OFFICE LEASE
THIS OFFICE LEASE (this "Lease") is executed this 11th_ day of May
2006, by and between DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited
partnership ("Landlord"), and JPC CAPITAL PARTNERS, INC., a Delaware corporation
("Tenant").
ARTICLE 1 - LEASE OF PREMISES
Section 1.01. Basic Lease Provisions and Definitions.
(a) Leased Premises (shown outlined in Exhibit A hereto): Suite 600 of
the building (the "Building") located at 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxx 00000, within Xxxxxxx Xxxxx (the "Park").
(b) Rentable Area: approximately 4,106 rentable square feet. The
Rentable Area includes the square footage within the Leased Premises plus a pro
rata portion of the square footage of the common areas within the Building, as
reasonably determined by Landlord.
(c) Tenant's Proportionate Share: 2.73%.
(d) Minimum Annual Rent:
Year 1 $44,909.41
Year 2 $78,477.96
Year 3 $80,013.12
Year 4 $81,594.36
Year 5 $83,223.12
Year 6 $35,375.25
(e) Monthly Rental Installments:
Months 1 - 5 $ 0.00
Months 6 - 12 $6,415.63
Months 13 - 24 $6,539.83
Months 25 - 36 $6,667.76
Months 37 - 48 $6,799.53
Months 49 - 60 $6,935.26
Months 61 - 65 $7,075.05
(f) Base Year: 2006.
(g) Target Commencement Date: June 1, 2006.
(h) Lease Term: Five (5) years and five (5) months.
(i) Security Deposit: $6,415.63.
(j) Broker: Xxxxxxxx Realty Services, Inc. representing Tenant.
(k) Permitted Use: General office purposes.
(l) Address for notices and payments are as follows:
Landlord: Duke Realty Limited Partnership
c/o Duke Realty Corporation
Attn.: Atlanta Market - Vice
President, Property Management
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
With Payments to: Duke Realty Limited Partnership
00 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Tenant (prior to occupancy): JPC Capital Partners, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Tenant (following occupancy): JPC Capital Partners, Inc.
0000 Xxxxxxx Xxxxx Xxxx,
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
(m) Guarantor(s): Xxxx X. Xxxxxxx.
EXHIBITS
Exhibit A: Leased Premises
Exhibit B: Intentionally Omitted
Exhibit C: Letter of Understanding
Exhibit C-1: Intentionally Omitted
Exhibit D: Rules and Regulations
Exhibit E: Special Stipulations
Exhibit F: Scope of Work
Exhibit G: Form of Unconditional Guaranty of Lease
Section 1.02. Lease of Premises. Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord the Leased Premises, under the terms and
conditions herein, together with a non-exclusive right, in common with others,
to use the following (collectively, the "Common Areas"): the areas of the
Building and the underlying land and improvements thereto that are designed for
use in common by all tenants of the Building and their respective employees,
agents, customers, invitees and others.
ARTICLE 2 - TERM AND POSSESSION
Section 2.01. Term. The Lease Term shall commence as of the date (the
"Commencement Date") that is the later to occur of (a) the Target Commencement
Date and (b) substantial completion of the Tenant Improvements (as defined in
Section 2.02 below).
Section 2.02. Completion of Tenant Improvements.
(a) Landlord's Obligations. Landlord shall, at its sole cost and
expense (i) recarpet the carpeted portions of the Leased Premises with
Building-standard carpet, and (ii) repaint the painted portions of the Leased
Premises with Building-standard paint (collectively, the "Tenant Improvements").
Landlord shall use commercially reasonable speed and diligence to substantially
complete the Tenant Improvements on or before the Target Commencement Date.
(b) Early Occupancy. If and to the extent permitted by applicable laws,
rules and ordinances, Tenant shall have the right to enter the Leased Premises
for fourteen (14) days prior to the Commencement Date in order to install
fixtures, furniture and cabling and otherwise prepare the Leased Premises for
occupancy, which right shall expressly exclude making any structural
modifications. During any entry prior to the Commencement Date (i) Tenant shall
comply with all terms and conditions of this Lease other than the obligation to
pay rent, (ii) Tenant shall not interfere with Landlord's completion of the
Tenant Improvements, (iii) Tenant shall cause its personnel and contractors to
comply with the terms and conditions of Landlord's rules of conduct (which
Landlord heretofore furnished to Tenant), and (iv) Tenant shall not begin
operation of its business. Tenant acknowledges that Tenant shall be responsible
for obtaining all applicable permits and inspections relating to any such entry
by Tenant.
(c) Letter of Understanding. Promptly following the Commencement Date,
Tenant shall execute Landlord's Letter of Understanding in substantially the
form attached hereto as Exhibit C and made a part hereof, acknowledging, among
other things, that Tenant has accepted the Leased Premises. If Tenant takes
possession of and occupies the Leased Premises, then, subject to subsection (a)
above, Tenant shall be deemed to have accepted the Leased Premises and that the
condition of the Leased Premises and the Building was at the time satisfactory
and in conformity with the provisions of this Lease in all respects.
Section 2.03. Surrender of the Premises. Upon the expiration or earlier
termination of this Lease, Tenant shall, at its sole cost and expense,
immediately (a) surrender the Leased Premises to Landlord in broom-clean
condition and in good order, condition and repair, (b) remove from the Leased
Premises (i) Tenant's Property (as defined in Section 8.01 below), (ii) all
wiring and cabling (including above ceiling, below raised floors and behind
walls) installed by or on behalf of Tenant, and (iii) any alterations required
to be removed pursuant to Section 7.03 below, and (c) repair any damage caused
by any such removal and restore the Leased Premises to the condition existing
upon the Commencement Date, reasonable wear and tear excepted. All of Tenant's
Property that is not removed within ten (10) days following Landlord's written
demand therefor shall be conclusively deemed to have been abandoned and Landlord
shall be entitled to dispose of such property at Tenant's cost without incurring
any liability to Tenant. This Section 2.03 shall survive the expiration or any
earlier termination of this Lease.
Section 2.04. Holding Over. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant shall
be a tenant at sufferance at one hundred fifty percent (150%) of the Monthly
Rental Installments and Annual Rental Adjustment (as hereinafter defined) for
the Leased Premises in effect upon the date of such expiration or earlier
termination, and otherwise upon the terms, covenants and conditions herein
specified, so far as applicable. Acceptance by Landlord of rent after such
expiration or earlier termination shall not result in a renewal of this Lease,
nor shall such acceptance create a month-to-month tenancy. In the event a
month-to-month tenancy is created by operation of law, either party shall have
the right to terminate such month-to-month tenancy upon thirty (30) days' prior
written notice to the other, whether or not said notice is given on the rent
paying date. This Section 2.04 shall in no way constitute a consent by Landlord
to any holding over by Tenant upon the expiration or earlier termination of this
Lease, nor limit Landlord's remedies in such event.
ARTICLE 3 - RENT
Section 3.01. Base Rent. Tenant shall pay to Landlord the Minimum
Annual Rent in the Monthly Rental Installments in advance, without demand,
deduction or offset, on the Commencement Date and on or before the first day of
each and every calendar month thereafter during the Lease Term. The Monthly
Rental Installments for partial calendar months shall be prorated.
Section 3.02. Annual Rental Adjustment Definitions.
(a) "Annual Rental Adjustment" shall mean the amount of Tenant's
Proportionate Share of Operating Expenses for a particular calendar year.
(b) "Operating Expenses" shall mean the amount of all of Landlord's
costs and expenses paid or incurred in operating, repairing, replacing and
maintaining the Building and the Common Areas in good condition and repair for a
particular calendar year (including all additional costs and expenses that
Landlord reasonably determines that it would have paid or incurred during such
year if the Building had been fully occupied), including by way of illustration
and not limitation, the following: all Real Estate Taxes (as hereinafter
defined), insurance premiums and deductibles; water, sewer, electrical and other
utility charges other than the separately billed electrical and other charges
paid by Tenant as provided in this Lease (or other tenants in the Building);
service and other charges incurred in the repair, replacement, operation and
maintenance of the elevators and the heating, ventilation and air-conditioning
system; costs associated with providing fitness facilities, if any; cleaning and
other janitorial services; tools and supplies; repair costs; landscape
maintenance costs; access patrols; license, permit and inspection fees;
management fees and administrative fees; supplies, costs, wages and related
employee benefits payable for the management, maintenance and operation of the
Building; maintenance, repair and replacement of the driveways, parking and
sidewalk areas (including snow and ice removal), landscaped areas, and lighting;
and maintenance and repair costs, dues, fees and assessments incurred under any
covenants or charged by any owners association. The cost of any Operating
Expenses that are capital in nature shall be amortized over the useful life of
the improvement (as reasonably determined by Landlord), and only the amortized
portion shall be included in Operating Expenses.
(c) "Tenant's Proportionate Share of Operating Expenses" shall mean an
amount equal to the remainder of (i) the product of Tenant's Proportionate Share
times the Operating Expenses less (ii) Tenant's Proportionate Share times the
Operating Expenses for the Base Year, provided that such amount shall not be
less than zero.
(d) "Real Estate Taxes" shall mean any form of real estate tax or
assessment or service payments in lieu thereof, and any license fee, commercial
rental tax, improvement bond or other similar charge or tax (other than
inheritance, personal income or estate taxes) imposed upon the Building or
Common Areas, or against Landlord's business of leasing the Building, by any
authority having the power to so charge or tax, together with costs and expenses
of contesting the validity or amount of the Real Estate Taxes.
Section 3.03. Payment of Additional Rent.
(a) Any amount required to be paid by Tenant hereunder (in addition to
Minimum Annual Rent) and any charges or expenses incurred by Landlord on behalf
of Tenant under the terms of this Lease shall be considered "Additional Rent"
payable in the same manner and upon the same terms and conditions as the Minimum
Annual Rent reserved hereunder, except as set forth herein to the contrary. Any
failure on the part of Tenant to pay such Additional Rent when and as the same
shall become due shall entitle Landlord to the remedies available to it for
non-payment of Minimum Annual Rent.
(b) In addition to the Minimum Annual Rent specified in this Lease,
commencing as of the Commencement Date, Tenant shall pay to Landlord as
Additional Rent for the Leased Premises, in each calendar year or partial
calendar year during the Lease Term, an amount equal to the Annual Rental
Adjustment for such calendar year. Landlord shall estimate the Annual Rental
Adjustment annually, and written notice thereof shall be given to Tenant prior
to the beginning of each calendar year. Tenant shall pay to Landlord each month,
at the same time the Monthly Rental Installment is due, an amount equal to
one-twelfth (1/12) of the estimated Annual Rental Adjustment. If Operating
Expenses increase during a calendar year, Landlord may increase the estimated
Annual Rental Adjustment during such year by giving Tenant written notice to
that effect, and thereafter Tenant shall pay to Landlord, in each of the
remaining months of such year, an amount equal to the amount of such increase in
the estimated Annual Rental Adjustment divided by the number of months remaining
in such year. Within a reasonable time after the end of each calendar year,
Landlord shall prepare and deliver to Tenant a statement showing the actual
Annual Rental Adjustment. Within thirty (30) days after receipt of the
aforementioned statement, Tenant shall pay to Landlord, or Landlord shall credit
against the next rent payment or payments due from Tenant, as the case may be,
the difference between the actual Annual Rental Adjustment for the preceding
calendar year and the estimated amount paid by Tenant during such year. This
Section 3.03 shall survive the expiration or any earlier termination of this
Lease.
Section 3.04. Late Charges. Tenant acknowledges that Landlord shall
incur certain additional unanticipated administrative and legal costs and
expenses if Tenant fails to pay timely any payment required hereunder.
Therefore, in addition to the other remedies available to Landlord hereunder, if
any payment required to be paid by Tenant to Landlord hereunder shall become
overdue, such unpaid amount shall bear interest from the due date thereof to the
date of payment at the prime rate of interest, as reported in the Wall Street
Journal (the "Prime Rate") plus six percent (6%) per annum.
ARTICLE 4 - SECURITY DEPOSIT
Upon execution and delivery of this Lease by Tenant, Tenant shall
deposit the Security Deposit with Landlord as security for the performance by
Tenant of all of Tenant's obligations contained in this Lease. In the event of a
default by Tenant, Landlord may apply all or any part of the Security Deposit to
cure all or any part of such default; provided, however, that any such
application by Landlord shall not be or be deemed to be an election of remedies
by Landlord or considered or deemed to be liquidated damages. Tenant agrees
promptly, upon demand, to deposit such additional sum with Landlord as may be
required to maintain the full amount of the Security Deposit. All sums held by
Landlord pursuant to this Article 4 shall be without interest and may be
commingled by Landlord. At the end of the Lease Term, provided that there is
then no uncured default or any repairs required to be made by Tenant pursuant to
Section 2.03 above or Section 7.03 below, Landlord shall return the Security
Deposit to Tenant.
ARTICLE 5 - OCCUPANCY AND USE
Section 5.01. Use. Tenant shall use the Leased Premises for the
Permitted Use and for no other purpose without the prior written consent of
Landlord.
Section 5.02. Covenants of Tenant Regarding Use.
(a) Tenant shall (i) use and maintain the Leased Premises and conduct
its business thereon in a safe, careful, reputable and lawful manner, (ii)
comply with all covenants that encumber the Building and all laws, rules,
regulations, orders, ordinances, directions and requirements of any governmental
authority or agency, now in force or which may hereafter be in force, including,
without limitation, those which shall impose upon Landlord or Tenant any duty
with respect to or triggered by a change in the use or occupation of, or any
improvement or alteration to, the Leased Premises, and (iii) comply with and
obey all reasonable directions, rules and regulations of Landlord, including the
Building Rules and Regulations attached hereto as Exhibit D and made a part
hereof, as may be modified from time to time by Landlord on reasonable notice to
Tenant.
(b) Tenant shall not do or permit anything to be done in or about the
Leased Premises that will in any way cause a nuisance, obstruct or interfere
with the rights of other tenants or occupants of the Building or injure or annoy
them. Landlord shall not be responsible to Tenant for the non-performance by any
other tenant or occupant of the Building of any of Landlord's directions, rules
and regulations, but agrees that any enforcement thereof shall be done
uniformly. Tenant shall not use the Leased Premises, nor allow the Leased
Premises to be used, for any purpose or in any manner that would (i) invalidate
any policy of insurance now or hereafter carried by Landlord on the Building, or
(ii) increase the rate of premiums payable on any such insurance policy unless
Tenant reimburses Landlord for any increase in premium charged.
Section 5.03. Landlord's Rights Regarding Use. Without limiting any of
Landlord's rights specified elsewhere in this Lease (a) Landlord shall have the
right at any time, without notice to Tenant, to control, change or otherwise
alter the Common Areas in such manner as it deems necessary or proper, and (b)
Landlord, its agents, employees and contractors and any mortgagee of the
Building shall have the right to enter any part of the Leased Premises at
reasonable times upon reasonable notice (except in the event of an emergency
where no notice shall be required) for the purposes of examining or inspecting
the same (including, without limitation, testing to confirm Tenant's compliance
with this Lease), showing the same to prospective purchasers, mortgagees or
tenants, and making such repairs, alterations or improvements to the Leased
Premises or the Building as Landlord may deem necessary or desirable. Landlord
shall incur no liability to Tenant for such entry, nor shall such entry
constitute an eviction of Tenant or a termination of this Lease, or entitle
Tenant to any abatement of rent therefor.
ARTICLE 6 - UTILITIES AND OTHER BUILDING SERVICES
Section 6.01. Services to be Provided. Provided Tenant is not in
default, Landlord shall furnish to Tenant, except as noted below, the following
utilities and other services to the extent reasonably necessary for Tenant's use
of the Leased Premises for the Permitted Use, or as may be required by law or
directed by governmental authority:
(a) Heating, ventilation and air-conditioning between the hours of 8:00
a.m. and 6:00 p.m. Monday through Friday and 9:00 a.m. to 1:00 p.m. on Saturday
of each week except on legal holidays;
(b) Electrical current not to exceed four (4) xxxxx per square foot;
(c) Water in the Common Areas for lavatory and drinking purposes;
(d) Automatic elevator service;
(e) Cleaning and janitorial service in the Leased Premises and Common
Areas on Monday through Friday of each week except legal holidays; provided,
however, Tenant shall be responsible for carpet cleaning other than routine
vacuuming;
(f) Washing of windows at intervals reasonably established by Landlord;
(g) Replacement of all lamps, bulbs, starters and ballasts in Building
standard lighting as required from time to time as a result of normal usage; and
(h) Maintenance of the Common Areas, including the removal of rubbish,
ice and snow.
Section 6.02. Additional Services.
(a) If Tenant requests utilities or building services in addition to
those identified above, or if Tenant uses any of the above utilities or services
in frequency, scope, quality or quantity substantially greater than that which
Landlord determines is normally required by other tenants in the Building, then
Landlord shall use reasonable efforts to attempt to furnish Tenant with such
additional utilities or services. In the event Landlord is able to and does
furnish such additional utilities or services, the costs thereof (which shall be
deemed to mean the cost that Tenant would have incurred had Tenant contracted
directly with the utility company or service provider) shall be borne by Tenant,
who shall reimburse Landlord monthly for the same as Additional Rent. Landlord
shall also have the right to submeter or separately meter the Leased Premises at
Tenant's sole cost, and Tenant shall pay such utilities based on the submeter or
separate meter.
(b) If any lights, density of staff, machines or equipment used by
Tenant in the Leased Premises materially affect the temperature otherwise
maintained by the Building's air-conditioning system or generate substantially
more heat in the Leased Premises than that which would normally be generated by
other tenants in the Building or by tenants in comparable office buildings, then
Landlord shall have the right to install any machinery or equipment that
Landlord considers reasonably necessary in order to restore the temperature
balance between the Leased Premises and the rest of the Building, including,
without limitation, equipment that modifies the Building's air-conditioning
system. All costs expended by Landlord to install any such machinery and
equipment and any additional costs of operation and maintenance in connection
therewith shall be borne by Tenant, who shall reimburse Landlord for the same as
provided in this Section 6.02.
Section 6.03. Interruption of Services. Tenant acknowledges and agrees
that any one or more of the utilities or other services identified in Sections
6.01 or 6.02 or otherwise hereunder may be interrupted by reason of accident,
emergency or other causes beyond Landlord's control, or may be discontinued or
diminished temporarily by Landlord or other persons until certain repairs,
alterations or improvements can be made. Landlord shall not be liable in damages
or otherwise for any failure or interruption of any utility or service and no
such failure or interruption shall entitle Tenant to terminate this Lease or
withhold sums due hereunder.
ARTICLE 7 - REPAIRS, MAINTENANCE AND ALTERATIONS
Section 7.01. Repair and Maintenance of Building. Landlord shall make
all necessary repairs and replacements to the roof, exterior walls, exterior
doors, windows, corridors and other Common Areas, and Landlord shall keep the
Building in a clean and neat condition and use reasonable efforts to keep all
equipment used in common with other tenants in good condition and repair. The
cost of such repairs, replacements and maintenance shall be included in
Operating Expenses to the extent provided in Section 3.02; provided however, to
the extent any such repairs, replacements or maintenance are required because of
the negligence, misuse or default of Tenant, its employees, agents, contractors,
customers or invitees, Landlord shall make such repairs at Tenant's sole
expense.
Section 7.02. Repair and Maintenance of Leased Premises. Landlord shall
keep and maintain the Leased Premises in good condition and repair. The cost of
such repairs and maintenance to the Leased Premises shall be included in
Operating Expenses; provided however, to the extent any repairs or maintenance
are required in the Leased Premises because of the negligence, misuse or default
of Tenant, its employees, agents, contractors, customers or invitees or are made
at the specific request of Tenant, Landlord shall make such repairs or perform
such maintenance at Tenant's sole expense. Notwithstanding the above, Tenant
shall be solely responsible for any repair or replacement with respect to
Tenant's Property (as defined in Section 8.01 below) located in the Leased
Premises. Nothing in this Article 7 shall obligate Landlord or Tenant to repair
normal wear and tear to any paint, wall covering or carpet in the Leased
Premises.
Section 7.03. Alterations. Tenant shall not permit alterations in or to
the Leased Premises unless and until Landlord has approved the plans therefor in
writing. As a condition of such approval, Landlord may require Tenant to remove
the alterations and restore the Leased Premises upon termination of this Lease;
otherwise, all such alterations shall at Landlord's option become a part of the
realty and the property of Landlord, and shall not be removed by Tenant. Tenant
shall ensure that all alterations shall be made in accordance with all
applicable laws, regulations and building codes, in a good and workmanlike
manner and of quality equal to or better than the original construction of the
Building. No person shall be entitled to any lien derived through or under
Tenant for any labor or material furnished to the Leased Premises, and nothing
in this Lease shall be construed to constitute Landlord's consent to the
creation of any lien. If any lien is filed against the Leased Premises for work
claimed to have been done for or material claimed to have been furnished to
Tenant, Tenant shall cause such lien to be discharged of record within thirty
(30) days after filing. Tenant shall indemnify Landlord from all costs, losses,
expenses and attorneys' fees in connection with any construction or alteration
and any related lien. Tenant agrees that at Landlord's option, Duke Construction
Limited Partnership or a subsidiary or affiliate of Landlord, who shall receive
a fee as Landlord's construction manager or general contractor, shall perform
all work on any alterations to the Leased Premises.
ARTICLE 8 - INDEMNITY AND INSURANCE
Section 8.01. Release. All of Tenant's trade fixtures, merchandise,
inventory and all other personal property in or about the Leased Premises, the
Building or the Common Areas, which is deemed to include the trade fixtures,
merchandise, inventory and personal property of others located in or about the
Leased Premises or Common Areas at the invitation, direction or acquiescence
(express or implied) of Tenant (all of which property shall be referred to
herein, collectively, as "Tenant's Property"), shall be and remain at Tenant's
sole risk. Landlord shall not be liable to Tenant or to any other person for,
and Tenant hereby releases Landlord from (a) any and all liability for theft or
damage to Tenant's Property, and (b) any and all liability for any injury to
Tenant or its employees, agents, contractors, guests and invitees in or about
the Leased Premises, the Building or the Common Areas, except to the extent of
personal injury (but not property loss or damage) caused directly by the
negligence or willful misconduct of Landlord, its agents, employees or
contractors. Nothing contained in this Section 8.01 shall limit (or be deemed to
limit) the waivers contained in Section 8.06 below. In the event of any conflict
between the provisions of Section 8.06 below and this Section 8.01, the
provisions of Section 8.06 shall prevail. This Section 8.01 shall survive the
expiration or earlier termination of this Lease.
Section 8.02. Indemnification by Tenant. Tenant shall protect, defend,
indemnify and hold Landlord, its agents, employees and contractors harmless from
and against any and all claims, damages, demands, penalties, costs, liabilities,
losses, and expenses (including reasonable attorneys' fees and expenses at the
trial and appellate levels actually incurred, without regard to statutory
interpretation) to the extent (a) arising out of or relating to any act,
omission, negligence, or willful misconduct of Tenant or Tenant's agents,
employees, contractors, customers or invitees in or about the Leased Premises,
the Building or the Common Areas, (b) arising out of or relating to any of
Tenant's Property, or (c) arising out of any other act or occurrence within the
Leased Premises, in all such cases except to the extent of personal injury (but
not property loss or damage) caused directly by the negligence or willful
misconduct of Landlord, its agents, employees or contractors. Nothing contained
in this Section 8.02 shall limit (or be deemed to limit) the waivers contained
in Section 8.06 below. In the event of any conflict between the provisions of
Section 8.06 below and this Section 8.02, the provisions of Section 8.06 shall
prevail. This Section 8.02 shall survive the expiration or earlier termination
of this Lease.
Section 8.03. Indemnification by Landlord. Landlord shall protect,
defend, indemnify and hold Tenant, its agents, employees and contractors
harmless from and against any and all claims, damages, demands, penalties,
costs, liabilities, losses and expenses (including reasonable attorneys' fees
and expenses at the trial and appellate levels actually incurred without regard
to statutory interpretation) to the extent arising out of or relating to any
act, omission, negligence or willful misconduct of Landlord or Landlord's
agents, employees or contractors. Nothing contained in this Section 8.03 shall
limit (or be deemed to limit) the waivers contained in Section 8.06 below. In
the event of any conflict between the provisions of Section 8.06 below and this
Section 8.03, the provisions of Section 8.06 shall prevail. This Section 8.03
shall survive the expiration or earlier termination of this Lease.
Section 8.04. Tenant's Insurance.
(a) During the Lease Term (and any period of early entry or occupancy
or holding over by Tenant, if applicable), Tenant shall maintain the following
types of insurance, in the amounts specified below:
(i) Liability Insurance. Commercial General Liability
Insurance (which insurance shall not exclude blanket, contractual liability,
broad form property damage, personal injury, or fire damage coverage) covering
the Leased Premises and Tenant's use thereof against claims for bodily injury or
death and property damage, which insurance shall provide coverage on an
occurrence basis with a per occurrence limit of not less than $3,000,000, and
with general aggregate limits of not less than $5,000,000 for each policy year,
which limits may be satisfied by any combination of primary and excess or
umbrella per occurrence policies.
(ii) Property Insurance. Special Form Insurance (which
insurance shall not exclude flood or earthquake coverage) in the amount of the
full replacement cost of Tenant's Property and betterments (including
alterations or additions performed by Tenant pursuant hereto, but excluding
those improvements, if any, made pursuant to Section 2.02 above), which
insurance shall include an agreed amount endorsement waiving coinsurance
limitations.
(iii) Worker's Compensation Insurance. Worker's Compensation
insurance in amounts required by applicable law.
(iv) Business Interruption Insurance. Business Interruption
Insurance with limits not less than an amount equal to two (2) years rent
hereunder.
(b) All insurance required by Tenant hereunder shall (i) be issued by
one or more insurance companies reasonably acceptable to Landlord, licensed to
do business in the State in which the Leased Premises is located and having an
AM Best's rating of A IX or better, and (ii) provide that said insurance shall
not be materially changed, canceled or permitted to lapse on less than thirty
(30) days' prior written notice to Landlord. In addition, Tenant's insurance
shall protect Tenant and Landlord as their interests may appear, naming
Landlord, Landlord's managing agent, and any mortgagee requested by Landlord, as
additional insureds under its commercial general liability policies. On or
before the Commencement Date (or the date of any earlier entry or occupancy by
Tenant), and thereafter, within thirty (30) days prior to the expiration of each
such policy, Tenant shall furnish Landlord with certificates of insurance in the
form of XXXXX 25 or XXXXX 25-S (or other form reasonably acceptable to
Landlord), evidencing all required coverages, together with a copy of the
endorsement(s) to Tenant's commercial general liability policy evidencing
primary and non-contributory coverage afforded to the appropriate additional
insureds. Upon Tenant's receipt of a request from Landlord, Tenant shall provide
Landlord with copies of all insurance policies, including all endorsements,
evidencing the coverages required hereunder. If Tenant fails to carry such
insurance and furnish Landlord with such certificates of insurance or copies of
insurance policies (if applicable), Landlord may obtain such insurance on
Tenant's behalf and Tenant shall reimburse Landlord upon demand for the cost
thereof as Additional Rent. Landlord reserves the right from time to time to
require Tenant to obtain higher minimum amounts or different types of insurance
if it becomes customary for other landlords of similar buildings in the area to
require similar sized tenants in similar industries to carry insurance of such
higher minimum amounts or of such different types.
Section 8.05. Landlord's Insurance. During the Lease Term, Landlord
shall maintain the following types of insurance, in the amounts specified below
(the cost of which shall be included in Operating Expenses):
(a) Liability Insurance. Commercial General Liability Insurance (which
insurance shall not exclude blanket, contractual liability, broad form property
damage, personal injury, or fire damage coverage) covering the Common Areas
against claims for bodily injury or death and property damage, which insurance
shall provide coverage on an occurrence basis with a per occurrence limit of not
less than $3,000,000, and with general aggregate limits of not less than
$10,000,000 for each policy year, which limits may be satisfied by any
combination of primary and excess or umbrella per occurrence policies.
(b) Property Insurance. Special Form Insurance (which insurance shall
not exclude flood or earthquake) in the amount of the full replacement cost of
the Building, including, without limitation, any improvements, if any, made
pursuant to Section 2.02 above, but excluding Tenant's Property and any other
items required to be insured by Tenant pursuant to Section 8.04 above.
Section 8.06. Waiver of Subrogation. Notwithstanding anything contained
in this Lease to the contrary, Landlord and Tenant hereby waive any rights each
may have against the other on account of any loss of or damage to their
respective property, the Leased Premises, its contents, or other portions of the
Building or Common Areas arising from any risk which is required to be insured
against by Sections 8.04(a)(ii) and 8.05(b) above. The special form coverage
insurance policies maintained by Landlord and Tenant as provided in this Lease
shall include an endorsement containing an express waiver of any rights of
subrogation by the insurance company against Landlord and Tenant, as applicable.
ARTICLE 9 - CASUALTY
In the event of total or partial destruction of the Building or the
Leased Premises by fire or other casualty, Landlord agrees promptly to restore
and repair same; provided, however, Landlord's obligation hereunder with respect
to the Leased Premises shall be limited to the reconstruction of such of the
leasehold improvements as were originally required to be made by Landlord
pursuant to Section 2.02 above, if any. Rent shall proportionately xxxxx during
the time that the Leased Premises or part thereof are unusable because of any
such damage. Notwithstanding the foregoing, if the Leased Premises are (a) so
destroyed that they cannot be repaired or rebuilt within two hundred ten (210)
days from the casualty date; or (b) destroyed by a casualty that is not covered
by the insurance required hereunder or, if covered, such insurance proceeds are
not released by any mortgagee entitled thereto or are insufficient to rebuild
the Building and the Leased Premises; then, in case of a clause (a) casualty,
either Landlord or Tenant may, or, in the case of a clause (b) casualty, then
Landlord may, upon thirty (30) days' written notice to the other party,
terminate this Lease with respect to matters thereafter accruing. Tenant waives
any right under applicable laws inconsistent with the terms of this paragraph.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or Common Areas shall be
acquired by the exercise of eminent domain, Landlord may terminate this Lease by
giving written notice to Tenant on or before the date possession thereof is so
taken. If all or any part of the Leased Premises shall be acquired by the
exercise of eminent domain so that the Leased Premises shall become impractical
for Tenant to use for the Permitted Use, Tenant may terminate this Lease by
giving written notice to Landlord as of the date possession thereof is so taken.
All damages awarded shall belong to Landlord; provided, however, that Tenant may
claim dislocation damages if such amount is not subtracted from Landlord's
award.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Section 11.01. Assignment and Sublease.
(a) Tenant shall not assign this Lease or sublet the Leased Premises in
whole or in part without Landlord's prior written consent. In the event of any
permitted assignment or subletting, Tenant shall remain primarily liable
hereunder, and any extension, expansion, rights of first offer, rights of first
refusal or other options granted to Tenant under this Lease shall be rendered
void and of no further force or effect. The acceptance of rent from any other
person shall not be deemed to be a waiver of any of the provisions of this Lease
or to be a consent to the assignment of this Lease or the subletting of the
Leased Premises. Any assignment or sublease consented to by Landlord shall not
relieve Tenant (or its assignee) from obtaining Landlord's consent to any
subsequent assignment or sublease.
(b) By way of example and not limitation, Landlord shall be deemed to
have reasonably withheld consent to a proposed assignment or sublease if in
Landlord's opinion (i) the Leased Premises are or may be in any way adversely
affected; (ii) the business reputation of the proposed assignee or subtenant is
unacceptable; (iii) the financial worth of the proposed assignee or subtenant is
insufficient to meet the obligations hereunder, or (iv) the prospective assignee
or subtenant is a current tenant at the Park or is a bona-fide third-party
prospective tenant. Landlord further expressly reserves the right to refuse to
give its consent to any subletting if the proposed rent is publicly advertised
to be less than the then current rent for similar premises in the Building. If
Landlord refuses to give its consent to any proposed assignment or subletting,
Landlord may, at its option, within thirty (30) days after receiving a request
to consent, terminate this Lease by giving Tenant thirty (30) days prior written
notice of such termination, whereupon each party shall be released from all
further obligations and liability hereunder, except those which expressly
survive the termination of this Lease.
(c) If Tenant shall make any assignment or sublease, with Landlord's
consent, for a rental in excess of the rent payable under this Lease, Tenant
shall pay to Landlord fifty percent (50%) of any such excess rental upon
receipt. Tenant agrees to pay Landlord $500.00 upon demand by Landlord for
reasonable accounting and attorneys' fees incurred in conjunction with the
processing and documentation of any requested assignment, subletting or any
other hypothecation of this Lease or Tenant's interest in and to the Leased
Premises as consideration for Landlord's consent.
Section 11.02. Permitted Transfer. Notwithstanding anything to the
contrary contained in Section 11.01 above, Tenant shall have the right, without
Landlord's consent, but upon ten (10) days prior notice to Landlord, to (a)
sublet all or part of the Leased Premises to any related corporation or other
entity which controls Tenant, is controlled by Tenant or is under common control
with Tenant; (b) assign all or any part of this Lease to any related corporation
or other entity which controls Tenant, is controlled by Tenant, or is under
common control with Tenant, or to a successor entity into which or with which
Tenant is merged or consolidated or which acquires substantially all of Tenant's
assets or property; or (c) effectuate any public offering of Tenant's stock on
the New York Stock Exchange or in the NASDAQ over the counter market, provided
that in the event of a transfer pursuant to clause (b), the tangible net worth
after any such transaction is not less than the tangible net worth of Tenant as
of the date hereof and provided further that such successor entity assumes all
of the obligations and liabilities of Tenant (any such entity hereinafter
referred to as a "Permitted Transferee"). For the purpose of this Article 11 (i)
"control" shall mean ownership of not less than fifty percent (50%) of all
voting stock or legal and equitable interest in such corporation or entity, and
(ii) "tangible net worth" shall mean the excess of the value of tangible assets
(i.e. assets excluding those which are intangible such as goodwill, patents and
trademarks) over liabilities. Any such transfer shall not relieve Tenant of its
obligations under this Lease. Nothing in this paragraph is intended to nor shall
permit Tenant to transfer its interest under this Lease as part of a fraud or
subterfuge to intentionally avoid its obligations under this Lease (for example,
transferring its interest to a shell corporation that subsequently files a
bankruptcy), and any such transfer shall constitute a Default hereunder. Any
change in control of Tenant resulting from a merger, consolidation, or a
transfer of partnership or membership interests, a stock transfer, or any sale
of substantially all of the assets of Tenant that do not meet the requirements
of this Section 11.02 shall be deemed an assignment or transfer that requires
Landlord's prior written consent pursuant to Section 11.01 above.
ARTICLE 12 - TRANSFERS BY LANDLORD
Section 12.01. Sale of the Building. Landlord shall have the right to
sell the Building at any time during the Lease Term, subject only to the rights
of Tenant hereunder; and such sale shall operate to release Landlord from
liability hereunder after the date of such conveyance.
Section 12.02. Estoppel Certificate. Within ten (10) days following
receipt of a written request from Landlord, Tenant shall execute and deliver to
Landlord, without cost to Landlord, an estoppel certificate in such form as
Landlord may reasonably request certifying (a) that this Lease is in full force
and effect and unmodified or stating the nature of any modification, (b) the
date to which rent has been paid, (c) that there are not, to Tenant's knowledge,
any uncured defaults or specifying such defaults if any are claimed, and (d) any
other matters or state of facts reasonably required respecting the Lease. Such
estoppel may be relied upon by Landlord and by any purchaser or mortgagee of the
Building.
Section 12.03. Subordination. Landlord shall have the right to
subordinate this Lease to any mortgage, deed to secure debt, deed of trust or
other instrument in the nature thereof, and any amendments or modifications
thereto (collectively, a "Mortgage") presently existing or hereafter encumbering
the Building by so declaring in such Mortgage. Within ten (10) days following
receipt of a written request from Landlord, Tenant shall execute and deliver to
Landlord, without cost, any instrument that Landlord deems reasonably necessary
or desirable to confirm the subordination of this Lease. Notwithstanding the
foregoing, if the holder of the Mortgage shall take title to the Leased Premises
through foreclosure or deed in lieu of foreclosure, Tenant shall be allowed to
continue in possession of the Leased Premises as provided for in this Lease so
long as Tenant is not in Default.
ARTICLE 13 - DEFAULT AND REMEDY
Section 13.01. Default. The occurrence of any of the following shall
be a "Default":
(a) Tenant fails to pay any Monthly Rental Installments or Additional
Rent within five (5) days after the same is due.
(b) Tenant fails to perform or observe any other term, condition,
covenant or obligation required under this Lease for a period of thirty (30)
days after written notice thereof from Landlord; provided, however, that if the
nature of Tenant's default is such that more than thirty (30) days are
reasonably required to cure, then such default shall be deemed to have been
cured if Tenant commences such performance within said thirty (30) day period
and thereafter diligently completes the required action within a reasonable
time.
(c) Tenant shall vacate or abandon the Leased Premises, or fail to
occupy the Leased Premises or any substantial portion thereof for a period of
thirty (30) days.
(d) Tenant shall assign or sublet all or a portion of the Leased
Premises in contravention of the provisions of Article 11 of this Lease.
(e) All or substantially all of Tenant's assets in the Leased Premises
or Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Tenant (and Tenant fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Tenant is insolvent and unable to pay its
debts as they become due; Tenant makes a general assignment for the benefit of
creditors; Tenant takes the benefit of any insolvency action or law; the
appointment of a receiver or trustee in bankruptcy for Tenant or its assets if
such receivership has not been vacated or set aside within thirty (30) days
thereafter; or, dissolution or other termination of Tenant's corporate charter
if Tenant is a corporation.
In addition to the defaults described above, the parties agree that if Tenant
receives written notice of a violation of the performance of any (but not
necessarily the same) term or condition of this Lease three (3) or more times
during any twelve (12) month period, regardless of whether such violations are
ultimately cured, then such conduct shall, at Landlord's option, represent a
separate Default.
Section 13.02. Remedies. Upon the occurrence of any Default, Landlord
shall have the following rights and remedies, in addition to those allowed by
law or in equity, any one or more of which may be exercised without further
notice to Tenant:
(a) Terminate this Lease by giving Tenant notice of termination, in
which event this Lease shall expire and terminate on the date specified in such
notice of termination and all rights of Tenant under this Lease and in and to
the Leased Premises shall terminate. Tenant shall remain liable for all
obligations under this Lease arising up to the date of such termination, and
Tenant shall surrender the Leased Premises to Landlord on the date specified in
such notice. Furthermore, Tenant shall be liable to Landlord for the unamortized
balance of any Tenant improvement allowance and brokerage fees paid in
connection with the Lease.
(b) Without terminating this Lease, and with or without notice to
Tenant, re-enter the Leased Premises and cure any default of Tenant, and Tenant
shall reimburse Landlord as Additional Rent for any costs and expenses which
Landlord thereby incurs; and Landlord shall not be liable to Tenant for any loss
or damage which Tenant may sustain by reason of Landlord's action.
(c) Terminate this Lease as provided in subparagraph (a) above and
recover from Tenant all damages Landlord may incur by reason of Tenant's
default, including, without limitation, an amount which, at the date of such
termination is equal to the sum of the following: (i) the value of the excess,
if any, discounted at the prime rate of interest (as reported in the Wall Street
Journal), of (A) the Minimum Annual Rent, Additional Rent and all other sums
that would have been payable hereunder by Tenant for the period for the
remainder of the Lease Term had this Lease not been terminated (said period
being referred to herein as the "Remaining Term"), less (B) the aggregate
reasonable rental value of the Leased Premises for the Remaining Term, as
determined by a real estate broker licensed in the State of Georgia who has at
least ten (10) years of experience; (ii) the costs of recovering possession of
the Leased Premises and all other expenses incurred by Landlord due to Tenant's
Default, including, without limitation, reasonable attorney's fees actually
incurred, without regard to statutory interpretation, and the cost to prepare
the Leased Premises for re-letting (all costs and expenses set forth in this
clause (ii) being referred to herein, collectively, as the "Default Damages");
and (iii) the unpaid Minimum Annual Rent and Additional Rent that accrued prior
to the date of termination, plus any interest and late fees due hereunder and
any other sums of money and damages owing on the date of termination by Tenant
to Landlord under this Lease or in connection with the Leased Premises (all
amounts set forth in this clause (iii) being referred to herein, collectively,
as the "Prior Obligations"). The amount as calculated above shall be deemed
immediately due and payable. Landlord and Tenant acknowledge and agree that the
payment of the amount set forth in clause (i) above shall not be deemed a
penalty, but shall merely constitute payment of liquidated damages, it being
understood that actual damages to Landlord are extremely difficult, if not
impossible, to ascertain. Tenant expressly acknowledges and agrees that the
liabilities and remedies specified in this subparagraph (c) shall survive the
termination of this Lease.
(d) Without terminating this Lease, declare immediately due and payable
the sum of the following: (i) the present value (discounted at the prime rate of
interest, as reported in the Wall Street Journal) of all Minimum Annual Rent and
Additional Rent due and coming due under this Lease for the entire Remaining
Term (as if by the terms of this Lease they were payable in advance), (ii) all
Default Damages, and (iii) all Prior Obligations, whereupon Tenant shall be
obligated to pay the same to Landlord; provided, however, that such payment
shall not be deemed a penalty or liquidated damages, but shall merely constitute
payment in advance of all Minimum Annual Rent and Additional Rent payable
hereunder throughout the Remaining Term, and provided further, however, that
upon Landlord receiving such payment, Tenant shall be entitled to receive from
Landlord all rents received by Landlord from other assignees, tenant and
subtenants on account of said Leased Premises during the Remaining Term (but
only to the extent that the monies to which Tenant shall so become entitled do
not exceed the entire amount actually paid by Tenant to Landlord pursuant to
this subparagraph (d)), less all Default Damages of Landlord incurred but not
yet reimbursed by Tenant.
(e) Without terminating this Lease, terminate Tenant's right to
possession of the Leased Premises as of the date of Tenant's Default, and
thereafter (i) neither Tenant nor any person claiming under or through Tenant
shall be entitled to possession of the Leased Premises, and Tenant shall
immediately surrender the Leased Premises to Landlord; and (ii) Landlord may
re-enter the Leased Premises and dispossess Tenant and any other occupants of
the Leased Premises by any lawful means and may remove their effects, without
prejudice to any other remedy which Landlord may have. Thereafter, Landlord may,
but shall not be obligated to, re-let all or any part of the Leased Premises as
the agent of Tenant for a term different from that which would otherwise have
constituted the balance of the Lease Term and for rent and on terms and
conditions different from those contained herein, whereupon Tenant shall be
obligated to pay to Landlord as liquidated damages the difference between the
rent provided for herein and that provided for in any lease covering a
subsequent re-letting of the Leased Premises, for the Remaining Term, together
with all Default Damages. Neither the filing of a dispossessory proceeding nor
an eviction of personalty in the Leased Premises shall be deemed to terminate
the Lease.
(f) Allow the Leased Premises to remain unoccupied and collect rent
from Tenant as it comes due.
(g) Xxx for injunctive relief or to recover damages for any loss
resulting from the Default.
Section 13.03. Landlord's Default and Tenant's Remedies. Landlord shall
be in default if it fails to perform any term, condition, covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is such that it cannot
reasonably be performed within thirty (30) days, such default shall be deemed to
have been cured if Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to complete the same. Upon the
occurrence of any such default, Tenant may xxx for injunctive relief or to
recover damages for any loss directly resulting from the breach, but Tenant
shall not be entitled to terminate this Lease or withhold, offset or xxxxx any
sums due hereunder.
Section 13.04. Limitation of Landlord's Liability. If Landlord shall
fail to perform any term, condition, covenant or obligation required to be
performed by it under this Lease and if Tenant shall, as a consequence thereof,
recover a money judgment against Landlord, Tenant agrees that it shall look
solely to Landlord's right, title and interest in and to the Building for the
collection of such judgment; and Tenant further agrees that no other assets of
Landlord shall be subject to levy, execution or other process for the
satisfaction of Tenant's judgment.
Section 13.05. Nonwaiver of Defaults. Neither party's failure or delay
in exercising any of its rights or remedies or other provisions of this Lease
shall constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance of a surrender of the Leased Premises, and no agreement to
accept such a surrender shall be valid unless in writing and signed by Landlord.
Section 13.06. Attorneys' Fees. If either party defaults in the
performance or observance of any of the terms, conditions, covenants or
obligations contained in this Lease and the non-defaulting party obtains a
judgment against the defaulting party, then the defaulting party agrees to
reimburse the non-defaulting party for reasonable attorneys' fees actually
incurred in connection therewith, without regard to statutory interpretation. In
addition, if a monetary Default shall occur and Landlord engages outside counsel
to exercise its remedies hereunder, and then Tenant cures such monetary Default,
Tenant shall pay to Landlord, on demand, all expenses incurred by Landlord as a
result thereof, including reasonable attorneys' fees, court costs and expenses
actually incurred, without regard to statutory interpretation.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
Landlord shall have the right upon at least sixty (60) days' prior
written notice to Tenant to relocate Tenant and to substitute for the Leased
Premises other space in the Building containing at least as much square footage
as the Leased Premises. Landlord shall improve such substituted space, at its
expense, with improvements at least equal in quantity and quality to those in
the Leased Premises. Landlord shall reimburse Tenant for all reasonable third
party expenses incurred in connection with, and caused by, such relocation. In
no event shall Landlord be liable to Tenant for any consequential damages as a
result of any such relocation, including, but not limited to, loss of business
income or opportunity. Notwithstanding the foregoing, in the event Tenant
determines in its reasonable discretion that the substituted space is not of
equal quality to the Leased Premises for Tenant's Permitted Use or will
adversely affect Tenant's ability to conduct its business, Tenant shall have the
right, within five (5) days following receipt of Landlord's relocation notice
which shall include a proposed space plan and parking layout, to notify Landlord
in writing that Tenant elects to terminate the Lease. Tenant's failure to
properly exercise such right shall be deemed a waiver of such right. Within ten
(10) days following receipt of Tenant's termination notice, Landlord shall
deliver written notice (the "Determination Notice") to Tenant (a) retracting
Landlord's relocation notice, in which case this Lease shall continue in full
force and effect as if Landlord had never delivered the relocation notice, or
(b) acknowledging the termination of the Lease, in which event the Lease shall
terminate on the thirtieth (30th) day following Landlord's delivery of the
Determination Notice, and thereafter neither party shall have any further
liability hereunder, except with respect to the provisions hereunder that
expressly survive any such termination. In the event Landlord fails to deliver
the Determination Notice within said 10-day period, Landlord shall be deemed to
have elected option (a) above.
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES
Section 15.01. Environmental Definitions.
(a) "Environmental Laws" shall mean all present or future federal,
state and municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, and the rules and
regulations of the Federal Environmental Protection Agency and any other
federal, state or municipal agency or governmental board or entity having
jurisdiction over the Leased Premises.
(b) "Hazardous Substances" shall mean those substances included within
the definitions of "hazardous substances," "hazardous materials," "toxic
substances" "solid waste" or "infectious waste" under Environmental Laws and
petroleum products.
Section 15.02. Restrictions on Tenant. Tenant shall not cause or permit
the use, generation, release, manufacture, refining, production, processing,
storage or disposal of any Hazardous Substances on, under or about the Leased
Premises, or the transportation to or from the Leased Premises of any Hazardous
Substances, except as necessary and appropriate for its Permitted Use in which
case the use, storage or disposal of such Hazardous Substances shall be
performed in compliance with the Environmental Laws and the highest standards
prevailing in the industry.
Section 15.03. Notices, Affidavits, Etc. Tenant shall immediately (a)
notify Landlord of (i) any violation by Tenant, its employees, agents,
representatives, customers, invitees or contractors of any Environmental Laws
on, under or about the Leased Premises, or (ii) the presence or suspected
presence of any Hazardous Substances on, under or about the Leased Premises, and
(b) deliver to Landlord any notice received by Tenant relating to (a)(i) and
(a)(ii) above from any source. Tenant shall execute affidavits, representations
and the like within five (5) days of Landlord's request therefor concerning
Tenant's best knowledge and belief regarding the presence of any Hazardous
Substances on, under or about the Leased Premises.
Section 15.04. Tenant's Indemnification. Tenant shall indemnify
Landlord and Landlord's managing agent from any and all claims, losses,
liabilities, costs, expenses and damages, including attorneys' fees, costs of
testing and remediation costs, incurred by Landlord in connection with any
breach by Tenant of its obligations under this Article 15. The covenants and
obligations under this Article 15 shall survive the expiration or earlier
termination of this Lease.
Section 15.05. Existing Conditions. Notwithstanding anything contained
in this Article 15 to the contrary, Tenant shall not have any liability to
Landlord under this Article 15 resulting from any conditions existing, or events
occurring, or any Hazardous Substances existing or generated, at, in, on, under
or in connection with the Leased Premises prior to the Commencement Date of this
Lease (or any earlier occupancy of the Leased Premises by Tenant) except to the
extent Tenant exacerbates the same.
ARTICLE 16 - MISCELLANEOUS
Section 16.01. Benefit of Landlord and Tenant. This Lease shall inure
to the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
Section 16.02. Governing Law. This Lease shall be governed in
accordance with the laws of the State where the Building is located.
Section 16.03. Force Majeure. Landlord and Tenant (except with respect
to the payment of any monetary obligation) shall be excused for the period of
any delay in the performance of any obligation hereunder when such delay is
occasioned by causes beyond its control, including but not limited to work
stoppages, boycotts, slowdowns or strikes; shortages of materials, equipment,
labor or energy; unusual weather conditions; or acts or omissions of
governmental or political bodies.
Section 16.04. Examination of Lease. Submission of this instrument by
Landlord to Tenant for examination or signature does not constitute an offer by
Landlord to lease the Leased Premises. This Lease shall become effective, if at
all, only upon the execution by and delivery to both Landlord and Tenant.
Execution and delivery of this Lease by Tenant to Landlord constitutes an offer
to lease the Leased Premises on the terms contained herein. The offer by Tenant
will be irrevocable until 6:00 p.m. EST, fifteen (15) days after the date
Landlord receives the Lease executed by Tenant.
Section 16.05. Indemnification for Leasing Commissions. The parties
hereby represent and warrant that the only real estate broker involved in the
negotiation and execution of this Lease is the Broker and that no other party is
entitled, as a result of the actions of the respective party, to a commission or
other fee resulting from the execution of this Lease. Each party shall indemnify
the other from any and all liability for the breach of this representation and
warranty on its part and shall pay any compensation to any other broker or
person who may be entitled thereto. Landlord shall pay any commission due Broker
based on this Lease pursuant to a separate agreement between Landlord and
Broker.
Section 16.06. Notices. Any notice required or permitted to be given
under this Lease or by law shall be deemed to have been given if it is written
and delivered in person or by overnight courier or mailed by certified mail,
postage prepaid, to the party who is to receive such notice at the address
specified in Section 1.01(l). If sent by overnight courier, the notice shall be
deemed to have been given one (1) day after sending. If mailed, the notice shall
be deemed to have been given on the date that is three (3) business days
following mailing. Either party may change its address by giving written notice
thereof to the other party.
Section 16.07. Partial Invalidity; Complete Agreement. If any provision
of this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed upon or
understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change or addition shall be made to this Lease except by a written
agreement executed by Landlord and Tenant.
Section 16.08. Financial Statements. During the Lease Term and any
extensions thereof, Tenant shall provide to Landlord upon Landlord's written
request, a copy of Tenant's most recent financial statements prepared as of the
end of Tenant's fiscal year. Such financial statements shall be signed by Tenant
or an officer of Tenant, if applicable, who shall attest to the truth and
accuracy of the information set forth in such statements, or if the Minimum
Annual Rent hereunder exceeds $100,000.00, said statements shall be certified
and audited. All financial statements provided by Tenant to Landlord hereunder
shall be prepared in conformity with generally accepted accounting principles,
consistently applied.
Section 16.09. Representations and Warranties.
(a) Tenant hereby represents and warrants that (i) Tenant is duly
organized, validly existing and in good standing (if applicable) in accordance
with the laws of the State under which it was organized; (ii) Tenant is
authorized to do business in the State where the Building is located; and (iii)
the individual(s) executing and delivering this Lease on behalf of Tenant has
been properly authorized to do so, and such execution and delivery shall bind
Tenant to its terms.
(b) Landlord hereby represents and warrants that (i) Landlord is duly
organized, validly existing and in good standing (if applicable) in accordance
with the laws of the State under which it was organized; (ii) Landlord is
authorized to do business in the State where the Building is located; and (iii)
the individual(s) executing and delivering this Lease on behalf of Landlord has
been properly authorized to do so, and such execution and delivery shall bind
Landlord to its terms.
Section 16.10. Signage. Landlord, at its cost and expense, shall
provide Tenant with Building standard signage on the main Building directory and
at the entrance to the Leased Premises. Any changes requested by Tenant to the
initial directory or suite signage shall be made at Tenant's sole cost and
expense and shall be subject to Landlord's approval. Landlord may install such
other signs, advertisements, notices or tenant identification information on the
Building directory, tenant access doors or other areas of the Building, as it
shall deem necessary or proper. Tenant shall not place any exterior signs on the
Leased Premises or interior signs visible from the exterior of the Leased
Premises without the prior written consent of Landlord. Notwithstanding any
other provision of this Lease to the contrary, Landlord may immediately remove
any sign(s) placed by Tenant in violation of this Section 16.10.
Section 16.11. Parking. Tenant shall be entitled to the non-exclusive
use of the parking spaces designated for the Building by Landlord. Tenant agrees
not to overburden the parking facilities and agrees to cooperate with Landlord
and other tenants in the use of the parking facilities. Landlord reserves the
right in its absolute discretion to determine whether parking facilities are
becoming crowded and, in such event, to allocate parking spaces between Tenant
and other tenants. There will be no assigned parking unless Landlord, in its
sole discretion, deems such assigned parking advisable. No vehicle may be
repaired or serviced in the parking area and any vehicle brought into the
parking area by Tenant, or any of Tenant's employees, contractors or invitees,
and deemed abandoned by Landlord will be towed and all costs thereof shall be
borne by the Tenant. All driveways, ingress and egress, and all parking spaces
are for the joint use of all tenants. There shall be no parking permitted on any
of the streets or roadways located within the Park. In addition, Tenant agrees
that its employees will not park in the spaces designated visitor parking.
Section 16.12. Consent. Where the consent of a party is required, such
consent will not be unreasonably withheld.
Section 16.13. Time. Time is of the essence of each term and provision
of this Lease.
Section 16.14. Patriot Act. Each of Landlord and Tenant, each as to
itself, hereby represents its compliance with all applicable anti-money
laundering laws, including, without limitation, the USA Patriot Act, and the
laws administered by the United States Treasury Department's Office of Foreign
Assets Control, including, without limitation, Executive Order 13224 ("Executive
Order"). Each of Landlord and Tenant further represents (a) that it is not, and
it is not owned or controlled directly or indirectly by any person or entity, on
the SDN List published by the United States Treasury Department's Office of
Foreign Assets Control and (b) that it is not a person otherwise identified by
government or legal authority as a person with whom a U.S. Person is prohibited
from transacting business. As of the date hereof, a list of such designations
and the text of the Executive Order are published under the website address
xxx.xxxxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx.
Section 16.15. Usufruct. Tenant's interest in the Leased Premises is a
usufruct, not subject to levy and sale, and not assignable by Tenant except as
expressly set forth herein.
Section 16.16. Guaranty. In consideration of Landlord's leasing the
Leased Premises to Tenant, Tenant shall provide Landlord with an Unconditional
Guaranty of Lease in the form attached hereto as Exhibit G, executed by the
Guarantor.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the day and year first above written.
Signed, sealed and delivered LANDLORD:
as to Landlord, in the
presence of: DUKE REALTY LIMITED PARTNERSHIP, an
Indiana limited partnership
___________________________ By: Duke Realty Corporation, its
Unofficial Witness General Partner
By:___________________________
___________________________ Name:_________________________
Notary Public Title:________________________
Signed, sealed and delivered TENANT:
s to Tenant, in the
presence of: JPC CAPITAL PARTNERS, INC., a
Delaware corporation
___________________________ By:___________________________
Unofficial Witness Name:_________________________
Title:________________________
___________________________
Notary Public
Attest:_______________________
Name:_________________________
Title:________________________
(CORPORATE SEAL)
EXHIBIT A
SITE PLAN OF LEASED PREMISES
[TO BE ADDED]
EXHIBIT B
INTENTIONALLY OMITTED
EXHIBIT C
LETTER OF UNDERSTANDING
Duke Realty Limited Partnership
Attention: ______________________, Property Manager
___________________________
__________________________________
RE: Lease Agreement between Duke Realty Limited Partnership, an
Indiana limited partnership ("Landlord") and _________________
("Tenant") for the Leased Premises located at ________________
______________________________, __________________, __________
(the "Leased Premises"), dated ________________ (the "Lease").
Dear _________________________:
The undersigned, on behalf of Tenant, certifies to Landlord as follows:
1. The Commencement Date under the Lease is ____________________.
2. The rent commencement date is ___________________.
3. The expiration date of the Lease is ___________________.
4. The Lease (including amendments or guaranty, if any) is the
entire agreement between Landlord and Tenant as to the leasing
of the Leased Premises and is in full force and effect.
5. The Landlord has completed the improvements designated as
Landlord's obligation under the Lease (excluding punchlist
items as agreed upon by Landlord and Tenant), if any, and
Tenant has accepted the Leased Premises as of the Commencement
Date.
6. To the best of the undersigned's knowledge, there are no
uncured events of default by either Tenant or Landlord under
the Lease.
IN WITNESS WHEREOF, the undersigned has caused this Letter of
Understanding to be executed this ____ day of _________________, 20____.
______________________________________
By: __________________________________
Printed Name: ________________________
Title: _______________________________
EXHIBIT C-1
INTENTIONALLY OMITTED
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or used for any purpose
other than ingress and egress. Landlord shall control the Common Areas.
2. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with, any window or door of the Leased
Premises other than Landlord standard window coverings without Landlord's prior
written approval. All electric ceiling fixtures hung in offices or spaces along
the perimeter of the Building must be fluorescent, of a quality, type, design
and tube color approved by Landlord. Neither the interior nor the exterior of
any windows shall be coated or otherwise sunscreened without written consent of
Landlord.
3. No sign, advertisement, notice or handbill shall be exhibited,
distributed, painted or affixed by any tenant on, about or from any part of the
Leased Premises, the Building or in the Common Areas including the parking area
without the prior written consent of Landlord. In the event of the violation of
the foregoing by any tenant, Landlord may remove or stop same without any
liability, and may charge the expense incurred in such removal or stopping to
tenant. The lobby directory will be provided exclusively for the display of the
name and location of tenants only, and Landlord reserves the right to exclude
any other names therefrom. Nothing may be placed on the exterior of corridor
walls or corridor doors other than Landlord's standard lettering.
4. The sashes, sash doors, windows, and doors that reflect or admit
light and air into halls, passageways or other public places in the Building
shall not be covered or obstructed by tenant.
5. The sinks and toilets and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose subtenants, assignees or any of their servants, employees, agents,
visitors or licensees shall have caused the same.
6. No tenant shall xxxx, paint, drill into, or in any way deface any
part of the Leased Premises or the Building (except for nails for the display of
artwork). No boring, cutting or stringing of wires or laying of any floor
coverings shall be permitted, except with the prior written consent of the
Landlord and as the Landlord may direct. Landlord shall direct electricians as
to where and how telephone or data cabling are to be introduced. No boring or
cutting for wires or stringing of wires will be allowed without written consent
of Landlord. The location of telephones, call boxes and other office equipment
affixed to the Leased Premises shall be subject to the approval of Landlord.
7. No bicycles, vehicles, birds or animals of any kind (except seeing
eye dogs) shall be brought into or kept in or about the Leased Premises, and no
cooking shall be done or permitted by any tenant on the Leased Premises, except
microwave cooking, and the preparation of coffee, tea, hot chocolate and similar
items for tenants and their employees. No tenant shall cause or permit any
unusual or objectionable odors to be produced in or permeate from the Leased
Premises.
8. The Leased Premises shall not be used for manufacturing or for the
storage of merchandise except as such storage may be incidental to the permitted
use of the Leased Premises. No tenant shall occupy or permit any portion of the
Leased Premises to be occupied as an office for the manufacture or sale of
liquor, narcotics, or tobacco in any form, or as a medical office, or as a
xxxxxx or manicure shop, or a dance, exercise or music studio, or any type of
school or daycare or copy, photographic or print shop or an employment bureau
without the express written consent of Landlord. The Leased Premises shall not
be used for lodging or sleeping or for any immoral or illegal purpose.
9. No tenant shall make, or permit to be made any unseemly, excessive
or disturbing noises or disturb or interfere with occupants of this or
neighboring buildings or premises or those having business with them, whether by
the use of any musical instrument, radio, phonograph, unusual noise, or in any
other way. No tenant shall throw anything out of doors, windows or down the
passageways.
10. No tenant, subtenant or assignee nor any of its servants,
employees, agents, visitors or licensees, shall at any time bring or keep upon
the Leased Premises any flammable, combustible or explosive fluid, chemical or
substance or firearm.
11. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by any tenant, nor shall any changes be made to existing
locks or the mechanism thereof. Each tenant must upon the termination of its
tenancy, restore to the Landlord all keys of doors, offices, and toilet rooms,
either furnished to, or otherwise procured by, such tenant and in the event of
the loss of keys so furnished, such tenant shall pay to the Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such changes.
12. No tenant shall overload the floors of the Leased Premises. All
damage to the floor, structure or foundation of the Building due to improper
positioning of storage items or materials shall be repaired by Landlord at the
sole cost and expense of tenant, who shall reimburse Landlord immediately
therefor upon demand. All removals or the carrying in or out of any safes,
freight, furniture, or bulky matter of any description must take place during
the hours that Landlord shall reasonably determine from time to time. The moving
of safes or other fixtures or bulky matter of any kind must be done upon
previous notice to Landlord and under Landlord's supervision, and the persons
employed by any tenant for such work must be acceptable to Landlord. Landlord
reserves the right to inspect all safes, freight or other bulky articles to be
brought into the Building and to exclude from the Building all safes, freight or
other bulky articles which violate any of these Rules and Regulations or the
Lease of which these Rules and Regulations are a part. The Landlord reserves the
right to prescribe the weight and position of all safes, which must be placed
upon supports approved by Landlord to distribute the weight.
13. Landlord shall have the right to prohibit any advertising by any
tenant that, in Landlord's opinion tends to impair the reputation of the
Building or its desirability as an office location, and upon written notice from
Landlord any tenant shall refrain from or discontinue such advertising.
14. The business hours for the Building shall be 8 a.m. to 6 p.m.
Monday through Friday and 8 a.m. to 1 p.m. on Saturday, excluding legal
holidays. Landlord reserves the right to require all persons entering the
Building between the hours of 6:00 p.m. and 8:00 a.m. and at all hours on
Saturday, Sunday and legal holidays to register with Landlord's security
personnel. Each tenant shall be responsible for all persons entering the
Building at tenant's invitation, express or implied. Landlord shall in no case
be liable for damages for any error with regard to the admission to or exclusion
from the Building of any person. In case of an invasion, mob riot, public
excitement or other circumstances rendering such action advisable in Landlord's
opinion, Landlord reserves the right without any abatement of rent to require
all persons to vacate the Building and to prevent access to the Building during
the continuance of the same for the safety of the tenants and the protection of
the Building and the property in the Building.
15. No tenant shall purchase janitorial or maintenance or other like
services, from any person or persons not approved by Landlord. Any persons
employed by any tenant to do janitorial work or other work in the Leased
Premises shall, while in the Building and outside of the Leased Premises, be
subject to and under the control and direction of Landlord (but not as an agent
or servant of Landlord), and tenant shall be responsible for all acts of such
persons.
16. Canvassing, soliciting and peddling in the Building are prohibited,
and each tenant shall report and otherwise cooperate to prevent the same.
17. All office equipment of any electrical or mechanical nature shall
be placed by tenant in the Leased Premises in settings that will, to the maximum
extent possible, absorb or prevent any vibration, noise and annoyance.
18. No air-conditioning unit or other similar apparatus shall be
installed or used by any tenant without the written consent of Landlord.
19. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or others, any hand trucks except those equipped
with rubber tires and rubber side guards.
20. The scheduling of tenant move-ins shall be before or after normal
business hours and on weekends, subject to the reasonable discretion of
Landlord.
21. The Building is a smoke-free Building. Smoking is strictly
prohibited within the Building. Smoking shall only be allowed in areas
designated as a smoking area by Landlord. Tenant and its employees,
representatives, contractors or invitees shall not smoke within the Building or
throw cigar or cigarette butts or other substances or litter of any kind in or
about the Building, except in receptacles for that purpose. Landlord may, at its
sole discretion, impose a charge against monthly rent of $50.00 per violation by
tenant or any of its employees, representatives, contractors or invitees, of
this smoking policy.
22. Tenants will insure that all doors are securely locked, and water
faucets, electric lights and electric machinery are turned off before leaving
the Building.
23. Parking spaces associated with the Building are intended for the
exclusive use of passenger automobiles. Except for intermittent deliveries, no
vehicles other than passenger automobiles may be parked in a parking space
without the express written permission of Landlord. Tenant, its employees,
customers, invitees and guests shall, when using the parking facilities in and
around the Building, observe and obey all signs regarding fire lanes and
no-parking and driving speed zones and designated handicapped and visitor
spaces, and when parking always park between the designated lines. Landlord
reserves the right to tow away, at the expense of the owner, any vehicle which
is improperly parked or parked in a no-parking zone or in a designated
handicapped area, and any vehicle which is left in any parking lot in violation
of the foregoing regulation. All vehicles shall be parked at the sole risk of
the owner, and Landlord assumes no responsibility for any damage to or loss of
vehicles except to the extent arising out of the negligence or willful
misconduct of Landlord, the managing agent or any of their respective partners,
directors, officers, agents or employees.
24. Tenant shall be responsible for and cause the proper disposal of
medical waste, including hypodermic needles, created by its employees.
It is Landlord's desire to maintain in the Building and Common Areas
the highest standard of dignity and good taste consistent with comfort and
convenience for tenants. Any action or condition not meeting this high standard
should be reported directly to Landlord. The Landlord reserves the right to make
such other and further rules and regulations as in its judgment may from time to
time be necessary for the safety, care and cleanliness of the Building and
Common Areas, and for the preservation of good order therein.
EXHIBIT E
SPECIAL STIPULATIONS
The Special Stipulations set forth herein are hereby incorporated into the body
of the lease to which these Special Stipulations are attached (the "Lease"), and
to the extent of any conflict between these Special Stipulations and the Lease,
these Special Stipulations shall govern and control.
1. Additional Improvements. Promptly following the Commencement Date, Landlord
shall, at its sole cost and expense, install additional improvements in the
Leased Premises as shown on the attached Exhibit F ("Scope of Work") (said
installations being referred to hereinafter, collectively, as the "Additional
Improvements"). Landlord shall use commercially reasonable speed and diligence
to substantially complete the Additional Improvements. During Landlord's
installation of the Additional Improvements (a) Landlord shall incur no
liability to Tenant for its entry into the Leased Premises in connection
therewith, and (b) Tenant acknowledges and agrees that Tenant will use
reasonable efforts to cooperate with Landlord in connection with the completion
of the Additional Improvements.
2. Option to Extend.
(a) Grant and Exercise of Option. Provided that (i) no default has
occurred and is then continuing (ii) the creditworthiness of Tenant is then
reasonably acceptable to Landlord and (iii) Tenant originally named herein
remains in possession of and has been continuously operating in the entire
Leased Premises throughout the Lease Term, Tenant shall have one (1) option to
extend the Lease Term for one (1) additional period of five (5) years (the
"Extension Term"). The Extension Term shall be upon the same terms and
conditions contained in the Lease except (x) Tenant shall not have any further
option to extend, (y) any improvement allowances or other concessions applicable
to the Leased Premises under the Lease shall not apply to the Extension Term,
and (z) the Minimum Annual Rent shall be adjusted as set forth herein ("Rent
Adjustment"). Tenant shall exercise such option by delivering to Landlord, no
later than one hundred eighty (180) days prior to the expiration of the current
Lease Term, written notice of Tenant's desire to extend the Lease Term. Tenant's
failure to properly exercise such option shall be deemed a waiver of such
option. If Tenant properly exercises its option to extend, Landlord shall notify
Tenant of the Rent Adjustment no later than ninety (90) days prior to the
commencement of the Extension Term. Tenant shall be deemed to have accepted the
Rent Adjustment if it fails to deliver to Landlord a written objection thereto
within five (5) business days after receipt thereof. If Tenant properly
exercises its option to extend, Landlord and Tenant shall execute an amendment
to the Lease (or, at Landlord's option, a new lease on the form then in use for
the Building) reflecting the terms and conditions of the Extension Term within
thirty (30) days after Tenant's acceptance (or deemed acceptance) of the Rent
Adjustment.
(b) Rent Adjustment. The Minimum Annual Rent for the Extension Term
shall be an amount equal to the Minimum Annual Rent then being quoted by
Landlord to prospective renewing tenants of the Building for space of comparable
size and quality and with similar or equivalent improvements as are found in the
Building, and if none, then in similar buildings in the vicinity; provided,
however, that in no event shall the Minimum Annual Rent during the Extension
Term be less than the highest Minimum Annual Rent payable during the immediately
preceding term. The Monthly Rental Installments shall be an amount equal to
one-twelfth (1/12) of the Minimum Annual Rent for the Extension Term and shall
be paid at the same time and in the same manner as provided in the Lease.
3. Maximum Increase in Operating Expenses. Notwithstanding anything in this
Lease to the contrary, Tenant will be responsible for Tenant's Proportionate
Share of Real Estate Taxes, insurance premiums, utilities, janitorial services,
snow removal, landscaping, management fees, and charges assessed against the
Building pursuant to any covenants or owner's association ("Uncontrollable
Expenses"), without regard to the level of increase in any or all of the above
in any year or other period of time. Tenant's obligation to pay all other
Building Operating Expenses that are not Uncontrollable Expenses (herein
"Controllable Expenses") shall be limited to a six percent (6%) per annum
increase over the amount the Controllable Expenses per rentable square foot for
the immediately preceding calendar year would have been had the Controllable
Expenses per rentable square foot increased at the rate of six percent (6%) in
all previous calendar years beginning with the actual Controllable Expenses per
rentable square foot for the year ending December 31, 2006.
EXHIBIT F
SCOPE OF WORK
[TO BE ADDED]
EXHIBIT G
FORM OF UNCONDITIONAL GUARANTY OF LEASE
This Unconditional Guaranty of Lease is entered into as of the ____ day
of ____________, 2006, by the undersigned, XXXX X. XXXXXXX, an individual
resident of the State of Georgia ("Guarantor").
R E C I T A L S
WHEREAS, JPC Capital Partners, Inc., a Delaware corporation ("Tenant")
desires to enter into a certain Office Lease with Duke Realty Limited
Partnership, an Indiana limited partnership ("Landlord"), for certain space
described therein and more commonly known as 0000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000 (the "Lease"); and
WHEREAS, Landlord is willing to enter into the Lease only if it
receives a guaranty of obligations thereunder from the undersigned upon the
terms and conditions set forth below; and
WHEREAS, in order to induce Landlord to enter into the Lease, Guarantor
is willing and agrees to enter into this Unconditional Guaranty of Lease upon
the following terms and conditions; and
WHEREAS, Guarantor is a shareholder of Tenant and will be benefited by
the Lease;
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor agrees as follows:
1. Guarantor hereby becomes surety for and unconditionally guarantees
(i) the prompt payment of all rents, additional rents and other sums to be paid
by Tenant under the terms of the Lease; and (ii) the performance by Tenant of
the covenants, conditions and terms of the Lease (such payment and performance
to be referred to collectively as "Obligations"). In the event Tenant defaults
in the performance of the Obligations during the term of the Lease, Guarantor
hereby promises and agrees to pay to Landlord all rents and any arrearages
thereof and any other amounts that may be or become due and to fully satisfy all
conditions and covenants of the Lease to be kept and performed by Tenant.
2. As conditions of liability pursuant to this Guaranty, Guarantor
hereby unconditionally waives (a) any notice of default by Tenant in the payment
of rent or any other amount or any other term, covenant or condition of the
Lease; (b) any requirement that Landlord exercise or exhaust its rights and
remedies against Tenant or against any person, firm or corporation prior to
enforcing its rights against Guarantor, and (c) any and all rights of
reimbursement, indemnity, subrogation or otherwise which, upon payment under
this Guaranty, Guarantor may have against Tenant.
3. Landlord may, without notice to Guarantor, and Guarantor hereby
consents thereto, (a) modify or otherwise change or alter the terms and
conditions of the Lease; and (b) waive any of its rights under the Lease or
forbear to take steps to enforce the payment of rent or any other term or
condition of the Lease against Tenant.
4. Guarantor hereby agrees, upon the request of Landlord, to execute,
acknowledge and deliver to Landlord a statement in writing certifying, if this
be the fact, that this Guaranty of the referenced Lease is unmodified, in full
force and effect, and there are no defenses or offsets thereto; certifying that
the referenced Lease is unmodified, in full force and effect, and there are no
defenses or offsets to such Lease (or if modified, that the Lease is in full
force and effect as modified and that this Guaranty extends to and fully covers
such Lease, as modified); and certifying the dates to which Minimum Annual Rent,
Annual Rental Adjustment, if any, and any other additional rentals have been
paid.
5. In the event Tenant fails during the term of this Lease to pay any
rent, additional rent or other payments when due or fails to comply with any
other term, covenant or condition of the Lease, Guarantor, upon demand of
Landlord, shall make such payments and perform such covenants as if they
constituted the direct and primary obligations of Guarantor; and such
obligations of Guarantor shall be due with attorneys' fees and all costs of
litigation and without deduction or offset.
6. The rights and obligations created by this Guaranty shall inure to
the benefit of and be binding upon the successors, assigns and legal
representatives of Guarantor and Landlord.
7. Anything herein or in the Lease to the contrary notwithstanding,
Guarantor hereby acknowledges and agrees that any security deposit or other
credit in favor of the Tenant may be applied to cure any Tenant default or
offset any damages incurred by Landlord under the Lease, as Landlord determines
in its sole and absolute discretion, and Landlord shall not be obligated to
apply any such deposit or credit to any such default or damages before bringing
any action or pursuing any remedy available to Landlord against Guarantor.
Guarantor further acknowledges that its liability under this Guaranty shall not
be affected in any manner by such deposit or credit, or Landlord's application
thereof.
8. Guarantor shall provide to Landlord upon request, a copy of
Guarantor's most recent financial statements (certified and audited, if
available). Such financial statements shall be signed by Guarantor (or an
officer of Guarantor, if applicable) who shall attest to the truth and accuracy
of the information set forth in such statements. All financial statements
provided by Guarantor to Landlord hereunder shall be prepared in conformity with
generally accepted accounting principles, consistently applied.
9. Notwithstanding anything to the contrary in this Guaranty,
Guarantor's obligations hereunder shall not exceed One Hundred Seven Thousand
Seven Hundred Fifty-Nine and No/100 Dollars ($107,759.00) (the "Cap"). Provided
that Tenant is not then in default under the Lease and no facts or circumstances
exist which, with the passing of time or the giving of notice, or both, would
constitute a default by Tenant thereunder, as evidenced in writing by Landlord,
the Cap shall be reduced in accordance with the following schedule:
(a) As of the date that is the first day of the eighteenth
(18th) month following the "Commencement Date" under the Lease, the Cap
shall be reduced to $71,839.34.
(b) As of the date that is the first day of the thirtieth
(30th) month following the "Commencement Date" under the Lease, the Cap
shall be reduced to $35,919.67.
(c) As of the date that is the first day of the forty-second
(42nd) month following the "Commencement Date" under the Lease, this
Guaranty shall terminate and be of no further force or effect.
Without limiting the foregoing, in the event that Tenant is in default under the
Lease as of the date that the Cap would otherwise reduce, and Landlord has given
Tenant written notice of such default, provided that Tenant cures such default
within the applicable cure period under the Lease, the Cap will reduce upon
Tenant's cure of such default, as evidenced in writing by Landlord. If, however,
Tenant does not cure such default within the applicable cure period, the Cap
shall not so reduce and any subsequent reduction shall be null and void.
IN WITNESS WHEREOF, Guarantor has executed this Unconditional Guaranty
of Lease as of the date set forth above.
Signed, sealed and delivered GUARANTOR:
as to Landlord, in the
presence of:
________________________
XXXX X. XXXXXXX
___________________________
Unofficial Witness
___________________________
Notary Public