OVERLOOK I
LEASE AGREEMENT
LANDLORD: CIGNA REAL ESTATE FUND T, Limited Partnership
c/x Xxxx Real Estate Services, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
TENANT: LAKOTA ENERGY, INC.
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
DATE: December 17, 1996
5. RENTAL
(a) Commencing on theDate, Tenant shall pay in advance to Landlord, at
Landlord's address: CIGNA RealFund T c/x Xxxx Real Estate Services, Inc.
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, or at such other
place as Landlord shall designate in writing, promptly, without demand, on the
first day of each month during the Term, one-twelfth of an amount equal to the
product obtained by multiplying the total square footage of net rentable area
within the Premises (calculated in accordance with Paragraph 4 above) by [See
P. 38] Dollars (See Paragraph 38) per annum [See Paragraph 38] Dollars (See
Paragraph 38) per month. In the event the Term shall commence or terminate
an a day other than the first day of a month, the rental for the first and
last partial month shall be prorated. The Base Rental shall be due and payable
in all events, without any set-off or deduction whatsoever.
(b) Tenant shall pay to Landlord, as additional rental hereunder, Tenant's
Share (defined below) of any increases in the annual total cost of operation,
and maintenance of the Building and the surrounding land and parking facilities
(including, without limitation, taxes, water, sewer, electricity, lighting,
janitorial services and supplies, management fees, landscaping, window
cleaning, insurance, maintenance, painting, decorating, trash, snow and
ice removal, security services, heating, ventilating and air conditioning
maintenance and repair, elevator maintenance and repair, resurfacing,
patching, restriping and sweeping of drives, parking areas and walkways,
policing and regulating traffic, accounting and legal fees, administrative
costs, wages, salaries, taxes, insurance and all other similar payments made to
or on behalf of Landlord's employees, agents or contractors engaged in the
maintenance and operation of the Budding, the cost [amortized over the useful
life thereof as determined by Landlord in its reasonable judgment] of any
capital improvements (i) made to the Budding during the Term for the purpose
of reducing total operating costs, or (ii) made to the Building during the
Term and required under any governmental law or regulation not in effect as of
the date of this Lease, and all other costs associated with the operation and
maintenance of a first-class office building) over an annual amount equal to
the product of actual 1997 base year costs per square foot times the total net
rentable square footage of the Building. Commencing with the first day of
January first following the Date and for each calendar year thereafter, if
Landlord shall render a statement of Tenant's Share of such increases, as
estimated by Landlord in Landlords reasonable judgment, for such calendar year,
Tenant shall pay to Landlord such estimated Tenant Share of such increases in
advance, in equal monthly installments, on the first day of each month. Such
estimated Tenant's Share shall be subject to adjustment at the end of each
such calendar year on the basis of the actual Tenant's Share of such increases
Any additional amounts owing from Tenant to Landlord due to such adjustment
shall be due and payable within ten (10) days after Tenant's receipt of
Landlords statement setting forth Landlord's calculation of Tenant's Share of
such increases. Any amounts owing from Landlord to Tenant due to such
adjustment shall be credited against the payment(s) of Tenant's Share of such
increases or Landlords estimate of Tenant's Share of such increases, as the
case may be, next coming due Landlord will furnish such statement to Tenant
with ninety (90) days after the end of each such calendar year, or as soon
thereafter as is reasonably practical. For purposes hereof "Tenant Share"
shall mean the fraction obtained by dividing the net rentable area of the
premises by ninety-five percent (95%) of the net rentable area ofthe Building.
[1,278/130,749 =.0098].
The provision of this Paragraph 5 shall survive the expiration or earlier
termination of this Lease Within ninety (90) days following such expiration of
earlier termination, Landlord shall render a final statement, setting forth
all amounts due Landlord pursuant to this Lease, including any amounts owing
under this Paragraph 5. Tenant shall pay SUCH final statement to Landlord
within ten (10) days following the date Landlord raiders such final statement
6. RENTAL ADJUSTMENT [OMITTED]
Within ninety (90) days following such expiration of earlier termination,
Landlord shall render a final statement setting forth all amounts due
Landlord pursuant to this Lease, including any amounts owing under this
Paragraph 6. Tenant shall pay such final statement to Landlord within ten.
(10) days following the date Landlord renders such final statement.
7. USE
Tenant shall occupy and use the Premises for general office space for the
purpose of engaging in the business of general office, and for no other
purpose or use. The Premises shall not be used for illegal purposes; nor in
violation of any regulation of any governmental body; nor in any manner to
create any nuisance or trespass; nor in any manner to vitiate the insurance
or increase the rate of insurance on the Premises or the Building Tenant
agrees, at its own expense, to promptly comply with any and all municipal
county, state mid federal statutes, regulations and/or requirements
applicable or in any way relating to the use and occupancy of the Premises,
including the use, storage, handling production or disposal of any
"Hazardous Materials" (hereinafter defined) on, from, under or about the
Premises. Hazardous Material shall mean any flammable substances,
explosives, radioactive materials, hazardous materials hazardous waste,
toxic substances, pollutants, oil or other petroleum products, or related
materials identified as such in any federal, state, or local statute,
ordinance or regulation.
8. TENANT'S ACCEPTANCE
Tenant acknowledges that is has been afforded an opportunity to inspect the
Premises and accepts the Premises "as is" and as suited for Tenant's
intended use thereof, subject only to the provisions of Paragraph 3. Upon
the tenth (10th) day after completion of the improvements contemplated by
Paragraph 3, or occupancy of the Premises by Tenant, whichever first occurs,
Tenant shall be deemed to have accepted all improvements made to the
9. ASSIGNMENT AND SUBLETTING
Tenant shall not voluntarily or involuntarily, whether by operation of law
or otherwise, assign, transfer, hypothecate or otherwise encumber this Lease
or any interest herein and shall not sublet or permit the use by others of
the Premises or any portion thereof without obtaining in each instance
landlords prior written consent; which consent shall not be unreasonably
withheld, which consent shall be granted or withheld as provided below
Landlords consent to one assignment sublease, transfer or hypothecation
shall not be construed as a consent to any other of further assignment;
sublease, transfer or hypothecation Any such assignment, sublease, transfer
or hypothecation without Landlords written consent shall be void and shall,
at Landlord's option, constitute a material breach of Tenant's obligations
under this Lease. No acceptance by Landlord of any rent or any other sum of
money from any assignee, sublessee or other category of transferee shall
release Tenant from any of its obligations hereunder or be deemed to constitute
Landlords consent to any assignment, sublease, transfer or hypothecation, and
in any event Tenant shall remain primarily liable on this Lease for the entire
Term hereof and shall in no way be released from the fulll and complete
performance of all the terms, conditions, covenants and agreements contained
herein. A transfer of a fifty percent (50%) or greater interest (whether stock
partnership interest, or otherwise) in Tenant, either in a single
transaction or in any series of transactions within a fourteen (14)
consecutive month period, shall be deemed to be an assignment of this Lease.
In the event Tenant should desire to assign this Lease or sublet the Premises
or any part thereof, Tenant shall give Landlord prior written notice, which
notice shall specify (a) the date on which Tenant desires to make such
assignment or sublease, (b) the name and business of the proposed assignee
or sublessee, (c) the amount and location of the space affected, (d) the
proposed effective date and duration of the subletting or assignment, (e)
the proposed rental to be paid to Tenant by such sublessee or assignee, and
(f) the full financial statements of the proposed assignee or sublessee.
Landlord shall then have a period of ten (10) days following the receipt of
such notice within which to notify Tenant in
writing that Landlord elects either (i) to terminate this Lease as to the
space so affected as of the date so specified by Tenant, in which Tenant
shall, on that date, immediately surrender possession of such space and be
relieved of all further obligations to pay rat hereunder as to such space,
or (ii) to permit Tenant to assign or sublet such space, in which event if
the proposed rental between Tenant and sublessee is greater th an the Base
Rental as adjusted under this Lease, then seventy-five (75%) percent of such
excess rental shall be deemed additional rent owed by Tenant to Landlord
under this Lease and the amount of such excess shall be paid by Tenant to
Landlord in the same manner that Tenant pays the Base Rental hereunder and
in addition thereto, or (iii) to withhold consent to Tenant's assigning or
subleasing such space and to continue this Lease in full force and effect as
to the entire Premises. If Landlord should fail to notify Tenant in writing
of such election within said thirty (30) day period, Landlord shall be
deemed to have elected die option provided in clause (iii) above. Tenant
agrees to reimburse Landlord or Landlords reasonable attorneys' fees and
costs incurred in connection with the processing and documentation of any
request made pursuant to this Paragraph 9.
10. HOLDING OVER
Tenant agrees to surrender the Premises to Landlord at the end of the Term
in as good condition as existed at the of Tenant's occupancy, ordinary wear
and tear, and damage by fire, casualty and condemnation excepted. Tenant
shall pay to Landlord upon request, all damages that Landlord may suffer on
account of Tenant's failure to surrender possession as and when aforesaid
and shall indemnify Landlord against all claims, demand , damages,
liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees mid costs) arising out of Tenant's delay in so delivering
possession, including, but not limited to, claims of any other tenants or
prospective tenants of the Building. Without limiting Landlord's rights and
remedies, if Tenant holds over in possession of the Premises beyond the end
of die Term, Tenant shall pay, not as rent but for Tenant's use and
occupancy of the Premises, for each day that Tenant shall hold over, a sum
equal to two (2) times the monthly Base Rental previously payable by Tenant
under the terms of this Lease divided by thirty (30), plus all additional
rental previously payable under the term of this Lease.
11. ALTERATIONS AND IMPROVEMENTS
(a) No alterations in, or additions to, the Premises will be made
without first obtaining Landlord's prior written consent and any such work
consented to, although paid for by Tenant, will be performed by Landlord.
(b) In the event that Tenant's actions, omissions or occupancy of the
Premises shall cause the rate of fire or other insurance on Building or the
Premises to be increased, Tenant shall pay, as additional rent, the amount
of any such increase promptly upon demand by Landlord.
(c) All erections, additions, fixtures and improvements, whether temporary
or permanent in character (except only the movable office furniture of the
Tenant) made in or upon the Premises, shall be and remain the Landlord's
property, and shall remain upon the Premises at the termination or
expiration of this Leease, with no compensation to the Tenant Landlord reserves
the right to require Tenant to remove any such improvements or additions
upon the termination or expiration hereof Landlord will repair any damage
to the Premises or the Building caused by or in connection with the removal
of any articles of personal property, business or trade fixtures, alterations,
improvements and installations and all costs of such repairs shall be at
Tenant's expense.
12. REPAIRS TO THE PREMISES
Landlord shall not be required to make any repairs or improvements to the
Premises, except structural repairs necessary for safety and tenantability
Tenant shall take good care of the Premises and its fixtures and permit no
waste, except normal wear and tear with due consideration for the purpose
for which the Premises is leased.
13. INSPECTIONS
Landlord hereby reserves to itself and its agents the right to exhibit the
Premises to prospective purchasers or tenants at reasonable hours, to
inspect the Premises to see that Tenant is complying with all its
obligations hereunder, to make repairs required of Landlord or Tenant under
the terms hereof, to make repairs or modifications to any adjoining space,
to maintain use, repair, and replace pipes, ducts, wires, meters and any
other equipment machinery, apparatus, and fixtures located within or without
the Premises which service the Building or the Premises, to make alterations
in and additions to the Building, and to enter upon the Premises for the
foregoing purposes.
14. DEFAULT AND REMEDIES
In addition to the circumstances hereinbefore set forth, the occurrence of
any of the following shall constitute a material breach and default of this
Lease by Tenant:
(a) The filing of any voluntary petition or similar pleading under any
section or sections of any bankruptcy or insolvency act by or against
Tenant, the institution of any voluntary or involuntary proceeding in any
court or tribunal to declare Tenant insolvent or unable to pay Tenant's
debts and, solely in the case of an involuntary petition or proceeding, such
petition or proceeding is not dismissed within thirty (30) days from the
date it is filed, the making of an assignment for the benefit of its
creditors by Tenant, or the appointment of a trustee or receiver for Tenant
or the Tenant's property.
(b) Tenant's failure to pay the Base Rental or any other sum due hereunder if
such non-payment continues for ten (10) or mom days after the same be due
and payable or Tenants default in the, prompt and full performance of any
other provision of this Lease and (unless such default involves a hazardous
condition, in which event such default shall be cured forthwith upon
Landlord's demand) such Tenant fails to cure such default within twenty (20)
days after written demand by Landlord that the default be cured.
(c) The levy upon Tenant's interest under this Lease or in the Premises
or the sa thereof by process of law.
In the event of any default as aforesaid by Tenant, the Landlord, in
addition to other rights or remedies it may have at law or in equity, shall
have the option of pursuing any one or more of the following non-exclusive
remedies:
(i) Landlord shall have the immediate right of re-entry and may remove all
property from the Premises to a warehouse or elsewhere at the cost of, and
for the account of, Tenant, all without being deemed guilty of trespass, or
becoming liable for any loss, damage or damages which may be occasioned
thereby:
(ii) Landlord may, from time to time without terminating this Lease, and
without releasing Tenant in whole or in part from Tenant's obligation to pay
Base Rental and all other amounts due under this Lease and to perform any and
all of the covenants, conditions and agreements to be performed by Tenant as
provided in this Lease, make such alterations and repairs as may be necessary
in order to relet the Premises. Landlord may, but shall not be obligated to,
relet the Premises or any part thereof for such term or terms (which may be
for a term extending beyond the Term of this Lease) at such rental or
rentals and upon such other term and conditions as Landlord in its sole
discretion may deem advisable or acceptable. Tenant shall pay Landlord as
soon as ascertained and upon demand all costs and expenses incurred by
Landlord in connection with such reletting and in making any alterations
and repairs, including without limitation, the value of any "free rent" and
rental concessions and the unamortized cost of tenant improvements or
allowances given to Tenant or made at Landlord's expense. Upon each
reletting all rentals received by Landlord from such reletting shall be
applied; first, to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord, second, to the payment of any unpaid
costs and expenses of such reletting, including brokerage fees and
attorney's fees and the costs of such alterations and repairs; third, to
the payment of the Base Rental due and unpaid hereunder, and fourth, the
residue, if any, shall be hold by Landlord and applied in payments of future
Base Rental and other additional rent or charges as the same may become due
and payable hereunder. In no event shall Tenant be entitled to any excess
rental
received by Landlord over and above that which Tenant is obligated to pay
hereunder, including Base Rental, additional rent and all other charges. If
such rentals received from such reletting during any month be less than that
to be paid during such month by Tenant hereunder, including Base Rental,
additional rent and all other charges, Tenant shall pay any such deficiency
to Landlord. Such deficiency shall be calculated and paid monthly.
Notwithstanding any such reletting without termination, Landlord may at any
tune thereafter terminate this Lease for such previous breach;
(iii) Landlord may terminate this Lease, in winch event Tenant shall
immediately surrender possession of the Premises, and Landlord may recover
from Tenant all damages it may incur by reason of such breach, including the
cost of recovering the Premises, reasonable attorneys' few and costs, the
value of any "free rent" and rental concessions, the unamortized cost of
tenant improvements or allowances given to Tenant or made at Landlords
expense, and the present value of all rentals payable under tins Lease to
Landlord for the remainder of the Term, all of which amounts shall be
immediately due and payable from Tenant to Landlord.
Landlord's re-entry, demand for possession, notice that the tenancy hereby
created will be terminated on the date therein named, institution of an
action of forcible detainer, or ejectment or the entering of a judgment for
possession in such action or any other act or acts resulting in the
termination of Tenant's right to possession of the Premises shall not
relieve Tenant from Tenant's obligation to pay all sums due hereunder during
the balance of the. Term, except as herein expressly provided. Landlord may
collect and receive any Base Rental, additional rent, or charges due from
Tenant, and the payment thereof shall not constitute a waiver of or affect
any notice or demand given, and instituted or judgment obtained by Landlord,
or be held to waive, affect, change, modify or alter the rights or remedies
which Landlord has in equity or at law or by virtue of this Lease.
In the event Landlord commences any proceedings for non-payment of Base
Rental or other sums due hereunder, Tenant will not interpose any
counterclaim of whatever nature or description winch is not directly related
to the Lease in any such proceeding. This shall not, however, be construed as
a waiver of the Tenant's right to assert such claims in any separate action
or actions brought by the Tenant.
All sums past due under tins Lease shall bear interest at the lesser of a per
annum rate of eighteen percent (18%) or the maximum lawful rate, from due
date thereof until paid in full.
Except as expressly provided in this Lease, Tenant hereby waives any and every
form of demand and notice prescribed by statute or other law, including
without limitation the notice of any election of remedies made by Landlord
under this Paragraph, demand for payment of any rent or demand for possession.
All rights and remedies of Landlord created or otherwise existing at law are
cumulative and the exercise of one or mom rights or remedies shall not be
taken to exclude or waive the right to exercise any other.
Tenant shall and hereby agrees to pay all costs and expenses incurred by
Landlord in enforcing any of the covenants and agreements of this Lease, or
as a result of an action brought by Landlord against Tenant for an unlawful
detainer of the Premises, and all such costs, expenseds and attorney's fees
shall, if paid by Landlord, be paid by Tenant to Landlord within fifteen.
(15) days of Landlord's written demand therefor, together with interest at
the lesser of a per annum rate of eighteen percent (18%) or the maximum
lawful rate from the date of Landlord's payment thereof until payment in
full by Tenant.
15. SERVICES
(a) Landlord shall furnish the following services without charge, at the
proper season, during reasonable hours (8:00 am to 6:00 p.m. Monday through
Friday inclusive, and 8:30 a.m. to 1:00 p.m. on Saturdays) on normal business
days, except holidays observed by the National Banks in Atlanta, Georgia, as
legal holidays: (i) elevator service; (ii) air conditioning in Landlord's
judgment sufficient to reasonably cool or heat Premises; (iii) common use
restrooms, toilets; and (iv) cleaning services winch notwithstanding (a)
above need not be performed during business hours.
(b) Landlord shall also furnish electric current on Premises for lighting
and for business machinery only (e.g. typewriters and other small office
equipment) using 110 volt, 20 AMP circuits. Tenant will not use any
electrical equipment which in Landlords opinion will overload the wiring
installations or interfere with the reasonable use thereof by other users in
Building. Tenant will not without Landlords prior written consent in each
instance (which shall not be unreasonably withheld) connect any additional
items to Building 's electrical distribution system, or make any alteration
or addition to such system. Should Landlord grant such consent, all
additional circuits or equipment required thereofv shall be provided by
Landlord and the reasonable cost of installation and use thereof shall be
paid by Tenant upon Landlords demand.
(c) If Tenant uses any of the services or electric current enumerated in
this Paragraph in an amount or for a period in excess of that provided for
herein, then Landlord reserves the right to charge Tenant as additional rent
a reasonable sum as reimbursement for the direct cost of such added services.
In the event of disagreement as to of such charge, the opinion of the
appropriate local utility company or a local independent professional
engineer shall prevail.
(d) Landlord shall in no way be liable for cessation of any of the above
services caused by strike, accident or breakdown, nor shall Landlord be
liable for damages from the stopping of elevators, or elevator service, or
any of the fixtures or equipment in Building being out of repair, or for
injury to person or property, caused by any defects in the electrical
equipment heating, ventilating and air conditioning system, elevators or
water apparatus, or for any damages arising out of failure to furnish the
services enumerated in this Paragraph 15.
(e) Notwithstanding anything to the contrary in subparagraph 15(b), Landlord
shall have the right, at any time, to install an electrical metering device
to monitor electrical consumption on the Premises. Should Landlord install
such a device, Tenant shall, from such time, pay upon receipt of an invoice
therefor, all direct charges for supplying electricity to the Premises. All
costs incurred by Landlord to install such device and related equipment
shall be borne by Tenant. Landlord's right to install a metering device
pursuant to this subparagraph 15(e) shall be in addition to Landlord's right
to install such a device pursuant to subparagraph 15(b) of this Law.
16. DESTRUCTION OF PREMISES
(a) If the Premises or the Building is rendered partially or wholly unfit
for occupancy by fire, the eLeaseents, act of God or other casualty (fire, the
eLeaseents, acts of God or other casualties hereinafter referred to as the
"Casualty') and if such damage cannot, in Landlord's reasonable opinion be
materially restored within ninety (90) days of the date of such Casualty or
if Landlord elects to demolish, substantially alter, or cease operating the
Building, then, in either such case, Landlord may, at its sole option,
terminate this Lease as of the date of such Casualty and the Term shall end
as of such date For purposes hereof, the Premises shall be deemed
"materially restored" if they are in such condition as would not Prevent or
materially interfere with Tenant's use of the Premises for the purpose for
which it was then being used. if this Lease is not terminated Pursuant to
the above provisions of this Paragraph 16(a), then Landlord shall proceed
with all due diligence, Wort receipt of all insurance proceeds due to
Landlord, to rebuild, repair and restore the Premises. in no event shall
Landlord be required to rebuild, repair, or replace any part of the
partitions, fixtures, additions or other property and improvements which may
have been placed in or about the Premises by Tenant If this Lease shall not
be terminated by Landlord pursuant to this Paragraph 16(a) and if the
Premises arc unfit for occupancy in whole or in part following such
Casualty, the rent payable during the period in which the Premises are unfit
for occupancy shall xxxxx in proportion to the percentage of the rentable
area of the Premises rendered unusable by such Casualty; provided, however,
that no such abatement shall be made in the event such Casualty shall have
been caused through the negligence or willful misconduct of Tenant its
agents, employees, contractors, invitees licensees, tenants, or assignees.
If any such Casualty occurs, Landlord shall not be liable to Tenant for
inconvenience, annoyance, loss of profits, expenses, or any other type of
injury or damage resulting from the repair of any such Casualty, or from any
repair, modification, arranging, or rearranging of any portion of the
Premises or any part or all of the Building or for termination of this Lease
as provided in this Paragraph 16(a).
Notwithstanding any language contained in this Lease to the contrary,
Landlord's obligations to repair and restore such damage shall be limited to
the amount of insurance proceeds made available to Landlord for such repair
and restoration (after any right of any mortgagee to said proceeds);
provided, that if, in Landlords reasonable judgment, the amount of such
insurance proceeds is not sufficient to materially restore the Premises and
the Building (except for any improvements, fixtures, finishes, or personalty
that may have bow placed in or about the Premises by Tenant), Landlord shall
have the right to terminate this Lease as of the date of such Casualty and
the Lease Term shall end as of such date. In the event of any Casualty
during the final year of the Lease Term of do Lease, Landlord, at Landlords
sole option, shall have the right to terminate this Lease as of the date of
such Casualty and the Lease Term shall end as of such date.
(b) If all of the Premises should be taken for any public or quasi-public
use under governmental law, ordinance, or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and the taking would
prevent or materially interfere with the use of the Premises for the purpose
for which it is then being used, this Lease shall, at either Landlord's or
Tenant's option, terminate effective as of the date of such actual physical
taking. If part of the Premises is taken for any public or quasi-public use
under any governmental law, ordinance, or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, or if any part of the
Building is so taken and Landlord elects to demolish, substantially alter,
or cease operation of the Building, then, in other such case, Landlord shall
have the right to terminate this Lease effective as of the date of such
actual physical taking in the event that this Lease is not terminated as
provided above in this Paragraph 16(b), the rent payable hereunder during
the; unexpired portion of this Lease shall be reduced in proportion to the
percentage of the rentable area of the Premises rendered unusable by such
taking and Landlord shall undertake materially to restore the Premises.
Landlord or Tenant, as the case may be, shall exercise its right to
terminare this Lease provided above in this Paragraph 16(b) by written notice
to the other party within thirty (30) days of the date of such actual
physical taking. Notwithstanding any language contained in this Lease to the
contrary, Landlord's obligation to materially restore the Premises shall be
limited to the amount of condemnation proceeds made available to the
Landlord for such restoration and repair (after any right of any mortgagee
to said proceeds); provided, that if, in Landlord's reasonable judgment, the
amount of such proceeds is not sufficient to materially restore the Premises
and the Building (except for any improvements, fixtures, finishes, or
personally that may have been placed in or about the Premises by Tenant),
Landlord shall have the right to terminate this Lease effective as of the date
of such actual physical taking. Tenant shall not share in any condemnation
award or payment in lieu thereof or in any award for damages resulting from
any grade change of adjacent streets, the same being hereby assigned to
Landlord by Tenant; however, Tenant may separately clam and receive from the
condemning authority (but not from Landlord), if legally payable,
compensation for Tenant's removal and relocation costs and for Tenant's loss
of business and/or business interruption, provided that such clam and
recovery shall in no way diminish Landlord's recovery.
Notwithstanding anything to the contrary contained in this Paragraph 16(b),
if during the Term the use or occupancy of any part of the Building or
Premises shall be taken or appropriated temporarily for any public or
quasi-public use under any governmental law, ordinance, or regulation, or by
right of eminent domain, or by private agreement in lieu thereof, this Lease
shall be and remain unaffected by such taking or appropriation and Tenant
shall continue to pay in full all rent payable hereunder by Tenant during
the term of this Lease or private agreement in lieu thereof, in the event of
any such temporary appropriation or taking, Tenant shall be entitled to
receive that portion of any reward which represents compensation for the
loss of use or occupancy of the Premises during the term of this Lease, and
Landlord shall be entitled to receive that portion of any award which
represents the cost of restoration and compensatiuon for the loss of use or
occupancy of the Premises after the end of1he term of this Lease and of the
Building.
17. INSURANCE
(a) Tenant shall carry fire and extended coverage insurance insuring its
interest in the tenant improvements, and property placed in or about the
Premises, and any and all furniture, equipment, supplies, and other property
contained therein, such insurance coverage to be in the full replacement
value thereof, with reasonable deductible amounts.
(b) Tenant also agrees to carry a policy or policies of worker's
compensation and comprehensive general liability insurance, including
personal injury and property damage, with contractual liability
endorsement, in the amount of Two Million Dollars ($2,000,000) for property
damage and Five Million Dollars ($5,000,000) per occurrence for personal
injuries or deaths of persons occurring in or about the Premises.
(c) Said insurance policies as described in the foregoing subparagraphs
17(a) and 17(b) shall; (i) name Landlord and Landlord's agent as an insured
and insure Landlords and Landlord's agents contingent liability under this
Lease (except for the worker's compensation policy, which shall instead include
a waiver of subrogation endorsement in favor of Landlord), (ii) be issued by
an insurance company which is reasonably acceptable to Landlord and licensed to
business in the State of Georgia, (iii) provide that said insurance shall
not be cancelled or amended unless thirty (30) days prior written notice shall
have been given to Landlord, and (iv) provide that the insurance company
issuing such policy waives all rights of subrogation against Landlord. Said
policy or policies, or certificates thereof, shall be delivered to Landlord by
Tenant upon commencement of the term of the Lease and upon each renewal of said
insurance. Tenant hereby waives any right of recovery against Landlord for
loss or injury to the extent Tenant would have been protected by the insurance
required to be maintained by Tenant under the terms of this Lease.
18. RULES AND REGULATIONS
The rules and regulations set forth in the attached Exhibit D, incorporated
herein by this reference, shall be and are hereby made a part of this Lease.
Tenant, its employees, and agents, will perform and abide by said rules and
regulations, and any amendments or additions to said rules and regulations
as may be made from time to time by Landlord.
19. USUFRUCT ONLY
This contract shall create the relationship of Landlord and Tenant between
Landlord and Tenant, no estate shall pass out of Landlord, Tenant has only a
usufruct, not subject to levy and sale.
20. WAIVER
The waiver by Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of any other term,
covenant or any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of Base Rental, or
additional rent or other sums due hereunder by Landlord shall not be deemed
to be a waiver of any preceding breach by Tenant of any term, covenant or
condition of do Lease, regardless of Landlords knowledge of such preceding
breach at the time of acceptance of such payment no covenant, term or
condition of this Lease shall be deemed to have been waived by Landlord,
unless such waiver be in writing by Landlord.
21. ENTIRE AGREEMENT
This Lease, sets forth all the covenants, promises, agreements, conditions
and undertakings between Landlord and Tenant concerning the Premises and
there am no covenants, promises, agreements, other than are herein set
forth. No subsequent alteration, amendment, change or addition to this Lease
except as to changes or additions to the Rules and Regulations, shall be
binding upon Landlord or Tenant unless reduced to writing and signed by
authorized representatives.
22. LANDLORD'S CONSENT
In every instance herein in which the Landlord is called upon to give as
consent; such consent may be withheld at Landlord's sole discretion, or if
granted, may subject to those conditions which Landlord deems appropriate.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and seal,
the day and year first above written
LANDLORD:
CIGNA Real Estate Fund T, Limited Partnership
By: /s/Xxxxxxx X. Xxxxxxx
Its: Managing Director
Attest:/s/Xxxx X. Xxxx
Its: Admin. Asst.
TENANT:
Lakota Energy, Inc.
By: /s/Xxx Xxxxxxxx
Its: President
Attest: /s/Xxxxxx Xxxxxx
Its: Secretary
EXHIBIT A
(Floor Plan)
[DIAGRAM] DRAWING OF THE FLOOR PLAN
EXHIBIT B
(Legal Description)
TO FIND THE POINT OF BEGINNING, commence at the intersection of the
southerly right-of-way line of Mount Xxxxxxxxx Parkway, (right-of-way varies)
and the southeasterly right-of-way line of Cumberland Club Drive (a 50-foot
right-of-way) (hereinafter "Point A"); thence in a southwesterly direction
along said southeasterly right-of-way line of Cumberland Club Drive, a
distance of 509.12 feet to a nail and the POINT OF BEGINNING (the Point of
Beginning being located 488.97 feet from Point "A" as measured from Point
"A" on a line bearing South 04 19' 09" West); thence North 76 15' 21" East,
a distance of 764.12 feet to a pin; thence South 02 52' 08" East a distance
of 308.43 feet, to an iron pin; thence South 34 45' 21" West, a distance of
227.00 feet to an iron pin; thence South 33 50' 05" West, a distance of
109.22 feet, to a p.k. nail; thence North 54 33' 50" West a distance of
622.12 feet to an iron pin on said southeasterly right-of-way line of
Cumberland Club Drive North 30 19' 36" East, a distance of 72.00 feet to a
nail and the POINT OF BEGINNING; such tract being 6.25 acres of land as
shown on that certain as-built survey, to Which reference is hereby made,
prepared by Planners and Engineers Collaborative for CIGNA Red Estate Fund T
Limited Partnership, bearing the certification of Xxxxxx Xxx Xxxxx, G.
R.L.S., No. 2080, dated January 6, 1982, and last revised December 23, 1987.
EXHIBIT C
(Plans and Specifications)
The following specifications shall be inrluded within the $3,600 allawanoe
as provided in Paragraph 40B herein.
Recarpet, install rubber base molding, and repaint entire premises as follows:
Carpet: Xxxx -Cypress Point IV 30-36 oz carpet, #85860 "Caberet"
Paint Xxxxxx Paints #6739-1 (Flat finish throughout with semi-gloss on all door
frames).
Base: Xxxxx - #76: "Mauve"
In addition to the $3,600 Improvement allowance, Landlord at its cost and
expense, shall:
(a) construction of the demising wall between Xxxxx 000 (xxxxxxxx) xxx
Xxxxx 000,
(x) remove walls "A" and "B" as shown below on, this Exhibit C.
[DIAGRAM] DRAWING OF FLOOR PLAN
11. Neither Tenant, nor any of Tenant's savants, employees, agents,visitors, or
licensees, shall at any time bring or keep upon the Premises any inflammable,
combustible or explosive fluid, or chemical substance, other than reasonable
amounts of cleaning fluids or solvents required in the normal operation of
Tenant's business offices.
12. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in existing
locks or the mechanism thereof, without the prior written approval of
Landlord and unless and until a duplicate key is delivered to Landlord.
Tenant shall upon the termination of its tenancy, restore to Landlord all keys
of stores, offices and toilet rooms, either furnished to, or otherwise
procured by, Tenant, and in the event of the loss of any keys so furnished,
Tenant shall pay to Landlord the cost thereof.
13. Tenant shall not overload any floor Tenant shall obtain Landlord's
consent before bringing any safes, freight, furniture, or bulky articles into
the Building and Landlord can specify to Tenant the location for the
placement of such articles. All removals, or the carrying in our out of any
safes, freight, furniture, or bulky matter of any description must take place
during the hours which Landlord or its agent may determine from time to time.
Landlord reserves the right to inspect all freight to be brought into the
Building and to exclude from the Building all freight which violates any of
these Rules and Regulations or the Lease of which these Rules and Regulations
are a part.
14. Tenant shall not occupy or permit any portion of the Premises to be
occupied, without Landlords expressed prior written consent, as an office for
a public stenographer or typist, for the possession, storage, manufacture
or sale of liquor, narcotics, dope, tobacco in any form, or as a xxxxxx or
manicure shop, or as a public employment bureau or agency, or for a public
finance (personal loan) business. Tenant shall not advertise: for
laborers giving an address at the Building.
15. Landlord agrees to employ such janitorial contractor as Landlord may
from time to tune designate, for any waxing, polishing, and other maintenance
work of the Premises and of the Tenant's furniture, fixtures and equipment
Tenant agrees that it shall not employ any other cleaning and maintenance
contractor, nor any individual, firm or organization for such purpose without
Landlords prior written consent
16. Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlords opinion, tends to impair the reputation of the Building or
its desirability as a budding for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
17. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
18. The requirements Of Tenant will be attended to only upon application
in writing to Landlord. Building employees shall not perform any work or do
anything outside of their regular duties, unless under special instructions
from the office of Landlord.
19. Canvassing, soliciting of other Tenants, and peddling in the
Building are prohibited and Tenant shall cooperate to prevent the same.
20. There shall not be used in any space, or in the public halls of any
building, either by Tenant or by its jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
21. Tenant shall not remove any standard blinds which may be installed
in the Premises by Landlord.
22. All paneling, grounds or other wood products not considered furniture shall
be of fire retardant materials. Before installation of any such materials,
certification of the materials fire retardant characteristics shall not
be submitted to Landlord or its agents, in a man= satisfactory to Landlord.
23. Tenant shall not install any vending machines in the Building or
Premises without Landlord's consent.
24. Tenant shall comply with the terms and conditions of all restrictive
covenants now or hereafter affecting title to the Premises.
25. Tenant shall not permit in or on the Premises any auction, tag,
sheriffs receiver's, bankruptcy, moving, relocation or "going out of business"
sale, flammable or explosive fluids or chemicals, nuisance, objectionable
noise, vibration or odor, cooking, coin operated or other vending machine,
public telephone or amusement device.
Whenever the above rules conflict with any of the rights or obligations of
Tenant pursuant to the provisions of the Paragraphs of the Lease, the
provisions of the Paragraphs shall govern.
EXHIBIT "E"
SPECIAL STIPULATIONS
Insofar as the following Special Stipulations conflict with any of the
foregoing provisions, the following shall control:
Addendum to Overlook I Lease Agreement and between CIGNA Real Estate Fund T
Limited Partnership, as Landlord, and Lakota Energy, Inc. , as Tenant.
38. RENTAL:
In further reference to Paragraph 5, Tenant agrees to pay Landlord as Base
Rental for the Leased Premises:
RENTAL SCHEDULE:
Per Square Foot
Months (Annual) S.F. Monthly Yearly
1-12 $19.50 1,278 $2,076.75 $24,921.00
13-24 $20.28 1,278 $2,159.82 $25,917.94
25-36 $21.09 1,278 $2,246.21 $26,954.55
without deduction or setoff, in advance on the first day of each month
throughout the term of the lease.
39. AGENCY DISCLOSURE:
The parties hereto acknowledge and agree that Xxxx Real Estate Services,
Inc., is acting as agent for Lessor in connection with the transaction
described above and is to be paid a commission by Lessor.
Xxxx Xxxxxxx & Company has acted as agent for the Lessee in this transaction
and is to be paid a commission by the Lessor.
40. IMPROVEMENTS:
A. Final Plans - The approved plans are attached hereto as Exhibit C
("Plans & Specifications") and are hereby incorporated into this Lease.
B. Improvements- Lessor shall construct the tenant improvements (the
"Improvements") in accordance with the Plans & Specifications as provided
in paragraph 40A. Notwithstanding the foregoing, in no event will Lessor's
obligation hereunder to construct the Improvements exceed Three Thousand Six
Hundred and 00/100 ($3,600.00), (the "Improvements Allowance"). Lessee shall
be responsible for the costs of Improvements winch exceed the Improvements
Allowance.
C. Change - If Lessee desires to make any changes to the Final Plans,
Lessee shall request said change in writing to Lessor. If the requested change
is approved by Lessor, and if said change should increase the time required to
construct the Improvements, then Lessor's time to complete the Improvements to
the Premises shall be extended by the number of additional days required
because of said change. Any changes winch increase the cost above the
Improvements Allowance shall be at Lessees expense and Lessee shall pay to
Lessor within thirty (30) days after receipt of notice.
D. Alterations - Notwithstanding anything contained in this Lease to the
contrary, Lessee shall not make any additions, alterations, improvements or
other modifications (collectively,"Alterations"), without the prior writren
consent of Lessor, which shall not be unreasonably withheld or delayed, except
for the installation of unattached, movable trade fixtures which may
be installed without drilling, cutting or otherwise defacing the leased
premises. Any approval by Lessor of or consent by Lessor to any plans,
specifications or other items to be submitted to and/or reviewed by Lessor
pursuant to this Lease shall be deemed to be strictly limited to an
acknowledgment of approval or consent by Lessor thereto and, whether or not
the work is performed by Lessor or by Lessee's contractor, such approval or
consent shall not constitute the assumption by Lessor or any responsibility
for the accuracy, sufficiency or feasibility of any plans, specifications or
other such hems and shall not imply any acknowledgment, representation or
warranty by Lessor that the design is safe, feasible, structurally sound or
will comply with any legal or governmental requirements, and Lessee shall be
responsible for all of the same. Lessee agrees to pay Lessor, upon demand as
additional rent, a fee for construction management in an amount equal to five
percent (5%) of the total cost of the Alterations, (if Alterations exceed
$10,000, excluding the "Initial Alterations" as provided in Paragraph 40B),
whether or not the work is performed by Lessor or by Lessee's contractor. No
alterations shall lessen the value of the Premises or cause expense to Lessor
at the termination of this Lease. In no event shall any work be done for
Lessor's account or in any way which would allow a lien to be placed against
the Premises; any such hen shall create a default of Lessee under this Lease if
not removed or lawfully bonded within ten (10) calendar days following
Lessor's discovery thereof All alterations made in or upon Premises, either by
Lessee or Lessor, shall be Lessor's property and shall remain upon Premises at
the termination of this Lease without compensation to Lessee.
EXHIBIT "F"
Xx. Xxx Xxxxxxxx
Lakota Energy, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
RE: Base Rental Schedule - Lease between Lakota Energy, Inc. as Lessee,
and CIGNA Real Estate Fund I Limited Partnership, by CIGNA Investments,
Inc., as Lessor, for the Premises located at 0000 Xxxxx Xxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx 00000.
Dear Xxx:
The Lease Commencement Date for the Lease Agreement dated December 17, 1996
between CIGNA Real Estate Fund T Limited Partnership, by CIGNA Investments,
Inc., as Lessor, and Lakota Energy, Inc., as Lessee, for the Premises
located at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 is
January 15, 1997, with an expiration date of January 14, 2000.
RENTAL SCHEDULE:
Per Square Foot
Months (Annual) S.F. Monthly Yearly
1-12 $19.50 1,278 $2,076.75 $24,921.00
13-24 $20.28 1,278 $2,159.82 $25,917.84
25-36 $21.09 1,278 $2,246.21 $26,954.55
Please acknowledge your acceptance of the above by signing below and
returning this letter to me. We look forward to having Lakota Energy, Inc.
as a tenant at Overlook I. Please do not hesitate to call if we can be of
assistance.
Sincerely,
Xxxxx Xxxxxx
General Manager
GW/lh
Agreed to this 17th day of December, 1996.
/s/ Xxx Xxxxxxxx
Signature
