersigned as required by the Lease), then the undersigned, at its expense,
shall on demand of the Landlord fully and promptly, and will and truly, pay all
rent, sums, costs, and charges to be paid by Tenant, under or pursuant to the
Lease, and in addition shall, on Landlord's demand, pay to Landlord any and all
sums due to Landlord, including (without limitation) all interest on past due
obligations of Tenant, costs advanced by Landlord, and damages and all expenses
(including attorneys' fees and litigation costs) that may arise in consequence
of Tenant's default. The undersigned hereby waives all requirements of notice
of the acceptance of the Guaranty, notice of default, demand for payment, and
all other notices or demands of any kind.
B. The obligations of the undersigned hereunder are independent of the
obligations of Xxxxxx. A separate action or actions may, at Landlord's option,
be brought and prosecuted against the undersigned, whether or not any action is
first or subsequently brought against Tenant, or whether or not Tenant is joined
in any such action, and the undersigned may be joined in any action or
proceeding commenced by Landlord against Tenant arising out of, in connection
with, or based upon the Lease. The undersigned waives any right to require
Landlord to proceed against tenant or pursue any other remedy in Landlord's
power whatsoever (Guarantor hereby expressly waiving any rights under O.C.G.A.
(S) 10-7-24), any right to complain or delay in the enforcement of Landlord's
rights under the Lease, and any demand by Xxxxxxxx and/or prior action by
Landlord of any nature whatsoever against Tenant or otherwise.
C. The undersigned agrees that the liability of the undersigned hereunder
shall be based upon the obligations of Tenant set forth in the Lease as the same
may be altered, renewed, extended, modified, or amended. No such alteration,
renewal, extension, or modification, with or without notice to Guarantor, shall
in any manner affect or impair any rights or remedies of Landlord against
Guarantor, Guarantor hereby consenting to any such action. Landlord shall
endeavor to notify Guarantor of any proposed alteration, modification, or
amendment to the Lease, provided, however, that the failure to give any such
notice shall not in any manner affect or impair Landlord's rights or remedies
against Guarantor. No assignment of the Lease by Tenant shall be effective
without Guarantor's prior consent.
D. The undersigned's obligations hereunder shall remain fully binding although
Landlord may have, with or without notice to Guarantor, waived one or more
defaults by Xxxxxx, extended the time of performance by Xxxxxx, released,
returned, or misapplied other collateral at any time given as security for
Tenant's obligations (including other guaranties) and/or released Tenant or any
other obligor for the performance of its obligations under or with respect to
the Lease.
E. This Guaranty shall remain in full force and effect notwithstanding the
institution by or against Tenant, of bankruptcy, reorganization, readjustment,
receivership, or insolvency proceedings of any nature, or the disaffirmance of
the
42
Lease in any such proceedings or otherwise, Guarantor hereby agreeing to assume
and perform all of Tenant's obligations under the Lease for the original term if
the Lease should be disaffirmed or rejected by any trustee in bankruptcy for
Tenant.
F. The Guaranty shall be applicable to and binding upon the heirs, executors,
administrators, representatives, successors, and assigns of the Landlord,
Tenant, and the Guarantor. Landlord may, without notice, assign this Guaranty
in whole or in part.
G. In the event that Landlord should institute any suit against the Guarantor
for violation of or to enforce any of the covenants or conditions of this
Guaranty or to enforce any right of Landlord hereunder, or should the
undersigned institute any suit against Landlord arising out of or in connection
with this Guaranty, or should either party institute a suit against the other
for a declaration of rights hereunder, or should either party intervene in any
suit in which the other is a party, to enforce or protect its interests or
rights hereunder, the prevailing party in any such suit shall be entitled to the
fees of its attorney(s) in the reasonable amount thereof, to be determined by
the court and taxed as a part of the costs therein.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty this ______
day of ___________, 1996.
GUARANTOR
CompuCom Systems, Inc., A Delaware corporation
Attest: By:
------------------------ --------------------------------------------
Its: Its:
--------------------------- -------------------------------------------
(Authorized Person to Bind Said Entity)
43
EXHIBIT G
[legal description of the Property omitted from executed Office Lease
Agreement]
44
EXHIBIT H
[graphical representation of scheduled expansion space--omitted]
45
