GWINNETT CORPORATE CENTER Exhibit 10.26
STANDARD LEASE
THIS LEASE, made this 10th day of July , 2000 by and between XXXXXXXX
COMPANY, LLC, a Delaware limited liability company (the "Lessor") the address of
whom is the address of Lessor set forth in Paragraph 28 herein, and XXXXXX
COMMUNICATIONS, INC., a Delaware corporation (the "Lessee"):
WITNESSETH
1. PREMISES. In consideration of the rents, covenants, agreements, and
stipulations herein set forth, Lessor hereby leases to Lessee and Lessee hereby
accepts and leases from Lessor the premises (the "Premises") shown on the floor
plan attached hereto as Exhibit "A" and made a part hereof, containing
approximately 45,038 square feet and located in the 0000 Xxxxxxxxx Xxxxx, Xxxxxx
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000, 305, 310, 315, 320, 325, and 330, Xxxxxxxx, XX 00000 Building (the
"Building") of Phase five (V) (the "Phase") of the GWINNETT CORPORATE CENTER
business park (the "Project"). The "Phase" shall mean and include the Building
and all other buildings shown in the drawing of the Phase attached hereto as
Exhibit "B" and made a part hereof and the land upon which such buildings stand
and the Common Areas appurtenant to or serving such buildings, all as shown on
Exhibit "B". For all purposes of this Lease the rentable square footage of the
Premises shall be deemed to be the number of square feet set forth in this
Paragraph I and the rentable square footage of the buildings in the Phase
(herein called the "Rentable Square Footage of the Phase") shall be deemed to be
228,668 square feet.
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2. TERM. To have and to hold the same for a term of 66 months commencing on
(the "Commencement Date") the later to occur of (a) the 30th day of June, 2000,
and (b) the Substantial Completion Date (as that phrase is defined in Exhibit E,
Section XII(B)), and ending at midnight on the last day of the 66th full
calendar month following the Commencement Date, unless extended or sooner
terminated or delayed, as hereinafter provided.
3. BASE RENTAL. (a) Lessee shall pay to Lessor as base rental (hereinafter
called the "Base Rental") an annual rental of Two Hundred Thirty Thousand Five
Hundred Ninety Four and 56/100s dollars ($230,594.56) in monthly installments of
Nineteen Thousand Two Hundred Sixteen and 21/100s dollars ($19,216.21). Lessee
shall pay a monthly installment of Base Rental to Lessor in the amount provided
herein (as such amount may be increased from time to time pursuant to Paragraph
3(b) herein) without demand, deduction or setoff, in advance, on the first day
of each calendar month during the term of this Lease. See Special Stipulation
IX, Exhibit "E".
(b) Upon each Lease Anniversary (as hereinafter defined) the amount of
each monthly installment of Base Rental due from Lessee to Lessor shall be
increased, and thereafter and until further increased on the next Lease
Anniversary, the amount of each monthly installment of Base Rental shall be an
amount equal to the product of one and four one-hundredths (1.04) multiplied by
the amount of the monthly installment of Base Rental for the month immediately
prior to such Lease Anniversary as provided in this Paragraph 3. For purposes of
this Paragraph 3, the term "Lease Anniversary" shall refer to the anniversary
during each year of the term of this Lease of the first day of the calendar
month during which the Lease term hereunder commenced.
(c) If Lessor does not receive full payment of any monthly rental
installment on or before the seventh (7th) day of the month for which such
rental is due or delinquent, then, in addition to all other remedies available
to Lessor for nonpayment of rent and in addition to all rents otherwise owed
hereunder, Lessee shall pay to Lessor a service charge at the rate of four
percent (4%) per month upon all past due amounts owed on such date.
4. COMMON AREA MAINTENANCE CHARGES. Lessor shall have sole and exclusive
obligation to operate, manage and maintain the Common Areas (as hereinafter
defined) and to determine the expense to be incurred therefore (the "Common Area
Expense") and the times, the manner and the means of such operation, management
and maintenance. Lessee agrees to pay as additional rental hereunder Lessee's
proportionate share (as hereinafter set forth) of the Common Area Expense
incurred by Lessor, including without limitation expense for all water supplied
to any building in the Phase, the tenants of any such building or the Common
Areas and all sewer charges associated therewith, and for maintenance, lighting,
painting, cleaning, policing, inspecting, repairing and replacing, and carrying
insurance with respect to any and all elements of the Common Areas as more fully
described in Paragraph 12 herein, together with a reasonable allowance for
Lessor's overhead and depreciation of equipment. Notwithstanding anything in
this Lease to the contrary, Common Area Expense shall not include (i)
commissions payable to any real estate broker(s) for the leasing of space in the
Project; (ii) the cost of any work done by Lessor for and at the expense of any
particular tenant(s) in the Project; (iii) legal fees paid to enforce the
obligations of any other tenant; (iv) expenses paid by Lessor for the
advertising and promotion of rental space in the Project; (v) fines, penalties
or other costs incurred by Lessor due to its violation of any governmental rule
or authority existing at the time of execution of the lease; (vi) interest or
penalties for overdue payments of taxes, except direct costs incurred in
contesting or reducing same; (vii) the cost to Lessor of repairs made or other
work done, by Lessor as a result of fire, windstorm or other insurable casualty
if Lessor is compensated by insurance or by the exercise of eminent domain,
provided, however, that this exclusion for eminent domain is limited to the
amount of the condemnation award received by lessor in compensation for such
repairs or other work; (viii) attorneys' fees and court costs and other such
expenses incurred by Lessor in connection with the negotiation of disputes with
existing or prospective tenants or occupants of the Project; (ix) the cost to
Lessor of renovating, decorating, painting or redecorating space for tenants or
other occupants of the Project; (x) costs incurred by Lessor due to the
violation of Lessor or any tenant of the terms and conditions of any lease for
space in the Project; (xi) interest on debt or amortization payments on any
mortgages and rental under any ground or underlying leases covering Lessor's
Property; (xii) salaries, wages, and benefits of Lessor's employees above the
grade of property manager and executive salaries not directly engaged in the
management of the property; (xiii) management fees in excess of four (4) percent
of gross income; (xiv) depreciation expense of Lessor's real property and
annualized "reserve accounts" for fixed asset replacement; (xv) the cost of
capital improvements or items of capital equipment, provided, however, that if
capital improvements or items of capital equipment shall be purchased by Lessor
and have the effect of causing a savings in or reduction of Common area
Expenses, then the amount of the expenditure shall be amortized under generally
accepted accounting principles and be included in Common Area Expenses. For all
purposes of this paragraph, the terms "capital improvements" and "items of
capital equipment" mean any improvements or items of equipment which, in
accordance with generally accepted accounting principles, may be deemed to be
capital improvements or items of capital equipment, as the case may be; (xvi)
cost of structural repairs of the Project and the Premises, including repairs to
the foundation, concrete floors, structural frame and roof system.
As additional rental hereunder, Lessee shall pay the sum of Seventeen
Thousand Five Hundred Sixty-four and 82/100s dollars ($17,564.82) to Lessor
annually as "Common Area Maintenance Rental" in monthly installments, in an
amount each month equal to one-twelfth (1/12th) of the annual Common Area
Maintenance Rental set forth above, at the same times and in the same manner as
the Base Rental. See Exhibit "E", Special Stipulation XI.
If Lessee's proportionate share of the Common Area Expense for any calendar
year exceeds the amount of Common Area Maintenance Rental paid by Lessee for
such calendar year, then, within ninety (90) days after the close of such
calendar year, Lessor shall furnish to Lessee a statement setting forth the
Common Area Expense incurred in such calendar year and Lessee's proportionate
share thereof. Lessee's proportionate share of the Common Area Expense for such
calendar year shall be an amount equal to the product of the total Common Area
Expense incurred in such calendar year multiplied by a fraction, the numerator
of which is the rentable square footage of the Premises and the denominator of
which is the Rentable Square Footage of the Phase. Within thirty (30) days
following delivery of such statement to Lessee, Lessee shall pay to Lessor, as
additional rental hereunder, the amount necessary to increase the aggregate
amount of Lessee's payments for Common Area Expense for such calendar year to
the amount of Lessee's proportionate share as set forth in such statement.
Further, if Lessee's proportionate share of the Common Area Expense for any
calendar year as set forth in such statement exceeds the aggregate amount of
Lessee's monthly installments of Common Area Maintenance Rental due during such
calendar year, then, beginning with the calendar month immediately following the
calendar month in which Lessee receives such statement and continuing until
further increased pursuant to this paragraph, the amount of each monthly
installment of Common Area Maintenance Rental due from Lessee to Lessor shall be
increased to an amount equal to one-twelfth ( 1/12th) of Lessee's proportionate
share of the Common Area Expense as set forth in such statement.
If the first or final year of the Lease term fails to coincide with a
calendar year, Lessee's obligation to pay for Common Area Expense for the
calendar year during which the Lease term commences or ends (as the case may be)
shall be prorated according to the number of days of the Lease term that fall
within such calendar year.
5. INSURANCE EXPENSE. (a) Lessee shall pay to Lessor, as additional rental
hereunder, Lessee's proportionate share of Lessor's cost of insurance coverage
for public liability fire, hazard, extended coverage, vandalism, malicious
mischief and sprinkler leakage covering the Phase (except for amounts collected
by Lessor from any tenant of the Project pursuant to Paragraph 5(b) herein).
Lessee's proportionate share of any such insurance cost shall be computed by
multiplying the total aggregate amount of such insurance cost increases by a
fraction, the numerator of which is the rentable square footage of the Premises
and the denominator of which is the Rentable Square Footage of the Phase.
Whenever during the term of this Lease Lessor receives a xxxx for such insurance
coverage, Lessor shall furnish to Lessee an insurance cost statement setting
forth the amount of Lessee's proportionate share of all such insurance cost,
computed as set forth herein above, and Lessee shall pay such amount to Lessor,
as additional rental hereunder within ten (10) days following receipt of such
statement.
If the first or final year of the Lease term fails to coincide with a calendar
year, Lessee's obligation to pay Lessee's proportionate share of Lessor's
insurance cost, as set forth herein above, for the calendar year during which
the Lease term commences or ends (as the case may be) shall be prorated and paid
according to the number of days of the Lease term that fall within such calendar
year.
(b) Lessee shall neither make nor permit any use of the Premises nor commit
any act that will (i) increase the existing rate of insurance upon the Premises,
the Building, the Phase or the Project or (ii) cause the cancellation of any
insurance policy covering the Project, or any part thereof. Lessee shall neither
sell nor permit to be kept, used or sold, in or about the Premises, any article
or thing prohibited by the standard form of fire insurance policies. Lessee
shall, at its sole cost and expense, comply with any and all requirements
imposed by any insurance organization or company pertaining to the Premises and
necessary for the maintenance of reasonable fire, hazard, extended coverage,
vandalism, malicious mischief, sprinkler leakage and public liability insurance
covering the Premises, the Building, the Phase and the Project. In addition to
Lessee's proportionate share of insurance costs set forth in Paragraph 5(a)
herein, Lessee agrees to pay to Lessor upon demand, as additional rental
hereunder, and to other tenants of the Project, upon demand, the amount of any
increase in insurance premiums of Lessor or other tenants (as the case may be)
to the extent that such increases result from any act or omission of Lessee or
its agents, employees, sublessees, licensees or invitees or any use to which the
Premises are put or any occurrence upon the Premises during Lessee's possession
of the Premises hereunder. In addition to any other remedies available to Lessor
hereunder or under applicable law, Lessee's failure to satisfy all of Lessee's
obligations under this Paragraph 5(b) shall be grounds for termination of this
Lease. Landlord warrants that at the time of occupancy the building is zoned M-1
(light industrial) in Gwinnett County.
6. TAXES. (a) Definitions. (i) "Taxes" shall mean any and all taxes,
assessments and charges levied or imposed upon Lessor in respect of the Phase by
the governmental authority or authorities having taxing jurisdiction over the
Phase, including without limitation ad valorem real property taxes, real estate
rental receipts or gross receipts taxes, specific taxes on rentals from the
tenants of the Phase and any taxes imposed in substitution for or in lieu of any
such taxes, plus the cost, including without limitation attorneys', appraisers'
and tax consultants' fees, of all negotiations, contests and appeals pursued by
Lessor in an effort to reduce such taxes or the assessment on which any such tax
is based. If the Phase is carried in the public tax records not as a separate
parcel but instead as part of a larger parcel, then Lessor shall apportion the
taxes upon said larger parcel to the Phase in a reasonable manner and the amount
of such taxes so apportioned to the Phase by Lessor shall be the Taxes for
purposes of this Paragraph 6. If said larger parcel is substantially developed
as a business park, then it shall be deemed reasonable for Lessor to apportion
such taxes to each phase on such larger parcel, pro rata, according to the total
rentable square footage of the buildings in each such phase; however, Lessor
shall be free to use any reasonable method to make such apportionments; (ii)
"Tax Year" shall mean each twelve (12) month period established as the real
estate tax year by the taxing authorities having lawful jurisdiction over the
Phase; (iii)"Tax Base" for each Tax Year shall mean the product of zero cents
($0.00) multiplied by the Rentable Square Footage of the Phase.
(b) For each Tax Year during the term of this Lease, Lessor shall send to Lessee
a statement setting forth both the total amount of Taxes payable by Lessor for
such Tax Year and Lessee's proportionate share thereof, if any. Within thirty
(30) days following receipt of such statement, Lessee shall pay to Lessor, as
additional rental hereunder, the amount set forth on such statement as Lessee's
proportionate share, which proportionate share (hereinafter called the "Annual
Tax Excess") shall equal the product of (i) the excess of the Taxes for such Tax
Year over the Tax Base for such Tax Year, multiplied by (ii) a fraction, the
numerator of which is the rentable square footage of the Premises and the
denominator of which is the Rentable Square Footage of the Phase. Beginning with
the calendar month immediately following the month in which Lessee receives such
a statement and continuing until Lessee receives a subsequent statement of
Taxes, Lessee shall pay to Lessor each month, as additional rental hereunder, at
the same times and in the same manner as the Base Rental, an amount equal to
one-twelfth (1/12th) of the amount of the Annual Tax Excess set forth on the
most recent statement of Taxes provided by Lessor to Lessee. If the first or
final year of the Lease term fails to coincide with a Tax Year, Lessee's
obligation to pay the Annual Tax Excess for the partial Tax Year during which
the Lease term commences or ends (as the case may be) shall be prorated
according to the number of days of the Lease term that fall within such Tax
Year.
(c) Lessee shall be liable for all taxes assessed against and levied
upon the fixtures and the furnishings, equipment and all other personal property
of Lessee contained in the Premises. If any such taxes are levied against Lessor
or Lessor's property or if the assessed value of Lessor's property is increased
by inclusion of personal property or fixtures of Lessee and if Lessor elects to
pay such taxes or such tax increase, Lessee shall pay to Lessor, in addition to
the Annual Tax Excess set forth above, upon demand as additional rental
hereunder, that part of such taxes for which Lessee is liable hereunder.
7. SECURITY DEPOSIT. Lessee does hereby deposit with Lessor the sum of Nine
Thousand Six Hundred Eight and 11/100s dollars ($9,608.11) as a security deposit
which shall be held by Lessor as security for the full and faithful performance
by Lessee of each and every covenant and obligation of Lessee under this Lease.
It is hereby explicitly understood and agreed that this security deposit is
neither an advance deposit of rental nor a measure of Lessor's damages in case
of any default by Lessee and that Lessor shall have no obligation to Lessee to
pay any interest upon this security deposit nor to maintain this security
deposit separate from Lessor's general funds. If any rental herein reserved or
any other charges or sums payable by Lessee to Lessor are overdue and unpaid or
if Lessor makes payments on behalf of Lessee, or if Lessee fails to perform any
of the terms of this Lease, then in any such event Lessor may, at its option,
from time to time, and without prejudice to any other remedy which Lessor may
have against Lessee, appropriate and apply the security deposit toward the
payment of the rents, charges or other sums due from Lessee, or toward any loss,
damage or expense sustained by Lessor and resulting from or in connection with
such default on the part of Lessee (but only to the extent of such rents,
charges, other sums, loss, damage or expense); and in such event Lessee shall
forthwith upon demand pay to Lessor the amount required to restore the security
deposit to the original sum deposited. After termination of this Lease,
surrender of the Premises by Lessee, and satisfaction of all of Lessee's
obligations hereunder, the balance of the security deposit held by Lessor, if
any, shall be promptly returned by Lessor to Lessee without interest.
8. USE OF PREMISES. The Premises shall be used for office spaces, sales or
distribution rooms or showrooms, warehouse spaces or any or all of the foregoing
but not for any manufacturing process (other than light assembly of
communications equipment) nor for any other purpose without the express, prior,
written consent of Lessor (which consent shall not be unreasonably withheld,
conditioned or delayed); provided, however, that the Lessee acknowledges that it
shall be reasonable for Lessor to withhold its consent to any other use if such
use would be incompatible (in Lessor's reasonable judgment) with the nature of
the Project or with the uses of the other then-current tenants at the Project.
The Premises shall not be used for any illegal purpose; nor in violation of any
law, ordinance, order or regulation affecting the Premises, the Lessee or the
business of Lessee; nor in any manner to create any nuisance or trespass; nor in
any manner to disturb, endanger or annoy other tenants of the Project in their
use of their premises or of the Common Areas, such as without limitation
emitting odor, smoke, gas, dust, noise or vibrations; nor in any manner that may
result in injury to the Building; nor in any manner to vitiate the insurance or
increase the rate of insurance on the Premises. Lessee shall not cause, maintain
or permit any outside storage on or about the Premises, including without
limitation pallets and other refuse; and Lessee shall maintain the loading areas
serving the Premises clean and unobstructed.
9. DELIVERY OF POSSESSION. See Exhibit "E". Special Stipulation XII(G).
10. ACCEPTANCE OF PREMISES. By occupancy hereunder, Lessee acknowledges
that it has inspected the Premises and accepts the Premises as being in the
condition called for by this Lease subject to a punch list to be submitted to
Lessor within twenty (20) days following occupancy, and subject to any latent
defects, so long as such alleged latent defects are submitted to Lessor within
thirty (30) days after Lessee actually becomes aware of the same.
11. MAINTENANCE, REPAIRS AND ALTERATIONS OF PREMISES. (a) Lessor shall have
no obligation to perform any maintenance or to make any repairs or alterations
under this Lease except as specifically set forth herein. Lessor shall keep the
structural elements, the foundation, the roof, and the exterior walls of the
Building in good repair, except for reasonable wear and tear and except for
repairs occasioned or made necessary by the act or negligence of Lessee, its
agents, employees, sub-lessees, invitees or licensees. For purposes of this
Lease, the exterior walls of the Building shall be deemed to exclude all plate
glass, window glass, doors, other openings, door closure devices, window and
door frames, moldings, locks and hardware. In the event the Premises should
become in need of repairs required to be made by Lessor hereunder, Lessee shall
give immediate written notice to Lessor, and Lessor shall make any such repairs,
within a reasonable time after delivery of such written notice. If, within a
reasonable period of time after Lessor has received Lessee's written notice
requesting repairs which Lessor is required to make under the provisions of this
Lease, Lessor fails to commence and thereafter prosecute with reasonable
diligence such repairs, then Lessee may, at its option and only after at least
two (2) business days' advance written notice to Lessor, cause such repairs to
be made, unless Lessor has, prior to the expiration of said period of two (2)
business days, either commenced such repairs in good faith or given Lessee
written notice of reasonable and good faith grounds for Lessor's delay in
commencing and thereafter prosecuting with reasonable diligence such repairs,
which notice of such reasonable and good faith grounds must further include
Lessor's good faith projection of when Lessor will commence and complete such
repairs; provided that Lessee shall indemnify Lessor for any damages, claims,
losses, and liabilities incurred by Lessor as a result of the making of such
repairs by or on behalf of Lessee, and provided further that Lessee shall be
entitled, as its sole remedy for incurring the cost of such repairs and for
Lessor's failure to make such repairs, to reimbursement from Lessor for the
actual and reasonable cost of such repairs.
(b) Lessee agrees throughout the term of this Lease, at Lessee's sole
cost and expense, (i) to keep and maintain the Premises and all fixtures and
equipment therein and thereon, including without limitation all plumbing,
heating, ventilating and air conditioning, electrical, gas, water, sewage and
like fixtures and equipment, and the Premises window glass, plate glass, glass
doors, window frames, exterior steps, loading docks, loading dock doors, all
other doors, door frames, other openings, moldings, door closure devices, locks
and hardware, interior ceilings, walls and floors and all signs of Lessee in
good repair order and condition, (ii) to make all repairs and replacements
thereto as may be required and all other repairs required to keep the Premises
in good repair, order and condition but not the responsibility of Lessor
pursuant to Paragraph 11(a) above and all repairs occasioned or made necessary
by any act or neglect of Lessee or Lessee's agents, employees, sublessees,
invitees or licensees, and (iii) to make all such repairs and replacements in
the same or better design, quality and class as the original work and equipment.
In addition, Lessee shall, at is own cost and expense, wash all windows of the
Premises, inside and outside, as frequently as necessary to keep them clean and
clear, and Lessee shall obtain within thirty (30) days of the date of
commencement hereof and keep in force preventive maintenance/service contracts
approved by Lessor and providing regular maintenance and repair services on all
hot water, heating, ventilating and air conditioning systems and equipment on
the Premises. If any maintenance or repair obligation of Lessee under this
Paragraph 11 is not performed by Lessee within ten (10) days after written
notice delivered to Lessee by Lessor, then in addition to all other remedies
available to Lessor hereunder and under applicable law, Lessor may, at its
option, cause such repairs to be made without being liable to Lessee in any
manner whatsoever by reason of such repairs, and Lessee shall pay to Lessor upon
demand as additional rental hereunder the cost of such repairs, plus interest
thereon from the date of demand at an annual rate equal to the lesser of (i) the
sum of the Prime Rate of interest (as published by the Wall Street Journal or
other reputable source to be selected by Lessor) on the date of demand plus five
(5) percentage points and (ii) the maximum permissible rate of interest under
applicable law. Landlord warrants that the Premises are being delivered in good
and working order and that all construction shall be completed in a workmanlike
manner.
(c) Except as otherwise provided in this Paragraph 11(c), Lessee shall
not make any alterations, additions, repairs, improvements, or installations to
the Premises or the Building without obtaining the prior written consent of
Lessor, which consent shall not be unreasonably withheld, conditioned or
delayed. Notwithstanding the preceding sentence, Lessee may, without obtaining
Lessor's consent (but upon at least three (3) days notice to Lessor) make (i)
cosmetic alterations, additions, repairs, improvements, or installations to the
Premises, and (ii) all other non-structural alterations, additions, repairs,
improvements or installations to the Premises that (x) shall not impact any
other tenant space in the Building or the Project or any mechanical system,
electrical system, plumbing system, HVAC system, security system or other system
in the Building or the Project, and (y) shall not, in the aggregate, cost more
than $25,000 in any 12 month period; provided, however, that Lessor reserves the
right to require Lessee to restore the Premises and/or Building to its original
condition at time of delivery of possession. Subject to Lessor's rights set
forth in the immediately preceding sentence, all alterations, additions,
repairs, improvements, installations, equipment and fixtures, by whomever
installed or erected (except such business trade fixtures belonging to Lessee as
can be removed without damage to the Premises or the Building) shall remain upon
and be surrendered with the Premises and become the property of Lessor at the
termination of this Lease. Any linoleum, carpeting or other floor covering which
may be cemented, nailed or otherwise affixed to the floor of the Premises shall
become the property of Lessor without credit or compensation to Lessee.
(d) All construction work caused to be done by Lessee upon or within
the Premises or the Project shall be performed in good and workmanlike manner by
contractors acceptable to Lessor, in compliance with all governmental
requirements and in such a manner as to cause a minimum of interference with
other tenants and with other construction in progress in the Project. Lessee
agrees to indemnify Lessor and hold Lessor harmless from and against any loss,
liability, expense, attorneys' fees or damage resulting from or pertaining to
such work, and Lessee shall, if requested by Lessor, furnish a bond or other
security satisfactory to Lessor against any such loss, liability, damage or
expense.
(e) Lessee shall not suffer or permit any materialmen's, mechanics',
artisans' or other liens to be filed or placed or to exist against the Project,
the Building or any part thereof or against Lessee's interest in the Premises by
reason of work, services or materials supplied or claimed to have been supplied
to or for the benefit of Lessee or of anyone holding the Premises or any part
thereof through or under the Lessee. If any such lien should, at any time, be
filed, Lessee shall cause the same to be discharged of record within fifteen
(15) days after the date of filing the same. If Lessee shall fail to discharge
such lien within such period, then, in addition to any other right or remedy of
Lessor, Lessor may, but shall not be obligated to, discharge the same either by
paying the amount claimed to be due or by procuring the discharge of such lien
by a deposit in court or by posting a bond. Any amount paid by Lessor for any of
the aforesaid purposes, together with all reasonable expenses of Lessor in
defending any such action or in procuring the discharge of such lien (including
attorneys' fees), shall be deemed additional rental hereunder and shall be
repaid by Lessee to Lessor on demand. Nothing contained in this Lease shall be
deemed or construed in any way as constituting the consent or request of Lessor,
expressed or implied, to any contractor, subcontractor, laborer or materialman
for the performance of any labor or the furnishing of any materials for any
improvements, alterations or repairs of or to the Building or the Premises nor
as giving Lessee any right, power or authority, to contract for or to permit to
be furnished any services or any materials that would give rise to the filing of
a materialmen's mechanics' or other lien against the Building, the Premises, the
Project or any part thereof.
12. COMMON AREAS. The term "Common Areas" is defined for all purposes of
this Lease as that part of the Phase as shown on Exhibit "B" intended for the
common use or benefit of the tenants of the buildings in the Phase, including
without limitation parking areas, sidewalks, driveways, paving, curbs, gutters,
truckways, common loading areas, landscaped areas, exterior lighting, utility
pipes and lines serving any building in the Phase and actually maintained by
Lessor, common signage, and landscape irrigation systems. The parties hereby
agree that Lessee shall have access in common with all other lessees to the
parking areas, driveways, walks, landscaped areas and service areas serving or
appurtenant to the Premises, subject to reasonable rules and regulations of
Lessor. Lessee agrees not to interfere with the access of other lessees to the
Common Areas.
Lessee shall be entitled to park in common with other lessees of
Lessor, subject to reasonable rules and regulations adopted by Lessor. Lessee
agrees not to overburden the parking facilities and agrees to cooperate with
Lessor and other lessees in the use of parking facilities. Lessor reserves the
right in its reasonable discretion to determine whether parking facilities are
becoming crowded and, in such event, to allocate parking spaces among Lessee and
other lessees. Lessee's trucks shall be parked in the rear of the Premises in
such a way as not to interfere with the access of other lessees to their
premises or to the Common Areas.
13. UTILITIES AND SERVICES. Lessor shall provide within the Building
connections to electric, gas, water and sewer and telephone utility services.
Lessor reserves the right to interrupt, curtail or suspend utility services from
time to time to facilitate the making of repairs, alterations, replacements or
improvements in the Project, the Phase, the Building or the Premises. Lessor
shall not be liable to Lessee in any manner whatsoever for any such
interruption, curtailment or suspension of water, sewage, electric, gas,
telephone or other services to the Premises. Lessee shall neither
claim nor be entitled to any diminution or abatement of rental or of any other
obligation of Lessee set forth herein by reason of any such interruption,
curtailment or suspension. Notwithstanding the foregoing provisions of this
Paragraph 13, if such interruption, curtailment or suspension of utilities
extends for five (5) or more consecutive business days after Lessor receives
written notice from Lessee of such condition and if such condition has rendered
any material portion of the Premises unusable by Lessee for such period, then
Lessee shall be entitled, as Lessee's sole remedy for such interruption,
curtailment, suspension of utilities, to reimbursement from Lessor of the
pro-rated Base Rent for such period upon either written agreement of Lessor or
upon establishing such facts by suit and final, nonappealable judgment. In
addition, if such interruption, curtailment or suspension of utilities or
services continues for thirty (30) or more consecutive business days after
Lessor receives written notice from Lessee of such condition, is not the result
of a casualty (as set forth in Paragraph 15) or a condemnation (as set forth in
Paragraph 18), and if such condition has rendered any material portion of the
Premises unusable by Lessee for such period, then Lessee shall be entitled to
terminate this Lease upon five (5) days written notice. Lessor may defeat such
termination by reinstating such failed services to the Premises prior to the end
of such five (5) day period.
Lessee shall pay the full cost of all gas, electricity, fuel, light,
heat, power and telephone services supplied to or for the Premises. Lessee shall
pay Lessee's share of water and sewer services as a part of Lessee's Common Area
Maintenance Rental as set forth in Paragraph 4 herein; however, Lessor shall
have the right to separately meter the water supplied to the Premises and to
charge Lessee separately for its water and sewer charges as so metered, with
appropriate adjustment in Lessee's Common Area Maintenance Rental. Lessee shall
not permit discharge from the Premises into any sewer pipe or line connected
with the Premises of any thing or things likely to damage or obstruct any such
sewer pipe or line. Lessee agrees not to exceed or over load the capacity of any
utility connected to the Premises. If Lessee's equipment or operations require
additional, expanded or improved utility facilities, such additional, expanded
or improved facilities shall be installed at Lessee's sole expense in accordance
with plans and specifications approved in advance, in writing by Lessor. If
Lessee does not promptly pay for all costs incurred by Lessee for utility
services and facilities, Lessor may pay the same and such payment shall be added
to the rental of the Premises and shall be due upon demand by Lessor.
14. SURRENDER OF LEASED PREMISES. Lessee shall not abandon the Premises
during the term of this Lease without the prior written notice to Lessor. Upon
termination of this Lease, Lessee shall quit and surrender the Premises to
Lessor in the same condition as at the commencement of the term, except for
reasonable wear and tear and except as provided in Paragraph 11(c) hereof. If
Lessee is dispossessed of the Premises by legal process or otherwise without
removing all of its fixtures and personal property permitted to be removed by
Lessee under Paragraph 11(c) of this Lease, then any such fixtures and personal
property of Lessee left on the Premises or in the Common Areas shall thereupon
become and remain the property of Lessor free and clear of any claim of Lessee,
and Lessee shall reimburse Lessor immediately upon demand for Lessor's
reasonable costs in disposing of such property and in cleaning and repairing the
Premises.
15. DAMAGE BY CASUALTY. If the Premises is damaged so substantially by fire
or other casualty as to make the Premises wholly or partially untenantable,
Lessor shall have thirty (30) days (the "Notice Period") from the date of such
damage to notify Lessee in writing (the "Casualty Notice") whether Lessor shall
restore and repair the foundation, structural elements, exterior ways and roof
of the Premises within ninety (90) days following expiration of the Notice
Period to substantially the same condition as before the damage. If during the
Notice Period, Lessor fails to notify Lessee that Lessor does plan so to restore
and repair the Premises, then Lessee may, at its option, at any time after the
expiration of the Notice Period (but prior to the earlier to occur of (a)
Lessee's receipt of the Casualty Notice (whenever given), or (b) restoration of
the Premises), cancel this Lease and surrender the Premises to Lessor by
providing written notice thereof to Lessor; provided, however, that Lessor may
defeat such termination notice by notifying Lessee in writing within three (3)
business days of receipt of Lessee's termination notice that Lessor shall so
restore and repair the Premises and that such restoration and repair shall be
completed within ninety (90) days following expiration of the original Notice
Period . If Lessor does notify Lessee during the Notice Period (or as otherwise
set forth in the preceding sentence) that Lessor plans so to restore and repair
the Premises within ninety (90) days following expiration of the Notice Period,
then this Lease shall remain in full force and effect. If Lessor fails so to
restore the Premises to substantially the same condition as before the damage
within one hundred twenty (120) days following the date of the damage, excluding
days of delay resulting from acts of God, acts or neglect of Lessee (or of its
agents, employees, licensees or invitees), strikes, unavoidable delays in
transportation, or other events causing delay in completion of the restoration
of the Premises and outside the reasonable control of Lessor, then Lessee may,
at its option, prior to completion of repairs and restoration by Lessor and upon
ten (10) days notice to Lessor, cancel this Lease and surrender the Premises to
Lessor. To the extent that this Lease remains in effect following damage to the
Premises by fire or other casualty, the rental hereunder shall, for the time
period commencing on the date of the damage and ending on the date on which
Lessor completes restoration of the Premises, be reduced pro rata in proportion
to the rentable square footage of the Premises made untenantable by such
casualty. Notwithstanding the foregoing provisions of this Paragraph 15, if (i)
Lessor's reasonable, good-faith estimate of the cost of so restoring and
repairing the Premises is less than $225,000.00, and (ii) Lessor's reasonable,
good-faith estimate of the time required so to restore and repair the Premises
is 120 days or less, and (iii) each holder of any mortgage (as defined in
Paragraph 21 hereof) encumbering the property of which the Premises forms a part
has permitted such restoration and repair and has allowed all applicable
insurance proceeds to be applied to such restoration and repair (less any
applicable deductible amounts), then Lessor shall be obligated so to restore the
Premises within 120 days after the date of such casualty damage (subject to
extension of such restoration period due to circumstances beyond the reasonable
control of Lessor), and this Lease shall remain in full force and effect;
provided, however, that if such damage to the Premises by fire or other casualty
occurs at a time when twelve (12) months or less remain on the term of this
Lease, Lessor (unless Lessee, being then entitled to exercise its Renewal
Option, notifies that Lessor of Lessee's election to exercise its Renewal
Option, which case Lessor shall have the obligation to repair and restore the
Premises so long as the conditions set forth in (i), (ii) and (iii) hereinabove
have been met) or Lessee may at its option terminate or cancel this Lease upon
ten (10) days' written notice to the other party, whereupon Lessee shall
promptly surrender the Premises to Lessor, and thereafter no further rental
shall accrue hereunder.
16. INDEMNITY AND PUBLIC LIABILITY. Lessee shall maintain the Premises in a
safe and careful manner. Except to the extent caused by an act or omission of
Lessor, Lessee shall indemnify and hold Lessor harmless from and against any and
all loss, liability, expense and damage (including, but not limited to,
attorneys fees that may be incurred by Lessor in connection with any such loss,
liability, damage or expense) that arises at the Premises during the Lease Term
or from any act done or omission made by, through or on behalf of Lessee, its
agents, employees, invitees, licensees or any person on the Project by reason of
the Lessee's use, occupancy or possession of the Premises or arising from any
breach or default by Lessee of any obligation of Lessee hereunder. Conversely,
except to the extent caused by any act or omission of Lessee, Lessor shall
indemnify and hold Lessee harmless from and against any and all loss, liability,
expense and damage to the Premises (including, but not limited to, attorneys
fees that may be incurred by Lessee in connection with any such loss, liability,
damage or expense) that arises as a result of any act done or omission made by,
through or on behalf of Lessor, its agents, employees, invitees or licensees or
arising from any breach or default by Lessor of any obligation
of Lessor hereunder.
Lessee further covenants and agrees to maintain at all times, during
the term of this Lease, insurance with a responsible insurance company, rated no
less than A, Class XII in the Best Insurance Guide, licensed to do business in
Georgia and satisfactory to Lessor as follows: (A) Commercial General Liability
Insurance with limit of $500,000 bodily injury and property damage liability
each occurrence, $1,000,000 General Aggregate Limit including products and
completed operations coverage and must include at a minimum contractual
liability, personal injury liability, and Premises medical payments; (B)
Comprehensive Automobile Liability with limits of $500,000 bodily injury and
property damage liability each occurrence, including hired and non-owned autos;
(C) Workers' Compensation Insurance with an employer's liability limit of
$100,000; (D) Property insurance consisting of All Risk coverage (subject to
normal all risk exclusions and limitations) on contents including improvements
and betterments on a replacement cost basis in an amount sufficient to replace
them; and (E) Commercial Umbrella Liability Insurance with a limit of at least
$3,000,000. Such policy or policies shall name Lessor as an additional insured,
shall be primary and noncontributing with any insurance carried by Lessor, and
shall not be cancelled or materially altered without thirty (30) days prior
written notice to Lessor. To the extent that the proceeds of any such policy or
policies of insurance are paid to Lessee, Lessee shall use such proceeds only to
repair or replace the damaged property or to pay the liabilities for which the
insurer paid such proceeds. Lessor will not carry insurance on Lessee's
property. Lessee shall furnish Lessor with a certificate of insurance indicating
that Lessee holds all insurance coverage's set forth above prior to beginning
occupancy hereunder and promptly thereafter upon request by Lessor at any time
and from time to time. The obligations of Lessor and Lessee under this Paragraph
16 arising by reason of any occurrence taking place during the term of this
Lease shall survive any termination of this Lease.
Waiver of Subrogation: The Lessor agrees that it will have inserted in
each policy or policies of insurance providing coverage on an all risk basis
(subject to normal all risk exclusions and limitations) a provision
substantially as follows: "It is hereby stipulated that this insurance shall not
be invalidated should the insured waive in writing prior to a loss any or all
right of recovery against any party for loss occurring to the property described
herein." Lessor hereby waives, during the term of this Lease, any and all rights
of recovery against the Lessee, its officers, employees, and agents for loss
occurring to the Project to the extent that indemnification is due to Lessor
under such insurance protection.
The Lessee agrees that it will have inserted in each policy or
policies of insurance providing coverage on an all risk basis (subject to normal
all risk exclusions and limitations) a provision substantially as follows: "It
is hereby stipulated that this insurance shall not be invalidated should the
insured waive in writing prior to a loss any or all right of recovery against
any party for loss occurring to the property described herein." Lessee does
hereby waive, during the term of this Lease, any and all rights of recovery
against the Lessor, its officers, employees, and agents and the joint ventures
in Lessor to the extent that indemnification would be due to Lessee under the
insurance protection required to be held by Lessee hereunder.
17. GOVERNMENTAL ORDERS. Lessee agrees, at its own expense, to promptly
comply with all requirements of any legally constituted public authority made
necessary by reason of Lessee's occupancy of the Premises. Lessor agrees to
promptly comply with any such requirements, except for requirements imposed by
reason of Lessees occupancy or use of the Premises.
18. EMINENT DOMAIN. If the Premises or a substantial portion thereof shall
be taken by any competent authority under the powers of eminent domain or be
required for any public or quasi-public use or purpose, then this Lease shall
terminate upon the date (the "Condemnation Date") when the title to said
Premises or the part thereof so taken shall be transferred to such authority for
such use or purpose. If this Lease is so terminated, Lessees rental hereunder
shall be prorated and payable by Lessee to Lessor until the Condemnation Date
and Lessee shall surrender the entire Premises on or before the Condemnation
Date. However, in the event of a partial taking in which the portion of the
Premises not so taken remains reasonably usable by Lessee for the purposes set
forth herein; then, with regard only to such portion of the Premises not so
taken, this Lease shall not terminate, but, effective as of the Condemnation
Date, the rental hereunder shall be reduced pro rata in proportion to the
rentable square footage of the Premises so taken. In any event, Lessee shall
have no claim for apportionment of any award paid or payable on account of any
such taking, whether total or partial, or for the value of any unexpired term of
this Lease.
If any condemnation proceeding shall be instituted in which it is
sought to take or damage any part of the Building or the land under it or
contiguous thereto, or if the grade of any street or alley adjacent to the
Building is changed by any competent authority and such change of grade makes it
necessary or desirable to remodel the Building to conform to the changed grade,
Lessor shall have the right to cancel this Lease after giving written notice of
cancellation to Lessee not less than sixty (60) days prior to the date of
cancellation designated in the notice. If Lessor gives such notice, then rent at
the then current rate shall be prorated and payable by Lessee to Lessor until
the date of such termination. No separate consideration shall be payable by the
Lessor to the Lessee for the right of cancellation, and the Lessee shall have no
right to share in the condemnation award or in any judgment for damages caused
by such taking or such change of grade or for any unexpired term of this Lease.
For all purposes of this Lease, any transfer by Lessor in lieu of a
condemnation proceeding or in lieu of a taking by any competent authority under
powers of eminent domain shall be deemed to be a condemnation or a taking under
powers of eminent domain, as the case may be.
19. ASSIGNMENT AND SUBLETTING. See Exhibit "E", Special Stipulation X.
Consent by Lessor (if required) to any assignment or sublease shall
not destroy the provisions of this Paragraph 19, and (if required by the terms
of Exhibit E, Special Stipulation X) all subsequent assignments and subleases
shall be made likewise only with the prior written consent of Lessor (which
consent shall not be unreasonably withheld, conditioned or delayed). Any
assignee of Lessee shall, at the option of Lessor, become (a) directly liable to
Lessor for all rents due by assignee to Lessee, and (b) all obligations of
Lessee hereunder. In addition, if a sublessee of Lessee defaults in the
performance of its obligations hereunder with respect to any sublease space and
Lessee thereafter fails to cure such default within the applicable cure periods
set forth herein, with respect to such sublease space, such sublessee shall, at
the option of Lessor, become directly liable to Lessor for all sublessee
obligations with respect to the sublease space. No sublease or assignment by
Lessee shall relieve Lessee of any liability hereunder. Collection by Lessor of
rental or other sums directly from assignee or sublessee shall not constitute a
novation or a release of Lessee from any obligation of Lessee hereunder.
20. DEFAULT. (a) It is mutually agreed that each of the following events or
occurrences shall constitute an "Event of Default" by Lessee under this Lease:
(i) Lessee fails to make any payment of any rental required to be paid by Lessee
herein within five (5) days of the date when due, provided that two (2) times
per calendar year, an Event of Default shall not have occurred unless and until
Lessee fails to make a payment of any
rental required to be paid by Lessee herein within five (5) days following
receipt of written notice from Lessor that such payment of rental is delinquent;
(ii) Lessee defaults in the performance of any obligation of Lessee under this
Lease other than the obligation to pay rental and fails to cure such default
within thirty (30) days after Lessor gives written notice of such default to
Lessee (provided, however, that it shall not constitute an Event of Default if
the default is not reasonably curable within such thirty (30) day period, and
prior to the end of such thirty (30) day period Lessee commences to cure such
default, thereafter diligently pursues such cure to completion, and completes
such cure within an additional ninety (90) day period); (iii) Lessee is
adjudicated bankrupt; (iv) a permanent receiver is appointed for Lessee's
property; (v) Lessee takes advantage, voluntarily or involuntarily, of any
debtor relief proceedings under any present or future law, whereby the rent or
any part thereof is, or is proposed to be, reduced or payment thereof deferred;
(vi) Lessee make an assignment for benefit of creditors; (vii) Lessee's effects
are levied upon or attached under process against Lessee, not satisfied or
dissolved within thirty (30) days after such levy or attachment.
(b) If any Event of Default, as defined above, shall occur, then Lessor
may, at its option, immediately or at any time during the continuance of such
Event of Default, terminate this Lease by written notice to Lessee, whereupon
this Lease shall end. Upon such termination by Lessor, Lessee shall at once
remove all of Lessee's effects and surrender possession of the Premises to
Lessor; and Lessor may forthwith re-enter the Premises and repossess itself
thereof, and remove all persons and effects therefrom, by force if necessary,
without Lessor's being liable to Lessee in any manner whatsoever for such acts.
(c) As an alternative to Lessor's remedies under subparagraph 20(b) above,
Lessor may, without terminating this Lease, re-enter the Premises and remove all
persons and property from the Premises, by force if necessary, without service
of notice or resort to legal process and without Lessor's being liable to Lessee
in any manner whatsoever for such acts. Following such re-entry, Lessor may
relet the Premises, and Lessor may, on Lessee's behalf, perform any obligation
of Lessee under the terms of this Lease, but Lessor shall not be required to
relet or to perform such obligations of Lessee. Whether or not Lessor relets the
Premises, Lessee shall be and remain liable to Lessor for the full excess of (i)
the sum of all of Lessor's costs associated with re-entry of the Premises,
cleaning, repairing and altering the Premises to make it suitable for reletting
and commissions for reletting, plus all costs of Lessor in performing Lessees
obligations hereunder and all rental obligations of Lessee hereunder over (ii)
Lessor's rental receipts from such reletting. Such excess shall be calculated by
Lessor and paid by Lessee to Lessor monthly. Such re-entry by Lessor shall not
be construed as a termination of this Lease unless Lessor gives explicit written
notice of termination to Lessee or unless termination is decreed by a court of
competent jurisdiction. Notwithstanding any such reletting without termination,
Lessor may, at any time thereafter until cure of such Event of Default has been
effected, elect to terminate this Lease.
(d) If Lessor does terminate this Lease pursuant to Paragraph 20(b) or
Paragraph 20(c) above, then in addition to all rents accrued hereunder prior to
the date of termination and in addition to all other obligations of Lessee
hereunder, Lessee shall pay to Lessor as liquidated damages hereunder, within
thirty (30) days after demand by Lessor, an amount equal to the excess, if any,
of (i) the total amount of any rental that would have been payable by Lessee to
Lessor hereunder from the time of such termination until the date this Lease
would have expired had it not been so terminated, as reasonably estimated by
Lessor, discounted to present worth at an annual interest factor of eight
percent (8%) over (ii) the fair rental value of the Premises for the same time
period, discounted to present worth at an annual interest factor of eight
percent (8%), plus interest on such excess from the date of demand by Lessor at
the rate eighteen percent (18%) per annum.
(e) Lessor shall not be deemed in breach of this Lease unless Lessor fails,
within the later to occur of (a) the time period required under this Lease, or
(b) thirty (30) days after receipt of notice from Lessee, to perform an
obligation required to be performed by Lessor hereunder; provided, however, that
if the nature of Lessor's obligation is such that more than thirty (30) days are
reasonably required for its performance, then Lessor shall not be in breach if
Lessor commences performance within such thirty (30) day period, thereafter
diligently pursues such cure to completion, and completes such cure within an
additional ninety (90) day period. In the event Lessor does not cure said breach
within the time periods and in accordance with the terms of this Paragraph, then
Lessee may elect to cure said breach at Lessee's expense, and to pay such
expense under protest, reserving Lessee's claim to reimbursement from Lessor.
Notwithstanding anything herein to the contrary, Lessee may not commence to cure
a Lessor obligation hereunder if, prior to the later to occur of (a) or (b)
above, Lessor has either commenced such cure in good faith or given Lessee
written notice of reasonable and good faith grounds for Lessor's delay in
commencing such cure, which notice of such reasonable and good faith grounds
must further include Lessor's good faith projection of when Lessor will commence
and complete such cure. The time periods set forth herein shall not apply in the
event of an emergency, in which event Lessee shall endeavor to provide Lessor
with as much notice as reasonably possible before commencing such cure. In all
events Lessee shall document the cost of said cure and supply said documentation
to Lessor.
21. MORTGAGE SUBORDINATION. This Lease shall be and hereby is made subject
and subordinate at all times to the lien or security title of any mortgage
granted by Lessor which may now or hereafter affect the real property of which
the Premises forms a part, and to all renewals, modifications, consolidations,
participation's, replacements and extensions thereof. The term "mortgage" as
used in this Lease shall include deeds of trust and deeds to secure debt. Lessee
agrees that, in the event of foreclosure of any such mortgage or sale of the
Premises under a power contained therein, Lessee will attorn to and accept the
purchaser at any such sale as Lessor for the balance of the term of this Lease,
subject to all of the terms and conditions of this Lease. Lessee agrees that if
Lessor notifies Lessee of the placing of any mortgage against the Premises, then
Lessee shall not, during the term hereof, assert any claim of total or partial
eviction, of right to terminate this Lease or of right to reduce the rental
payments due hereunder unless and until (a) Lessee has given notice in writing
of the basis of such claim to the holder of any mortgage which at the time
encumbers the Premises and of which Lessee has notice, (b) a reasonable period
of time, not less than thirty (30) days, has elapsed following the giving of
such notice to permit such mortgage holder to commence action to remedy or cure
the basis of such claim, and (c) Lessor and every such mortgage holder fail to
commence and pursue such remedial action with reasonable diligence.
22. SIGNS AND ADVERTISEMENTS. Lessee shall neither place nor cause to be
placed upon any part of the Premises, the Building or the Project any signs,
billboards or advertisements whatsoever, without the prior written consent of
Lessor (which consent shall not be unreasonably withheld, conditioned or
delayed). All signs shall conform to Lessor's Sign Criteria set forth in Exhibit
"C" attached hereto and made a part hereof, and, accordingly, it shall be
reasonable for Lessor to withhold its consent to a Lessee proposed sign,
billboard or advertisement if such sign, billboard or advertisement does not
conform to Lessor's Sign Criteria set forth in Exhibit "C". Lessee shall at all
times keep its signs in good condition and in accordance with all applicable
government regulations. Lessee shall remove all such signs before the
termination of the Lease, and Lessee shall repair any damage, defacement or
discoloration resulting from such installation or removal.
23. LESSOR'S RIGHT OF ENTRY. Lessor or Lessor's agent may enter the
Premises at reasonable hours (and, except in the event of an
emergency (in which case no advance notice shall be required), upon at least 48
hours prior written notice to Lessee) to examine the same, to cure any condition
that exists in or upon the Premises or adjacent thereto in violation of the
terms and conditions of this Lease, to show the Premises to potential
purchasers, mortgagees or tenants for years of the Building, or to do any act or
thing that Lessor is required or permitted to do hereunder or which Lessor may
deem necessary for the good of the Premises or the Building. During the last
ninety (90) days of this Lease, Lessor may display a suitable sign on the
Premises advertising the Premises available for rent and may show the Premises.
24. EFFECT OF TERMINATION OF LEASE. No termination of this Lease, by lapse
of time or otherwise, shall impair Lessor's right to collect all rental set
forth herein for the period prior to termination hereof or for any period during
which Lessee is in possession of the Premises, whether before or after the
termination of this Lease. All obligations of Lessee hereunder not fully
performed as of the termination of this Lease (by expiration of the term hereof
or otherwise) shall survive the termination hereof. Prior to the expiration or
termination of this Lease, Lessee shall have restored the Premises, including
without limitation all fixtures and equipment therein, to the condition that
existed prior to Lessee's occupancy thereof, reasonable wear and tear excepted.
The obligations set forth in this Paragraph shall survive the expiration or
earlier termination of the Lease.
25. NO ESTATE IN LAND. This Lease shall create the relationship of landlord
and tenant between the parties hereto and shall not have the effect of
transferring any estate from Lessor or to Lessee. Lessee obtains hereby only a
usufruct in the Premises, not subject to levy and sale, and not assignable by
Lessee except in accordance with the other terms and conditions of this Lease.
26. HOLDING OVER. If Lessee remains in possession of the Premises after
termination of this Lease, Lessee shall be a tenant at sufferance, and Lessee
shall abide by all of the terms and provisions of this Lease, and in addition,
Lessee shall pay rental to Lessor in advance on the first day of each calendar
month during such period in an amount each month equal to one and one-half
(1.50) times the total rental that would have been payable by Lessee for such
month if the term of this Lease had included such period of holding over. During
any period of holding over, Lessee shall vacate and surrender the Premises to
Lessor immediately upon Lessee's receipt of notice from Lessor to vacate. No
holding over by Lessee, whether with or without consent of Lessor, shall operate
to extend this Lease except as otherwise expressly provided herein.
27. WAIVER. The rights and remedies of Lessor under this Lease as well as
those provided or accorded by law shall be cumulative and shall not be exclusive
of any other rights or remedies hereunder or allowed by law. A waiver by Lessor
of any provision shall not be deemed or construed to be a continuing waiver of
such provision nor as a waiver of any other provision hereof or of any
subsequent breach of the same provision. Acceptance by Lessor of any installment
of rental subsequent to the date the same is due hereunder shall in no manner
alter or affect the covenant and obligation of Lessee to pay subsequent
installments of rental promptly upon the due date thereof. No receipt or
acceptance of money by Lessor after the termination of this Lease shall in any
manner reinstate, continue or extend the term of this Lease.
28. NOTICES. Any notice required, permitted or convenient to be given
hereunder shall be in writing and shall be deemed given when (a) hand delivered
to a manager or officer of Lessee or Lessor, (b) faxed to the office of Lessor
or Lessee (as the case may be) so long as such fax is followed by a hard copy
either hand delivered or delivered by commercial overnight carrier, or (c) five
(5) days after properly deposited, postage and fees prepaid, with the United
States Postal Service (or official successor), certified, return receipt
requested, or (d) one (1) business day after deposit with a commercial overnight
carrier, with written verification of receipt of next-day overnight delivery,
properly addressed as follows:
IF TO LESSEE: At the Premises and to: IF TO LESSOR: Xxxxxxxx Company, LLC
Vice-President of Operations c/o Mr. G. A. Xxxxxx
Xxxxxx Communications, Inc. Dexter Companies, LLC
0000 Xxxxxxxxx Xxx. Two Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxxx, XX 00000 0000 Xxxxxxxxx Xxxx, XX
Fax No. 000-000-0000 Xxxxxxx, Xxxxxxx 00000-0000
Fax No. 000-000-0000
Such addressees and/or fax numbers may be changed from time to time by
either party by giving notice to the other.
29. TIME OF ESSENCE. Time is of the essence of this Lease.
30. BANKRUPTCY. Neither this Lease nor any interest herein nor any estate
hereby created shall pass to any trustee or receiver in bankruptcy, or to any
other receiver or assignee for the benefit of creditors or otherwise by
operation of law during the term of this Lease.
31. SPECIAL STIPULATIONS. The Special Stipulations, if any, attached hereto
are hereby made a part hereof and to the extent that the provisions of any of
the Special Stipulations conflict with any other provisions of this Lease, the
provisions of the Special Stipulations shall control.
32. GOVERNING LAW. This Lease shall be governed in accordance with the laws
of the State of Georgia.
33. ENTIRE AGREEMENT. This Lease contains the entire agreement between the
parties, and no modification of this Lease shall be binding upon the parties
unless evidenced by an agreement in writing signed by the Lessor and the Lessee
after the date hereof.
This Lease shall be binding upon and shall inure to the benefit of the
Lessor and its heirs, legal representatives, successors and assigns. This Lease
shall be binding upon and inure to the benefit of the Lessee and its heirs and
legal representatives and its assignees and sublesses, provided that such
assignees and sublesses acquired their interests in this Lease pursuant to
assignments or subleases permitted under the provisions of Paragraph 19 hereof.
34. ATTORNEY'S FEES. In the event that, at any time after the date of this
Lease, either Lessor or Lessee shall institute any action or proceeding against
the other relating to the provisions of this Lease or any default hereunder, the
party not prevailing in such action or proceeding shall reimburse the prevailing
party all costs and expenses including, without limitation, any attorney and
other professional fees, costs or disbursements incurred in such action and/or
proceeding and in any appeal from the such action or proceeding. If any
delinquent rental owing under this Lease is collected by or through an attorney
at law, Lessee agrees to pay reasonable attorney's fees actually incurred.
35. ESTOPPEL CERTIFICATES. Lessee agrees to certify in writing to Lessor or
to any person designated by Lessor the status of this Lease and the rental
payable hereunder, at any time and from time to time, upon twenty (20) days
written notice from Lessor. Such certificate shall certify
(a) the commencement date of the Lease term and the anticipated termination date
thereof, (b) whether or not this Lease is in full force and effect; (c) whether
or not this Lease has been amended or modified, and if so, in what respects; (d)
the date through which rental payments have been made; (e) whether or not there
are any known defaults under this Lease, and if so, specifying the particulars
of such default and the action required to remedy it; (f) whether or not there
is any set-off against or defenses to the enforcement of the terms and
conditions of this Lease, and if so, specifying the particulars of such set-off
or defenses, and (g) any other matters which are reasonable and customary in
such certificates.
36. RULES AND REGULATIONS. Lessee shall comply with and observe Lessor's
Rules and Regulations, attached hereto as Exhibit "D" and made a part hereof, as
the same may be amended or supplemented from time to time by Lessor. Lessee's
failure to keep and observe Lessor's Rules and Regulations, as amended or
supplemented from time to time by Lessor, shall constitute an Event of Default
under Paragraph 20(a)(ii) of this Lease.
37. QUIET ENJOYMENT. Lessor warrants that, upon payment of the rental set
forth herein and performance of all obligations, covenants and agreements of
Lessee hereunder, Lessee shall peaceably and quietly have, hold and enjoy the
Premises during the full term of this Lease without let or hindrance by Lessor
or its agents, subject to the terms and conditions of this Lease.
38. LIMITATION OF REMEDY. Lessor's obligations and liability to Lessee with
respect to this Lease shall be limited solely to Lessor's interest in the
Building, and neither Lessor nor any partner or joint venturer in Lessor nor any
officer, director or shareholder of Lessor shall have any personal liability
whatsoever with respect to this Lease.
39. AUTHORITY OF LESSEE. The persons executing this Lease on behalf of
Lessee represent and warrant that this Lease has been duly authorized by Lessee
and properly executed and delivered by them on behalf of the Lessee and
constitutes the valid and binding agreement of the Lessee in accordance with the
terms hereof.
40. OWNERSHIP OF BUILDING. At the time of execution hereof, Lessor is the
owner of record of the Building containing the Premises, and Xxxxxxx X. Xxxxxx
is the person authorized to manage the Building containing the Premises. The
owner and the manager have the address set forth in Paragraph 28 herein as
Lessor's address. Lessor and Lessee hereby agree that any funds collected by the
authorized manager from Lessee under this Lease may be deposited into a broker's
trust account or into a bank account designated by Lessor.
Lessor may transfer Lessor's ownership interest in the Building or any part
thereof. The term "Lessor", as used in this Lease, means only the owner for the
time being of the Building, so that in the event of any sale or sales of the
Building or of any lease for years thereof, Xxxxxxxx Company, LLC and all joint
ventures therein (and any subsequent Lessor that transfers the Building) shall
be and hereby are entirely freed and relieved of all covenants and obligations
of Lessor thereafter accruing hereunder, and it shall be deemed without further
agreement that the purchaser or the tenant for years, as the case may be, has
assumed and agreed to carry out any and all covenants and obligations of Lessor
hereunder and is the "Lessor" hereunder during the time period that such
purchaser or tenant for years, as the case may be, has the present possessor
ownership interest in the Building. In the event that the entire Building is
severed as to ownership from the land on which it stands by sale and/or lease
for years then the entire Building's owner or tenant for years, as the case may
be, that has the right to lease space in the Building to other tenants shall be
deemed the "Lessor" hereunder. Lessee shall be bound to any succeeding party of
Lessor for all the terms, covenants and conditions hereof and shall execute any
attornment agreement not in conflict herewith at the request of Lessor or any
succeeding party of Lessor.
41. MISCELLANEOUS. 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.
The captions inserted in this Lease are for convenience only and in no
any define, limit or expand the scope or intent of this Lease, or any provision
hereof, or in any way affect the interpretation of this Lease.
Lessee hereby waives the defense provided in O.C.G.A. Section 44-7-52 (formerly
codified at Ga. Code Xxx. Section 61-309), as such defense may be modified or
amended from time to time, and agrees not to assert such defense in any action
by Lessor for non-payment of rent by Lessee; provided, however, that Lessor
agrees that it shall not file any such judicial action against Lessee without
providing Lessee with at least two (2) business days written notice prior to
filing any such action.
Real Estate Brokerage Commissions relating to this Lease, if any,
shall be paid in accordance with a separate agreement between Lessor and Xxxxxx
Commercial, Inc. and Dexter Companies, LLC (the "Broker"). Lessee and Lessor
each hereby represents and warrants to the other party that it has not retained,
employed or consulted with any broker, agent or finder other than Broker in
connection with this Lease, and each party hereby agrees to indemnify and hold
the other party harmless from and against (i) any and all claims made by any
other broker, agent or finder acting on behalf of the indemnifying party and in
connection with this Lease and (ii) all expenses (including without limitation
reasonable attorneys' fees) incurred by the other party in connection with any
such claim.
If any term, clause or provision of this Lease is or becomes illegal,
invalid, or unenforceable under any applicable law or regulation effective
during the term of this Lease, such illegality, invalidity or unenforceability
shall not affect or impair the validity or enforceability of the remaining
terms, clauses and provisions hereof, and all such remaining terms, clauses and
provisions shall continue in full force and effect.
This Lease shall not be recorded on the real property records of any
state or local government authority without the express, prior, written consent
of Lessor.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written.
LESSEE: XXXXXX COMMUNICATIONS, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxx
-----------------------------------------------------
Name: XXXX X. XXXX
Its: Chief Financial Officer
LESSOR: XXXXXXXX COMPANY, LLC, a Georgia limited liability company
BY: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------------------
XXXXXXX X. XXXXXX, President and authorized
manager
EXHIBIT "C" - SIGNAGE CRITERIA
SIGN CRITERIA FOR PHASES I, II, III, IV, V, VI & VIII. This criteria establishes
the uniform policies for all Tenant sign identification within Gwinnett
Corporate Center. This criteria has been established for the purpose of
maintaining the overall appearance of the Park. Conformance will be strictly
enforced. Any sign installed that does not conform to the sign criteria will be
brought into conformity at the expense of the Tenant.
a. General Requirements
(1) A drawing of the size and shape of the approved sign is shown
below. Lettering and installation shall be paid for by the
Tenant.
(2) Landlord shall approve all copy and/or logo design prior to the
installation of the sign.
(3) Landlord shall direct the placement of all Tenant signs and the
method of attachment to the Building.
(4) All signs must be approved by the Landlord which shall be
constructed and installed by a sign company approved by Landlord.
The cost of installation of such signs shall be the expense of
the Tenant.
(5) Tenant shall be responsible for the fulfillment of all
requirements for this criteria.
b. General Specifications
(1) The front sign shall be white vinyl die cut letters adhered to
exterior glass pane.
(2) The back sign shall be white vinyl die cut letters adhered to
black matte magnetic sheet which is mounted on the exterior rear
personnel door. Location to match other existing rear personnel
doors.
(3) All sign lettering shall be white in color and sized according to
drawing below. No other color shall be allowed without Landlord's
consent.
(4) No electrical or audible signs will be allowed.
(5) Upon the removal of any sign, any damage to the building will be
repaired by Tenant.
(6) Except as provided herein, no advertising placards, banners,
pennants, names, insignia, trademarks, or other descriptive
material shall be affixed or maintained upon any automated
machine, dock doors, glass panes of the building, landscaped
area, streets or parking areas.
--------------------------------------------------------------------------------
FRONT SIGN
Maximum Width 32" Maximum Height 20"
U/L Case Helvetica Lettering
Suite # XXX 5" high max.
1" spacing
ABC Corporation 3" high max
1" spacing
Company Slogan 3" high max.
1" spacing
Company Logo 6"h x 18"w max.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
BACK SIGN
Maximum Width 24" Maximum Height 16"
U/L Case Helvetica Lettering
Suite XXX 5" high max.
1" spacing
ABC Corporation 3" high max.
--------------------------------------------------------------------------------
EXHIBIT "D" - RULES & REGULATIONS
1. SIGN DISPLAY. Lessor will provide at Lessee's expense signage for the
Premises. Such signage will be coordinated throughout the business park for
uniformity and attractiveness. No sign, tag, label, picture, advertisement
or notice shall be displayed, distributed, inscribed, painted or affixed by
Lessee on any part of the outside of the building, any part visible from
the outside of the building, or any part of the demised Premises without
prior written consent of Lessor.
2. DRIVES AND PARKING AREA. All parking shall be within the property
boundaries and within marked parking spaces. There should be no on-street
parking and at not time shall any Lessee obstruct drives and loading areas
intended for the use of all Lessees. Vehicular ingress and egress and the
use of all parking areas, including all parking areas adjoining the
Building, shall be subject to such restrictions, terms, conditions, rules
and regulations, as Lessor shall, from time to time prescribe. In all
events, parking facilities supplied by Lessor for tenants, if any, shall be
used for vehicles which can occupy a standard parking area only, i.e. (9
feet by 18 feet). In addition, the use of any such parking facilities shall
be limited to normal business parking and shall not be used for the
continuous parking of any vehicle regardless of size, and no vehicle may be
parked within the complex for advertising purposes. The drives and parking
areas are for the joint use of all Lessees unless specifically marked.
Trucks shall use only designated entrances, drives and service areas.
3. STORAGE AND LOADING AREAS. Unless specifically approved by Lessor in
writing, no materials, supplies or equipment shall be stored in any area on
site except inside the Premises.
4. LOCKS. No additional locks shall be placed on the doors of the demised
Premises by Lessee nor shall any existing locks be changed unless Lessor is
immediately furnished with two keys thereto. Lessor will, without charge,
furnish Lessee with two keys for each lock existing upon the entrance doors
when Lessee assumes possession with the understanding that at the
termination of the Lease the keys shall be returned.
5. CONTRACTORS AND SERVICE MAINTENANCE. Lessee will refer all contractors,
contractor's representatives and installation technicians, rendering any
service of or to the Premises for Lessee, to Lessor for Lessor's approval
before performance of any contractual service. This provision shall apply
to all work performed in the Building including installation of electrical
devices and attachments and installations of any nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment or any other physical
portion of the Building.
6. LODGING. No Lessee shall at any time occupy any part of the Building as
sleeping or lodging quarters.
7. REGULATION FOR OPERATION AND USE. Lessee shall not place, install or
operate on demised Premises or in any part of Building, any engine, stove
or machinery, or conduct mechanical operations or xxxx thereon or therein,
or place or use in or about the Premises any explosives, gasoline,
kerosene, oil, acids, caustics or any flammable, explosive or hazardous
material without written consent of Lessor. No animals shall be brought
into the building. Lessee shall not do or permit to be done within the
demised Premises anything which would unreasonably annoy or interfere with
the rights of other Lessee of the Building.
8. WINDOW COVERINGS. Windows facing the Building exterior shall at all times
be wholly clear and uncovered (except for such blinds or curtains or other
window coverings Lessor may provide or approve) so that a full unobstructed
view of the interior of the demised Premises may be had from the exterior
of the building. Blinds shall be left in the fully lowered position so as
to keep a uniform appearance from the building exterior.
9. MODIFICATIONS. Lessor shall have the right from time to time to modify, and
or delete these Rules and Regulations at Lessor's sole discretion.
10. LOST OR STOLEN PROPERTY. Lessor will not be responsible for lost or stolen
personal property, equipment, money or jewelry from Lessee's area or public
rooms regardless or whether such loss occurs when area is locked against
entry or not.
11. HOUSEKEEPING. None of the entries, passages, doors, or hallways shall be
blocked, obstructed or littered with any rubbish, litter, trash or material
of any nature placed, emptied or thrown thereon and all alleyways serving
the Premises shall be kept clean, neat and unobstructed and shall be used
only for access or egress by Lessee, Lessee's agents, employees or
invitees.
12. WATER. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed. No person shall
waste water by interfering with the faucets or otherwise.
13. CARPET PROTECTION. Lessee shall provide plastic or hardboard chair mats
under all desk or workstation caster-type chairs in carpeted areas, and
shall be responsible for any damage to carpet caused by lack of mats or any
other abnormal puncture and wearing of carpet.
14. SOLICITING. Canvassing, soliciting and peddling in the Project are
prohibited, and Lessee shall cooperate to prevent such activity.
EXHIBIT "E" - SPECIAL STIPULATIONS
I. Approximately 45,038 sq. ft. of existing office and warehouse space as
shown on the floorplan attached hereto as Exhibit "A" is provided by Lessor
which includes partition walls and doors to be removed or added as shown
and also includes (at Lessor's sole cost and at no cost to Lessee):
A. OFFICE AREA: Approximately 8,000 sq.ft. of office area to include:
a. Carpet to be selected by Lessee from building standard selection.
b. Office walls freshly painted in building standard off white
color.
c. Vinyl composition tile in restrooms and break room to be waxed
and polished.
d. Solid core stain grade doors with hollow metal frames.
e. Two (2) restrooms to include one (1) water closet, and one (1)
lavatory in men's room; one (1) water closet and one (1) lavatory
in women's room.
f. 2' x 2' acoustical ceiling (9' high) in office area.
g. Heating, ventilating and air-conditioning systems complete.
h. Fluorescent lighting fixtures (2' x 4', lay-in type) to be
provided and installed by Lessor.
i. Duplex electrical outlets as shown on Exhibit "A".
j. Existing break cabinet with stainless steel sink.
B. WAREHOUSE AREA: Balance of space to include:
1. Gas fired forced air heaters to maintain 55 DEG. F minimum at
17 DEG. F outside temperature.
2. Cleaned and sealed concrete slab.
3. Fluorescent lighting fixtures mounted to bar joist.
4. Exit and emergency lights as required by code.
5. Seven (7) each 9w x 10'h dock high loading door and seven (7)
each 10'w x 12'h dock high loading doors.
6. Protective pipe bollards for each door.
II. Upon execution of Lease by Lessee, Lessee shall prepay the first full
month's Base Rental, one month's Common Area Maintenance Rental, the
Security Deposit and Lessee's "Tenant Improvement Supplement" as follows:
Base Rental: $19,216.21
CAM: 1,463.74
Security Deposit: 9,608.11
Tenant Improvement
Supplement: 4,274.00
----------
34,562.06
Due upon execution of Lease by Lessee: $ 34,562.06 made payable to Xxxxxxxx
Company, LLC.
III. Lessee and Lessor shall enter into a Commencement Date Addendum which shall
confirm the Commencement Date and Termination Date of the Lease Term.
Lessee hereby appoints Xx. Xxxx Xxxxxxx as its authorized local
representative to sign the Commencement Date Addendum. Failure to sign such
Commencement Date Addendum shall in no way diminish the validity of the
Lease nor negate the actual Commencement Date as determined pursuant to
paragraphs 2 and 9 of the Lease.
IV. Pursuant to Georgia Disclosure Law, the parties hereto acknowledge that
Xxxxxx Commercial, Inc. has - represented the Lessee and not the Lessor in
this transaction and Dexter Companies, LLC has represented the Lessor and
not the Lessee in this transaction and both Brokers shall be paid a real
estate commission by the Lessor.
V. The deletion itself of typed or printed language herein shall not be taken
into account in interpreting this Lease it being understood and agreed that
the deleted language never existed.
VI. Hazardous Substances:
A. Neither Lessor nor Lessee shall cause or permit any "Hazardous
Substances" (as hereinafter defined) to be used, placed, held,
located, stored, or disposed of in the Premises or the Project or any
part thereof; provided, however, that Lessee shall have the right to
use and store in the Premises those Hazardous Substances which are
customarily used in Lessee's business operations, but only in such
reasonable quantities as are reasonably necessary for Lessee's use of
the Premises (as such use is specifically permitted under the Lease),
and only in full compliance with all applicable laws and regulations.
Lessor and Lessee covenant and agree to obey and comply with at all
times and in all respects, at its sole expense, all applicable laws
and regulations concerning the use, storage, disposal, containment,
removal, transportation, or remediation of Hazardous Substances in the
Premises or in the Project. Lessor and Lessee covenant and agree not
to discharge, emit or dispose of any Hazardous Substances (including
without limitation (i) in the soil, (ii) in any storm drains; or (iii)
in any sewage disposal system serving the Project), whether or not
such discharge or disposal is permitted by applicable laws or
regulations.
B. For purposes of this Special Stipulation VI, "Hazardous Substances"
shall mean and include those substances which are contained in the
list of hazardous substances adopted by the United States
Environmental Protection Agency (EPA), as amended from time to time,
or the list of toxic pollutants designated by Congress or the EPA, as
amended from time to time, or which are regulated by any federal,
state or local law, ordinance code, rule, regulation, order or decree
regulating, relating to or imposing liability (including without
limitation, strict liability) or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance, or material, as now or
at any time hereafter in effect (collectively, "Environmental Laws").
EXHIBIT "E" - SPECIAL STIPULATIONS
C. Lessee hereby agrees to indemnify Lessor and hold Lessor harmless from
and against any and all losses, liabilities (including without
limitation any strict liability), damages, injuries, and expenses
(including reasonable attorneys' fees), costs of any settlement or
judgment and claims of any and every kind whatsoever paid, incurred or
suffered by, or asserted against, Lessor, any joint venturer or
partner of Lessor, or against any employees, agents, officers or
directors of Lessor or of any joint venturer or partner of Lessor, by
any person, entity or governmental agency for, with respect to, or as
a direct or indirect result of (i) the violation of any Environmental
Laws by Lessee or by its agents, employees, contractors or invitees in
connection with Lessee's use of the Premises; or (ii) the violation by
Lessee of any of the provisions of subparagraph (A) above; or (iii)
the use (by any person or entity) of any Hazardous Substance in the
Premises during the Lease Term and/or the escape, leakage, spillage
discharge, emission or release of Hazardous Materials from the
Premises during the Lease Term (whether or not such use and/or the
escape, leakage, spillage discharge, emission or release is prohibited
under this Lease or constitutes a violation of any Environmental
Laws), including, without limitation, any losses, liabilities
(including without limitation strict liability), damages, injuries,
expenses (including reasonable attorneys' fees), costs of any
settlement or judgment or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act,
any so-called federal, state or local "Superfund" or "Superlien" laws,
or any other Environmental Law; provided, however, that the foregoing
indemnity shall not be effective to the extent any such liability
arises from the act or omission of Lessor and Lessor's agents,
employees, or contractors. Conversely, Lessor hereby agrees to
indemnify Lessee and hold Lessee harmless from and against (but only
in connection with Lessee's use and occupancy of the Premises and the
Building) any and all losses, liabilities (including without
limitation any strict liability), damages, injuries, and expenses
(including reasonable attorneys' fees), costs of any settlement or
judgement and claims of any and every kind whatsoever paid, incurred
or suffered by, or asserted against, Lessee, any joint venturer or
partner of Lessee, or against any employees, agents, officers or
directors of Lessee or of any joint venturer or partner of Lessee, by
any person, entity or governmental agency for, with respect to, or as
a direct or indirect result of (i) the violation of any Environmental
Laws by any other tenant at the Building, (ii) the violation of any
Environmental Laws by Lessor or by its agents, employees, contractors
or invitees in connection with Lessor's ownership of the Building; or
(iii) the violation by Lessor of any of the provisions of subparagraph
(A) above; or (iv) Lessor's use of any Hazardous Substance in the
Building (whether or not such use is a violation of any Environmental
Laws), including, without limitation, any losses, liabilities
(including without limitation strict liability), damages, injuries,
expenses (including reasonable attorneys' fees), costs of any
settlement or judgement or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act,
any so-called federal, state or local "Superfund" or "Superlien" laws,
or any other Environmental Law; provided, however, that the foregoing
indemnity shall not be effective to the extent any such liability
arises from the act or omission of Lessee and Lessee's agents,
employees, or contractors. The provisions of this Special Stipulation
VI shall survive termination or expiration of this Lease only with
respect to any and all indemnification claims which shall have been
made pursuant to this subparagraph C by written notice given to the
prospective indemnitor (i.e., Lessor or Lessee, as the case may be)
within two (2) years after such termination or expiration; and the
indemnification obligations under this subparagraph C shall apply only
to direct, actual damages and shall in no event apply to any
consequential damages.
VII. Financial Reports. If, at any time during the Lease Term, Lessee shall
cease to be a publicly traded company, then, not more than once each
calendar year, and upon at least fifteen (15) days prior written notice
from Lessor to Lessee, Lessee shall furnish Lessee's most recently audited
financial statements (including any notes to them) to Lessor, or if no such
audited statements have been prepared, such other financial statements (and
notes to them) as may have been prepared by an independent certified public
accountant.
VIII. Dumpster. Lessee at its sole expense may procure a dumpster which must be
kept on concrete pad directly behind the Premises in a location that does
not interfere with other Lessees' ingress or egress. A top shall be
provided on the dumpster and kept closed at all times so that debris will
not blow out.
IX. Rental Abatement. Lessee shall receive a Base Rental, Common Area
Maintenance Rental, Taxes and Insurance Expense rental abatement for the
first eight (8) full calendar months of the Lease Term with respect to
18,760 square feet of the Premises. Accordingly, for each of the first
(1st) through eighth (8th) full calendar months of the Lease Term, Lessee's
obligation to pay Base Rental, Common Area Maintenance Rental, Taxes and
Insurance Expense shall be limited to the amount Lessee would have paid if
Lessee were leasing only 26,278 square feet of the Premises for such time
periods. For example, Lessee's Base Rental obligation for each of the first
eight (8) full calendar months of the Lease Term shall be $11,211.95.
Lessee's Common Area Maintenance Rental, Taxes and Insurance Expense
obligations shall be similarly prorated for the first eight (8) calendar
months of the Lease Term.
X. Assignment/Subletting. Lessee may, without obtaining the prior written
consent of Lessor (but upon at least fifteen (15) business days' prior
written notice ("Transferee Notice") to Lessor), assign this Lease or any
interest hereunder, or sublet the Premises or any part thereof, or
otherwise permit the Premises or any portion thereof to be used by any
party other than Lessee (any such assignment, sublease, or other permitted
use being a "Transfer"), only so long as (i) Lessee shall remain fully
liable under the terms and conditions of this Lease, (ii) such assignee,
sublessee, or other permitted user (any of the foregoing being a
"Transferee") and its business are consistent with the quality and design
of the Building and the Project; (iii) the Transferee's use of the Premises
is permitted under Paragraph 8 of this Lease, (iv) the Transferee is a
party of reasonable financial net worth and/or financial ability in light
of the responsibilities involved under the Lease, as evidenced by financial
statements delivered to Lessor simultaneously with the Transferee Notice,
(v) the Transfer to Transferee will not cause the Lessor to be in violation
of another lease agreement or other obligation to which Lessor is a party
and will not give any occupant of the Project a right to cancel or
materially modify its lease or sublease, and (vi) at the time of any such
Transfer, Lessee is not in nonmonetary default under this Lease (beyond all
applicable cure periods) and is not in monetary default under this Lease
(without regard to whether any applicable grace or cure periods have
expired); provided, however, that any Transfer which satisfies foregoing
clauses (i) through (vi), inclusive, of this Special Stipulation X, shall
also require the prior written consent of Lessor (which consent shall not
be unreasonably withheld, delayed or conditioned) at any time when the
financial net worth of Lessee is less than Fifty Million and No/100 Dollars
($50,000,000.00). Except as specifically set forth below, all other
Transfers shall require the prior written consent of
EXHIBIT "E" - SPECIAL STIPULATIONS
Lessor (which consent shall not be unreasonably withheld, delayed or
conditioned); and Lessee shall remain fully liable under the terms and
conditions of this Lease, notwithstanding such consent, if any, given by
Lessor. If Lessor's consent is required for a Transfer, then Lessor shall
have the right to require Lessee to pay to Lessor a sum equal to Lessor's
reasonable and actual attorneys fees and costs incurred in connection with
the negotiation, review, and processing of such Transfer. All such sums
owed to Lessor shall be paid to Lessor as a condition precedent to the
effectiveness of any such consent. Notwithstanding any other provision of
this Lease to the contrary, but subject to the last sentence of this
Paragraph X, Lessee shall have the right, without prior consent of Lessor,
to assign this Lease or to sublet all or any portion of the Premises to any
entity controlled by or under common control with Lessee, any entity that
acquires all or substantially all the assets of Lessee, any entity into
which Lessee is merged or any entity resulting from a consolidation of
Lessee with some other entity ("Affiliated Company"); provided, however,
that (A) no such assignment or sublease shall release Lessee from any
obligation or liability of Lessee under this Lease, and Lessee shall remain
fully liable under the terms and conditions of this Lease, (B) such
assignee or sublessee shall also be fully liable under this Lease to the
extent of such assignment or sublease, and (C) Lessor is given written
notice by Lessee within thirty (30) days thereof and is provided with
reasonably requested documentation by Lessee. Notwithstanding any other
provision of this Lease to the contrary, a Transferee shall not, without
the prior written consent of Lessor, assign, sub-sublease, or otherwise
transfer any of such Transferee's rights or interest with respect to the
Premises or any portion thereof.
XI. It is hereby agreed that the portions of the "Common Area Expense" (as
that phrase is defined in Section 4 of the Lease) which are fully
controllable by Lessor shall not increase from one calendar year to the
next by more than six and one-half percent (6.5%) of the charges for the
same which were paid (or payable) by Lessee for the immediately preceding
calendar year. The parties hereto agree and acknowledge that cap on
controllable expenses set forth herein shall not apply to the Insurance
Expense and Taxes set forth in Paragraphs 5 and 6 of the Lease.
XII. Construction of Initial Leasehold Improvements:
X. Xxxxxx will cause the Premises to be constructed substantially in
accordance with the documents and specifications identified on Exhibit
"E," Special Stipulation I and Exhibit "A," attached hereto and
incorporated herein (the "Lessee Construction Documents").
G. As used in this Lease, the "Substantial Completion Date" means the
date upon which Lessee's leasehold improvements, as shown on the
Lessee Construction Documents, are substantially completed by Lessor
(but not including completion of final "punch list" items) and a
permanent or temporary certificate of occupancy is obtained for the
Premises, accelerated by the number of days construction is delayed
due to any cause attributable to Lessee ("Delay Items").
X. Xxxxx Items shall include, but not be limited to, the following which
occur after full execution of this Lease by Lessee and Lessor.
1. failure by Lessee or its architects, engineers, space planners or
others employed by Lessee to timely provide such information as
Lessor may reasonably request, but only to the extent such
failure results in Lessee's leasehold improvements being
substantially completed later than they would have been
substantially completed absent said failure; and
2. changes in the Lessee Construction Documents made by Lessee
during the general contractor pricing process which result in a
delay in Lessor's ability to release the contractor to commence
construction; and
3. changes in the Lessee Construction Documents made by Lessee
during construction of Lessee's leasehold improvements as
contained in Lessee Construction Documents, which result in
Lessee's leasehold improvements being substantially completed
later than they would have been substantially completed absent
said changes; and
4. any "long-lead time" leasehold improvement item (e.g., millwork)
other than improvements included at execution of this Lease,
which cannot be fabricated, delivered to the job, and completely
installed within the same time frame as the remainder of the
leasehold improvements shown on the Lessee Construction
Documents; and
5. failure by Lessee to timely execute a change order for changes
requested by Lessee; and
6. delays in the completion of design, documentation or construction
of Lessee's leasehold improvements which are caused by Lessee,
its architects, engineers, vendors, contractors, suppliers or
consultants.
I. If Lessee makes any changes in the work described in the Lessee
Construction Documents (the "Lessee Extra Work"), Lessee shall be
responsible for any increases in the direct cost thereof (including
the General Contractor's standard and customary overhead and profit)
plus an additional charge equal to three percent (3%) of such costs as
a construction management administrative cost recovery payable to
Lessor.
J. Any and all work shall be completed by Dexter Construction Services,
LLC as the general contractor. If Lessor desires to use the services
of any other general contractor in connection with the work, all such
other general contractors shall be subject to Lessee's prior written
approval (which approval shall not be unreasonably withheld, delayed
or conditioned).
K. All change orders to the Lessee Construction Documents shall be
approved in writing by both Lessor and Lessee. Prior to such approval,
Lessee shall issue a Change Order Request including changed plans
and/or specifications delineating the change to Lessor's general
contractor for a quotation of the cost of the proposed change and any
time delay resulting therefrom. Upon such approval of a change order,
the Lessee Construction Documents shall be deemed revised to
incorporate the change order and the agreed upon cost
EXHIBIT "E" - SPECIAL STIPULATIONS
shall be due as additional rental hereunder and one-half (1/2) of this
agreed upon cost paid to Lessor within 15 days after approval of the
change order by Lessee and the remaining one-half (1/2) paid within 15
days after completion of work per the change order.
L. Notwithstanding anything herein to the contrary, except provided that
this Lease is fully executed by June 30, 2000 and Lessee's
construction documents are fully completed and executed by June 30,
2000, should the Substantial Completion Date not occur by August 10,
2000, as said date may be delayed by the number of days construction
is delayed due to causes other than Delay Items (August 10, 2000, as
so delayed, being the "Specified Date"), then for every day after the
Specified Date (as it may be extended) and continuing until the
Substantial Completion Date, Lessee shall (in addition to the Rental
Abatement set forth in Section IX above, and commencing on the first
day of the ninth (9th) full calendar month immediately following the
Commencement Date) be entitled to one day of free Base Rental, Common
Area Maintenance Rental, Taxes and Insurance Expense. Notwithstanding
the foregoing, if the -- Substantial Completion Date has not occurred
by September 10, 2000 (the "Outside Date"), then Lessee, at its option
to be exercised within ten (10) business days following the Outside
Date, but, in any event, prior to the Substantial Completion Date, may
immediately terminate this Lease by written notice to Lessor. In the
event of such termination by Lessee, then this Lease shall be null and
void, all rights and obligations of the parties shall terminate.
Provided that Lessor's failure to deliver possession does not result
from Lessor's intentional or bad faith breach of this Lease, such
termination shall be Lessee's sole and exclusive remedy for Lessor's
failure to deliver the substantially completed Premises to Lessee on
or prior to the Outside Date. If Lessor's failure to deliver
possession on or prior to the Outside Date is the result of Lessor's
intentional or bad faith breach of the Lease, Lessee shall have the
right, in addition to its right to terminate the Lease, to pursue
Lessor for all actual damages incurred as a result of such breach. If
Lessee does not elect to terminate this Lease as permitted above, the
Commencement Date shall be extended until the Substantial Completion
Date and Lessee shall be entitled to the rent abatement set forth in
this Section.
XIII. Renewal Option. Provided that Lessee (at the time of the delivery of the
Extension Notice and at the end of the initial Lease Term) is not in
default of the Lease (beyond all applicable cure periods), Lessee shall
have one (1) five (5) year renewal option by providing irrevocable notice
(the "Extension Notice") to Lessor at least six (6) months prior to the end
of the initial Lease Term. Terms and conditions for such renewal term shall
be at a continuation of the Base Rental schedule (including escalations in
accordance with Paragraph 3 of the Lease). Lessee's renewal option shall be
applicable regardless of whether Lessee or an assignee or sublessee of
Lessee occupies all or any portion of the Premises. Notwithstanding the
previous sentence (and irrespective of the amount of space at the Premises
that Lessee subleases at the time it delivers the Extension Notice), if, at
the end of the initial Lease Term, Lessee is then currently subleasing more
than fifty percent (50%) of the Premises to a person or entity other than
an Affiliated Company (as such term is defined in Special Stipulation X
above), Lessee's Renewal Option shall be null and void and of no further
force and/or effect and the Lease Term shall terminate at the end of the
initial Lease Term. Further, if at any time during the initial Lease Term,
Lessee provides Lessor with notice that Lessee intends to assign the Lease
and the entire Premises to a person or entity other than an Affiliated
Company (and such assignment includes the Renewal Option), Lessor shall
have the option (but not the obligation) to recapture the entire Premises
(with such recapture to become effective as of the effective date of the
proposed assignment), by providing Lessee with written notice (the
"Recapture Notice") of Lessor's election to so recapture the entire
Premises, on or prior to that date which is five (5) business days
following Lessee's notice to Lessor of such proposed assignment. Lessor's
failure to timely provide Lessee with the Recapture Notice shall render
Lessor's recapture right (as described herein) (with respect to such
proposed assignment) null and void and of no further force and/or effect.
The Renewal Option under this Special Stipulation XIII shall be exercisable
only with respect to the entire Premises under this Lease, including the
entire Additional Space (as defined in Special Stipulation XIV) if the
Additional Space has been leased pursuant to Special Stipulation XIV during
the initial Lease Term.
XIV. Right of First Opportunity. Provided that Lessee has not assigned the
entire Premises, or transferred or sublet the entire Premises, other than
to an Affiliated Company (as defined in Special Stipulation X), and
provided that Lessee is not in default under the Lease (beyond all
applicable cure periods) when Lessee exercises its option under this
Special Stipulation XIV, then Lessee shall be entitled to exercise the
option described in this Special Stipulation XIV, subject to the terms and
conditions set forth in this Special Stipulation XIV. At least three (3)
months prior to expiration of the lease term (including any extensions
thereof) of the current tenant of Suite 335 (6,478 sq. ft.), 0000 Xxxxxxxxx
Xxxxx (referred to as "Additional Space") or upon the occurrence of any
earlier termination of the lease term of the current tenant of the
Additional Space, Lessor shall give Lessee notice of any such expiration or
termination ("Availability Notice"); and Lessee shall have fifteen (15)
business days after the giving of Lessor's notice in order to give Lessor
written notice of Lessee's desire to expand into all of the Additional
Space. Should Lessee either fail to give such notice to Lessor within said
period of fifteen (15) business days or otherwise decline to lease the
Additional Space, Lessor shall be entitled to lease any or all of the
Additional Space to any third party with no further obligation to Lessee.
If Lessee leases the Additional Space pursuant to this Special Stipulation
XIV, Base Rental for the Additional Space shall be the same Base Rental (on
a per square foot per year basis) as in the Lease, including escalations,
and Lessee shall also be responsible for Tax, Insurance and Common Area
Maintenance Rental charges with respect to the Additional Space pursuant to
paragraphs 6, 5, and 4 of the Lease, mutatis mutandis. The Additional Space
shall be delivered to Lessee in "as is" condition except that all systems
shall be in good operating condition. If the Lessee exercises its option to
expand into the Additional Space, the parties shall work together in good
faith to reach terms on a mutually acceptable Lease amendment containing
such agreed economic terms and the other terms required under this Special
Stipulation XIV with respect to such Additional Space (the "Additional
Space Lease Amendment"). If the parties fail, within a thirty (30) day
period after Lessee provides Lessor with written notice of Lessee's desire
to expand into the Additional Space, to execute a mutually agreeable
Additional Space Lease Addendum, then Lessee's Right of First Opportunity
(as set forth herein) shall expire and Lessor shall have be entitled to
lease the Additional Space to a third party. The term of any such
Additional Space Lease shall commence on a date which is mutually
satisfactory to Lessor and Lessee, but which in all events is not later
than the thirtieth (30th) calendar day after the Additional Space becomes
vacant and all systems are in good working order and shall expire, unless
sooner terminated in accordance with the Additional Space Lease Amendment,
at midnight on the expiration date of the term of the Lease (as the same
may be extended). Subject to incorporation of the economic terms described
in the foregoing provisions of this Special Stipulation XIV, the terms and
conditions of any Additional Space Lease Amendment shall be as set forth in
the Lease, mutatis mutandis, but excluding from such Additional Space Lease
----------------
Amendment the following provisions of the Lease: Paragraphs I, II, IX, XII,
and XIV of Exhibit E - Special Stipulations to the Lease Agreement.
Notwithstanding anything herein to the contrary,
EXHIBIT "E" - SPECIAL STIPULATIONS
Lessee's Right of First Opportunity to lease the Additional Space shall be
subject to the following additional limitations: (a) if the Availability
Notice is provided by Lessor to Lessee at any time during the last 24
months of the initial Lease Term, Lessee shall have the right exercise its
Right of First Opportunity to lease the Additional Space only if Lessee
either (i) exercises its Renewal Option at the same time it exercises its
notice of election to expand into the Additional Space, or (ii) executes an
amendment to the Lease which extends the initial Lease Term to a date which
is exactly two (2) years from the date the Additional Space is delivered to
Lessee, and (b) if the Availability Notice is provided by Lessor to Lessee
at any time during the last 24 months of the Renewal Term, Lessee shall
have the right to exercise its Right of First Opportunity to lease the
Additional Space only if Lessee executes an amendment to the Lease which
extends the Renewal Term to a date which is exactly two (2) years from the
date the Additional Space is delivered to Lessee.
