EXHIBIT 10.34.1
" " " " " " " " " " "
LEASE AGREEMENT
BETWEEN
SANCTUARY PARK REALTY HOLDING COMPANY,
a Delaware corporation
(Landlord)
AND
INHIBITEX, INC.,
a Delaware corporation
(Tenant)
OAK VIEW I
at
XXXXXXXXX XXXX
Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx
(Premises)
" " " " " " " " " " "
TABLE OF CONTENTS - LEASE AGREEMENT
PAGE
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1. Basic Lease Information 1
2. Premises and Term 1
3. Monthly Rental, Additional Rent and Security Deposit 2
4. Use 4
5. Service and Utilities 5
6. Tenant Repairs 5
7. Alterations 5
8. Rules and Regulations 6
9. Inspection and Right of Entry 6
10. Surrender of Premises 6
11. Assignment and Subletting 6
12. Insurance 7
13. Fire and Casualty Damage 8
14. Waiver of Claims; Landlord's Liability and Indemnification 8
15. Condemnation 8
16. Holding Over 9
17. Quiet Enjoyment 9
18. Events of Default 9
19. Remedies 9
20. Bankruptcy 11
21. Intentionally Omitted 11
22. Subordination; Estoppel Certificates 11
23. Mechanics Liens; Other Taxes 12
24. Substitution of Premises 12
25. Certain Rights Reserved to Landlord 12
26. Notices 12
27. Hazardous Substances 13
28. Brokerage 14
29. ERISA Matters 14
30. Miscellaneous 14
31. Limitation of Landlord's Liability 16
32. Additional Provisions 16
EXHIBITS
Exhibit "A" Land
Exhibit "B" Premises
Exhibit "C" HVAC Specifications
Exhibit "D" Commencement Notice
Exhibit "E" Cleaning Specifications
Exhibit "F" Rules and Regulations
Exhibit "G" ERISA Matters
LEASE AGREEMENT
THIS
LEASE AGREEMENT (this "Lease"), made and entered into by and
between SANCTUARY PARK REALTY HOLDING COMPANY, a Delaware corporation
(hereinafter referred to as "Landlord"), and INHIBITEX, INC., a Delaware
corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H :
1. BASIC LEASE INFORMATION. Each use of the terms capitalized and
defined in this Paragraph 1 shall be deemed to refer to, and shall have the
respective meanings set forth in, this Paragraph 1.
(a) Building. The precast concrete and glass six (6) story
office building located on the Land and being commonly known as "Oak View I."
(b) Land. Those certain parcels of land more particularly
described on Exhibit "A" attached hereto and by this reference made a part
hereof.
(c) Premises. That portion of the fourth (4th) floor of the
Building, presently known as Suite Number 400 thereof, substantially as shown on
Floor Plan(s) attached hereto as Exhibit "B" and by this reference made a part
hereof.
(d) Common Areas. Those certain areas and facilities of the
Building that are from time to time provided by Landlord, in its discretion, for
the use of tenants of the Building and their employees, clients, customers,
licensees and invitees or for use by the public, which facilities and
improvements might include any and all corridors, elevator foyers, vending
areas, restrooms, electrical and telephone rooms, mechanical rooms, janitorial
areas and other similar facilities of the Building, and any and all grounds,
parks, landscaped areas, outside sitting areas, sidewalks, walkways, pedestrian
ways, loading docks, and generally all other improvements located on the Land
and designed for use in common by tenants, their employees, clients, customers,
licensees and invitees. Common Area also includes those portions of the Office
Park lying outside the Building which are designated as "common areas" for the
use, enjoyment and benefit of all owners or tenants of property located within
the Office Park and their lessees, subtenants and invitees.
(e) Tenant's Permitted Uses. Executive, general and
administrative offices reasonable and customary for a first-class office
building, including storage and other office uses accessory and incidental
thereto, but specifically excluding medical and dental offices, governmental
offices, travel agencies and airline ticket sales.
(f) Commencement Date. April 1, 2004.
(g) Lease Expiration Date. June 30, 2005.
(h) Term. Fifteen (15) months, beginning on the Commencement
Date and ending at 11:59 p.m. on the Lease Expiration Date, unless this Lease is
sooner terminated as provided herein.
(i) Net Rentable Area of the Premises. Approximately 13,448
rentable square feet based upon the actual number of square feet of usable area
in the Premises, plus a mutually agreed upon add-on factor to reflect the Common
Areas of the Building.
(j) Net Rentable Area of the Building. Approximately 153,101
square feet, subject to recalculation by Landlord, provided that any such
recalculation shall not increase Tenant's Share.
(k) Tenant's Share. 8.7837 percent (8.7837%) representing a
fraction, the numerator of which is the Net Rentable Area of the Premises and
the denominator of which is the Net Rentable Area of the Building, subject to
future adjustments in the case of any expansion of the Premises.
(l) Rent. The Monthly Rental, the Additional Rent [as defined
in Paragraph 3(a)] and all other sums due from Tenant to Landlord hereunder.
(m) Annual Rental Per Square Foot. Annual Rental Per Square
Foot means the annual rental rate per square foot of Net Rentable Area, which is
$19.00.
(n) Monthly Rental. Tenant shall pay to Landlord, commencing
on the Commencement Date and continuing throughout the Term, monthly rental
("Monthly Rental") calculated by multiplying the Net Rentable Area of the
Premises by the Annual Rental Per Square Foot, and then dividing the resulting
product thereof by twelve (12). Monthly Rental throughout the Term of this Lease
is $21,292.67 per month.
(o) Intentionally Omitted.
(p) Office Park. The business park composed of the areas
designated by Landlord from time to time as a part of the Office Park, which is
located along Rock Mill Road in Land Lots 592, 605, 606 and 639 of the 0xx
Xxxxxxxx, 0xx Xxxxxxx, Xxxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx.
(q) Security Deposit. $21,292.67, to be held by Landlord in
accordance with the provisions of Paragraph 3.
2. PREMISES AND TERM.
(a) In consideration of the obligation of Tenant to pay Rent
as herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases the Premises to Tenant, and
Tenant hereby accepts and leases the Premises from Landlord for the Term. During
the Term, Tenant shall have the right to use the Common Areas in common with
others and in accordance with the Rules and Regulations.
(b) The "Commencement Date" shall be the date set forth in
Paragraph 1 above.
(c) Intentionally Omitted.
(d) By remaining in possession of the Premises upon the
expiration of the "Extended Sublease Term" (as hereinafter defined), Tenant
shall be deemed to have accepted the Premises "as-is" and agreed that the
Premises, the Building and the Common Areas are then in good and satisfactory
order, repair and condition. Following the Commencement Date, Landlord shall
have
no obligation to make any improvements or repairs to the Premises, except as
otherwise set forth in this Lease. Landlord shall send to Tenant a Commencement
Notice, in the form attached hereto as Exhibit "D" and by this reference made a
part hereof, and Tenant shall execute and return such Commencement Notice to
Landlord within fifteen (15) days after Tenant's receipt thereof. Failure of
Tenant to execute and return such Commencement Notice to Landlord within such
fifteen (15) day period shall constitute an acknowledgement by Tenant that
statements included in the Commencement Notice are true and correct, without
exception.
3. MONTHLY RENTAL, ADDITIONAL RENT AND SECURITY DEPOSIT.
(a) Tenant shall pay to Landlord, without notice, demand,
offset or deduction, in lawful money of the United States of America, at
Landlord's Address for Payments as set forth in Paragraph 26 hereof, or at such
other place as Landlord shall designate in writing from time to time: (i) the
Monthly Rental, in equal monthly installments in advance on the first day of
each calendar month during the Term; and (ii) the Additional Rent ("Additional
Rent") consisting of those sums of money due and payable, if any, by Tenant
under Paragraphs 3(c), (d) and (e) hereof and all other sums of money due and
payable by Tenant hereunder, at the respective times required hereunder. Payment
of the Rent shall begin on the Commencement Date; provided, however, that if the
Commencement Date falls on a date other than the first day of a calendar month
or the Lease Expiration Date falls on a date other than the last day of a
calendar month, the Rent due for such fractional month shall be prorated on a
per diem basis between Landlord and Tenant so as to charge Tenant only for the
portion of such fractional month falling within the Term.
(b) Intentionally Omitted.
(c) Beginning January 1, 2005, and continuing on the first day
of each month thereafter during the Term, and any extension thereof, Tenant
shall pay to Landlord, as Additional Rent, at the same time as the monthly
installment of Monthly Rental is paid, an amount equal to one-twelfth (1/12th)
of Landlord's estimate (as determined by Landlord in its sole discretion) of
Tenant's Share of any projected increase in Operating Expenses for the
particular calendar year in excess of the Operating Expense Base (the "Estimated
Escalation Increase"). The Operating Expense Base shall be the actual Operating
Expenses experienced during calendar year 2004. If the Building is not fully
occupied during any calendar year, including, without limitation, calendar year
2004, Landlord shall adjust those Operating Expenses which are affected by
Building occupancy for such calendar year, or portion thereof, as the case may
be, to reflect an occupancy of not less than ninety-five percent (95%) of the
total Net Rentable Area of the Building. In computing the Estimated Escalation
Increase for any particular calendar year, Landlord shall take into account any
prior increases in Tenant's Share of Operating Expenses. If during any calendar
year the Estimated Escalation Increase is less than the Estimated Escalation
Increase for the previous year, such Additional Rent payments attributable to
the Estimated Escalation Increase to be paid by Tenant for the new calendar year
shall be decreased accordingly; provided, however, in no event will the Rent
paid by Tenant hereunder ever be less than the Monthly Rental. If, for any
reason, Landlord has not provided Tenant with the Estimated Escalation Increase
on or before the first (1st) day of any year during the Term, then, (i) until
the first (1st) day of the calendar month following the month in which Tenant is
given the Estimated Escalation Increase, Tenant shall continue to pay to
Landlord on the first (1st) day of each calendar month the sum, if any, payable
by Tenant under this Paragraph for the month of December of the preceding year,
and (ii) on the first (1st) day of the month following Tenant's receipt of
Landlord's determination of the Estimated Escalation Increase, Tenant shall pay
to Landlord an amount equal to one-twelfth (1/12) of the Estimated Escalation
Increase as shown on the estimate provided by Landlord, plus an amount equal to
the remainder obtained by subtracting the amount theretofore paid by Tenant
pursuant to subparagraph (i) from that amount obtained by multiplying the number
of months (exclusive of the month then at hand) occurring since the first day of
such year by Tenant's then-correct monthly share of the Estimated Escalation
Increase. If such calculation proves that Tenant has overpaid, Landlord shall
apply such overpayment as a credit against Tenant's future payment obligations
for Additional Rent until such credit is depleted. The foregoing
notwithstanding, Landlord shall have the right from time to time during any year
to notify Tenant in writing of any change in Landlord's estimate of the
Estimated Escalation Increase, in which event Tenant's payment of the Estimated
Escalation Increase, as previously estimated, shall be adjusted to reflect the
amount shown in such notice and shall be effective and due from Tenant on the
first day of the month following Landlord's giving of such notice.
(d) For the purposes of this Lease, the term "Operating
Expenses" shall mean all expenses and disbursements of every kind (subject to
the limitations set forth below) which Landlord incurs, pays or becomes
obligated to pay in connection with the ownership, operation and maintenance of
the Building, determined in accordance with generally accepted accounting
principles consistently applied, including but not limited to the following:
(i) Wages and salaries (including management fees) of
all employees engaged in the operation, repair, replacement,
maintenance and security of the Building, including taxes, insurance
and benefits relating thereto;
(ii) All supplies and materials used in the
operation, maintenance, repair, replacement and security of the
Building;
(iii) The annual cost of all capital improvements
made to the Building which, although capital in nature, can reasonably
be expected to reduce the normal operating costs of the Building, as
well as all capital improvements made in order to comply with any law
promulgated by any governmental authority not in effect or applicable
to the Building as of the date of Landlord's execution of this Lease or
which are designed to protect or enhance the health, safety or welfare
of the tenants in the Building or their invitees, as amortized over the
useful economic life of such improvements as determined by Landlord in
its reasonable discretion (without regard to the period over which such
improvements may be depreciated or amortized for federal income tax
purposes);
(iv) The cost of all electricity, water and other
utilities, other than the cost of utilities directly reimbursed to
Landlord (i.e., through submeters or comparable devices) by the
Building's tenants (including Tenant);
(v) The cost of any insurance or insurance related
expense applicable to the Building and Landlord's personal property
used in connection therewith;
(vi) All taxes and assessments and governmental
charges whether federal, state, county or municipal, and whether they
be by taxing or management districts or authorities presently taxing or
by others, subsequently created or otherwise, and any other taxes and
assessments attributable to the Building (or its operation), excluding,
however, federal and state taxes on income (collectively, "Taxes"); if
the present method of taxation changes so that in lieu of the whole or
any part of any Taxes levied on the Building, there is levied on
Landlord a capital tax directly on the rents received therefrom or a
franchise tax, assessment, or charge based, in whole or in part, upon
such rents for the Building, then all such taxes, assessments or
charges, or the part thereof so based, shall be deemed to be included
within the term "Taxes" for the purposes hereof;
(vii) Cost of security, repairs, replacements and
general maintenance of the interior and exterior of the Building
(including, but not limited to, the roof, the foundation and the
exterior walls; light bulbs and glass breakage; the redecorating,
repainting, recarpeting and other such work of any Common Areas;
heating, ventilation and air conditioning equipment; plumbing and
electrical equipment; elevators; trash removal; security services;
janitorial service; HVAC maintenance; grounds maintenance; alarm
services; window cleaning; parking areas and landscaping), whether
performed by Landlord or pursuant to service or maintenance contracts
with independent contractors;
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(viii) Cost of service or maintenance contracts with
independent contractors for the operation, maintenance, repair,
replacement or security of the Building (including, without limitation,
trash removal, security services, janitorial service, HVAC maintenance,
grounds maintenance, alarm services, window cleaning and elevator
maintenance);
(ix) Intentionally omitted;
(x) A management fee and other expenses incurred for
the general operation and management of the Building;
(xi) Legal and accounting fees and expenses;
(xii) Payments under any easement, license, operating
agreement, declaration, restrictive covenant or instrument pertaining
to the sharing of costs by the Building, including, but not limited to,
the Declaration of Protective Covenants of the Office Park; and
(xiii) Anything which could be classified as an
operating expense under generally accepted accounting principles,
consistently applied, but not specified or expressly set forth
hereunder.
"Operating Expenses" shall not include any of the following:
(1) Capital improvements made to the Building, other
than: (A) capital improvements described in subparagraph 3(d)(iii)
above; and (B) items which, though capital for accounting purposes, are
properly considered maintenance and repair items, such as painting of
Common Areas, replacement of carpet in elevator lobbies, and the like
[expenses for capital improvements of the type referenced in (A) and
(B) of this section (1) may be included in Operating Expenses].
(2) Repair, replacement and general maintenance paid
by proceeds of insurance or by Tenant or other third parties, and
alterations attributable solely to tenants of the Building other than
Tenant.
(3) Depreciation of the Building.
(4) Legal expenses with respect to disputes with
individual tenants and negotiation of tenant leases.
(5) Federal income taxes imposed on or measured by
the income of Landlord from the operation of the Building.
(6) Salaries or benefits for Landlord's executives
and employees above the grade of general manager, and of any employee
in excess of the time devoted to the Building (provided that the wages
and salaries of all employees who provide services to properties other
than the Building shall be fairly allocated between the Building and
such other properties).
(7) Any compensation paid to clerks, attendants or
other persons, or other costs incurred in commercial concessions,
including without limitation garage or other parking concessions
operated by Landlord or others on the Land.
(8) Except as permitted in Paragraph 3(d)(iii),
capital costs under generally accepted accounting principles, the cost
of replacement of HVAC, mechanical, security, electrical, plumbing
systems, or of any substantial component or part of such systems beyond
the scope of routine maintenance and repair; resurfacing of the parking
area or of the driveways on the Land or any other cost which is capital
in nature. If Landlord leases any items of capital equipment which
results in savings or reductions in expenses which would otherwise be
included in Operating Expenses, then the rentals and other costs paid
pursuant to such leasing shall be included in Operating Expenses for
the calendar year in which they were incurred, but only to the extent
of the reduction in each calendar year of expenses which would
otherwise be included in Operating Expenses.
(9) Expenditures for which Landlord is reimbursed
from any insurance carrier, from any tenant, including the Tenant, or
from any other source.
(10) Cost of repairs or replacements incurred by
reason of fire or other casualty or condemnation.
(11) Advertising and promotional expenditures.
(12) Costs incurred in performing work or furnishing
services for any tenant (including the Tenant), whether at such
tenant's or Landlord's expense, to the extent that such work or service
is in excess of any work or service that Landlord is obligated to
furnish to Tenant at Landlord's expense.
(13) Depreciation, except as provided above.
(14) Bad debt loss, rent loss, or reserves for either
of them.
(15) If Tenant pays separately for its own
electricity, then the cost of all electricity furnished to all tenants,
provided that Tenant's Share of Common Area electricity shall be
included as an Operating Expense. If Tenant does not pay separately for
its own electricity, then any overtime or excess usage of other tenants
shall be excluded from Operating Expenses.
(16) Financing costs, including points, commitment
fees, broker's fees, legal fees, and mortgage interest and amortization
payments.
(17) Costs incurred in connection with the
construction of the Building or the initial development of the Land.
(18) Costs for sculpture, decorations, paintings or
other objects of art in excess of amounts typically spent for such
items in office buildings of comparable quality in the competitive area
of the Building.
(19) Costs, expenses or expenditures relating to the
duties, liabilities or obligations of other tenants in the Building.
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(20) Costs incurred by Landlord arising out of its
failure to perform or breach of any of its covenants, agreements,
representations, warranties, guarantees or indemnities made under this
Lease.
(21) Costs of compliance, fines or penalties incurred
by Landlord due to violations of or non-compliance with any applicable
Legal Requirements, with which Landlord is required to comply hereunder
and which were in effect and applicable to the Building as of the
Commencement Date.
(22) Costs incurred in the removal, abatement or
other treatment of underground storage tanks or Hazardous Substances
present in the Building or on the Land.
(23) Legal fees, space planner's fees, broker's
commissions and other costs incurred by Landlord in connection with
leasing space and negotiating leases with tenants of the Building, or
legal fees in connection with disputes between Landlord and any tenant
of the Building, or between Landlord and any mortgagee.
(24) Except as may otherwise be expressly provided
for in Paragraph 3(d)(iii) or Paragraph 3(d)(8), lease payments for
rented equipment, the cost of which equipment constitutes a capital
expenditure if the equipment were purchased; and any late fees,
penalties, interest charges or similar fees incurred by Landlord.
(25) Costs of improving, altering, constructing or
redecorating any space leased to tenants of the Building.
(26) Costs incurred by Landlord to remedy any defects
in the design of or materials used in the Building or building
equipment, or costs incurred by Landlord to repair or replace the
structural steel framing, roof, roofing system, foundation and
underground utility lines forming a part of or servicing the Building
or the Land.
(27) Costs associated with the operation of the
business of the entity which constitutes Landlord as the same are
distinguished from the costs of operation of the Building, including,
without limitation, accounting and legal expenses, costs of selling,
syndicating, financing, mortgaging or hypothecating Landlord's interest
in the Building, costs of any disputes between Landlord and its
employees, or building managers.
(28) Costs and expenses paid or incurred by Landlord
at any time during the Term to convert, modify, or replace HVAC
components in the Building using chlorofluorocarbons to alternative
refrigerant technology or components or both.
(29) The cost of any political, charitable or civic
contribution or donation.
(30) Amounts paid as net, basic ground rental.
(31) Any amounts paid to a person, firm, corporation,
or other entity related to Landlord which significantly exceed the
commercially reasonable amount that would be charged by an unaffiliated
party for comparable goods or services.
(32) The costs of any subsidies paid to cafeterias or
luncheon clubs and the costs of any athletic or recreational clubs or
facilities for which membership dues are required.
(e) Within nine (9) months after the end of each calendar year
in which a portion of the Term falls, or as soon thereafter as is practicable,
Landlord shall furnish Tenant with a statement of the actual Operating Expenses
for the preceding year and the resulting, actual amount of Tenant's Share of any
increase in Operating Expenses in excess of the Operating Expense Base.
Thereafter, Landlord shall be entitled, if circumstances warrant, to issue one
or more revised, corrected or supplemental statements at any time and from time
to time following the issuance of the initial statement. Within twenty (20) days
after Landlord's delivery of such statement, Tenant shall make a lump sum
payment to Landlord in the amount, if any, by which Tenant's Share of the
increase in the Operating Expenses for the preceding calendar year in excess of
the Operating Expense Base, as shown on such Landlord's statement, exceeds the
aggregate of the monthly installments of Tenant's payments of the Estimated
Escalation Increase paid during such preceding year. If Tenant's share of the
actual increase in Operating Expenses, as shown on such Landlord's statement, is
less than the aggregate of the monthly installments of the Estimated Escalation
Increase actually paid by Tenant during such preceding year, then Landlord shall
apply such amount to the next accruing installments of Additional Rent due from
Tenant under this Paragraph 3, until fully credited to Tenant, or such amount
shall be promptly paid to Tenant if the Term of the Lease has expired. The
foregoing obligations shall survive the expiration or termination of this Lease.
(f) Tenant agrees to deposit the Security Deposit with
Landlord on the date of execution of this Lease by Tenant, which sum shall be
held by Landlord, without obligation for interest, as security for the
performance of Tenant's covenants and obligations under this Lease, it being
expressly understood and agreed that such Security Deposit is not an advance
rental deposit or a measure of Landlord's damages in case of Tenant's default.
Upon the occurrence of any "Event of Default" (as hereinafter defined) by
Tenant, Landlord may, from time to time, without prejudice to any other remedy
provided herein or provided by law, use such Security Deposit to the extent
necessary to make good any arrears of Rent or other payments due Landlord
hereunder, and any other damages, injury, expense or liability caused by such
Event of Default; and Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount.
Although the Security Deposit shall be deemed the property of Landlord, any
remaining balance of such Security Deposit shall be returned by Landlord to
Tenant at such time after termination of this Lease as all of Tenant's
obligations under this Lease have been fulfilled.
4. USE.
(a) The Premises shall be used only for executive and
administrative offices for the conduct of Tenant's business, limited to the uses
specifically set forth in the Basic Lease Information and for no other purposes
whatsoever. The statement as to the particular nature of the business to be
conducted by Tenant in the Premises and uses to be made thereof by Tenant as set
forth in the Basic Lease Information shall not constitute a representation or
warranty by Landlord that such business or uses are lawful or permissible under
any certificate of occupancy for the Premises or the Building or are otherwise
permitted by law. Landlord does, however, represent that any certificate of
occupancy issued with respect to the Premises shall allow use for executive and
administrative offices. Tenant shall at its own cost and expense obtain any and
all licenses and permits necessary for any such use. Tenant shall comply with
all governmental laws, ordinances and regulations applicable to the use of the
Premises, and shall promptly comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in or upon, or
connected with, the Premises, all at Tenant's sole expense. Tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of the
Building or unreasonably interfere with their use of their respective premises.
Without Landlord's prior written consent, Tenant shall not receive, store or
otherwise handle any product, material or merchandise which is explosive or
highly flammable. Tenant will not permit the Premises to be used for any purpose
or in any manner (including without limitation any method of storage) which
would render the insurance thereon void or the insurance risk more hazardous or
cause the Insurance Commissioner or other insurance authority to disallow any
sprinkler credits. If any increase in the fire and extended coverage insurance
premiums
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paid by Landlord or other tenants for the Building is caused by Tenant's use and
occupancy of the Premises, or if Tenant vacates the Premises and causes an
increase in such premiums, then Tenant shall pay the amount of such increase to
Landlord as Additional Rent.
(b) Tenant agrees that the floor load resulting from Tenant's
furniture, inventory and equipment pertaining to Tenant's use of the Premises
shall not exceed allowable design floor loading for the Building. Tenant shall
distribute floor loading in accordance with design loads for the Building.
Tenant shall hold harmless Landlord from any loss, liability and expenses, both
real and alleged, arising out of or caused by Tenant's negligence or failure to
comply with this Paragraph.
5. SERVICES AND UTILITIES.
(a) Landlord shall maintain the Common Areas, including
lobbies, stairs, elevators, corridors and rest rooms, the windows in the
Building, the mechanical, plumbing and electrical equipment serving the
Building, and the structure itself, in reasonably good order and condition,
except for damage occasioned by the act of Tenant, its agents, servants,
employees or invitees, which damage shall be repaired by Landlord at Tenant's
expense.
(b) Provided Tenant is not in default hereunder, and subject
to the provisions contained elsewhere herein and in the Rules and Regulations,
Landlord agrees to furnish to the Premises during ordinary business hours of
generally recognized business days, to be determined by Landlord (but exclusive
in any event of Sundays and legal holidays), heat and air conditioning required
in Landlord's judgment for the comfortable use and occupancy of the Premises, in
accordance with the specifications set forth on Exhibit "C" attached hereto and
by this reference made a part hereof; janitorial services during the times and
in the manner set forth in Landlord's Cleaning Specifications attached hereto as
Exhibit "E," and elevator service. Except as provided in Paragraph 38 of this
Lease, Landlord shall be under no obligation to provide additional or
after-hours heating or air conditioning, but if Landlord elects to provide such
services at Tenant's request, Tenant shall pay to Landlord a reasonable charge
for such services as determined from time to time by Landlord. Tenant agrees to
keep and cause to be kept closed all window coverings, if any, when necessary
because of the sun's position, and Tenant also agrees at all times to cooperate
fully with Landlord and to abide by all the regulations and requirements which
Landlord may prescribe for the proper functioning and protection of said
heating, ventilating, and air conditioning system and to comply with all laws,
ordinances and regulations respecting the conservation of energy. Whenever
heat-generating machines, excess lighting or equipment are used in the Premises
which affect the temperature otherwise maintained by the air conditioning
system, Landlord reserves the right to install supplementary air conditioning
units and metering devices for such units in the Premises, and the cost thereof,
including the cost of electricity and/or water therefor, shall be paid by Tenant
to Landlord upon demand by Landlord. Landlord agrees to furnish to the Premises
electricity for general office purposes and water for lavatory and drinking
purposes, subject to the provisions of subparagraph 5(c) below. Except as set
forth in Paragraph 41 of this Lease, Landlord shall in no event be liable for
any interruption or failure of utility services to the Premises or for any
result thereof.
(c) Tenant will not without the prior written consent of
Landlord use any apparatus or device in the Premises which will in any way
increase the amount of electricity or water usually furnished or supplied for
use of the Premises as general office space; nor connect with electric current,
except through existing electrical outlets in the Premises, or water pipes, any
apparatus or device for the purposes of using electric current or water. If
Tenant, in Landlord's judgment, shall require water or electric current or any
other resource in excess of that usually furnished or supplied for use of the
Premises as general office space (it being understood that such an excess may
result from the number of fixtures, apparatus and devices in use, the nature of
such fixtures, apparatus and devices, the hours of use, or any combination of
such factors), Tenant shall first procure the prior written consent of Landlord,
to the use thereof, which Landlord may refuse, in its sole discretion, and
Landlord may cause a special meter to be installed in the Premises so as to
measure the amount of water, electric current or other resource consumed for any
such other use. The cost of any such meters and installation, maintenance and
repair thereof shall be paid for by Tenant, and Tenant agrees to pay Landlord
promptly upon demand by Landlord for all such water, electric current or other
resource consumed, as shown by said meters, at the rates charged by the local
public utility furnishing the same, plus any additional expense incurred in
keeping account of the water, electric current or other resource so consumed.
Landlord shall not be in default hereunder or be liable for any damages directly
or indirectly resulting from, nor shall the rental herein reserved be abated
(except as set forth in Paragraph 41 of this Lease) by reason of: (i) the
installation, use or interruption of use of any equipment in connection with the
furnishing of any of the foregoing utilities and services; (ii) failure to
furnish or delay in furnishing any such utilities or services when such failure
or delay is caused by Acts of God or the elements, labor disturbances of any
character, any other accidents or other conditions beyond the reasonable control
of Landlord, or by the making of repairs or improvements to the Premises or to
the Building; or (iii) the limitation, curtailment, rationing or restriction on
use of water or electricity, gas or any other form of energy or any other
service or utility whatsoever serving the Premises or the Building. Furthermore,
Landlord shall be entitled to cooperate voluntarily in a reasonable manner with
the efforts of national, state or local governmental agencies or utilities
suppliers in reducing consumption of energy, water or any other resources.
(d) Any sums payable under this Paragraph 5 shall be
considered Additional Rent and may be added to any installment of Rent
thereafter becoming due and shall accrue late charges as Rent as set forth in
subparagraph 19(g) of this Lease, and Landlord shall have the same remedies for
a default in payment of such sums as for a default in the payment of Rent.
(e) Tenant shall not provide any janitorial services without
Landlord's prior written consent and then only subject to supervision of
Landlord and by a janitorial contractor or employees at all times satisfactory
to Landlord. Any such services provided by Tenant shall be at Tenant's sole
risk, cost and responsibility.
6. TENANT REPAIRS. Tenant shall, at all times during the Term, 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, on or before the
Lease Expiration Date or any sooner date of termination of this Lease, unless
Landlord demands otherwise as provided in Paragraph 7 hereof, 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, except as expressly
set forth herein, Landlord has no obligation to alter, remodel, improve, repair,
decorate, or paint the Premises or any part thereof. However, if Tenant fails to
make required repairs to the Premises promptly after Tenant's receipt of written
notice from Landlord, Landlord, at Landlord's election, shall have the right to
make such repairs, and Tenant shall pay Landlord on demand Landlord's actual
costs of such repair, plus a fee equal to fifteen percent (15%) of such actual
costs to cover Landlord's overhead in making such repairs.
7. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises (including but not limited to roof, floor and wall
penetrations) without the prior written consent of Landlord, which consent shall
not be unreasonably withheld, delayed or conditioned. In the event Landlord
consents to the making of any such alterations, additions or improvements 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 only 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 sole option and
discretion, the alterations, additions or improvements shall be made by Landlord
for Tenant's account and Tenant shall fully reimburse Landlord for the entire
cost thereof, including a fee of fifteen percent (15%) of such cost to cover
Landlord's overhead, within twenty (20) days after written notification of
Tenant by Landlord providing Tenant with an invoice or other request (or
statement). Promptly after completion of any alterations, additions, or
improvements to the Premises made by Tenant, Tenant shall supply Landlord with a
set of scaled and dimensioned, reproducible mylars of "as-built" plans for such
alterations, additions or improvements, certified by Tenant's architect or space
planner. Tenant may, without the consent of Landlord, but at its own cost and
expense and in a good and workmanlike manner erect such shelves, bins, machinery
and trade fixtures as it may deem advisable, without altering the basic
character of the Building or improvements and without overloading or damaging
the Building or improvements, and in each case complying with all applicable
governmental laws, ordinances, regulations and other
5
requirements. All alterations, additions, improvements and partitions erected by
Tenant shall be and remain the property of Tenant during the Term and Tenant
shall, unless Landlord otherwise elects as herein provided, remove all
alterations, additions, improvements and partitions erected by Tenant and
restore the Premises to their original condition on or before the Lease
Expiration Date or any sooner date of termination of this Lease; provided,
however, that if Landlord so elects prior to termination or expiration of this
Lease, such alterations, additions, improvements and partitions shall become the
property of Landlord as of the Lease Expiration Date or any sooner date of
termination of this Lease and shall be delivered up to the Landlord with the
Premises. All shelves, bins, machinery and trade fixtures installed by Tenant
may be removed by Tenant prior to the termination of this Lease if Tenant so
elects, and shall be removed on or before the Lease Expiration Date or any
sooner date of termination of this Lease if required by Landlord; upon any such
removal Tenant shall restore the Premises to their original condition. All such
removals and restoration shall be accomplished in a good and workmanlike manner
so as not to damage the primary structure or structural qualities of the
Building and improvements situated in the Premises. Notwithstanding the
foregoing, Tenant shall not be required to remove or restore any of the
alterations or improvements made to the Premises prior to the date of Tenant's
execution of this Lease. In addition, Tenant shall not be required to remove or
restore any subsequent alteration or improvement made by Tenant, provided Tenant
obtains Landlord's written consent to surrender such alteration or improvement
with the Premises at the time Landlord consents to the making of such alteration
or improvement.
8. RULES AND REGULATIONS. Tenant shall faithfully observe and comply
with the Rules and Regulations attached to this Lease as Exhibit "F" and by this
reference made a part hereof and all modifications thereof and additions thereto
from time to time put into effect by Landlord. Landlord shall not be responsible
for the non-performance by any other tenant or occupant of the Building of any
of said Rules and Regulations. In the case of any conflict between the Rules and
Regulations established by Landlord and this Lease, the provisions of this Lease
shall control.
9. INSPECTION AND RIGHT OF ENTRY. Landlord reserves and shall at all
times have the right to enter the Premises to inspect the same, 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 and maintain all notices, including notices of
non-responsibility, and to alter, improve, or repair the Premises and any
portion of the Building to which access is conveniently made through the
Premises, without abatement of Rent (unless Landlord's exercise of such rights
results in an interruption of services for which Tenant is entitled to receive
an abatement of Rent under Paragraph 41 of this Lease), 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. Tenant hereby waives any claim for
damages for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises and any other
loss occasioned thereby. For each of the aforesaid purposes, Landlord shall at
all times have and retain a key 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 writing in advance and made known to Landlord), 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 obtain 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
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. Landlord shall
provide Tenant with not less than 24 hours' oral notice to the on-site office
manager of Tenant prior to entering the Premises for any reason other than for
the provision of routine janitorial and window cleaning services, for security
inspections, in the case of emergencies or to show the Premises to prospective
purchasers and mortgagees and, during the last twelve (12) months of the Term,
prospective tenants. Whenever Landlord shows the Premises to prospective
purchasers, mortgagees and prospective tenants, Landlord shall use commercially
reasonable efforts to provide notice to Tenant's on-site office manager (if
available) prior to conducting such tour. However, the requirement to provide
such notice shall not delay such tour, and Landlord's failure or inability to
provide such notice shall not constitute a default by Landlord hereunder.
10. SURRENDER OF PREMISES. Tenant shall give written notice to Landlord
at least thirty (30) days prior to vacating the Premises and shall arrange to
meet with Landlord for a joint inspection of the Premises prior to vacating. In
the event of Tenant's failure to give such notice or arrange such joint
inspection, Landlord's inspection at or after Tenant's vacating the Premises
shall be conclusively deemed correct for purposes of determining Tenant's
responsibility for repairs and restoration.
11. ASSIGNMENT AND SUBLETTING.
(a) Neither Tenant nor its legal representatives or successors
in interest shall, by operation of law or otherwise, assign or otherwise
transfer this Lease or any part hereof, or the interest of Tenant under this
Lease, and the Premises or any part thereof shall never be sublet, occupied or
used for any purpose by anyone other than Tenant, without Tenant's obtaining in
each instance the prior written consent of Landlord in the manner hereinafter
provided. Tenant shall not modify, extend, or amend a sublease previously
consented to by Landlord without obtaining Landlord's prior written consent
thereto. Tenant shall not mortgage, pledge or otherwise encumber its interest
under this Lease without the prior written consent of Landlord, which consent
may be withheld for any reason or no reason, in the sole and absolute discretion
of Landlord. All renewal or extension rights, expansion rights, termination
rights, exclusive rights, opportunity rights and other such rights and options
contained in this Lease shall be personal to the original Tenant executing this
Lease and shall terminate upon any assignment or sublease affecting all or any
portion of the Premises.
(b) An assignment of this Lease shall be deemed to have
occurred: (i) if in a single transaction or in a series of transactions more
than a fifty percent (50%) interest in Tenant, any guarantor of this Lease, or
any subtenant (whether stock, partnership interest, interest in a limited
liability company or otherwise) is transferred, diluted, reduced, or otherwise
affected with the result that the present holder or owners of Tenant, such
guarantor, or such subtenant have less than a fifty percent (50%) interest in
Tenant, such guarantor or such subtenant; or (ii) if Tenant's obligations under
this Lease are taken over or assumed in consideration of Tenant leasing space in
another office building. The transfer of the outstanding capital stock of any
corporate Tenant, guarantor or subtenant through the "over-the-counter" market
or any recognized national securities exchange [other than by persons owning
five percent (5%) or more of the voting stock of such corporation] shall not be
included in the calculation of such fifty percent (50%) interest in (i) above.
(c) If Tenant should desire to assign this Lease or sublet the
Premises (or any part thereof) and, Tenant is not then in default under this
Lease, Tenant shall give Landlord written notice no later than sixty (60) days
in advance of the proposed effective date of any proposed assignment or
sublease, specifying (i) the name and business of the proposed assignee or
subtenant, (ii) the amount and location of the space within the Premises
proposed to be so subleased, (iii) the proposed effective date and duration of
the assignment or subletting, (iv) the proposed rent or consideration to be paid
to Tenant by such assignee or subtenant, (v) the proposed use of the proposed
assignee or subtenant, (vi) complete, audited financial statements (if
available, and, if audited financial statements are unavailable, financial
statements certified by the Chief Financial Officer of the proposed subtenant or
assignee to be true and correct in all material respects) and a business plan
for the proposed subtenant or assignee, and (vii) a true and correct copy of the
proposed instrument of assignment or proposed sublease. In the event that
Landlord agrees to consent to any assignment or sublease, such consent shall be
evidenced by the execution of Landlord's standard form of consent to assignment
or consent to sublease by Tenant, the assignee or subtenant and Landlord.
Landlord shall not execute such consent until it has received a true and correct
copy of the fully-executed instrument of assignment or sublease and an original
consent executed by Tenant and the assignee or subtenant. Tenant shall promptly
supply Landlord with such other information as Landlord may request to evaluate
the proposed assignment or sublease. Landlord shall have a period of thirty (30)
days following receipt of such notice and other information requested by
Landlord within which to notify Tenant in writing that Landlord elects: (A) to
terminate this Lease as to the space so affected as of the proposed effective
date set forth in Tenant's notice, in which event Tenant shall be relieved of
all further obligations hereunder as to such space, except for provisions of
this
6
Lease which expressly survive the termination hereof; or (B) to permit Tenant to
assign or sublet such space; provided, however, that, if the rent rate agreed
upon between Tenant and its proposed subtenant is greater than the rent rate
that Tenant must pay Landlord hereunder for that portion of the Premises, or if
any consideration shall be promised to or received by Tenant in connection with
such proposed assignment or sublease (in addition to rent), then all of such
excess rent and other consideration shall be considered Additional Rent owed by
Tenant to Landlord (less brokerage commissions, attorneys' fees and other
disbursements reasonably incurred by Tenant for such assignment and subletting
if acceptable evidence of such disbursements is delivered to Landlord), and
shall be paid by Tenant to Landlord, in the case of excess rent, in the same
manner that Tenant pays Monthly Rental and, in the case of any other
consideration, within ten (10) Business Days after receipt thereof by Tenant; or
(C) to refuse, in Landlord's reasonable discretion, in accordance with the
standards set forth in Paragraph 42 of this lease, to consent to Tenant's
assignment or subleasing of such space and to continue this Lease in full force
and effect as to the entire Premises. If Landlord should fail to notify Tenant
in writing of such election within the aforesaid thirty (30) day period,
Landlord shall be deemed to have elected option (C) above. Whether or not
Landlord grants its consent, Tenant shall reimburse Landlord, within thirty (30)
days after written request therefor, for all reasonable legal, architectural and
engineering fees and any other reasonable costs incurred by Landlord in
connection with any request by Tenant for approval of an assignment or
subletting and such payment shall not be deducted from the Additional Rent owed
to Landlord pursuant to subsection (B) above. Tenant shall deliver to Landlord
copies of all documents executed in connection with any permitted assignment or
subletting, which documents shall be in form and substance reasonably
satisfactory to Landlord and which shall require any assignee to assume
performance of all terms of this Lease on Tenant's part to be performed. No
acceptance by Landlord of any Rent or any other sum of money from any assignee,
subtenant or other category of transferee shall be deemed to constitute
Landlord's consent to any assignment, sublease, or transfer.
(d) Any attempted assignment or sublease by Tenant in
violation of the terms and provisions of this Paragraph 11 shall be void and
such act shall constitute a material breach of this Lease. In no event shall any
assignment, subletting or transfer, whether or not with Landlord's consent,
relieve Tenant of its primary liability under this Lease for the entire Term,
and Tenant shall in no way be released from the full and complete performance of
all the terms hereof. If Landlord takes possession of the Premises before the
expiration of the Term of this Lease, Landlord shall have the right, at its
option, to terminate all subleases, or to take over any sublease of the Premises
or any portion thereof and such subtenant shall attorn to Landlord, as its
landlord, under all the terms and obligations of such sublease occurring from
and after such date, but excluding previous acts, omissions, negligence or
defaults of Tenant and any repair or obligation in excess of available net
insurance proceeds or condemnation award.
(e) Landlord shall have the right to sell, transfer, assign,
pledge, and convey all or any part of the Building and any and all of Landlord's
rights under this Lease. In the event Landlord assigns or otherwise conveys its
rights under this Lease, Landlord shall be entirely freed and released from any
obligations accruing thereafter under the Lease, and Tenant agrees to look
solely to Landlord's successor in interest for performance of such obligations.
12. INSURANCE.
(a) Landlord shall maintain Special Form Insurance on the
Building and the Premises, such policy(ies) to cover Landlord's interest in the
Building and Premises for not less than the full replacement cost thereof. Such
insurance shall be maintained at the expense of Landlord (as a part of Operating
Expenses), and payments for losses thereunder shall be made solely to Landlord
or the holder or holders of any mortgage or deed to secure debt encumbering the
Land, Building or Office Park (collectively, "Mortgagees"; each, a "Mortgagee")
as their respective interests shall appear.
(b) Tenant shall maintain Special Form Insurance, at its
expense, on all of its personal property, including furniture, equipment,
fittings, installations, supplies, phone systems, computer systems and removable
trade fixtures, located in the Premises. Such Special Form Insurance shall be
maintained in an amount equal to the full replacement cost of such personal
property and shall have a deductible amount, if any, not in excess of
$10,000.00. Such policy shall include Business Interruption/Additional Expense
coverage on a loss sustained basis.
(c) Tenant shall also maintain Worker's Compensation and
Employer's Liability Insurance in form and amount satisfactory to Landlord and
as required by law.
(d) Tenant and Landlord shall, each at its own expense,
maintain a policy or policies of Commercial General Liability Insurance (written
on an occurrence basis) with respect to the respective activities of each on the
Land and in the Building with the premiums thereon fully paid on or before the
date due, issued by and binding upon an insurance company authorized to conduct
such business in the State of
Georgia. Such Commercial General Liability
Insurance to be maintained by Tenant and Landlord under this Paragraph shall
afford minimum protection of not less than $2,000,000.00 combined single limit
coverage of bodily injury, property damage, or combination thereof; and such
Commercial General Liability Insurance to be maintained by Tenant shall name
Landlord, its managing agent and any Mortgagee as additional insureds. Such
insurance coverage maintained by Tenant shall also include, without limitation,
personal injury and contractual liability coverage for the performance by Tenant
of the indemnity agreements set forth in this Lease. The deductible or
self-insured retention for the policy of Commercial General Liability Insurance
to be maintained by Tenant shall not exceed $10,000.00. Landlord shall not be
required to maintain insurance against thefts within the Premises, the Building,
or on the Land.
(e) Tenant shall also maintain and provide such other form or
forms of insurance, changes in amounts of coverage, or endorsements as Landlord,
or any Mortgagee of Landlord, may reasonably require from time to time, provided
that such forms, amounts and endorsements are customarily required by landlords
of other class A office buildings in the North Xxxxxx County,
Georgia submarket.
(f) All Commercial General Liability Insurance and Special
Form Insurance maintained by Tenant shall be written as primary policies and
shall not call for contribution from any other insurance available to Landlord.
(g) Tenant shall, prior to the Commencement Date, provide
Landlord with current Certificates of Insurance and receipts for payment of
premiums therefor, evidencing Tenant's compliance with the terms and
requirements of this Paragraph 12. All policies required to be maintained by
Tenant under this Paragraph 12 shall contain a provision whereby the insurer is
not allowed to cancel, fail to renew or change materially the coverage, without
first giving thirty (30) days' prior written notice to Landlord. Tenant shall
also obtain the agreement of Tenant's insurers to notify Landlord that a policy
is due to expire at least thirty (30) days prior to such expiration. No later
than the expiration date of any such policies, evidence of renewal of such
policies, as provided by Tenant's insurance broker (bearing notations evidencing
the payment of renewal premiums), shall be delivered to Landlord.
(h) All insurance policies carried with respect to this
Paragraph 12 shall be issued by insurance companies licensed to do business in
the State of
Georgia with a general policyholder's rating of at least A and a
financial rating of at least VIII in the most current Best's Insurance Reports.
(i) All insurance policies required to be carried by Tenant
with respect to this Paragraph 12 shall be procured and maintained in full force
and effect by Tenant at its sole cost and expense and continue in full force and
effect during the Term of the Lease, any renewals or extensions thereof, any
holdover period under the Lease, any tenancy by whatsoever name called and any
period of occupancy by Tenant of the Premises prior to the Commencement Date of
the Lease or subsequent to the expiration or earlier termination of the Lease.
7
(j) Anything in this Lease to the contrary notwithstanding
(including, without limitation, Paragraph 14 hereof), Landlord and Tenant each
hereby waive any and all rights of recovery, claim, action, or cause of action,
against the other, its agents, officers, or employees, for any loss or damage
that may occur to the Premises or a part thereof, or any improvements thereto,
or any personal property of such party therein, by reason of fire, the elements,
or any other cause(s), regardless of cause or origin, including negligence of
the other party hereto, its agents, officers or employees, where such loss or
damage would either be covered by insurance required to be maintained under this
Paragraph 12 (whether or not such insurance is in effect) or to the extent such
loss or damage is actually covered by any other insurance carried by each of
them. All insurance policies carried with respect to this Paragraph 12, if
permitted under applicable law, shall contain a provision whereby the insurer
waives, prior to loss, all rights of subrogation against Landlord and Tenant.
Landlord and Tenant acknowledge that the waivers and releases set forth in this
subparagraph are intended to result in any loss or damage which is covered by
insurance being borne by the insurance carrier of Landlord or Tenant, as the
case may be, or by the party having the insurable interest if such loss is not
covered by insurance and this Lease requires such party to maintain insurance to
cover such loss. Landlord and Tenant agree that such waivers and releases were
freely bargained for and willingly and voluntarily agreed to by Landlord and
Tenant and do not constitute a violation of public policy.
13. FIRE AND CASUALTY DAMAGE.
(a) If the Building should be totally destroyed by fire,
tornado or other casualty or if it should be damaged, to the extent that, in
Landlord's reasonable judgment, repair would not be economically feasible; or
that rebuilding or repairs cannot, in Landlord's estimation, be completed within
one hundred eighty (180) days after the date of such damage; or if the insurance
proceeds remaining after any required payments to Mortgagees are insufficient to
repair such damage or destruction, Landlord shall have the right, at Landlord's
option, to terminate this Lease by giving Tenant written notice of such
termination within sixty (60) days after the date of such casualty, and the Rent
shall be apportioned and paid to the date on which possession is relinquished or
the date of such damage, whichever last occurs, and Tenant shall immediately
vacate the Premises according to such notice of termination. If Landlord has not
provided notice to Tenant of its election to repair such damage or destruction
within sixty (60) days after the date of such casualty, Tenant may provide
written notice of such failure to Landlord, which request shall state that
Landlord is required to notify Tenant within ten (10) days after its receipt of
such notice as to whether or not it will restore such damage or destruction
within one hundred eighty (180) days after the date of such damage. If Landlord
does not provide Tenant with notice, within such additional ten (10) day period,
of its election to restore such damage or destruction within one hundred eighty
(180) days after the date of such damage, Tenant shall have the option, by
written notice to Landlord, given within thirty (30) days after the expiration
of such ten (10) day period, to terminate this Lease. Such termination shall be
Tenant's exclusive remedy. If Tenant fails to terminate this Lease within such
thirty (30) day period, Tenant shall be deemed to have waived its right to
terminate by reason of the failure of Landlord to provide Tenant with notice of
its election to repair such damage or destruction.
(b) If the Building should be damaged by any peril covered by
the insurance to be provided by Landlord under Paragraph 12(a) above, but only
to such extent that rebuilding or repairs are, in Landlord's estimation,
economically feasible and can be completed within one hundred eighty (180) days
after the date of such damage and the proceeds of such insurance, after
deducting any required payments to Mortgagees, are sufficient for such
rebuilding or repairs, this Lease shall not terminate, and Landlord shall at its
sole cost and expense thereupon proceed with reasonable diligence to rebuild and
repair the Building to substantially the condition in which it existed prior to
such damage, except that: (i) Landlord shall not be required to rebuild, repair
or replace any part of the partitions, fixtures, additions and other
improvements which may have been placed in, on or about the Premises by Tenant;
and (ii) Landlord may elect not to rebuild if such damage occurs during the last
year of the Term, exclusive of any option to extend the Term which is
unexercised at the time of such damage. If the Premises are untenantable in
whole or in part following such damage, the Rent payable hereunder during the
period in which the Premises are untenantable shall be reduced to such extent as
may be fair and reasonable under all of the circumstances.
(c) Notwithstanding anything herein to the contrary, in the
event any Mortgagee requires that the insurance proceeds be applied to the
indebtedness due such Mortgagee, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within fifteen
(15) days after such requirement is made by any such Mortgagee, whereupon all
rights and obligations hereunder shall cease and terminate. In no event shall
Landlord be required under this Lease to incur any expenses in excess of
available insurance proceeds for the purpose of repairing or restoring the
Building or the Premises after a fire or other casualty.
14. WAIVER OF CLAIMS; LANDLORD'S LIABILITY AND INDEMNIFICATION.
(a) Tenant waives and releases all claims against Landlord,
its agents, employees, representatives and contractors for damage to any
property or injury to, or death of, any person in, upon, or about the Premises
arising at any time and from any cause other than by reason of the sole
negligence of Landlord, its agents, employees, representatives, or contractors.
(b) Without limiting the generality of Paragraph 14(a), Tenant
agrees that Landlord, its agents, employees, representatives and contractors
will not be liable for any loss, injury, death, or damage (including
consequential damages) to persons, property, or Tenant's business occasioned by
theft, act of God, public enemy, injunction, riot, strike, insurrection, war,
vermin, court order, requisition, order of governmental body or authority,
electricity, computer or electronic equipment or systems malfunction, fire,
explosion, falling objects, steam, water, rain or snow, leak or flow of water
(including water from the elevator system), rain or snow from the Premises or
into the Premises or from the roof, street, subsurface or from any other place
or by dampness or from the breakage, leakage, obstruction, or other defects of
the pipes, sprinklers, wires, appliances, plumbing, air conditioning, or
lighting fixtures of the Building, or from construction, repair, alteration of
the Premises or from any acts or omissions of any other tenant, occupant, or
visitor of the Premises, or from any other cause whatsoever, except if such
loss, injury, death, or damage to persons, property, or Tenant's business is
occasioned by the sole negligence of the Landlord, its agents, employees,
representatives or contractors.
(c) Tenant shall indemnify Landlord, its agents, employees,
representatives and contractors and shall hold Landlord, its agents, employees,
representatives and contractors harmless from any damage to any property or
injury to, or death of, any person arising from: (i) the use of the Premises by
Tenant or any person claiming under Tenant; (ii) any activity, work, or thing
done or permitted by Tenant on or about the Premises; (iii) any acts, omissions
or negligence of Tenant, or any person claiming under Tenant, or the employees,
agents, contractors, invitees, or visitors of Tenant or any such person; (iv)
any breach, violation, or nonperformance by Tenant, or any person claiming under
Tenant, or the employees, agents, contractors, invitees, or visitors of Tenant
or any such person, of any term, covenant, or provision of this Lease or any law
ordinance, or governmental requirement of any kind; (v) (except for loss of use
of all or any portion of the Premises or Tenant's property located within the
Premises that is proximately caused by or results proximately from the sole
negligence of the Landlord), any injury or damage to the person, property, or
business of Tenant, its employees, agents, contractors, invitees, visitors, or
any other person entering upon the Premises under the express or implied
invitation of Tenant. The foregoing indemnity obligations of Tenant shall
include attorneys' fees, investigation costs, and all other costs and expenses
incurred by Landlord from the first notice that any claim or demand has been
made or may be made. The provisions of this Paragraph 14 shall survive the
expiration or termination of this Lease with respect to any damage, injury, or
death occurring before such expiration or termination.
15. CONDEMNATION.
(a) If the whole or any substantial part of the 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 the
use of the Premises for the purpose for which they are being used, this Lease
shall terminate and the Rent shall be apportioned and paid to the date on which
the physical taking of the Premises shall occur.
8
(b) If part of the 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 subparagraph 15(a) above, this Lease shall not
terminate but the Rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent as may be fair and reasonable under all of
the circumstances.
(c) All compensation awarded for any taking (or the proceeds
of private sale in lieu thereof) of the Premises, the Building or other
improvements, or any part thereof, shall be the property of Landlord and Tenant
hereby assigns its interest in any such award to Landlord; provided, however
Landlord shall have no interest in any award made to Tenant for loss of business
or for the taking of Tenant's fixtures if a separate award for such items is
made to Tenant.
(d) In no event shall Landlord be required under this Lease to
incur any expenses in excess of available proceeds from any taking contemplated
hereby for the purposes of restoring the Building or the Premises after any such
taking.
16. HOLDING OVER. Tenant will, at the termination of this Lease by
lapse of time or otherwise, yield up immediate possession to Landlord with all
repairs and maintenance required herein to be performed by Tenant completed.
Should Tenant continue to hold the Premises after the expiration or earlier
termination of this Lease, or after reentry by Landlord without terminating this
Lease, such holding over, unless otherwise agreed to by Landlord in writing,
shall constitute and be construed as a tenancy at sufferance and not a tenancy
at will, at monthly installments of Rent equal to: (a) one hundred twenty-five
percent (125%) of the monthly portion of Rent in effect as of the date of
expiration or earlier termination for the first thirty (30) days of any such
holding over; and (b) one hundred fifty percent (150%) of the monthly portion of
Rent in effect as of the date of expiration or earlier termination for any
holdover period beyond said thirty (30) day period, and subject to all of the
other terms, charges and expenses set forth herein except any right to renew
this Lease or to expand the Premises or any right to additional services. Tenant
shall have no right to notice under Official Code of
Georgia Annotated Section
44-7-7 of the termination of its tenancy. Tenant shall also be liable to
Landlord for all damage which Landlord suffers because of any holding over by
Tenant, and Tenant shall indemnify Landlord against all claims made by any other
tenant or prospective tenant against Landlord resulting from delay by Landlord
in delivering possession of the Premises to such other tenant or prospective
tenant. No holding over by Tenant, whether with or without consent of Landlord,
shall operate to extend the Term except as otherwise expressly provided in a
written agreement executed by both Landlord and Tenant. The provisions of this
Paragraph 16 shall survive the expiration or earlier termination of this Lease.
17. QUIET ENJOYMENT. Landlord covenants that it has full right and
authority to enter into this Lease and that Tenant, upon paying the Rent herein
set forth and performing its other covenants and agreements herein set forth,
shall peaceably and quietly have, hold and enjoy the Premises for the Term
without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease.
18. EVENTS OF DEFAULT. The following events shall be deemed to be
"Events of Default" by Tenant under this Lease:
(a) (i) Tenant shall fail to pay any installment of the Rent
herein reserved when due, or any other payment or reimbursement to Landlord
required herein when due, and such failure shall continue for a period of: (A)
five (5) days after Landlord gives Tenant written notice thereof if such failure
is a failure to pay a regularly scheduled installment of Rent; or (B) ten (10)
days after Landlord gives Tenant written notice thereof if such failure is a
failure to pay any other sum; or (ii) at any time during a twelve (12) month
period in which Tenant has already received two (2) previous notices of its
failure to pay Rent or other payments by the due date, Tenant shall fail to pay
Rent or any other payment required herein within: (x) five (5) days after the
date due if such failure is a failure to pay a regularly scheduled installment
of Rent; or (y) ten (10) days after the date due if such failure is a failure to
pay any other sum.
(b) Tenant or any guarantor of Tenant's obligations hereunder
shall generally not pay its debts as they become due or shall admit in writing
its inability to pay its debts or shall make a general assignment for the
benefit of creditors; or Tenant or any such guarantor shall commence any case,
proceeding or other action seeking to have an order for relief entered on its
behalf as a debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution, or
composition of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all, or any
substantial part of, its property; or Tenant or any such guarantor shall take
any action to authorize or in contemplation of any of the actions set forth
above in this Paragraph.
(c) Any case, proceeding or other action against Tenant or any
guarantor of Tenant's obligations hereunder shall be commenced seeking to have
an order for relief entered against it as debtor or to adjudicate it a bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property.
(d) A receiver or trustee shall be appointed for all or
substantially all of the assets of the Tenant.
(e) Tenant shall desert or vacate any substantial portion of
the Premises.
(f) Tenant shall fail to discharge any lien placed upon the
Premises in violation of Paragraph 23 hereof within twenty (20) days after any
such lien or encumbrance is filed against the Premises.
(g) Intentionally omitted.
(h) Tenant shall fail to comply with any term, provision or
covenant of this Lease (other than the foregoing in this Paragraph 18), and
shall not cure such failure within twenty (20) days after written notice thereof
to Tenant; provided, however, that if performance of such obligation shall
reasonably require more than twenty (20) days, then Tenant shall not be in
default unless Tenant shall fail to commence performance within such twenty (20)
day period or thereafter shall fail to pursue its performance to completion with
diligence and actually complete such performance within ninety (90) days.
19. REMEDIES.
(a) Upon the occurrence of any one or more of the aforesaid
Events of Default, or upon the occurrence of any other default or defaults by
Tenant under this Lease, Landlord may, at Landlord's option, without any demand
or notice whatsoever (except as expressly required in this Paragraph 19):
(i) Terminate this Lease, and Tenant shall remain
liable for all Rent and all other obligations under this Lease arising
up to the date of such termination; or
(ii) Landlord may at its option, declare the
difference, if any, between (A) the entire amount of Monthly Rental and
Additional Rent which would become due and payable during the remainder
of the Term, discounted to present value using a discount rate equal to
the "Prime Rate" (as hereinafter defined) in effect as of the date of
such declaration, and
9
(B) the fair rental value of the Premises during the remainder of the
Term (taking into account, among other factors, the anticipated
duration of the period the Premises will be unoccupied prior to
reletting and the anticipated cost of reletting the Premises), also
discounted to present value using a discount rate equal to the Prime
Rate in effect as of the date of such declaration, to be due and
payable immediately and Tenant agrees to pay the same at once, together
with all Monthly Rental, Additional Rent and other sums theretofore
due; it being understood and agreed that such payment shall be and
constitute Landlord's liquidated damages, Landlord and Tenant
acknowledging and agreeing that it is difficult or impossible to
determine the actual damages Landlord would suffer from Tenant's breach
hereof and that the agreed upon liquidated damages are not punitive or
penalties and are just, fair and reasonable, all in accordance with
Official Code of
Georgia Annotated Section 13-6-7. If Landlord
exercises the election set out in this subparagraph, Landlord hereby
waives any right to assert that Landlord's actual damages are greater
than the amount calculated hereunder. "Prime Rate" means the Prime Rate
published in The Wall Street Journal from time to time (adjusted daily)
as being the base rate on corporate loans at large U.S. money center
commercial banks. If The Wall Street Journal ceases to publish such a
Prime Rate, the Prime Rate shall be the per annum interest rate which
is publicly announced (whether or not actually charged in each
instance) from time to time (adjusted daily) by Wachovia Bank, N.A.,
Atlanta,
Georgia as its "prime rate" or similar corporate borrowing
reference rate; or
(iii) Without terminating this Lease, Landlord may in
its own name but as agent for Tenant enter into and upon and take
possession of the Premises or any part thereof, and, at Landlord's
option, remove persons and property therefrom and such property, if
any, may be removed and stored in a warehouse or elsewhere at the cost
of, and for the account of Tenant, all without being deemed guilty of
trespass or becoming liable for any loss or damage which may be
occasioned thereby, and Landlord may, but has no obligation to, rent
the Premises or any portion thereof as the agent of Tenant, with or
without advertisement, and by private negotiations and for any term
upon such terms and conditions as Landlord may deem necessary or
desirable in order to relet the Premises. Upon each such reletting, all
rentals received by Landlord from such reletting shall be applied:
first, to the payment of any indebtedness (other than any Rent due
hereunder) from Tenant to Landlord; second, to the payment of any costs
and expenses of such reletting, including, without limitation,
brokerage fees and attorney's fees and costs of alterations and
repairs; third, to the payment of Rent and other charges then due and
unpaid hereunder; and the residue, if any, shall be held by Landlord to
the extent of and for application in payment of future Rent, if any
becomes owing, as the same may become due and payable hereunder. In
reletting the Premises as aforesaid, Landlord may grant rent
concessions and Tenant shall not be credited therefor. If such rentals
received from such reletting shall at any time or from time to time be
less than sufficient to pay to Landlord the entire sums then due from
Tenant hereunder, Tenant shall pay any such deficiency to Landlord.
Such deficiency shall, at Landlord's option, be calculated and paid
monthly. Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease for
any such previous default provided same has not been cured; or
(iv) Without terminating this Lease, and with or
without notice to Tenant, Landlord may enter into and upon the Premises
and without being liable for prosecution or any claim for damages
therefor, maintain the Premises and repair or replace any damage
thereto or do anything for which Tenant is responsible hereunder.
Tenant shall reimburse Landlord immediately upon demand for any
expenses which Landlord incurs in thus effecting Tenant's compliance
under this Lease, and Landlord shall not be liable to Tenant for any
damages with respect thereto; or
(v) Without liability to Tenant or any other party
and without constituting a constructive or actual eviction, suspend or
discontinue furnishing or rendering to Tenant any property, material,
labor or other service, wherever Landlord is obligated to furnish or
render the same so long as Tenant is in default under this Lease; or
(vi) Allow the Premises to remain unoccupied, and
Tenant shall remain liable for the Rent and all other obligations
accruing over the balance of the Term; or
(vii) Terminate the Tenant's right to possession of
the Premises, without terminating the Lease, and Tenant shall remain
liable for the Rent and all other obligations accruing over the balance
of the Term; or
(viii) Terminate the Lease and Tenant's right to
possession of the Premises; or
(ix) Enforce the performance of Tenant's obligations
hereunder by injunction or other equitable relief, which remedy may be
exercised upon any actual or threatened Event of Default by Tenant,
without regard to whether Landlord may have an adequate remedy at law;
or
(x) Foreclose any security interest in the property
of Tenant which Landlord may have under the laws of the State of
Georgia or under this Lease, including the immediate taking of
possession of all property on or in the Premises; and
(xi) Pursue any combination of the foregoing remedies
permitted by law and such other remedies as are available at law or
equity.
(b) Whenever Landlord terminates this Lease, it shall do so by
giving Tenant written notice of termination, in which event this Lease shall
expire and terminate on the date specified in such notice with the same force
and effect as though the date specified were the date herein originally fixed as
the Lease Expiration Date, and all rights of Tenant under this Lease and in and
to the Premises shall expire and terminate and Tenant shall surrender the
Premises to Landlord on the date specified in such notice, and if Tenant fails
to so surrender, Landlord shall have the right, without notice, and with or
without resort to summary dispossessory proceedings, to enter upon and take
possession of the Premises and to expel or remove Tenant and its effects without
being liable for prosecution or any claim for damages therefor.
(c) Whenever Landlord terminates Tenant's right to possession
of the Premises without terminating this Lease, it shall do so by giving Tenant
written notice of termination of its right of possession, in which event Tenant
shall surrender the Premises to Landlord on the date specified in such notice;
and if Tenant fails to so surrender, Landlord shall have the right, without
notice, and with or without resort to summary dispossessory proceedings, to
enter upon and take possession of the Premises and to expel or remove Tenant and
its effects without being liable for prosecution or any claim for damages
therefor.
(d) If this Lease shall terminate as a result of or while
there exists a default hereunder, any funds of Tenant held by Landlord may be
applied by Landlord to unpaid Rent and any damages payable by Tenant (whether
provided for herein or by law) as a result of such termination or default, in
Landlord's sole discretion.
(e) Tenant covenants and agrees that Tenant will not interpose
any counterclaim (other than compulsory counterclaims), offset, or deduction in
any summary proceeding brought by Landlord to recover possession of the
Premises. Landlord shall in no way be responsible or liable to Tenant for any
failure to rent the Premises or any part thereof, or for any failure to collect
any rent due upon such reletting. Tenant shall remain liable for all Rent and
all other obligations as they accrue over the Term, even after any writ of
possession as to the Premises is applied for or issued to Landlord in
dispossessory proceedings, after an eviction is completed, and after Landlord
terminates Tenant's right of possession unless Landlord terminates the Lease.
10
(f) If any statute or rule of law shall limit any of
Landlord's remedies as hereinabove set forth, Landlord shall nonetheless be
entitled to any and all other remedies hereinabove set forth.
(g) All installments of Rent, and all other amounts of money
payable by Tenant to Landlord under this Lease, if not received by Landlord
within five (5) days after the date due with respect to a regularly scheduled
installment of Rent, or within ten (10) days after the date due with respect to
any other sum, shall: (i) be subject to a late fee equal to the greater of (A)
five percent (5%) of the amount past due, or (B) $50.00, which late fee
represents an agreed upon charge for the administrative expense suffered by
Landlord as a result of such late payment and not payment for the use of money
or a penalty; and (ii) the amount past due (excluding late fees), shall bear
simple interest from the date due until paid at twelve percent (12%) per annum
(the "Interest Rate"); and Tenant agrees to pay said late fee and interest
immediately and without demand. However, if at the time such interest is sought
to be imposed, the Interest Rate exceeds the maximum rate permitted under
federal law or under the laws of the State of
Georgia, the Interest Rate shall
be the maximum rate of interest then permitted by applicable law. Should Tenant
make a partial payment of past due amounts, the amount of such partial payment
shall be applied first to late fees, second to accrued but unpaid interest at
the Interest Rate, and third to past due amounts in the order of their due
dates. The provision for such late charge shall be in addition to all of
Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
(h) In the event Tenant's check, given to Landlord in payment,
is returned by the bank for non-payment, Tenant agrees to pay a service charge
not to exceed $20.00 or five percent (5%) of the face amount of the check,
whichever is greater.
(i) The foregoing provisions of this Paragraph 19 shall
survive the expiration or earlier termination of this Lease and shall apply to
any renewal or extension of this Lease.
20. BANKRUPTCY.
(a) Notwithstanding anything in this Lease to the contrary,
all amounts payable by Tenant to or on behalf of Landlord under this Lease,
whether or not expressly denominated as Rent, shall constitute Rent for the
purposes of the Bankruptcy Code. 11 U.S.C. Section 502(b)(7).
(b) This is a contract under which applicable law excuses
Landlord from accepting performance from (or rendering performance to) any
person or entity other than Tenant within the meaning of the Bankruptcy Code. 11
U.S.C. Section 365(c), 365(e)(2).
(c) If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, any and all monies or other
consideration payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or
the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and be promptly paid or delivered to Landlord.
(d) Any person or entity to which this Lease is assigned
pursuant to the provisions of the Bankruptcy Code, shall be deemed, without
further act or deed, to have assumed all of the obligations arising under this
Lease on and after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Landlord an instrument confirming such assumption.
21. INTENTIONALLY OMITTED.
22. SUBORDINATION; ESTOPPEL CERTIFICATES.
(a) Tenant accepts this Lease subject and subordinate to the
lien or security title of any recorded first mortgage, first-in-priority deed to
secure debt or ground lease presently existing or hereafter created upon the
Premises or Building, and to all existing recorded restrictions, covenants,
easements and agreements with respect to the Office Park, or any part thereof,
and all amendments, modifications and restatements thereof, and all replacements
and substitutions therefor. The subordination created hereby is intended to be
self-operative and no further instrument shall be required to effect such
subordination of this Lease. Nevertheless, Tenant agrees to execute such
documents as Landlord may request to evidence and memorialize such
subordination. If Tenant fails to execute any such requested documentation
within ten (10) days after Landlord's request therefor, Landlord is hereby
irrevocably vested with full power and authority to subordinate Tenant's
interest under this Lease in Tenant's name and on Tenant's behalf to the lien or
security title of any mortgage, deed to secure debt or ground lease hereafter
placed on the Premises or the Building, and to any future instrument amending,
modifying, restating, replacing or substituting for any such existing recorded
restrictions, covenants, easements and agreements. Tenant hereby irrevocably
appoints Landlord as Tenant's agent and attorney-in-fact for the purpose of
executing, acknowledging and delivering any such instruments and certificates.
Such power of attorney is coupled with an interest and shall be irrevocable. Any
Mortgagee may elect that this Lease shall have priority over the mortgage or
deed to secure debt held by such Mortgagee and, upon notification to Tenant by
such Mortgagee, this Lease shall be deemed to have priority over such mortgage
or deed to secure debt, regardless of the date of this Lease. If the interest of
Landlord under this Lease shall be transferred by reason of exercise of a power
of sale, foreclosure or other proceeding for enforcement of any mortgage or deed
to secure debt on the Premises or the Building, or if the lessor under any
ground lease succeeds to the interest of Landlord under this Lease, Tenant shall
be bound to the transferee (sometimes hereinafter referred to as the
"Purchaser"), at the option of the Purchaser, under the terms, covenants and
conditions of this Lease for the balance of the Term remaining, and any
extensions or renewals, with the same force and effect as if the Purchaser were
Landlord hereunder, and, if requested by the Purchaser, Tenant shall attorn to
such Purchaser and agrees to be bound and obligated hereunder to the Purchaser
(including the Mortgagee or grantee under any such mortgage or deed to secure
debt and the lessor under any ground lease), as its landlord under this Lease.
The foregoing provisions are self-operative and require no further instruments
to give effect thereto; provided, however, that Tenant shall promptly execute
and deliver any instrument that such Purchaser may reasonably request: (i)
evidencing such attornment; (ii) setting forth the terms and conditions of
Tenant's tenancy; and (iii) containing such other terms and conditions as may be
required by such Purchaser, provided such terms and conditions do not increase
the Rent, materially increase Tenant's obligations, or materially and adversely
affect Tenant's rights under this Lease. Upon such attornment, this Lease shall
continue in full force and effect as a direct lease between such Purchaser and
Tenant upon all the terms, conditions and covenants set forth in this Lease,
except that such Purchaser shall not be: (A) liable for any act or omission of
Landlord (except to the extent such act or omission continues beyond the date
when such Purchaser succeeds to Landlord's interest and Tenant gives notice of
such act or omission); (B) subject to any defense, claim, counterclaim, set-off
or offsets which Tenant may have against Landlord; (C) bound by any prepayment
of more than one (1) month's Rent to any prior landlord; (D) bound by any
obligation to make any payment to Tenant which was required to be made prior to
the time Purchaser succeeded to Landlord's interest; (E) bound by any obligation
to perform any work or to make improvements to the Premises except for (x)
repairs and maintenance required to be made by Landlord under this Lease, and
(y) repairs to the Premises as a result of damage by fire or other casualty or a
partial condemnation pursuant to the provisions of this Lease, but only to the
extent that such repairs can reasonably be made from the net proceeds of any
insurance or condemnation awards, respectively, actually made available to such
Purchaser; (F) bound by any modification, amendment or renewal of this Lease
made without Purchaser's consent; (G) liable for the repayment of any Security
Deposit or surrender of any letter of credit, unless and until such Security
Deposit actually is paid, or such letter of credit is actually delivered, to
such Purchaser; or (H) liable for the payment of any unfunded tenant improvement
allowance, refurbishment allowance or similar obligation.
11
(b) Tenant shall, from time to time, within ten (10) days
after request from Landlord, or from any Mortgagee or lessor of Landlord,
execute, acknowledge and deliver in recordable form a certificate certifying, to
the extent true, that this Lease is in full force and effect and unmodified (or,
if there have been modifications, that the same is in full force and effect as
modified and stating the modifications); that the Term has commenced and the
full amount of the Rent then accruing hereunder; the dates to which Rent has
been paid; that Tenant has accepted possession of the Premises and that any
improvements required by the terms of this Lease to be made by Landlord have
been completed to the satisfaction of Tenant; the amount, if any, that Tenant
has paid to Landlord as a Security Deposit; that no Rent under this Lease has
been paid more than thirty (30) days in advance of its due date; that the
address for notices to be sent to Tenant is as set forth in this Lease (or has
been changed by notice duly given and is as set forth in the certificate); that
Tenant, as of the date of such certificate, has no charge, lien, or claim of
offset under this Lease or otherwise against Rent or other charges due or to
become due hereunder; that, to the knowledge of Tenant, Landlord is not then in
default under this Lease; and such other matters as may be reasonably requested
by Landlord or any Mortgagee or lessor of Landlord. If Tenant fails to so
execute, acknowledge and deliver such certificate within ten (10) days after
request from Landlord, or any Mortgagee or lessor of Landlord, Landlord is
hereby empowered to do so in Tenant's name and on Tenant's behalf. Tenant hereby
appoints Landlord as Tenant's agent and attorney-in-fact for the purpose of
executing, acknowledging and delivering such certificate. Such power of attorney
is coupled with an interest and shall be irrevocable. Any such certificate may
be relied upon by Landlord, any Mortgagee or lessor of Landlord, any
beneficiary, purchaser or prospective purchaser of the Building or any interest
therein, or by anyone to whom Landlord may provide said certificate.
23. MECHANICS LIENS; OTHER TAXES.
(a) Tenant shall have no authority, express or implied to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind the interests of Landlord in the Premises or to charge
the Rent payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs, and each such claim shall affect and each such lien
shall attach to, if at all, only the leasehold interest granted to Tenant by
this instrument. Tenant covenants and agrees that it will pay or cause to be
paid all sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the Premises on
which any lien is or can be validly and legally asserted against its leasehold
interest in the Premises or the improvements thereon and that it will save and
hold Landlord harmless from any and all loss, cost or expense based on or
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of the Landlord in the Premises or under the terms
of this Lease. Tenant agrees to give Landlord immediate written notice if any
lien or encumbrance is placed on the Premises. In the event that Tenant shall
not, within twenty (20) 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
Landlord by Tenant on demand and with interest at the Interest Rate.
(b) Tenant shall be liable for all taxes levied or assessed
against personal property, furniture or fixtures placed by Tenant in the
Premises. If any such taxes for which Tenant is liable are levied or assessed
against Landlord or Landlord's property and if Landlord elects to pay the same
or if the assessed value of Landlord's property is increased by inclusion of
personal property, furniture or fixtures placed by Tenant in the Premises, and
Landlord elects to pay the taxes based on such increase, Tenant shall pay to
Landlord upon demand that part of such taxes.
24. SUBSTITUTION OF PREMISES. At any time after the date of execution
of this Lease, Landlord may substitute for the Premises, other premises in the
Office Park (the "new premises"), in which event the new premises shall be
deemed to be the Premises for all purposes under this Lease, provided: (a) the
new premises shall be similar to the Premises in area and can be used for
Tenant's Permitted Uses; (b) if Tenant is then occupying the Premises, Landlord
shall pay the expenses of moving Tenant, its property and equipment to the new
premises and such moving shall be done at a time and in such manner so as to
minimize, to the extent reasonably possible, the inconvenience to Tenant; (c)
Landlord shall give to Tenant not less than thirty (30) days' prior written
notice of such substitution; and (d) Landlord shall, at its sole cost, improve
the new premises with improvements substantially similar to those in the
Premises.
25. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves and may
exercise the following rights without affecting Tenant's obligations hereunder:
(a) to change the name, street address, or suite numbers of
the Building;
(b) to change the name of the Office Park;
(c) to install or maintain a sign or signs on the exterior of
the Building;
(d) to designate all sources furnishing sign painting and
lettering, ice, drinking water, towels, coffee cart service and toilet supplies,
lamps and bulbs used on the Premises;
(e) to retain at all times pass keys to the Premises;
(f) to close the Building after regular working hours and on
legal holidays subject, however to Tenant's right to 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;
(g) to grant to anyone the exclusive right to conduct any
particular business or undertaking in the Building; and
(h) to take any and all measures, including inspections,
repairs, alterations, decorations, additions and improvements to the Premises or
the Building, and identifications 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 may be necessary or desirable in the operation of the Building.
The Landlord may enter upon the Premises and may exercise any
or all of the foregoing rights hereby reserved without the same being construed
as an unlawful entry into the Premises and without being deemed guilty of an
eviction, actual or constructive, or without being deemed guilty of trespass or
disturbance of the Tenant's use or possession and without being liable in any
manner to Tenant and without abatement of Rent or affecting any of Tenant's
obligations hereunder.
26. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivery of any notice or the making of any payment
by Landlord to Tenant or with reference to the sending, mailing or delivery of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
12
(a) All Rent and other payments required to be made by Tenant
to Landlord hereunder shall be payable to Landlord at the address hereinbelow
set forth or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligations to pay
Rent and any other amounts to Landlord under the terms of this Lease shall not
be deemed satisfied until such Rent and other amounts have been actually
received by Landlord.
(b) All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address hereinbelow set forth, or at
such other address within the continental United States as Tenant may specify
from time to time by written notice delivered in accordance herewith.
(c) Except for legal process, which may also be served as by
law provided, any notice or communication required or permitted hereunder shall
be in writing and shall be sent either by: (i) personal delivery service with
charges therefor billed to shipper; (ii) nationally recognized overnight
delivery service (such as Federal Express, United Parcel Service, Airborne,
etc.) with charges therefor billed to shipper; or (iii) United States Mail,
postage prepaid, registered or certified mail, return receipt requested. All
such notices and communications shall be addressed to Landlord or Tenant, as the
case may be, at the addresses set forth below, or at such other addresses as
Landlord or Tenant may have designated by notice to the other given as provided
above. Any notice or communication sent as above provided shall be deemed given
or delivered: (A) upon receipt, if personally delivered (provided delivery is
confirmed by the courier delivery service); (B) on the date of delivery by any
nationally recognized overnight delivery service; or (C) if sent by United
States Mail, on the date appearing on the return receipt therefor, or if there
is no date on such return receipt, the receipt date shall be presumed to be the
postmark date appearing on such return receipt. Notice shall be considered given
and received on the latest original delivery or attempted delivery date to all
persons and addresses to which notice is to be given, as indicated on the return
receipt(s) of the United States Mail or delivery receipts of the personal
delivery service or nationally recognized overnight delivery service. Any notice
or communication which cannot be delivered because of failure to provide notice
of a change of address as herein provided or for which delivery is refused shall
be deemed to have been given and received on the date of attempted delivery. Any
notice or communication required or permitted hereunder shall be addressed as
follows:
Landlord: Landlord's Address for Payments:
Sanctuary Park Realty Holding Company
c/o Jones Xxxx LaSalle
P. O. Xxx 00000
Xxxxxxx, Xxxxxxxx 00000
Landlord's Address for Notices:
Sanctuary Park Realty Holding Company
c/o Jones Lang LaSalle Americas, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: General Manager
With a copy to:
Sanctuary Park Realty Holding Company
c/o X.X. Xxxxxx Xxxxxxx Asset Management Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
With a copy to:
Xxxxxxxx & Xxxxxxx, P.C.
2800 Marquis One Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Tenant: Inhibitex, Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx
With a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
If and when included within the term "Tenant," as used in this instrument, there
are more than one person, firm or corporation, all shall jointly arrange among
themselves for their joint execution of such a notice specifying some individual
at some specific address within the continental United States for the receipt of
notices and payments to Tenant. All parties included within the term "Tenant"
shall be bound by notices given in accordance with the provisions of this
paragraph to the same effect as if each had received such notice.
27. HAZARDOUS SUBSTANCES.
(a) Tenant covenants that, without first obtaining Landlord's
written consent, neither Tenant nor any of its agents, employees, contractors or
invitees shall cause or permit any Hazardous Materials (as hereinafter defined)
to be stored, handled, treated, released or brought upon or disposed of on the
Premises or the Building or the Office Park, except for Hazardous Materials
customarily used in general business offices in first-class office buildings,
and then only in accordance with any and all applicable laws, ordinances, rules,
regulations and requirements respecting the storage, handling, treatment,
release, disposal, presence or use of such Hazardous Materials. Tenant shall
indemnify, defend and hold Landlord harmless from and against any and all
claims, judgments, damages, penalties, fines, costs (including without
limitation, consultants' fees, experts' fees, attorneys' fees and court costs),
liabilities or losses resulting from the storage, handling, treatment, release,
disposal, presence or use of Hazardous Materials in, on or about the Premises or
the Building or the Office Park by Tenant, its agents, employees, contractors or
invitees from and after the date of this
13
Lease. Tenant agrees to take such steps
as are necessary to remediate any Hazardous Materials governed by the terms of
this Paragraph 27(a) in the manner required by law.
(b) Definition of Hazardous Materials. As used herein, the
term "Hazardous Materials" means asbestos, polychlorinated biphenyls, oil,
gasoline or other petroleum based liquids, any and all materials or substances
deemed hazardous or toxic or regulated by applicable laws, including, but not
limited to, substances defined as hazardous under the Comprehensive
Environmental Response, Compensation and Liability Act, 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. (or any state counterpart to the foregoing statutes)
or determined to present the unreasonable risk of injury to health or the
environment under the Toxic Substances Control Act, as amended, 15 U.S.C.
Section 2601 et seq.
(c) The provisions of this Paragraph 27 shall survive the
expiration or earlier termination of this Lease.
28. BROKERAGE.
(a) Tenant represents and warrants to Landlord that it has not
entered into any agreement with, or otherwise had any dealings with, any broker
or agent other than Xxxxxx & Associates, L.L.C. ("Tenant's Agent") in connection
with the negotiation, procurement or execution of this Lease which could form
the basis of any claim by any such broker or agent for a brokerage fee or
commission, finder's fee, or any other compensation of any kind or nature in
connection herewith, and Tenant shall, and hereby agrees to, indemnify, defend
and hold Landlord harmless from all costs (including, but not limited to, court
costs, investigation costs, and attorneys' fees), expenses, or liability for
commissions or other compensation claimed by any broker or agent with respect to
this Lease which arise out of any agreement or dealings, or alleged agreement or
dealings, between Tenant and any such agent or broker other than Tenant's Agent.
(b) Landlord represents and warrants to Tenant that it has not
entered into any agreement with, or otherwise had any dealings with, any broker
or agent other than Xxxxx Xxxx LaSalle Americas, Inc. ("Landlord's Agent") in
connection with the negotiation, procurement or execution of this Lease which
could form the basis of any claim by any such broker or agent for a brokerage
fee or commission, finder's fee, or any other compensation of any kind or nature
in connection herewith, and Landlord shall, and hereby agrees to, indemnify,
defend and hold Tenant harmless from all costs (including, but not limited to,
court costs, investigation costs, and attorneys' fees), expenses, or liability
for commissions or other compensation claimed by any broker or agent with
respect to this Lease which arise out of any agreement or dealings, or alleged
agreement or dealings, between Landlord and any such agent or broker other than
Landlord's Agent.
(c) Landlord shall pay a commission to Landlord's Agent
pursuant to a separate agreement between Landlord and Landlord's Agent. Landlord
shall pay a commission to Tenant's Agent pursuant to a separate agreement
between Landlord and Tenant's Agent. The fact that Landlord is paying a
commission to Tenant's Agent does not constitute Tenant's Agent as the agent of
Landlord or as a dual agent for Landlord and Tenant. Tenant's Agent has acted
solely as Tenant's agent in connection with this transaction.
(d) The provisions of this Paragraph 28 shall survive the
expiration or earlier termination of this Lease.
29. ERISA MATTERS.
(a) Tenant acknowledges that it has been advised that an
affiliate of Landlord is a collective investment fund (the "Fund") which holds
the assets of one (1) or more employee benefit plans or retirement arrangements
which are subject to Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") and/or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code") (each a "Plan"), and with respect to which Xxxxxx
Guaranty Trust Company of New York ("MGT") is the Trustee and that, as a result,
Landlord may be prohibited by law from engaging in certain transactions.
(b) Landlord hereby represents and warrants to Tenant that, as
of the date hereof, the only Plans whose assets are invested in the Fund which,
together with the interests of any other Plans maintained by the same employer
or employee organization, represent a collective interest in the Fund in excess
of ten percent (10%) of the total interests in the Fund (each, a "10% Plan") are
referenced on Exhibit "G" attached hereto and by this reference made a part
hereof (collectively, the "Existing 10% Plan").
(c) Tenant represents and warrants that as of the date hereof,
and at all times while it is a Tenant under this Lease, one of the following
statements is, and will continue to be, true: (i) Tenant is not a "party in
interest" [as defined in Section 3(14) of ERISA] or a "disqualified person" (as
defined in Section 4975 of the Code) (each a "Party in Interest") with respect
to the Existing 10% Plan; or (ii) if Tenant is a Party in Interest, that:
(A) neither Tenant nor its "affiliate" [as defined in
Section V(c) of PTCE 84-14, "Affiliate") has, or during the immediately
preceding one (1) year has, exercised the authority to either: (1)
appoint or terminate MGT as the qualified professional asset manager
[as defined in Section V(a) of PTCE 84-14, "QPAM"] of any of the assets
of the Existing 10% Plan with respect to which Tenant or its Affiliate
is a Party in Interest; or (2) negotiate the terms of the management
agreement with MGT, including renewals or modifications thereof, on
behalf of the Existing 10% Plan; and
(B) neither Tenant nor any entity controlling, or
controlled by, Tenant owns a five percent (5%) or more interest (within
the meaning of PTCE 84-14, "5% Interest") in MGT or X.X. Xxxxxx & Co.
Incorporated.
(d) In the event that Landlord or the Fund notifies Tenant in
writing that a Plan other than the Existing 10% Plan may become a 10% Plan,
Tenant will, within ten (10) days of such notification, inform the Fund in
writing as to whether it can make the same representations which it made in
subparagraph (c) of this Paragraph with respect to such prospective 10% Plan.
Thereafter, if based on such representations made by Tenant such Plan becomes a
10% Plan, Tenant represents and warrants that, at all times during the period
Tenant is a tenant under the Lease, one of the statements set forth in
subparagraph (c) will be true with respect to such 10% Plan.
30. MISCELLANEOUS.
(a) Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
(b) The terms, provisions, covenants and conditions contained
in this Lease shall apply to, inure to the benefit of, and be binding upon the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly provided.
Landlord shall have the right to assign any of its rights and obligations under
this Lease. Each party agrees to furnish to the other, promptly upon demand, a
corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such party to
enter into this Lease.
(c) The captions inserted in this Lease are for convenience
only and in no way define, limit or otherwise describe the scope or intent of
this Lease, or any provision hereof, or in any way affect the interpretation of
this Lease.
14
(d) This Lease may not be altered, changed or amended except
by an instrument in writing signed by both parties hereto.
(e) All obligations of Tenant hereunder not fully performed as
of the expiration or earlier termination of the Term shall survive the
expiration or earlier termination of the Term, including without limitation all
payment obligations with respect to Rent and all obligations concerning the
condition of the Premises. Upon the expiration or earlier termination of the
Term, and prior to Tenant vacating the Premises, Tenant shall pay to Landlord
any amount reasonably estimated by Landlord as necessary to put the Premises,
including without limitation all heating and air conditioning systems and
equipment therein, in good condition and repair. All such amounts shall be used
and held by Landlord for payment of such obligations of Tenant hereunder, with
Tenant being liable for any additional costs therefor upon demand by Landlord,
or with any excess to be returned to Tenant after all such obligations have been
determined and satisfied, as the case may be. Any Security Deposit held by
Landlord shall be credited against the amount payable by Tenant under this
subparagraph 30(e).
(f) If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the Term,
then and in that event it is the intention of the parties hereto that the
remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and
that is legal, valid and enforceable.
(g) All references in this Lease to "the date hereof" or
similar references shall be deemed to refer to the last date, in point of time,
on which all parties hereto have executed this Lease.
(h) Time is of the essence of this Lease and all of its
provisions.
(i) No animals (except service animals) shall be brought into
or kept in or about the Building.
(j) Tenant agrees to comply with subdivision regulations,
protective covenants, or other restrictions of record that are applicable to the
Building or Office Park.
(k) If there is more than one Tenant, the obligations imposed
upon Tenant under this Lease shall be joint and several. The duties and
obligations of Tenant shall run and extend not only to the benefit of the
Landlord, as named herein, but to the following, at the option of the following
or any of them: (i) any person, by, through or under which Landlord derives the
right to Lease the Premises; (ii) the owner of the Premises; and (iii) holders
of mortgage, deed to secure debt or rent assignment interests in the Premises,
as their respective interests may appear; provided, however, nothing contained
herein shall be construed to obligate Tenant to pay Rent to any person other
than Landlord until such time as Tenant has been given written notice of either
an exercise of a rent assignment or the succession of some other party to the
interests of Landlord.
(l) This Lease shall create the relationship of landlord and
tenant between the parties hereto; no estate shall pass out of Landlord. Tenant
has only a usufruct, not subject to levy and sale, and not assignable by Tenant
except by Landlord's consent as specifically provided in Paragraphs 11 and 42 of
this Lease.
(m) Notwithstanding anything contained elsewhere in this
Lease, Tenant shall have no claim, and hereby waives the right to any claim,
against Landlord for money damages by reason of any refusal, withholding or
delaying by Landlord of any consent, approval or statement of satisfaction
required of Landlord by this Lease or applicable law. In such event, Tenant's
only remedy for any refusal, withholding or delay which is determined to be
unreasonable or in contravention of this Lease or applicable law shall be an
action for specific performance or an injunction to enforce any such
requirement.
(n) This Lease and the Exhibits and Riders attached hereto set
forth the entire agreement between the parties and cancel all prior
negotiations, arrangements, brochures, agreements, and understandings, if any,
between Landlord and Tenant regarding the subject matter of this Lease. Neither
this Lease, nor any memorandum hereof, shall be recorded by Tenant without
Landlord's prior written consent to such recording.
(o) This Lease shall be governed by and construed under the
internal laws of the State of
Georgia, without regard to the conflicts of laws
rules of such state. Any action brought to enforce or interpret this Lease shall
be brought in the court of appropriate jurisdiction in Xxxxxx County,
Georgia.
Should any provision of this Lease require judicial interpretation, Landlord and
Tenant hereby agree and stipulate that the court interpreting or considering
same shall not apply the presumption that the terms hereof shall be more
strictly construed against a party by reason of any rule or conclusion that a
document should be construed more strictly against the party who itself or
through its agent prepared the same, it being agreed that all parties hereto
have participated in the preparation of this Lease and that each party had full
opportunity to consult legal counsel of its choice before the execution of this
Lease.
(p) No Event of Default or provision of this Lease shall be
deemed to have been waived by either party unless such waiver is in writing and
signed by the other party. Landlord's acceptance of Rent following an Event of
Default hereunder, or acceptance of less than the full amount due (even if
Tenant writes the words "accord and satisfaction" or words of similar import on
its check) shall not be construed as a waiver of such Event of Default, nor
excuse any delay or partial payment upon subsequent occasions. No custom or
practice which may develop between the parties in connection with the terms of
this Lease shall be construed to waive or lessen either party's right to insist
upon strict performance of the terms of this Lease, without a written notice
thereof to the other party.
(q) In any action or proceeding between Landlord and Tenant,
the prevailing party shall be entitled to recover all of its costs and expenses
in connection therewith, including, but not limited to, reasonable attorneys'
fees actually incurred, from the non-prevailing party.
(r) Landlord shall not be liable to Tenant for failure to give
possession of any portion of the Premises to Tenant if Landlord is delayed in
commencing construction on such portion of the Premises by reason of the
unlawful holding over or retention of possession of any previous tenant, tenants
or occupants of such portion of the Premises, nor shall such failure impair the
validity of this Lease. However, Landlord does agree to use reasonable diligence
to obtain possession of each portion of the Premises in a timely manner so that
construction within such portion of the Premises shall not be delayed.
(s) Notwithstanding any other term or provision of this Lease,
in the event Landlord has made any Rent concession of any type or character or
has waived or deferred the payment of any Rent installment, should Tenant fail
to take possession of the Premises on the Commencement Date or should any Event
of Default occur, all such Rent concessions and waivers or deferrals of Rent
installments shall be canceled and the amount of such concessions, waivers and
deferrals, together with interest at the Interest Rate, shall become immediately
due and payable.
(t) Whenever a period of time is herein prescribed for action
to be taken by Landlord, Landlord shall not be liable or responsible for, and
there shall be excluded from the computation for any such period of time, any
delays due to "Force Majeure," which term shall include strikes, riots, acts of
God, war, or governmental laws, regulations and restrictions, or any other cause
of any kind whatsoever which is beyond the reasonable control of Landlord.
15
(u) Neither Landlord nor Landlord's agents or brokers have
made any representations or promises with respect to the Premises, the Building,
the Land, or any other portions of the Office Park except as herein expressly
set forth and all reliance with respect to any representations or promises is
based solely on those contained herein. No rights, easements, or licenses are
acquired by Tenant under this Lease by implication or otherwise except as, and
unless, expressly set forth in this Lease.
(v) The submission of this Lease to Tenant shall not be
construed as an offer and Tenant shall not have any rights with respect thereto
unless said Lease is consented to by any Mortgagee, and any lessor of Landlord,
to the extent such consent is required, and Landlord executes a copy of this
Lease and delivers the same to Tenant. When this Lease has been executed by
Tenant and delivered to Landlord, this Lease shall constitute an offer to
Landlord to lease the Premises on the terms and conditions herein described.
(w) Any elimination or shutting off of light, air, or view by
any structure which may be erected on lands adjacent to the Building shall in no
way affect this Lease and Landlord shall have no liability to Tenant with
respect thereto.
(x) Landlord has adopted rules and regulations governing
parking in the Office Park (including the designation of fire lanes and "no
parking" zones) (the "Parking Rules") and has allocated a certain number of
unassigned parking spaces to Tenant in this Lease ("Tenant's Allocated Parking
Spaces"). Tenant shall not violate the Parking Rules or regularly use parking
spaces in excess of Tenant's Allocated Parking Spaces, and shall use its best
efforts to assure that its employees, agents, contractors, guests and invitees
do not do so. Tenant hereby agrees to indemnify, defend and hold Landlord
harmless from and against any and all liabilities, costs, damages and expenses
incurred or suffered by Landlord as a result of the failure of Tenant or its
employees, agents, contractors, guests and invitees to comply with the foregoing
provisions of this paragraph.
31. LIMITATION OF LANDLORD'S LIABILITY. ANYTHING CONTAINED IN THIS
LEASE TO THE CONTRARY NOTWITHSTANDING, TENANT SHALL LOOK SOLELY TO THE ESTATE
AND PROPERTY OF LANDLORD IN THE BUILDING FOR THE COLLECTION OF ANY JUDGMENT OR
OTHER JUDICIAL PROCESS REQUIRING THE PAYMENT OF MONEY BY LANDLORD FOR ANY
DEFAULT OR BREACH BY LANDLORD UNDER THIS LEASE, SUBJECT, HOWEVER, TO THE PRIOR
RIGHTS OF ANY MORTGAGEE, THE HOLDER OF ANY DEED TO SECURE DEBT OR LESSOR OF THE
BUILDING. NO OTHER ASSETS OF LANDLORD OR ANY PARTNERS, SHAREHOLDERS, OR OTHER
PRINCIPALS OF LANDLORD SHALL BE SUBJECT TO LEVY, EXECUTION OR OTHER JUDICIAL
PROCESS FOR THE SATISFACTION OF TENANT'S CLAIM.
32. ADDITIONAL PROVISIONS. See Additional Provisions Paragraphs 33
through 44 attached hereto and made a part hereof as if fully incorporated
herein and when in conflict with the body of this Lease, said Additional
Provisions shall prevail.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed in their names on their behalf and their seals affixed hereto by duly
authorized officials, the day and year respectively set forth below.
EXECUTED BY LANDLORD, this __________ day of ________________, 2004.
Witness SANCTUARY PARK REALTY HOLDING
COMPANY, a Delaware corporation
By: /s/ Illegible
------------------------------
--------------------------------------- Name:
-------------------------
Title:
------------------------
EXECUTED BY TENANT, this 23rd day of March, 2004.
Witness INHIBITEX, INC., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------- -----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Finance
and Administration
(Corporate Seal)
16
ADDITIONAL PROVISIONS
ATTACHED TO AND INCORPORATED IN
LEASE AGREEMENT BETWEEN SANCTUARY PARK REALTY
HOLDING COMPANY, A DELAWARE CORPORATION ("LANDLORD") AND INHIBITEX, INC., A
DELAWARE CORPORATION ("TENANT")
--------------------------------------------------------------------------------
33. PARKING. Landlord shall make available to Tenant throughout the
initial Term of the Lease, four (4) parking spaces per 1,000 square feet of Net
Rentable Area of the Premises in the parking area serving the Building. Such
parking spaces shall be free of charge and unassigned. Landlord reserves the
right to designate parking spaces at a future date.
34. JANITORIAL SERVICES. Janitorial services shall be provided by
Landlord for the Premises on Mondays through Fridays, excluding holidays,
pursuant to the Cleaning Specifications attached hereto as Exhibit "E."
Landlord, however, expressly reserves the right to modify such Cleaning
Specifications, provided that the quality and frequency remain substantially the
same as those contemplated by Exhibit "E."
35. SIGNAGE. Tenant identification will be available on the Building's
lobby directory and at the primary entrance to the Premises. All such signage at
the primary entrance to the Premises shall be Building standard plaque signage.
Landlord shall pay the cost of the initial listing in the Building's lobby
directory and Tenant shall pay the cost of the signage at the primary entrance
to the Premises.
36. ACCESS. Except in the case of an emergency, Tenant shall have
access to the Premises, the Building and the related parking facilities
twenty-four (24) hours per day, seven (7) days per week, fifty-two (52) weeks
per year.
37. BUSINESS DAYS. The term "Business Day" means Mondays through
Fridays, exclusive of any holidays observed by the Building.
38. AFTER HOURS HVAC. If Tenant requires air-conditioning or heating
for hours or days in addition to the hours and days specified in Paragraph 5 of
this Lease, Landlord shall make reasonable efforts to provide such additional
service after reasonable, prior written request therefor from Tenant, and Tenant
shall reimburse Landlord for the cost of such additional service, at the hourly
rates established from time to time by Landlord for such services. Such hourly
rates shall be based upon Landlord's cost of providing such services, and shall
include a component for Landlord's overhead, depreciation, maintenance and labor
costs in providing such services. If any of Landlord's other tenants served by
the equipment providing such additional service to the Premises request that
Landlord simultaneously provide such service to such other tenants, the cost of
Landlord providing such additional and concurrent service shall be prorated
among all of Landlord's tenants requesting such service, on a reasonable basis,
as determined by Landlord. As of the date of this Lease, Landlord's hourly
charge for providing after-hours heating or air-conditioning service is $35.00
per hour (or part thereof), per air-handling unit, but such rate is subject to
change from time to time based upon Landlord's actual costs (which may include
the components set forth above) in providing such after-hours service.
39. EXISTING SUBLEASE. Tenant is currently occupying the Premises
pursuant to that certain Sublease, dated December xx, 2002 (the "Existing
Sublease"), between Lucent Technologies, Inc., a Delaware corporation
("Lucent"), as "Sublandlord" and Tenant, as "Subtenant," as amended by that
certain Acknowledgement of Exercise of Early Termination Option and Consent to
Sublease, by and among Landlord, Lucent and Tenant, executed by Landlord on
December 23, 2002 (the "Consent"). Pursuant to the terms of the Consent, the
Existing Sublease constitutes a direct lease between Landlord and Tenant for the
"Extended Sublease Term" (as defined in the Consent). The Extended Sublease Term
expires on March 31, 2004. Immediately upon the expiration of the Extended
Sublease Term, the Commencement Date shall occur and Tenant shall remain in the
Premises under the terms of this Lease. As of the Commencement Date, Tenant
shall accept the Premises for the Term in its then current "as-is" condition.
Tenant further acknowledges that no representations as to the repair of the
Premises, nor promises to alter, remodel or improve the Premises have been made
by Landlord, except as expressly set forth in this Lease.
40. CROSS-DEFAULT. Tenant will occupy the Premises until the
Commencement Date under the terms and conditions of the Existing Sublease. The
occurrence of a default by Tenant under the Existing Sublease shall, at the
option of Landlord, also constitute an Event of Default by Tenant under this
Lease. Likewise, the occurrence of an Event of Default by Tenant under this
Lease shall, at the option of Landlord, also constitute a default by Tenant
under the Existing Sublease. Landlord represents and warrants to Tenant that, as
of the date of Landlord's execution of this Lease, to the best of the current,
actual knowledge of Landlord's General Manager, no default by Tenant exists
under the Existing Sublease.
41. INTERRUPTION OF SERVICES. In the event of any failure to furnish,
or any stoppage of, the following specified services for a period in excess of
five (5) consecutive Business Days, and if: (a) such interruption is restricted
to the Building and is not a neighborhood blackout; (b) such failure to furnish
or stoppage is caused by the negligence or willful misconduct of Landlord or by
the failure of Landlord to commence and diligently pursue repairs for which
Landlord is responsible under this Lease; (c) such interruption results in the
Premises becoming untenantable; and (d) Tenant actually ceases to occupy the
Premises as a result thereof, Tenant shall be entitled to an abatement of Rent
which shall commence on the sixth (6th) Business Day (and shall not be
retroactive) and shall continue for the remainder of the period of such failure
to furnish or stoppage of such specified services. As used in this Paragraph 41,
the specified services are: electricity, heating, ventilating and air
conditioning, water and elevator service.
42. CONSENT TO ASSIGNMENT OR SUBLEASING. Notwithstanding the provisions
of Paragraph 11 of this Lease, Landlord shall not unreasonably withhold its
consent to an assignment of this Lease in its entirety or to any subletting of
the Premises, provided that:
(a) No Event of Default shall have occurred and be continuing;
(b) The proposed subtenant or assignee shall have a financial
standing, be of a character, be engaged in a business, and propose to use the
Premises in a manner in keeping with Landlord's then-current standards in such
respects for tenancies in the Building;
(c) The character of the business to be conducted or the
proposed use of the Premises by the proposed subtenant or assignee shall not:
(i) be likely to increase Landlord's Operating Expenses beyond those which would
be incurred for use by Tenant or for use in accordance with the standards of use
of other tenancies in the Building; (ii) unreasonably increase the burden on
existing cleaning services or elevators over the burden prior to such proposed
subletting or assignment; (iii) violate any provision or restrictions herein or
in any other leases in the Office Park relating to the use or occupancy of the
Premises [provided, however, that if Landlord withholds its consent to an
assignment of this Lease or a subletting of the Premises on the basis of this
Paragraph 42(c)(iii), Landlord shall provide written notice to Tenant
identifying the provision or restrictions which would be violated by such
assignment or subletting, unless the identification of such provision or
restrictions would violate any duty of confidentiality which Landlord may owe to
any other party]; or (iv) increase the demand for parking spaces beyond those
required by Tenant;
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(d) The subletting shall be expressly subject to all of the
terms, covenants, conditions and obligations on Tenant's part to be observed and
performed under this Lease and the further condition and restriction that the
sublease or this Lease shall not be assigned, encumbered or otherwise
transferred or the subleased premises further sublet by the subtenant in whole
or in part, or any part thereof suffered or permitted by the subtenant to be
used or occupied by others, without the prior written consent of Landlord in
each instance, which consent may be granted or denied by Landlord in its sole
discretion;
(e) At no time shall there be more than two (2) tenants or
subtenants, including Tenant, in the Premises;
(f) Any assignee shall agree to assume all of the obligations
of Tenant under this Lease arising from and after the date of such assignment;
(g) The proposed subtenant or assignee shall not be a federal,
state or local government, or an agency or instrumentality thereof, nor shall it
be entitled, directly or indirectly, to diplomatic or sovereign immunity;
(h) The proposed subtenant or assignee shall be subject to
service of process in, and the jurisdiction of the courts of, the State of
Georgia;
(i) Landlord does not have comparable space then-available
elsewhere in the Office Park which can accommodate the needs of the proposed
assignee or subtenant;
(j) The proposed assignee or subtenant is not a prospect to
whom Landlord has made a proposal for the lease of space within the Office Park
within the prior six (6) months; and
(k) Any assignee shall be able to make the ERISA
representation set forth in Paragraph 29 of this Lease.
The foregoing shall in no way limit Landlord's ability: (A) to withhold or delay
its consent for any other reason which is reasonable under the circumstances; or
(B) to terminate this Lease as to the portion of the Premises affected by such
proposed sublease or assignment, as permitted by Paragraph 11(c) of this Lease.
43. AUDIT. Within ninety (90) days after Tenant's receipt of a
statement of actual Operating Expenses for the preceding year, Tenant shall have
the right, upon written request to Landlord, to obtain a detailed breakdown of
Operating Expenses for the preceding year, which shall, in reasonable detail,
demonstrate the calculation of actual Operating Expenses for the preceding year.
Following receipt of such detailed breakdown, Tenant may request, and Landlord
shall provide, such supporting documentation of individual line-item components
of the actual Operating Expenses as Tenant may reasonably request.
44. TENANT'S ELECTRICITY USAGE.
(a) Landlord and Tenant acknowledge that Tenant, in occupying
the Premises under the Existing Sublease, is currently using electric current in
excess of that usually furnished or supplied for use of the Premises as general
office space for the purpose of powering the separately-metered, supplementary
air conditioning units serving Tenant's computer server room. Notwithstanding
anything contained in this Lease to the contrary, including, without limitation,
the terms of Paragraph 5(c) of this Lease, Landlord has approved such excess
electricity usage at Tenant's sole cost and expense; provided, however, that
such approval shall not be deemed to be an approval of any material usage of
electric current in excess of the amount of electric current used by Tenant in
the Premises as of the date of Tenant's execution of this Lease. During the Term
of this Lease, Tenant shall: (i) reimburse Landlord for the excess electric
current supplied for the supplementary air conditioning units serving Tenant's
computer server room pursuant to the terms of Paragraph 5(c) of this Lease; and
(ii) at Tenant's sole cost and expense, keep the supplementary air conditioning
units serving Tenant's computer server room in good order, condition and repair.
(b) To the best of Landlord's current, actual knowledge,
Tenant's historical usage of electric current in the Premises under the Existing
Sublease, through the date of Tenant's execution of his Lease, and not including
the excess electric current supplied for the supplementary air conditioning
units serving Tenant's computer server room as described in Paragraph 44(a)
above, has not been in excess of that usually furnished or supplied for use of
the Premises as general office space. If, subsequent to the date of Tenant's
execution of his Lease, Tenant increases or attempts to increase its usage of
electric current in the Premises over Tenant's historical usage, the provisions
of Paragraph 5(c) of this Lease shall apply.
EXHIBITS OMITTED
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