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EXHIBIT 10.4
COMMERCIAL LEASE
FOR
RIVER EXCHANGE OFFICE BUILDING
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Prepared For:
TOWNE SERVICES, INC.
By:
RIVER EXCHANGE ASSOCIATES LIMITED PARTNERSHIP
Dated: As of January 12, 1998
Space: 9,957Rentable Square Feet
2
TABLE OF CONTENTS
1. PREMISES.................................................................................................3
2. TERM.....................................................................................................3
3. RENT.....................................................................................................3
4. ADJUSTMENT TO BASE RENT..................................................................................3
5. LATE CHARGES.............................................................................................4
6. SECURITY DEPOSIT.........................................................................................4
7. RULES AND REGULATIONS....................................................................................4
8. USE OF PREMISES..........................................................................................5
9. OPERATING EXPENSES.......................................................................................5
10. INDEMNITY; INSURANCE.....................................................................................7
11. REPAIRS BY LANDLORD......................................................................................8
12. REPAIRS BY TENANT; SURRENDER.............................................................................8
13. ALTERATIONS..............................................................................................9
14. REMOVAL OF TRADE FIXTURES................................................................................9
15. SERVICES.................................................................................................9
16. DESTRUCTION OF OR DAMAGE TO PREMISES....................................................................10
17. GOVERNMENTAL ORDERS.....................................................................................11
18. CONDEMNATION............................................................................................11
19. ASSIGNMENT AND SUBLETTING...............................................................................11
20. EVENTS OF DEFAULT.......................................................................................12
21. LANDLORD'S REMEDIES UPON DEFAULT........................................................................12
22. SIGNS...................................................................................................13
23. LANDLORD'S ENTRY OF PREMISES............................................................................14
24. EFFECT OF TERMINATION OF LEASE..........................................................................14
25. MORTGAGEE'S RIGHTS......................................................................................14
26. NO ESTATE IN LAND.......................................................................................15
27. HOLDING OVER............................................................................................15
28. ATTORNEY'S FEES.........................................................................................15
29. RIGHTS CUMULATIVE.......................................................................................15
Tenant's Initials:___________
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30. WAIVER OF RIGHTS........................................................................................15
31. AGENCY DISCLOSURE.......................................................................................15
32. AGENT'S COMMISSION......................................................................................15
33. LIMITATION OF AGENT'S SERVICES..........................................................................15
34. ENVIRONMENTAL LAWS......................................................................................16
35. TIME OF ESSENCE; GOVERNING LAW..........................................................................16
36. DEFINITIONS.............................................................................................16
37. NOTICES.................................................................................................17
38. WAIVER..................................................................................................17
39. COVENANT OF QUIET ENJOYMENT.............................................................................17
40. LANDLORD'S LIABILITY....................................................................................17
41. ASSIGNMENT OF RENTS AND TRANSFER OF TITLE...............................................................18
42. ESTOPPEL CERTIFICATE....................................................................................18
43. ENTIRE AGREEMENT........................................................................................18
44. SPECIAL STIPULATIONS....................................................................................19
Tenant's Initials:_______
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SUMMARY OF PRIMARY BUSINESS TERMS
LANDLORD: River Exchange Associates Limited Partnership, a Georgia limited
partnership, having River Management, Inc. as its sole general partner
LANDLORD'S NOTICE ADDRESS: River Exchange Associates Limited Partnership
c/o River Management, Inc.
Penthouse Suite, 00 Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Treasurer
Phone: 617/000-0000; Fax: 617/000-0000
TENANT: Towne Services, Inc., a Georgia corporation.
TENANT'S NOTICE ADDRESS: Prior to Commencement Date:
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Phone: 000-000-0000; Fax: 000-000-0000
After Commencement Date:
Xxxxx 000
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Phone: ________________; Fax: ________________
PROPERTY: 0000 Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxx 00000;
together with the office
building located thereon,
containing in the aggregate
110,512 total rentable
square feet (the
"Building"), and being more
particularly described on
Exhibit A hereto.
PREMISES: Suite 350 containing an agreed upon 9,957 rentable square feet on the
third floor of the Building, and depicted on Exhibit C attached hereto.
COMMENCEMENT DATE: The earlier of February 1, 1998, or the date on which Tenant takes occupancy
of the Premises, unless the Commencement Date is postponed
pursuant to Section 2 hereof.
EXPIRATION DATE: January 31, 2003, as the same may be adjusted pursuant to Section 2
hereof.
INITIAL BASE RENT: $184,204.50 per year ($18.50 per rentable square foot)
FUNDS DUE ON EXECUTION: First Month's Rent: $15,350.38
Security Deposit: $15,350.38
TOTAL $30,700.76
TENANT'S SHARE: Agreed to be 9.01%
SECURITY DEPOSIT: $15,350.38
OPTIONS TO EXTEND: See Exhibit G attached hereto.
AGENT: The Bulfinch Companies, Inc.
AGENT'S NOTICE ADDRESS: 0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: J. Xxxxxxx Xxxxxx
Tenant's Initials:_______
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Phone: 770/000-0000; Fax: 770/000-0000
SUB-AGENT: Xxxxx & Xxxxx Company
SUB-AGENT'S NOTICE ADDRESS: Suite 1200
000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Phone: 000-000-0000; Fax: 000-000-0000
Tenant's Initials:_______
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THIS LEASE, made as of the 12th day of January, 1998, by and among
RIVER EXCHANGE ASSOCIATES LIMITED PARTNERSHIP, a Georgia limited partnership
(hereinafter called "Landlord"); and TOWNE SERVICES, INC., a Georgia corporation
(hereinafter called "Tenant");
WITNESSETH:
1. PREMISES
Landlord, for and in consideration of the rents, covenants, agreements,
and stipulations hereinafter set forth to be paid, kept and performed by Tenant,
leases and rents unto Tenant, and Tenant hereby leases and takes upon the terms
and conditions which hereinafter appear, the Premises. No easement for light or
air is included in the Premises. In addition to the Premises, Tenant shall also
have the following non-exclusive rights as appurtenances to the Premises: (i)
the right of reasonable access to and from the Building and the Premises, and to
and from any parking facilities located on the Property; and (ii) the right of
reasonable access to and from, and the right to use, designated common areas of
the Building and the Property as is reasonably afforded to all tenants of the
Building. Landlord shall have the right, in its sole and absolute discretion, to
enlarge, alter or otherwise deal with the common areas of the Building and the
Property, including without limitation the parking areas and access roadways;
provided, however, Tenant's appurtenant rights of access, parking and use set
forth above will not be materially affected thereby.
2. TERM
Tenant shall have and hold the Premises for a term (the "Term")
commencing on the Commencement Date, and terminating at midnight on the
Expiration Date, unless sooner terminated or extended as hereinafter provided.
Promptly following the Commencement Date, Landlord and Tenant shall enter into a
letter agreement in the form attached hereto as Exhibit B, specifying the
Commencement Date, and the Expiration Date. In the event Landlord is unable to
deliver the Premises to Tenant on the anticipated Commencement Date set forth
above due to the fact that the prior tenant does not timely vacate the Premises,
or due to circumstances or conditions beyond the control of Landlord, then
Landlord shall have no liability to Tenant for such delay, and the Commencement
Date and the Expiration Date shall be postponed until such time as Landlord is
able to deliver possession of the Premises to Tenant. Notwithstanding the
foregoing, during the period of any postponement of the Commencement Date, and
provided Tenant is not in possession of the Premises, Base Rent shall not accrue
or become due and payable. If the Commencement Date is delayed beyond March 1,
1998, Tenant may, on or before March 10, 1998, terminate this Lease by written
notice to Landlord.
3. RENT
Tenant agrees to pay to Landlord at Landlord's Notice Address, without
demand, deduction or set-off, annual rent equal to the Base Rent, as adjusted
from time to time pursuant to the terms hereof, payable in equal monthly
installments in advance on the first day of each calendar month during the term
hereof. The Base Rent initially payable hereunder shall be the "Initial Base
Rent" set forth in the Summary of Primary Business Terms hereinabove. The Base
Rent shall be adjusted from time to time as set forth in Section 4 below. Upon
execution of this Lease, Tenant shall pay to Landlord the monthly Base Rent for
the first full calendar month of the Lease Term. Base Rent and Additional Rent
for any partial month during the Lease Term shall be pro-rated based on the
number of days in such month, and Base Rent for any such partial month at the
beginning of the Lease Term shall be paid on the Commencement Date. Landlord
does not mail or otherwise distribute statements or bills for rent or other
amounts due hereunder, except as may be expressly otherwise provided herein. It
is Tenant's sole responsibility to ensure that payments are made and received
when due. If any check received by Landlord from Tenant shall be dishonored,
refused or returned, then in addition to Landlord's other remedies and rights,
Tenant shall pay a $100.00 administrative charge, in addition to any late
charges and the payment in respect of which the check was given. Tenant and
Landlord agree that all amounts due hereunder, whether labeled Base Rent,
Additional Rent or otherwise, shall be considered as rental reserved under this
Lease for all purposes, including without limitation regulations pursuant to the
United States Bankruptcy Code, as may be amended from time to time, including
further without limitation Section 502(b)(6) thereof.
4. ADJUSTMENT TO BASE RENT
Landlord and Tenant agree that the Base Rent set forth in Section 3
above shall be increased annually on each anniversary date of the Commencement
Date. The new Base Rent as of each such anniversary shall be the lesser of (a)
or (b), as follows: (a) multiply the Base Rent for the Lease Year which has just
expired by a fraction,
Tenant's Initials:_______
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the numerator of which is the Consumer Price Index for All Urban Consumers,
United States City Average, All Items (1982-1984 = 100), issued by the Bureau of
Labor Statistics of the United States Department of Labor (the "CPI Index") for
the month of February of the year in which such anniversary date occurs and the
denominator of which is the CPI Index for the month of February of the previous
calendar year, or (b) multiply the Base Rent for the Lease Year which has just
expired by 1.04. The term "Lease Year" as used herein, shall mean each and every
consecutive twelve (12) month period during the Term of this Lease, and any
renewal or extension thereof, with the first Lease Year commencing on the
Commencement Date (or on the first day of the next calendar month if the
Commencement Date does not fall on the first day of a calendar month) and each
Lease Year thereafter commencing immediately upon the expiration of the previous
Lease Year. If the Bureau of Labor Statistics should discontinue the publication
of the CPI Index, or publish the same less frequently, or alter the same in some
manner, then Landlord shall adopt a substitute index or substitute procedure
which reasonably reflects and monitors consumer prices. In no event shall the
Base Rent for any Lease Year be less than the Base Rent for the prior Lease
Year. Landlord shall use reasonable efforts to notify Tenant in writing of the
adjusted Base Rent for each Lease Year at least ten (10) days prior to the date
on which the first installment of such adjusted Base Rent is due and payable, or
as soon thereafter as is practicable. Failure by Landlord to notify Tenant of
the adjusted Base Rent shall not prejudice Landlord's right to collect such
adjusted Base Rent, nor shall Landlord be deemed to have forfeited or
surrendered its right to collect such adjusted Base Rent.
5. LATE CHARGES
If Landlord fails to receive any payment when it becomes due, Tenant
shall pay to Landlord, as Additional Rent, a late charge equal to $250.00 The
parties agree that such late charge represents a fair and reasonable estimate of
the costs Landlord will incur by reason of such late payment. In addition,
interest at a rate equal to ten percent (10%) per annum from the date on which
such payment was due until such payment is received by Landlord, shall be due
and payable as Additional Rent in addition to such amounts owed under this
Lease.
6. SECURITY DEPOSIT
Tenant shall pay to Landlord the Security Deposit, upon execution of
this Lease, which shall be held by Landlord as security for the full and
faithful performance by Tenant of each and every term, covenant and condition of
this Lease of Tenant. If any of the rents or other charges or sums payable by
Tenant to Landlord shall be overdue and unpaid or should Landlord make payments
on behalf of Tenant, or should Tenant fail to perform any of the terms of this
Lease, then Landlord may, at its option, appropriate and apply the security
deposit, or so much thereof as may be necessary to compensate Landlord toward
the payment of the rents, charges or other sums due from Tenant, or towards any
loss, damage or expense sustained by Landlord resulting from such default on the
part of Tenant; and in such event Tenant shall upon demand restore the security
deposit to the original sum deposited. While Landlord holds such deposit,
Landlord shall have no obligation to pay interest on the same and shall have the
right to commingle the same with Landlord's other funds. If Landlord conveys
Landlord's interest under this Lease, the deposit, or any part thereof not
previously applied, may be turned over by Landlord to Landlord's grantee, and,
if so turned over, Tenant agrees to look solely to such grantee for proper
application of the deposit in accordance with the terms of this section, and the
return thereof in accordance herewith. The holder of a mortgage shall not be
responsible to Tenant for the return or application of any such deposit, whether
or not it succeeds to the position of Landlord hereunder, unless such deposit
shall have been received in hand by such holder. Subject to the inspection
provisions of the next sentence, the security deposit shall be refunded by
Landlord at the expiration or sooner termination of this Lease, provided that
all of Tenant's obligations under this Lease have been duly performed. Landlord
shall inspect the Premises within five (5) days after Tenant vacates the
Premises, and Landlord shall thereafter deliver to Tenant a statement of any
damage to the Premises and the estimated reasonable cost to repair the same, and
Landlord shall be entitled to retain from such security deposit an amount equal
to such estimate, and any remainder shall be returned to Tenant, assuming that
all Base Rent, Additional Rent and other charges payable by Tenant hereunder
shall have been paid. The foregoing provisions shall in no way be construed to
limit Tenant's liability for damage to the Premises or the Property.
7. RULES AND REGULATIONS
The Rules and Regulations attached hereto as Exhibit H are made a part
of this Lease. Tenant agrees to perform and abide by those rules and Regulations
and such other Rules and Regulations as may be made from time to time by
Landlord in the exercise of its sole discretion provided such rules and
regulations apply and are enforced uniformly against all tenants of the
Building.
Tenant's Initials:_______
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8. USE OF PREMISES
The Premises shall be used only for general office purposes. The
Premises shall not be used for any illegal purposes, 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. Tenant shall, in its use and maintenance
of the Premises, comply with all laws, ordinances, codes, covenants and
restrictions applicable to the Property, and shall not perform any act or carry
on any practice which may injure the Premises, or any other part of the
Building, or cause any offensive odors or loud noise or constitute a nuisance or
a menace to any other tenant or tenants or other persons in the Building or on
the Property. Except for latent defects and matters covered by Landlord's one
year construction warranty, and except to the extent that Landlord has agreed to
perform any "Landlord's Work," as shown on Exhibit D, TENANT IS LEASING THE
PREMISES FROM LANDLORD IN THEIR CURRENT "AS IS" CONDITION, WITHOUT
REPRESENTATION OR WARRANTY BY LANDLORD, INCLUDING WITHOUT LIMITATION ANY
REPRESENTATION AS TO THE SUITABILITY OR UTILITY OF THE PREMISES FOR TENANT'S
INTENDED USES. TENANT REPRESENTS THAT IT HAS INSPECTED THE PREMISES AND THE
COMMON AREAS OF THE PROPERTY, AND HAS FOUND THE SAME ACCEPTABLE FOR THE INTENDED
USES. Landlord shall promptly undertake at its expense Landlord's Work. All
construction performed by Landlord shall use new, first quality materials and
shall be performed in a good and workmanlike manner. Landlord warrants
Landlord's Work for a period of one year from the Commencement Date. Tenant
shall promptly undertake at its expense the work described on Exhibit E hereto.
9. OPERATING EXPENSES
(a) Tenant agrees to reimburse Landlord, as Additional Rent hereunder,
and under any extensions or renewals of this Lease, for Tenant's pro rata share
of the annual Operating Expenses (as defined in subsection (b) below) of the
Building and related common areas, including the parking areas, in excess of the
amount of the per rentable square foot cost of the actual operating expenses for
calendar year 1998 (hereinafter called the "Base Year Rate"). The Operating
Expenses per rentable square foot of the Building shall be determined by
dividing the total Operating Expenses incurred for the calendar year in question
by the total number of rentable square feet in the Building; provided, however,
that in any year during which the Building is less than ninety-five (95%)
occupied (on an average basis) the annual Operating Expenses used to determine
Tenant's share shall be adjusted to the amount which would have been incurred if
the Building had been ninety-five percent (95%) occupied for the entire year,
but in no event shall Landlord be reimbursed for more than the total Operating
Expenses actually incurred during the year in question. Tenant's pro rata share
of the excess Operating Expenses shall be determined by multiplying such excess
amount by the number of rentable square feet contained within the Premises
(hereinafter called "Tenant's Share"). Landlord and Tenant hereby agree that,
for purposes of this Section 9, the rentable square footages of the Premises and
the Building are set forth in the Summary of Primary Business Terms at the
beginning of this document, and Tenant's Share shall be determined based on such
amounts. If the size of the Building or the Premises is changed, the parties
hereby agree to recalculate Tenant's Share following such change.
(b) Operating Expenses shall be all those expenses of operating,
servicing, managing and maintaining the Building and the Property in a
first-class manner deemed by Landlord reasonable and appropriate and in the best
interest of the tenants of the Building. Operating Expenses shall include,
without limitation, the following:
(1) All taxes and assessments applicable to the Property and
the Building, which shall include real and personal property ad valorem taxes,
and any and all costs and expenses (including consultant's fees) incurred by
Landlord in seeking a reduction of any such taxes and assessments. However,
Tenant shall not be obligated for taxes on the net income from the operation of
the Building, unless there is imposed in the future a tax on rental income on
the Building in lieu of the real property ad valorem taxes, in which event such
tax shall be deemed to be included in the Operating Expenses of the Building.
(2) Insurance, including, without limitation, liability,
casualty, workers' compensations, comprehensive and any other coverage which
Landlord deems appropriate for the Property and the Building.
(3) Utility charges for the operation of the Property and the
Building including, without limitation, water, electricity, gas, heating,
lighting, ventilation, sanitary sewer and air conditioning of the Building, but
not including those utility charges separately metered and actually paid
directly by any tenant.
(4) Janitorial and maintenance expenses, including:
Tenant's Initials:_______
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(i) The wages and salaries of all employees
engaged in the operation and maintenance of the Building including the
employer's social security taxes and any other taxes which may be levied on such
wages and salaries, and including customary fringe benefits.
(ii) Janitorial services and janitorial supplies and
other materials used in the operation and
maintenance of the Building.
(iii) The cost of maintenance and service agreements
on equipment, window cleaning, landscaping,
grounds maintenance, pest control, security, trash and snow removal, and other
similar services or agreements.
(5) Management expense, including, without limitation,
management fees and expenses whether paid to Landlord, if Landlord manages the
Building, or to a third party management company.
(6) The costs, including interest, amortized over its useful
life, of any capital improvement made to the Building by or on behalf of
Landlord after the date of this Lease which is required under any governmental
law or regulation that was not applicable to the Building at the time of its
construction, and of the acquisition and installation of any device or equipment
designed to improve the operating efficiency of any system within the Building
and capital improvements designed to protect the health and safety of Tenants in
the Building.
(7) All services, supplies, repairs, replacements or other
expenses directly and reasonably associated with servicing, maintaining,
managing and operating the Property and the Building, including, but not limited
to lobby and other common use areas and vehicular and pedestrian traffic areas,
the parking areas, landscaped areas and all access ways to the Building.
(c) As soon as practicable after December 31 of each year during the
Term of this Lease, Landlord shall furnish to Tenant an itemized statement
(including a statement of how such Operating Expenses were increased if the
Building was less than 95% occupied during that calendar year) of such Operating
Expenses per rentable square foot within the Building for the calendar year then
ended. Tenant may have access to Landlord's records, during normal business
hours and at the place where Landlord keeps such records, in order to audit or
otherwise verify such expenses. If an audit discloses that Tenant has been
overcharged by ten percent (10%) or more, then Landlord shall reimburse Tenant
for the reasonable cost of such audit.
(1) On or before January 1 of each calendar year thereafter,
Landlord shall provide Tenant a written estimate of Tenant's Share of annual
excess Operating Expenses for the upcoming calendar year. Beginning with the
first month of such calendar year, Tenant shall pay to Landlord, together with
its monthly payment of Base Rent as provided in Section 3 hereinabove, as
Additional Rent hereunder, an amount equal to one-twelfth (1/12th) of the
estimated Tenant's Share (as shown in Landlord's statement) of any excess
Operating Expenses. In the event that at the end of any calendar year, Tenant
has paid to Landlord an amount in excess of Tenant's Share of any actual excess
Operating Expenses for such calendar year, Landlord shall apply any such excess
amount to any amount then owing to Landlord hereunder, and if none, Landlord
shall promptly refund such excess amount to Tenant; and in the event at the end
of any calendar year Tenant has paid to Landlord less than Tenant's Share of any
actual excess Operating Expenses for such calendar year, Tenant shall pay to
Landlord any such deficiency within thirty (30) days after Tenant receives the
annual statement referred to above.
(2) For the calendar year in which this Lease terminates, and
is not extended or renewed, the provisions of this section shall apply, but
Tenant's Share for such year shall be subject to a pro rata adjustment based
upon the number of full and partial calendar months of said calendar year prior
to the expiration of the Term of this Lease and shall be computed by December 31
immediately preceding the expiration of the Term of this Lease as the Operating
Expenses for such last calendar year. Tenant's Share for the final calendar
year, if not fully paid with Tenant's monthly payments of Base Rent as provided
herein, shall be paid to Landlord thirty (30) days after receipt of the
applicable Operating Expense statement.
(d) Notwithstanding the foregoing, Landlord agrees that if the
aggregate cost of the expenses set forth in Subsections 9(b)(4), 9(b)(5),
9(b)(6) and 9(b)(7) above increase by more than five percent (5%) over the cost
thereof for the prior year, Tenant shall be liable for Tenant's Share of only
the first five percent (5%) of such increase.
Tenant's Initials:_______
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10. INDEMNITY; INSURANCE
(a) To the maximum extent this agreement may be made effective
according to law, Tenant agrees to indemnify and save harmless Landlord from and
against all claims, loss, cost, damage or expense of whatever nature arising:
(i) from any accident, injury or damage whatsoever to any person, or to the
property of any person, occurring in or about the Premises, except to the extent
that any such claim arises from the gross negligence or wilful misconduct of
Landlord; (ii) from any accident, injury or damage occurring outside of the
Premises where such accident, damage or injury results or is claimed to have
resulted from an act or omission on the part of Tenant or Tenant's agents or
employees or independent contractors; or (iii) in connection with the conduct or
management of the Premises or of any business therein, or any thing or work
whatsoever done, or any condition created (other than by Landlord) in or about
the Premises; and, in any case, occurring after the date of this Lease until the
end of the Term of this Lease and thereafter so long as Tenant is in occupancy
of any part of the Premises. This indemnity and hold harmless agreement shall
include indemnity against all losses, costs, damages, expenses and liabilities
incurred in or in connection with any such claim or proceeding brought thereon,
and the defense thereof, including, without limitation, reasonable attorneys'
fees and costs at both the trial and appellate levels.
(b) To the maximum extent this agreement may be made effective
according to law, and provided Tenant has maintained the insurance required in
subparagraph (c) below, Landlord agrees to indemnify and save harmless Tenant
from and against all claims, loss, cost, damage or expense of whatever nature
arising from (i) any breach or default by Landlord under the terms of this
Lease, or (ii) any accident, injury or damage occurring within the Premises or
on the Property to the extent arising from a grossly negligent or otherwise
tortious act or omission on the part of Landlord or Landlord's agents or
employees or independent contractors, occurring after the date of this Lease
until the end of the Term of this Lease and thereafter so long as Tenant is in
occupancy of any part of the Premises. This indemnity and hold harmless
agreement shall include indemnity against all losses, costs, damages, expenses
and liabilities incurred in or in connection with any such claim or proceeding
brought thereon, and the defense thereof, including, without limitation,
reasonable attorneys' fees and costs at both the trial and appellate levels.
(c) Tenant agrees to maintain in full force from the date upon which
Tenant first enters the Premises for any reason, throughout the Term of this
Lease, and thereafter so long as Tenant is in occupancy of any part of the
Premises, a policy of commercial general liability and property damage insurance
(including broad form contractual liability, independent contractor's hazard and
completed operations coverage) under which Tenant is named as an insured and
Landlord (and such other persons as are in privity of estate with Landlord as
may be set out in a notice from time to time) are named as additional insureds,
and under which the insurer agrees to indemnify and hold Landlord, Agent and
those in privity of estate with Landlord, harmless from and against all cost,
expense and/or liability arising out of or based upon any and all claims,
accidents, injuries and damages set forth in section (a). Each such policy shall
be non-cancelable and non-amendable with respect to Landlord and Landlord's said
designees without thirty (30) days' prior notice and shall be in at least the
amount of $2,000,000, combined single limit, for bodily injury, death and damage
to property, and a duplicate original or certificate thereof is annexed hereto
as Exhibit F, and future certificates shall be delivered to Landlord from time
to time.
(d) Tenant agrees to use and occupy the Premises and to use such other
portions of the Property as Tenant is herein given the right to use at Tenant's
own risk. To the maximum extent this agreement may be made effective according
to law, Landlord shall have no responsibility or liability for any loss of or
damage to Tenant's property. Tenant shall carry "all-risk" property insurance on
a "replacement cost" basis, insuring Tenant's property and any alterations,
additions or improvements installed by Tenant pursuant to this Lease, to the
extent that the same have not become the property of Landlord, and other
so-called improvements and betterments, and a policy of business interruption
insurance in an amount equal to six (6) months of insurable operating expenses.
Landlord, Agent and such other persons as are described above shall be named as
additional insureds on each such policy. Landlord shall insure the Building, all
leasehold improvements in the Premises (but excluding equipment, trade fixtures,
personal property and any other items required to be insured by Tenant), all
personal property of Landlord, and all fixtures not constituting trade fixtures
on a "replacement cost" basis pursuant to industry standard insurance policies
insuring such risks as are customary for landlord's similar to Landlord, and in
any event meeting the requirements of any "Holder", as hereinafter defined,
which insurance shall include loss of rents insurance equivalent to twelve
months' rent, and shall carry liability insurance comparable to that required to
be provided by Tenant and providing for such additional coverages, deductibles,
co-insurance limits and other endorsements as Landlord may from tine to time
deem appropriate. Tenant may, from time to time during the Term request that
Landlord provide evidence of such insurance coverage, which shall consist of a
reasonably satisfactory certificate of insurance.
Tenant's Initials:_______
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(e) Landlord and Tenant hereby agree, on behalf of themselves, their
successors, assigns and subrogees, each to waive all liability against the other
for any claims, losses or any damages relating to property and caused by fire or
other insurable property peril that may have been caused by the fault or neglect
of the other party or anyone for whom the other party may be legally
responsible, to the extent insured or required by this Lease to be insured by
the party waiving liability hereunder, less the first $25,000.00 of any
deductible, and accordingly do hereby release each other from any and all
liabilities and responsibilities and all rights of action against the other or
owing to the other or anyone else claiming through or under or by way of
subrogation or otherwise, for any loss or damage to property caused by fire or
other insurable peril that may have been caused by the fault or neglect of the
other party or anyone for whom such party may be legally responsible, but only
to the extent insured or required by this Lease to be insured by the party
waiving liability hereunder, less the first $25,000.00 of any deductible.
Landlord and Tenant agree, further, that, to the extent available, the casualty
policies, business interruption and other insurance covering of the Premises or
the contents, fixtures and improvements therein shall contain a clause or
endorsement providing in substance that the insurance shall not be prejudiced if
the assureds have waived right of recovery from any person or persons prior to
the date and time of loss or damage, if any. Any additional premium shall be
paid by the party benefitted thereby.
(f) To the maximum extent this agreement may be made effective
according to law, Tenant agrees that Landlord shall not be responsible or liable
to Tenant, or to those claiming by, through or under Tenant, for any loss or
damage that may be occasioned by or through the acts or omissions of persons
occupying adjoining premises or any part of the premises adjacent to or
connecting with the Premises or any part of the Property or otherwise.
(g) Insofar as, and to the extent that, the provisions hereof shall not
make it impossible to secure insurance coverage obtainable from responsible
insurance companies doing business in the State of Georgia (even though extra
premium may result therefrom), Landlord and Tenant mutually agree that any
property damage insurance carried by either shall provide for the waiver by the
insurance carrier of all right of subrogation, and all rights based on
assignment from its insured, against the other, or against the officers,
directors, constituent partners or venturers, employees, invitees, licensees and
concessionaires of the other (and, in the case of Tenant, against its
subtenants) in connection with any loss or damage caused by any risk covered by
such insurance.
11. REPAIRS BY LANDLORD
Landlord agrees to keep in good repair the Building's roof,
foundations, exterior walls, common areas, structural portions and the
Building's electrical, mechanical and plumbing systems, all to the extent that
the same affects the Premises. Landlord shall in no event be responsible for
repairs rendered necessary by the negligence or intentional wrongful acts of
Tenant, its agents, employees or invitees. Landlord shall maintain the common
areas surrounding the Building, including paving, the mowing of grass, care of
shrubs and general landscaping. Tenant shall promptly report in writing to
Landlord any defective condition in the Premises known to it which Landlord is
required to repair. If Tenant fails to so report such condition, and the delay
occasioned thereby increases Landlord's costs in making any repairs, then Tenant
shall be responsible for those additional costs. Landlord shall not be
responsible to make any improvements or repairs to the Building other than as
expressly provided in this Lease. Landlord shall not be liable for any failure
to make repairs which, under the provisions of this section Landlord has
undertaken to make unless Tenant has given notice to Landlord of the need to
make such repairs, and Landlord has failed to commence to make such repairs
within a reasonable time after receipt of such notice, or fails to proceed with
reasonable diligence to complete such repairs.
12. REPAIRS BY TENANT; SURRENDER
(a) Tenant shall, through out the initial term of this Lease, and any
extension or renewal thereof, at its expense, maintain the Premises, and all
leasehold improvements and equipment therein, except those repairs expressly
required to be made by Landlord hereunder. Tenant shall further, at its own cost
and expense, repair or restore any damage or injury to all or any part of the
Premises or the Building caused by the carelessness or neglect of Tenant or
Tenant's agents, employees, invitees, licensees, visitors or contractors,
including but not limited to, any repairs or replacements necessitated by (i)
the construction or installation of improvements to the Premises by or on behalf
of the Tenant, or (ii) the moving of any property into or out of the Premises;
provided, however, if Tenant fails to make such repairs or replacements promptly
after notice to do so, Landlord may, at its option, make the repairs and
replacements and the reasonable cost of such repair or replacements shall be
charged to Tenant as Additional Rent and shall become due and payable by Tenant
with the monthly installment of Base Rent next due hereunder. Landlord expressly
disclaims any and all responsibility and/or liability for the physical safety of
the Premises or Tenant's property, and for that of Tenant's employees, agents,
contractors and
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invitees. In the event that Tenant shall fail to perform any obligation or make
any payment hereunder in a timely manner, without limitation of any other right
Landlord may have under this Lease, Landlord may make such payment or cause such
obligation to be performed, and Tenant shall pay the cost thereof as Additional
Rent immediately upon demand.
(b) Upon the expiration or earlier termination of the Term of this
Lease, Tenant shall peaceably quit and surrender to Landlord the Premises in
neat and broom-clean condition and in good order, condition and repair,
excepting only damage by fire or other casualty, condemnation, or Landlord's
negligent or wilful misconduct for which, under other provisions of this Lease,
Tenant has no responsibility of repair or restoration. Tenant shall remove all
of Tenant's equipment and property and shall repair any damages to the Premises
or the Building caused by such removal. Any property of Tenant which shall
remain in the Building or on the Premises after the expiration or termination of
the term of this Lease shall be deemed conclusively to have been abandoned, and
either may be retained by Landlord as its property or may be disposed of in such
manner as Landlord may see fit, without liability and at Tenant's sole cost and
expense.
13. ALTERATIONS
Tenant shall not make any alterations, additions, or improvements to
the Premises without Landlord's prior written consent, which consent shall not,
subject to the following, be unreasonably withheld or delayed. Landlord's
consent may be conditioned upon Tenant's agreement to remove such alterations,
additions or improvements, and to restore the Premises to its prior condition,
prior to the expiration of the Lease. Landlord's consent shall not be required
for any alterations costing less than $25,000.00, provided that such alterations
do not affect the structural integrity of the Building, and are otherwise made
in compliance with this section. Tenant shall promptly remove any alterations,
additions, or improvements constructed in violation of this Section 13 upon
Landlord's written request. All alterations, additions, and improvements will be
accomplished in a good and workmanlike manner, in conformity with all applicable
laws and regulations, and by a contractor reasonably approved by Landlord, free
of any liens or encumbrances. Tenant shall remove any or all alterations,
additions or improvements, the consent for which was conditioned upon removal,
or which were constructed without Landlord's consent (whether such consent was
required herein or not), at the termination of this Lease and shall restore the
Premises to its prior condition, all at Tenant's expense. All alterations,
additions or improvements which Landlord has not required Tenant to remove shall
become Landlord's property and shall be surrendered to Landlord upon the
termination of this Lease, except that Tenant may remove any of Tenant's
furniture or equipment. Tenant shall repair, at Tenant's expense, any damage to
the Premises caused by the removal of any such alterations, additions or
improvements, furniture or equipment. Tenant will not permit or suffer any
mechanics, materialmen's or other liens or claims to attach to the Property or
to the leasehold interest created hereby, and without limiting any other rights
Landlord may have, Tenant shall, immediately upon the filing of any such claim
or lien, pay such amounts as may be necessary to remove the same, or provide
such bonds or other security as may be required to remove the same.
14. REMOVAL OF TRADE FIXTURES
Tenant may prior to the expiration of this Lease, or any extension or
renewal thereof, remove all trade fixtures and equipment which it has placed in
the Premises, provided Tenant repairs all damage to the Premises caused by such
removal.
15. SERVICES
(a) The normal business hours of the Building shall be from 8:00 A.M.
to 6:00 P.M. on Monday through Friday, and 8:00 A.M. to 12:00 P.M. (Noon) on
Saturday, except New Year's Day, Memorial Day, July 4, Labor Day, Thanksgiving
Day, Christmas Day and such other holidays designated by Landlord which shall be
in keeping with the holidays customarily designated by landlords of first-class
office buildings in metropolitan Atlanta, Georgia. Landlord shall furnish the
following services during the normal hours of operation of the Building except
as noted:
(i) Elevator service for passenger and delivery needs.
(ii) Heat and air conditioning at a temperature of approximately
75 degrees Fahrenheit during summer operations and at a
temperature of approximately 70 degrees Fahrenheit during
winter operations, subject to governmental regulations.
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(iii) Hot and cold running water for all Building standard
restrooms and lavatories.
(iv) Soap, paper towels, and toilet tissue for public restrooms.
(v) Janitorial service, which includes sanitizing, dusting,
cleaning, mopping, vacuuming and removal of trash not
requiring special handling, Monday through Friday.
(vi) Electrical and mechanical maintenance services are provided
Monday through Friday.
(vii) Electric power, for small desk top types of machines, or
hand held devices, such as personal computers, fax
machines, copiers, typewriters, adding machines and
recording machines, in each case using no more than 110
volts, 20 amp circuits.
(viii) Electric lighting, at a level of at least 80 foot candles
at desk height except in corridors or storage areas, and
including the replacement of lamps and ballasts as needed.
(ix) Repairs and maintenance, for maintaining in good order at
all times, the exterior walls, windows, doors and roof of
the Building; public corridors, stairs, elevators, storage
rooms and restrooms; the air conditioning, electrical and
plumbing systems of the Building; and the walks, paving and
landscaping surrounding the Building.
(x) General management, including supervision, inspections,
record keeping, accounting, leasing and related management
functions.
(b) The services provided in subsection (a) herein, and the amount of
Rent prescribed herein, are predicated on and are in anticipation of certain
usage of the Premises by Landlord as follows:
(i) Air conditioning design is based on sustained outside
temperatures being no higher than 92 degrees Fahrenheit and
no lower than 22 degrees Fahrenheit with sustained
occupancy of the Premises by no more than one person per 00
xxxxxx xxxx xx xxxxx xxxx and heat generated by electrical
lighting and fixtures not to exceed 4.0 xxxxx per square
foot.
(ii) Electrical power usage and consumption is based on lighting
of the Premises during normal business hours at a level of
at least 80 foot candles at desk height, and power for the
types of equipment permitted in subsection 15(a)(vii)
above. Such heavier use items as electric heaters,
bookkeeping machine, mainframe computers, data processing
and duplicating equipment, stoves, refrigerators and the
like shall not be used or installed except with the prior
written consent of Landlord, which consent may be withheld
in Landlord's reasonable discretion, and if Landlord
consents to the use of such heavier use items, Landlord
shall have the right to install measuring devices and to
charge Tenant the cost of the installation thereof and for
any excess electrical usage as specified in subsection
(iii) below.
(iii) If Tenant uses services in an amount or for a period in
excess of that provided for herein, then Landlord reserves
the right to install, at Tenant's cost, any devices
necessary to measure such excess usage, and to charge
Tenant as Additional Rent hereunder for the direct cost of
such added services. In the event of disagreement as to the
reasonableness of such charge, the opinion of the
appropriate local utility company or an independent
professional engineering firm shall prevail.
(c) Landlord shall not be liable for any damages directly or indirectly
resulting from the interruption of the services referred to herein, regardless
of the cause of such interruption, but Landlord shall exercise due care in
furnishing adequate and uninterrupted services. Notwithstanding any contrary
provisions set forth in this Lease, if any of the services provided by Landlord
under this Lease are interrupted or discontinued due to the gross negligence or
wilful misconduct of Landlord, and such interruption continues for a period of
five (5) business days after written notice from Tenant of such interruption,
then the Rent payable under this Lease shall xxxxx to the extent
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the Premises are thereby rendered untenantable. If such interruption continues
for sixty (60) days or more, Lessee shall have the right and option of
terminating the Lease at any time prior to restoration of the aforesaid
services.
16. DESTRUCTION OF OR DAMAGE TO PREMISES
If the Premises are substantially destroyed by storm, fire, lightning,
earthquake or other casualty, then at Landlord's option, which may be exercised
within 30 days after such destruction, this Lease shall terminate as of the date
of such destruction, and rental shall be accounted for as between Landlord and
Tenant as of that date. If either the Premises are damaged, but not
substantially, or Landlord shall not elect to terminate this Lease, rent shall
xxxxx in such proportion as use of the Premises has been destroyed and Landlord
shall restore the Premises to substantially the same condition as they were in
before such destruction (excluding alterations, additions and improvements made
by Tenant) as speedily as is reasonably practicable, whereupon full rental shall
recommence. Notwithstanding the foregoing, but subject to any waivers of
subrogation provided by Landlord's insurer, Tenant shall be responsible for the
cost of repairs which may be made necessary by reason of damage to the Building
caused by any act or neglect of Tenant, or its contractors or invitees
(including any damage by fire or other casualty arising therefrom). As used in
this Paragraph 16, the term "substantially destroyed" shall mean damage to the
Premises which renders the Premises untenantable and which, using due diligence
in the making of repairs, will nevertheless require more than one hundred twenty
(120) days from the date of the casualty to complete repairs exclusive of any
delays caused by force majeure or delays caused by Tenant, its employees, agents
or independent contractors. In the event that the Premises is substantially
destroyed, as so defined, Tenant shall also have the right and option, which may
be exercised within thirty (30) days after such destruction, to terminate this
Lease as of the date of such destruction.
17. GOVERNMENTAL ORDERS
Tenant agrees, at its own expense, to comply promptly with all
requirements of any legally constituted public authority, other than those that
are generally applicable to buildings similar to the Building and are not made
necessary by reason of Tenant's manner of use of the Premises. Landlord agrees
to comply with any such requirements to the extent that the same are generally
applicable to buildings similar to the Building. It is mutually agreed, however,
between Landlord and Tenant, that if, in order to comply with any such
requirements which first become applicable or are promulgated or enacted after
the date of this Lease, the cost to Landlord or Tenant, as the case may be,
shall exceed a sum equal to one year's rent, then the party who is obligated to
comply with such requirements may terminate this Lease by giving written notice
of termination to the other party, which termination shall become effective
sixty (60) days after receipt of such notice and which notice shall eliminate
the necessity of compliance with such requirements by giving such notice, unless
the party receiving such notice of termination shall, before termination becomes
effective, pay to the party giving notice all cost of compliance in excess of
one year's rent, or secure payment of said sum in manner reasonably satisfactory
to the party giving notice.
18. CONDEMNATION
If the whole of the Premises, or such portion thereof as will make the
Premises unusable for the purposes herein leased, are condemned by any legally
constituted authority for any public use or purpose, then in either of said
events the term hereby granted shall cease from the date when possession thereof
is taken by public authorities, and rental shall be accounted for as between
Landlord and Tenant as of said date. Such termination, however, shall be without
prejudice to the rights of either Landlord or Tenant to recover compensation and
damage caused by condemnation from the condemnor. Landlord shall have and hereby
reserves and excepts, and Tenant hereby grants and assigns to Landlord, all
rights to recover for damages to the Premises (including all leasehold
improvements paid for by Landlord) and the leasehold interest hereby created,
and to compensation accrued or hereafter to accrue by reason of such taking,
damage or destruction, and by way of confirming the foregoing, Tenant hereby
grants and assigns, and covenants with Landlord to grant and assign to Landlord,
all rights to such damages or compensation. Nothing contained herein shall be
construed to prevent Tenant from prosecuting in any condemnation proceedings a
claim for the value of any of Tenant's property installed in the Premises by
Tenant at Tenant's expense, or for relocation expenses, provided that such
action shall not affect the amount of compensation otherwise recoverable by
Landlord from the taking authority.
19. ASSIGNMENT AND SUBLETTING
Tenant shall not, whether voluntarily, involuntarily, by operation of
law or otherwise, (i) assign this Lease or any interest hereunder, (ii) sublet
(which term, without limitation, shall include granting of concessions,
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licenses and the like) the Premises or any part thereof, or (iii) permit the use
of the Premises by any party other than the Tenant, without having first
obtained the written consent of Landlord, which consent shall not be
unreasonably withheld or delayed, and which consent shall nevertheless not be
required in connection with a merger, consolidation, share exchange,
reorganization or sale of all or substantially all of Tenant's assets, or
similar transactions or an assignment or subletting by Tenant to a parent,
subsidiary, affiliation or party related to or under common ownership or control
by, of, or with Tenant; provided, however, that Tenant shall remain liable
following any assignment or subletting authorized under this Paragraph 19. If
Tenant is a partnership, a withdrawal or change (voluntary, involuntary or by
operation of law) of any partner owning 51% or more of the partnership, or the
dissolution or liquidation of the partnership, shall be deemed an assignment of
this Lease. If Tenant is a corporation, a dissolution, merger, consolidation, or
other reorganization of Tenant, or the sale or other transfer of the controlling
percentage of the capital stock of Tenant or the sale of fifty-one percent (51%)
of the value of the assets of Tenant, shall be deemed an assignment of this
Lease. The phrase "controlling percentage" means the ownership of, and the right
to vote, stock possessing at least fifty-one percent (51%) of the total combined
voting power of all classes of tenant's capital stock issued, outstanding, and
entitled to vote for the election of directors. The foregoing provision shall
not apply to corporations, the stock of which is regularly traded through an
exchange or over the counter. Landlord shall not be required to consider any
request for consent unless and until Tenant shall have furnished to Landlord (x)
the current financial statements of the proposed assignee or sublessee, and (y)
a reasonably detailed description of the business of the proposed assignee or
sublessee, both of which shall be reasonably acceptable to Landlord using
Landlord's then current underwriting guidelines. If this Lease be assigned, or
if the Premises or any part thereof be sublet or occupied by anyone other than
Tenant, Landlord may, at any time and from time to time, collect rent and other
charges from the assignee, subtenant or occupant, and apply the net amount
collected to the rent and other charges herein reserved, but no such assignment,
subletting, occupancy, collection or modification of any provisions of this
Lease shall be deemed a waiver of this covenant, or the acceptance of the
assignee, subtenant or occupant as a tenant or a release of Tenant from the
further performance of covenants on the part of Tenant to be performed
hereunder. Any consent by Landlord to a particular subletting or occupancy shall
not in any way diminish the prohibition stated in this section or the continuing
liability of the original named Tenant. No assignment or subletting hereunder
shall relieve Tenant from its obligations hereunder and Tenant shall remain
fully and primarily liable therefor. No such assignment, subletting, or
occupancy shall affect or be contrary to the uses permitted in section 8. In the
event of any sublease or assignment to which Landlord consents, Tenant shall pay
to Landlord fifty percent (50%) of all net consideration (after deducting
leasing commissions and tenant improvements) in excess of the rental due
hereunder which Tenant receives from such assignee or sublessee.
20. EVENTS OF DEFAULT
The happening of any one or more of the following events (hereinafter
any one of which may be referred to as an "Event of Default") during the term of
this Lease, or any renewal or extension thereof, shall constitute a breach of
this Lease on the part of the Tenant: (1) Tenant fails to pay the rental as
provided for herein, and such failure continues for five (5) days; (2) Tenant
fails to comply with or abide by and perform any other obligation imposed upon
Tenant under this Lease, and Tenant shall fail to remedy the same as soon as
practicable and in any event within thirty (30) days after notice to Tenant
specifying such neglect or failure (or if such failure is of such a nature that
Tenant cannot reasonably remedy the same within such thirty (30) day period,
Tenant shall fail to commence promptly (and in any event within such thirty (30)
day period) to remedy the same and to prosecute such remedy to completion with
diligence and continuity); (3) Tenant is adjudicated bankrupt; (4) a permanent
receiver is appointed for Tenant's property and such receiver is not removed
within sixty (60) days after such appointment; (5) Tenant, either voluntarily or
involuntarily, takes advantage of any debt or relief proceedings under any
present or future law, whereby the rent or any part thereof is, or is proposed
to be, reduced or payment thereof deferred; (6) Tenant makes an assignment for
benefit of creditors or admits in writing its inability to pay its debts
generally as they come due; or (7) Tenant's effects are levied upon or attached
under process against Tenant, which is not satisfied or dissolved within thirty
(30) days. If Tenant shall fail to perform any payment obligation with respect
to which this section requires Landlord to give Tenant notice as a precondition
to the existence of an Event of Default, and Landlord shall give such notice,
Landlord shall not be required to give notice with respect to any similar
failure occurring within the subsequent twelve month period as a precondition to
the existence of an Event of Default.
21. LANDLORD'S REMEDIES UPON DEFAULT'S
(a) Upon the occurrence of an Event of Default, Landlord may pursue any
one or more of the following remedies separately or concurrently, without notice
or demand (except as may be required by applicable law), without prejudice to
any other remedy herein provided or provided by law: (i) terminate this Lease by
giving written notice to Tenant and, upon such termination, Tenant shall
immediately surrender the Premises to Landlord
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as herein provided, failing which Landlord may enter upon and take possession of
the Premises and expel or remove Tenant and any other person who may be
occupying the Premises or any part thereof, by force if necessary, without being
liable for prosecution or any claim of damages therefor, Tenant agreeing to pay
to Landlord on demand the reasonable amount of all loss and damage which
Landlord may suffer by reason of such termination, whether through inability to
re-let the Premises on satisfactory terms or otherwise; or (ii) terminate
Tenant's right of possession of the Premises (but not this Lease) and enter upon
and take possession of the Premises and expel or remove Tenant and any other
person who may be occupying the Premises or any part thereof, by entry
(including the use of such force as may be permitted by law, if necessary),
dispossessory suit or otherwise, without thereby releasing Tenant from liability
hereunder, without terminating this Lease, and without being liable for
prosecution or any claim of damages therefor; or (iii) enter upon the Premises,
by such force as may be permitted by law, if necessary, without being liable for
prosecution or any claim of damages therefor, and do whatever Tenant is
obligated to do under the terms of this Lease. In the event of termination of
this Lease, Landlord shall be entitled to recover from Tenant current damages in
an amount equal to all rental and other sums payable hereunder up to the time of
such termination, and thereafter Tenant, until the end of what would have been
the term of this Lease in the absence of such termination, and whether or not
the Premises shall have been relet, shall be liable to Landlord for, and shall
pay to Landlord, as liquidated current damages the rent and other sums that
would be payable hereunder if such termination had not occurred, less the net
proceeds, if any, of any reletting of the Premises, after deducting all
reasonable expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage commissions, legal expenses,
attorneys' fees, advertising, expenses of employees, alteration costs and
expenses of preparation for such reletting. Landlord shall not be considered to
be under any duty by reason of this provision to take any action to mitigate
damages by reason of Tenant's Event of Default.
(b) At any time after such termination, whether or not Landlord shall
have collected any such current damages, as liquidated final damages and in lieu
of all such current damages beyond the date of such demand, at Landlord's
election Tenant shall pay to Landlord an amount equal to the excess, if any, of
the rent and other sums as hereinbefore provided which would be payable
hereunder from the date of such demand (assuming that, for the purposes of this
section, annual payments by Tenant on account of Operating Expenses would be the
same as the payments required for the immediately preceding year) for what would
be the then unexpired term of this Lease if the same remained in effect,
discounted to then present value using an interest rate equal to the then
predominant "Prime Rate," as established by the Wall Street Journal, over the
then fair gross rental value of the Premises for the same period, also
discounted to then present value using the same interest rate. Tenant
acknowledges (i) that the actual damages that Landlord may suffer as a result of
an Event of Default are impossible to ascertain, and that the foregoing
liquidated damage calculations are not a penalty or forfeiture, but are a
reasonable approximation of such damages, and (ii) that the Premises are to be
used for commercial purposes, and Tenant expressly waives the protections and
rights set forth in Official Code of Georgia Annotated Section 44-7-32, as well
as any other rights of redemption granted by or under any present or future laws
in the event of Tenant being evicted or dispossessed, or in the event of
Landlord obtaining possession of the Premises, by reason of the violation by
Tenant of any of the covenants and conditions of this Lease.
(c) In case of any Event of Default, and re-entry, termination of this
Lease, termination of possessory rights (but not this Lease), expiration,
dispossession by dispossessory proceedings or otherwise, Landlord may, as
Tenant's agent (i) re-let the Premises or any part or parts thereof, either in
the name of Landlord or otherwise, for a term or terms which may at Landlord's
option be equal to or less than or exceed the period which would otherwise have
constituted the balance of the term of this Lease and may grant concessions or
free rent to the extent that Landlord considers advisable and necessary to
re-let the same and (ii) may make such reasonable alterations, repairs and
decorations in the Premises as Landlord in its reasonable judgment considers
advisable and necessary for the purpose of preserving or reletting the Premises;
and the making of such alterations, repairs and decorations shall not operate or
be construed to release Tenant from liability hereunder as aforesaid. If
Landlord shall so re-enter the Premises, with or without termination of this
Lease, Landlord may remove any or all of Tenant's property and equipment and
store the same, without liability for damage thereto, at Tenant's sole cost and
expense, all without being deemed guilty of any trespass. Landlord shall in no
event be liable in any way whatsoever for failure to re-let the Premises, or, in
the event that the Premises are re-let, for failure to collect the rent under
such re-letting. The specified remedies to which Landlord may resort hereunder
are not intended to be exclusive of any remedies or means of redress to which
Landlord may at any time be entitled lawfully, and Landlord may invoke any
remedy (including the remedy of specific performance) allowed at law or in
equity as if specific remedies were not herein provided for. Tenant shall pay to
Landlord all costs and expenses incurred by Landlord in the enforcement of this
Lease, including without limitation the fees and costs of Landlord's attorneys,
experts, agents, architects and contractors.
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(d) Landlord shall in no event be in default in the performance of any
of Landlord's obligations hereunder unless and until Landlord shall have failed
to perform such obligations within thirty (30) days, or such additional time as
is reasonably required to correct any such default, after notice by Tenant to
Landlord specifying wherein Landlord has failed to perform any such obligations.
22. SIGNS
Tenant shall not paint or place signs, placards or other advertisements
of any kind or character upon the windows or outside walls of the Premises, or
within the common areas or on the roof of the Building, and shall place no such
item within the Premises which would be visible from the exterior of the
Premises, except with the consent of Landlord, which consent may be withheld in
Landlord's sole, absolute and unfettered discretion. Landlord, at Tenant's sole
cost, will place a sign identifying Tenant's business at the entrance to the
Premises, and an entry in the Building directory, in each case in Building
standard form.
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23. LANDLORD'S ENTRY OF PREMISES'S
Landlord shall retain duplicate keys to all doors of the Premises and
Landlord and its agents, employees and independent contractors shall have the
right to enter the Premises at reasonable hours to inspect and examine same, to
make repairs, additions, alterations and improvements, to exhibit the Premises
to mortgagees and prospective mortgagees, purchasers or tenants, and to inspect
the Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder, all without being liable to Tenant in any manner
whatsoever for any damages arising therefrom; provided, however, that Landlord
shall, except in case of emergency, afford Tenant such prior notification of an
entry into the Premises as shall be reasonably practicable under the
circumstances. Landlord shall be allowed to take into and through the Premises
any and all materials that may be required to make such repairs, additions,
alterations or improvements. During such time as such work is being carried on,
in or about the Premises, the Rent provided herein shall not xxxxx, and Tenant
waives any claim or cause of action against Landlord for damages by reason of
interruption of Tenant's business or loss of profits therefrom because of the
prosecution of any such work or any part thereof. In exercising its rights under
this section, and except in case of emergency, Landlord shall endeavor to
minimize interference with Tenant's business operations in the Premises.
24. EFFECT OF TERMINATION OF LEASE
No termination of this Lease prior to the normal ending thereof, by
lapse of time or otherwise, shall affect Landlord's right to collect rent or
other sums due hereunder for the period prior to termination thereof.
25. MORTGAGEE'S RIGHTS'S
(a) Tenant agrees that this Lease and all rights of Tenant hereunder
are and shall be subject and subordinate to any security deed now or hereafter
encumbering the Property or any component thereof, to all advances made or
hereafter to be made upon the indebtedness secured thereby, to all amendments,
renewals, extensions and restatements of such security deed, and to any
replacements and substitutions for such security deed; provided, however, as to
any security deed encumbering the Property and granted by Landlord after the
date hereof, the foregoing agreement by Tenant is conditioned upon receipt by
Tenant of a non-disturbance agreement. Except when a non-disturbance agreement
is required pursuant to the foregoing sentence, the terms of this provision
shall be self-operative and no further instrument of subordination shall be
required. Tenant, however, upon request of any party in interest, shall execute
promptly such instrument or certificates as may be reasonably required to carry
out the intent hereof, whether said requirement is that of Landlord or any other
party in interest, including, without limitation, any Holder. The term "Holder",
as used in this Lease, refers to the holder(s) of the indebtedness secured by a
security deed. Upon occupancy of the Premises by Tenant and payment of all sums
required of Tenant upon execution of this Lease, Landlord shall endeavor to
obtain from the current Holder a non-disturbance agreement for the benefit of
Tenant; provided, however, the failure of Landlord to obtain such agreement
shall not be a default by Landlord hereunder.
(b) If any Holder elects to have this Lease superior to its security
deed and signifies its election in the instrument creating its lien or by
separate recorded instrument, then this Lease shall be superior to such security
deed.
(c) In the event any proceedings are brought for the foreclosure of, or
in the event of exercise of the power of sale under, any security deed covering
the Property, or in the event the interests of Landlord under this Lease shall
be transferred by reason of deed in lieu of foreclosure or other legal
proceedings, Tenant shall, at the option of the transferee or purchaser at
foreclosure or under power of sale, as the case may be (sometimes hereinafter
called "such person"), attorn to such person and shall recognize and be bound
and obligated hereunder to such person as the Landlord under this Lease;
provided, however, that no such person shall be (i) bound by any payment of Rent
for more than one (1) month in advance, except prepayments in the nature of
security for the performance by Tenant of its obligations under this Lease (and
then only if such prepayments have been deposited with and are under the control
of such person); (ii) bound by any amendment or modification of this Lease made
without the express written consent of the holder of the security deed or lessor
of the Landlord, as the case may be; (iii) obligated to cure any defaults under
this Lease of any prior landlord (including Landlord); (iv) liable for any act
or omission of any prior landlord (including Landlord); (v) subject to any
offsets or defenses which Tenant might have against any prior landlord
(including Landlord); or (vi) bound by any warranty or representation of any
prior landlord (including Landlord) relating to work performed by any prior
landlord (including Landlord) under this Lease. Tenant agrees to execute any
attornment agreement not in conflict herewith requested by Landlord, the Holder
or such person. Tenant's obligation to attorn to such person shall
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survive the exercise of any such power of sale, foreclosure or other proceeding.
Tenant agrees that the institution of any suit, action or other proceeding by
any Holder to realize on Landlord's interest in the Property pursuant to the
powers granted to a Holder under its security deed, shall not, by operation of
law or otherwise, result in the cancellation or termination of the obligations
of Tenant hereunder. Landlord and Tenant agree that notwithstanding that this
Lease is expressly subject and subordinate to any security deeds, any Holder its
successors and assigns, may sell the Property in the manner provided in the
security deed and may, at the option of such Holder, its successors and assigns,
make such sale of the Property subject to this Lease.
26. NO ESTATE IN LAND
This Lease shall create the relationship of Landlord and Tenant between
the parties hereto. No estate shall pass out of Landlord. Tenant has only a
usufruct not subject to levy and sale, and not assignable by Tenant except as
provided herein.
27. HOLDING OVER
If Tenant remains in possession of the Premises after expiration of the
term hereof, with Landlord's acquiescence and without any express agreement of
the parties, Tenant shall be a tenant at will at a rental rate equal to 150% of
the rental rate which is in effect at the end of this Lease and there shall be
no renewal of this Lease by operation of law.
28. ATTORNEY'S FEES'S
In the event that any action or proceeding is brought to enforce any
term, covenant or condition of this Lease on the part of Landlord or Tenant, the
prevailing party in such litigation shall be entitled to recover reasonable
attorneys' fees to be fixed by the court in such action or proceeding.
Furthermore, Landlord and Tenant agree to pay the attorney's fees and expenses
of the other party to this Lease (either Landlord or Tenant) if it is made a
party to litigation because of its being a party to this Lease and when it has
not engaged in any wrongful conduct itself.
29. RIGHTS CUMULATIVE
All rights, powers and privileges conferred hereunder upon parties
hereto shall be cumulative and not restrictive of those given by law.
30. WAIVER OF RIGHTS
No failure of Landlord to exercise any power given Landlord hereunder
or to insist upon strict compliance by Tenant of its obligations hereunder and
no custom or practice of the parties at variance with the terms hereof shall
constitute a waiver of Landlord's right to demand exact compliance with the
terms hereof.
31. AGENCY DISCLOSURE
Landlord and Tenant hereby acknowledge that Agent has acted as an agent
for Landlord in this transaction, and that Sub-Agent has acted as an agent for
Tenant in this transaction, and that each will be paid a real estate commission
by Landlord.
32. AGENT'S COMMISSION'S
Agent and Sub-Agent have rendered Landlord and Tenant a valuable
service by assisting in the creation of the landlord-tenant relationship
hereunder. The commissions to be paid in conjunction with the creation of the
relationship by this Lease has been negotiated between Landlord, Agent and
Sub-Agent, and Landlord hereby agrees to pay as compensation for their services
in procuring this Lease and creating the aforesaid landlord-tenant relationship
pursuant to a separate commission agreement. Tenant shall indemnify and hold
Landlord harmless from and against any loss, cost, damage or expense suffered by
Landlord as a result of any claim by any person other than Agent and Sub-Agent
claiming that it is due a commission or fee on account of the Lease arising out
of dealings or alleged dealings with Tenant or any of its agents, employees or
contractors. The foregoing indemnity shall include without limitation all
reasonable attorneys' fees and costs incurred by Landlord in the defense of such
claim.
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33. LIMITATION OF AGENT'S SERVICES
Tenant must look solely to Landlord as regards to all covenants,
agreements and warranties herein contained, and Agent shall never be liable to
Tenant in regard to any matter which may arise by virtue of this Lease. It is
understood and agreed that the commissions payable to Agent under Section 32
above are compensation solely for Agent's services in assisting in the creation
of the landlord-tenant relationship hereunder; accordingly, Agent is not
obligated hereunder on account of payment of such commissions to furnish any
management services for the Premises.
34. ENVIRONMENTAL LAWS
(a) Landlord represents to the best of its actual knowledge and belief,
without having made any independent investigation, that the Premises are not in
violation of any applicable Environmental Laws (as hereafter defined). Tenant
represents, warrants and covenants that: (x) Tenant will under no circumstances
maintain, allow, place, deposit, leave, release or store in, on or about the
Premises, the Building or the Property any Hazardous Material, as hereinafter
defined; and (y) Tenant is not in violation of any applicable Environmental
Laws, as hereinafter defined, relating to or affecting its operations in the
Premises. Tenant hereby indemnifies and agrees to defend and hold the Landlord
harmless from and against any and all liens, damages, losses, liabilities,
obligations, penalties, claims, litigation, demands, judgments, suits,
proceedings, costs, disbursements or expenses of any kind or nature whatsoever
(including, without limitation, attorneys' and experts' fees and expenses) which
may at any time (whether or not prior to or after expiration of the term of this
Lease) be imposed upon, incurred by or asserted or awarded against the Landlord,
the Premises, the Building or the Property arising from or out of (i) the
release by Tenant of any Hazardous Materials at any time during the Term of this
Lease on, in, under or affecting all or any portion of the Property, and (ii)
the violation or alleged violation by Tenant during the term of this Lease of
any Environmental Law with respect to the Property or any portion thereof. The
foregoing indemnification shall include, without limitation (x) the cost of
removal of any and all Hazardous Materials released by Tenant from all or any
portion of the Property or any surrounding areas, (y) additional costs required
as a result of such release or violation by Tenant to take necessary precautions
to protect against the discharge, spillage, emission, leakage, seepage or
release of Hazardous Materials on, in, under or affecting the Premises, the
Building or the Property or into the air, water or soil, and (z) costs incurred
as a result of such release or violation by Tenant to comply with Environmental
Laws in connection with all or any portion of the Premises or any surrounding
areas. In determining whether the Tenant is liable under this subsection (a),
the term "Tenant" shall include Tenant and its agents, employees and independent
contractors.
(b) Notwithstanding any of the foregoing to the contrary, Tenant shall
not be required to indemnify or hold the Landlord harmless from or against any
such liens, damages, liabilities or the like to the extent that the same arise
solely from acts or omissions of Landlord or any third parties for whose conduct
Tenant is not responsible, occurring during any period in which Landlord or such
third party was in possession of the Premises.
(c) For purposes of this Lease, "Hazardous Material" or "Hazardous
Materials" means and includes petroleum products, flammable explosives,
radioactive materials, asbestos or any material containing asbestos,
polychlorinated biphenyls, and/or any hazardous, toxic or dangerous waste,
substance or material now or hereafter defined as such, or as a hazardous
substance, or any similar term, by or in the Environmental Laws. For purposes of
this Lease, "Environmental Law" or "Environmental Laws" shall mean: (x) any
"Super Fund" or "Super Lien" law, or any other federal, state or local statute,
law ordinance, code, rule, regulation, order or decree, regulating, relating to
or imposing liability or standards of conduct concerning, any Hazardous
Materials as may now or at any time hereafter be in effect, including without
limitation, the following as the same may be amended or replaced from time to
time, and all regulations promulgated thereunder or in connection therewith: the
Super Fund Amendments and Reauthorization Act of 1986, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the
Massachusetts Oil and Hazardous Material Release Prevention and Response Act of
1983, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act,
the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act, the Hazardous Waste Management System, and the Occupational Safety
and Health Act of 1970; and (y) any law, ordinance or regulation the primary
purpose of which is to protect the quality of the environment.
35. TIME OF ESSENCE; GOVERNING LAW
Time is of the essence of this Lease. This Lease shall be governed by
the laws of the State of Georgia.
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36. DEFINITIONS
"Landlord" as used in this Lease shall include the undersigned, its
heirs, representatives, assigns and successors in title to the Premises.
"Tenant" shall include the undersigned and its heirs, representatives, assigns
and successors, and if this Lease shall be validly assigned or sublet, shall
include also Tenant's assignees or sublessees as to the Premises covered by such
assignment or sublease. "Agent" shall include the undersigned, its successors,
assigns, heirs and representatives, "Landlord", "Tenant" and "Agent" include
male and female, singular and plural, corporation, a partnership or individual,
as may fit the particular parties.
37. NOTICES
All notices required or permitted under this Lease shall be in writing
and shall be personally delivered or sent by U.S. Certified, Registered or
Express Mail, return receipt requested, postage prepaid. Notice to Tenant shall
be delivered or sent to the Premises or to Tenant's Notice Address. Notices to
Landlord, Agent and Sub-Agent shall be sent to their respective Notice Address,
with copies in the case of notices to Landlord to Xxxxx X. Xxxxxxxx, Esq., Marks
& Xxxxxxxx, LLC, 0000 XxXxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000.
All such notices shall be effective when deposited in the United States Mail or
with such courier or delivery service within the continental United States. Any
party may change its notice address by giving all other parties a notice of the
new address, which notice shall meet the requirements hereof.
38. WAIVER
Failure on the part of Landlord or Tenant to complain of any action or
non-action on the part of the other, no matter how long the same may continue,
shall never be a waiver by Tenant or Landlord, respectively, of any of the
other's rights hereunder. Further, no waiver at any time of any of the
provisions hereof by Landlord or Tenant shall be construed as a waiver of any of
the other provisions hereof, and a waiver at any time of any of the provisions
hereof shall not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of Landlord or Tenant to or of any action by
the other requiring such consent or approval shall not be construed to waive or
render unnecessary Landlord's or Tenant's consent or approval to or of any
subsequent similar act by the other. No payment by Tenant, or acceptance by
Landlord, of a lesser amount than shall be due from Tenant to Landlord shall be
treated otherwise than as a payment on account of the earliest installment of
any payment due from Tenant under the provisions hereof. The acceptance by
Landlord of a check for a lesser amount with an endorsement or statement
thereon, or upon any letter accompanying such check, that such lesser amount is
payment in full, shall be given no effect, and Landlord may accept such check
without prejudice to any other rights or remedies which Landlord may have
against Tenant.
39. COVENANT OF QUIET ENJOYMENT
Tenant, subject to the terms and provisions of this Lease, on payment
of the rent and additional charges and observing, keeping and performing all of
the other terms and provisions of this Lease on Tenant's part to be observed,
kept and performed, shall lawfully, peaceably and quietly have, hold, occupy and
enjoy the Premises during the term hereof, without hindrance or ejection by any
persons lawfully claiming under Landlord to have title to the Premises superior
to Tenant; the foregoing covenant of quiet enjoyment is in lieu of any other
covenant, express or implied.
40. LANDLORD'S LIABILITY'S
(a) Tenant specifically agrees to look solely to Landlord's then equity
interest in the Property at the time owned, for recovery of any judgment from
Landlord, it being specifically agreed that neither Landlord (original or
successor) nor any partner of Landlord (nor any principal of any such partner)
shall ever be personally liable for any such judgment, or for the payment of any
monetary obligation to Tenant. The provision contained in the foregoing sentence
is not intended to, and shall not, limit any right that Tenant might otherwise
have to obtain injunctive relief against Landlord or Landlord's successors in
interest, or to take any action not involving the personal liability of Landlord
(original or successor).
(b) With respect to any services or utilities to be furnished by
Landlord to Tenant, Landlord shall in no event be liable for failure to furnish
the same when prevented from doing so by strike, lockout, breakdown, accident,
order or regulation of or by any governmental authority, or failure of supply,
or inability by the exercise of reasonable diligence to obtain supplies, parts
or employees necessary to furnish such services, or because of war or other
emergency, or for any other cause beyond Landlord's reasonable control, or for
any cause due to
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any act or neglect of Tenant or Tenant's servants, agents, employees, licensees
or any person claiming by, through or under Tenant.
(c) In no event shall Landlord ever be liable to Tenant for any loss of
business or any other indirect or consequential damages suffered by Tenant from
whatever cause. Where provision is made in this Lease for Landlord's consent
(with no requirement that Landlord not unreasonably withhold its consent) and
Tenant shall request such consent and Landlord shall fail or refuse to give such
consent, then Tenant shall not be entitled to any damages for any withholding by
Landlord of its consent. Furthermore, whenever Tenant requests Landlord's
consent or approval (whether or not provided for herein), Tenant shall pay to
Landlord, on demand, as an additional charge, any reasonable expenses incurred
by Landlord (including without limitation legal fees and costs, if any) in
connection therewith without limitation.
(d) With respect to any repairs or restoration which are required or
permitted to be made by Landlord, the same may be made during normal business
hours and Landlord shall have no liability for damages to Tenant for
inconvenience, annoyance or interruption of business arising therefrom. In
exercising its rights under this section, and except in case of emergency,
Landlord shall endeavor to minimize interference with Tenant's business
operations in the Premises.
41. ASSIGNMENT OF RENTS AND TRANSFER OF TITLE
(a) With reference to any assignment by Landlord of Landlord's interest
in this Lease, or the rents payable hereunder, conditional in nature or
otherwise, which assignment is made to the holder of a mortgage on property
which includes the Premises, Tenant agrees that the execution thereof by
Landlord, and the acceptance thereof by the holder of such mortgage shall never
be treated as an assumption by such holder of any of the obligations of Landlord
hereunder unless such holder shall, by notice sent to Tenant, specifically
otherwise elect and that, except as aforesaid, such holder shall be treated as
having assumed Landlord's obligations hereunder only upon foreclosure of such
holder's mortgage and the taking of possession of the Premises.
(b) In no event shall the acquisition of Landlord's interest in the
Property by a purchaser which, simultaneously therewith, leases Landlord's
entire interest in the Property back to the seller thereof be treated as an
assumption by operation of law or otherwise, of Landlord's obligations
hereunder, but Tenant shall look solely to such seller-lessee, and its
successors from time to time in title, for performance of Landlord's obligations
hereunder. In any such event, this Lease shall be subject and subordinate to the
lease to such seller-lessee. For all purposes, such seller-lessee, and its
successors in title, shall be the Landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
(c) Except as provided in subsection (b) of this Section, in the event
of any transfer of title to the Property by Landlord, Landlord shall thereafter
be entirely freed and relieved from the performance and observance of all
covenants and obligations hereunder provided such transferee shall have assumed
all of Landlord's obligations under this Lease.
42. ESTOPPEL CERTIFICATE
Tenant, within ten (10) days from receipt of Landlord's written
request, shall execute, acknowledge and deliver to Landlord a written statement
certifying to Landlord, Landlord's lender and/or any proposed purchaser of the
Premises, as requested, (a) that this Lease is in full force and effect, without
modification (or, if there have been modifications, that the same is in full
force and effect as modified and stating the modifications); (b) that there are
no uncured defaults in Landlord's performance and that Tenant has no right of
offset, counterclaim or deduction against the Base Rent and Additional Rental
(or if there are defaults, offsets counterclaims or deductions, describing the
nature and amount of same); (c) the then current amount of Base Rent and
Additional Rent and the dates to which the Base Rent and Additional Rental have
been paid; (d) the commencement and expiration dates of the Lease; (e) whether
Tenant has any options or other rights to extend the Lease, expand the Premises,
or purchase the Premises; and (f) the amount of any security deposit; and (g)
any other matters reasonably requested by Landlord.
43. ENTIRE AGREEMENT
The Summary of Primary Business Terms attached to the beginning of this
document contain terms material to the landlord-tenant relationship created
hereby and is a part of this Lease. This Lease contains the entire agreement of
the parties hereto, and no representations, inducements, promises or agreements,
oral or otherwise, between the parties, not embodied herein, shall be of any
force or effect. The submission of this
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document for examination or negotiation does not constitute an offer to lease or
a reservation of, or option for the Premises, and this Lease shall become
effective only upon the complete execution and delivery thereof by Landlord and
Tenant, and upon the delivery by Tenant or all payments (and the collection and
availability of such funds) and the delivery of such insurance policies,
evidences of corporate authority or other matters as Landlord may reasonably
require in connection herewith (such requirements being for the sole benefit of
Landlord, and may be waived, in whole or in part, by Landlord in its sole and
absolute discretion). Tenant represents that the signatory hereto on behalf of
Tenant is fully authorized to bind Tenant, and that the certificate annexed
hereto as Exhibit I is true and correct, and has not been modified as of the
date hereof. This Lease may be executed in one or more counterparts, each of
which shall for all purposes be deemed an original. Neither this Lease nor any
memorandum hereof shall be offered or filed as a matter of public record.
44. SPECIAL STIPULATIONS
Any special stipulations are set forth in the attached Exhibit G.
Insofar as said Special Stipulations conflict with any of the foregoing
provisions, said Special Stipulations shall control.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals, in triplicate, the date and year first above written.
Signed, sealed and delivered as LANDLORD: RIVER EXCHANGE ASSOCIATES
to Landlord, in the presence of: LIMITED PARTNERSHIP
By: River Management, Inc., its sole
general partner
/s/ Xxxxxx X. Speed
------------------------------------
Witness By: /s Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx, Treasurer
Hereunto Duly Authorized
TENANT: TOWNE SERVICES, INC.
Signed, sealed and delivered as to Tenant in the presence of:
By: /s/ Xxxxx Xxxxxx
---------------------------
Name: Xxxxx Xxxxxx
Title: President
Hereunto Duly Authorized
/s/ Xxxxxxx Xxxxxx (CORPORATE SEAL)
--------------------------------------
Witness
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Notary Public
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EXHIBIT A
[LEGAL DESCRIPTION OF PROPERTY]
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Xxx 000 xx xxx
0xx Xxxxxxxx xx Xxxxxx Xxxxxx, Xxxxxxx, said tract or parcel being more
particularly described as follows:
To find the TRUE POINT OF BEGINNING, commence at the point of
intersection of the northerly line of the right-of-way of Spalding Drive and the
southwesterly line of the right-of-way of Xxxxxxx Bridge Road if said lines were
extended to form an angle instead of a curve, and running thence along the
right-of-way line of Xxxxxxx Bridge Road the following courses and distances:
North 43(Degree) 53' 59" West a distance of 464.12 feet to an iron pin; South
50(Degree) 25' 09" West a distance of 12.92 feet to an iron pin; North
43(Degree) 26' 19" West a distance of 120.21 feet to a point; and South
66(Degree) 54' 41" West a distance of 10.55 feet to an iron pin and the TRUE
POINT OF BEGINNING; from said TRUE POINT OF BEGINNING leaving the right-of-way
line of Xxxxxxx Bridge Road and running thence South 66(Degree) 54' 41" West a
distance of 782.78 feet to an iron pin; running thence North 66(Degree) 57' 06"
West a distance of 406.37 feet to an iron pin located on the southeasterly line
of the right-of-way of River Exchange Drive; running thence along the
southeasterly line of the right-of-way of River Exchange Drive the following
courses and distances: along the arc of a curve to the right, said arc having a
radius of 311.18 feet and being subtended by a chord having a bearing of North
33(Degree) 46' 12" East and a length of 376.86 feet, an arc distance of 404.81
feet to an iron pin; North 71(Degree) 02' 16" East a distance of 202.23 feet to
an iron pin; along the arc of a curve to the left, said arc having a radius of
1200.00 feet and being subtended by a chord having a bearing of North 63(Degree)
42' 47" East and a length of 305.99 feet, an arc distance of 306.82 to an iron
pin; South 33(Degree) 36' 43" East a distance of 10.00 feet to an iron pin; and
North 56(Degree) 23' 17" East a distance of 47.00 feet to an iron pin located at
the intersection of the southeasterly line of the right-of-way of River Exchange
Drive with the southwesterly line of the right-of-way of Xxxxxxx Bridge Road;
running thence along the mitered corner of said intersection South 75(Degree)
43' 33" East a distance of 74.00 feet to an iron pin; running thence along said
Xxxxxxx Bridge Road right-of-way line and along the arc of a curve to the left,
said arc having a radius of 6,258.946 feet and being subtended by a chord having
a bearing of South 39(Degree) 34' 16" East and a length of 474.90 feet, an arc
distance of 475.01 feet to an iron pin and the TRUE POINT OF BEGINNING.
Said tract containing 9.8490 acres and being shown on that certain
Above Ground "As Built" Survey, prepared for River Exchange Associates Limited
Partnership, USG Annuity & Life Company and Chicago Title Insurance Company,
dated July 27, 1987, last revised October ___, 1997, prepared by Xxxxxx X.
Xxxxxx & Associates, P.C., bearing the certification of Xxxxxx X. Xxxxxx, Xx.,
Georgia R.L.S. No. 1729.
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EXHIBIT B
[COMMENCEMENT DATE AGREEMENT]
The undersigned Landlord and Tenant do hereby each agree and certify to
the other that the term of that certain Lease between Landlord and Tenant dated
January 12, 1998 (the "Lease") commenced on the ___ day of _______________, 1998
(the "Commencement Date") and shall expire at 11:59 pm on the 31st day of
January, 2003, unless extended or sooner terminated as specifically provided by
the terms, conditions and provisions of the Lease.
Tenant acknowledges that, from and after the Commencement Date,
Tenant's Notice Address is:
Suite 350
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Phone: ________________; Fax: ________________
IN WITNESS WHEREOF, Landlord and Tenant have executed this Commencement
Date Agreement under seal, this the ___ day of January, 1998.
Signed, sealed and delivered LANDLORD: RIVER EXCHANGE ASSOCIATES
as to Landlord in the presence of: LIMITED PARTNERSHIP
By: River Management, Inc., its sole
general partner
-------------------------------
Witness
By:__________________________________
Xxxxxx X. Xxxxxxxx, Treasurer
Hereunto Duly Authorized
TENANT: TOWNE SERVICES, INC.
Signed, sealed and delivered as to Tenant in the presence of:
By:_________________________________
Name: Xxxxx Xxxxxx
-------------------------------- Title: President
Witness Hereunto Duly Authorized
(CORPORATE SEAL)
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EXHIBIT C
[FLOOR PLAN]
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EXHIBIT D
[LANDLORD'S WORK]
Subject to delays caused by "force majeure" and matters beyond the
reasonable control of Landlord, and subject to any delays caused by Tenant,
Landlord will use reasonable efforts to perform the work shown and described on
the following plans and specifications, and to substantially complete the same
on or before the Commencement Date, but Landlord shall have no liability for
failure to so complete such Work on or before the anticipated Commencement Date.
Tenant shall cooperate with Landlord and, in its use of the remaining portions
of the Premises, shall not interfere with Landlord, in the performance of
Landlord's Work:
Those plans and specifications prepared for Tenant and the Premises by
Xxxxxxx & Xxxxxxx Architects, Inc., dated November 23, 1997, last
revised January 7, 1998 (the "Plans"), a copy of which is attached
hereto as Exhibit "D-1", and additionally revised by hand on a full
scale original and dated 1-14-98.
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EXHIBIT E
[TENANT'S WORK]
All work shown on any revisions to the Plans, and all other work
necessary to configure the Premises for Tenant's intended uses.
Tenant's Initials:_______
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EXHIBIT F
[INSURANCE CERTIFICATE]
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EXHIBIT G
[SPECIAL STIPULATIONS]
1. RENEWAL OPTION. (a) Tenant shall have the option to extend the Lease
Term for a period of five (5) additional years ("Extension Term"), to
commence at the expiration of the initial Lease Term. This option may
be exercised only by written notice to Landlord at least one hundred
eighty (180) days prior to the end of the initial Lease Term.
(b) If Tenant has exercised its option in subsection
(a) above, Tenant shall have the option to extend the Lease Term for a
period of five (5) additional years ("Second Extension Term"), to
commence at the expiration of the Extension Term. This option may be
exercised only by written notice to Landlord at least one hundred
eighty (180) days prior to the end of the Extension Term.
(c) The terms and conditions of this Lease shall
govern the Extension Term and the Second Extension Term, as the case
may be, except (i) Base Rent shall be increased as set forth in
subparagraph (d) hereinbelow, (ii) Tenant shall have no option to renew
this Lease beyond the expiration of the Second Extension Term, (iii)
the leasehold improvements will be provided in their then-existing
condition (on an "as-is" basis) at the commencement of the Extension
Term or the Second Extension Term, as the case may be. Provided,
however, Tenant may exercise the foregoing options to renew only if (1)
the financial condition of Tenant is the same or better than it is on
the date of this Lease, as evidenced by Tenant's financial statement
not more than one year old, and (2) on both the date Tenant exercises
this option and upon the expiration of the prior term of this Lease,
(a) this Lease is in full force and effect and (b) Tenant is not in
default under this Lease beyond any applicable grace or cure period. If
Tenant shall fail to exercise this option to extend or conditions (1)
and (2) are not entirely satisfied, this Lease shall expire at the
expiration of the prior terms of this Lease and Tenant shall have no
further right to extend this Lease.
(d) Within thirty (30) days after Tenant has
exercised an option to extend the Lease, Landlord shall notify Tenant
of the then current market rate for a lease of similar length and at
similar premises to the Premises, and the rental rate for the Extension
Term or the Second Extension Term, as the case may be, shall based on
such market rate. At least ninety (90) days prior to the end of the
prior term of the Lease, Landlord and Tenant shall have agreed, in
writing, on the rental rate for the applicable extension, and if no
such agreement is reached, then Tenant's exercise of this extension
option shall be void and the Lease term shall end upon the expiration
of the then current term of this Lease.
2. PARKING. The parking areas appurtenant to the Building shall permit
free parking by Tenant's employees, customers and invitees.
3. EXPANSION OF PREMISES. Suite 320 of the Building, containing 1,880
rentable square feet in the location shown on EXHIBIT "G-1" attached
hereto (the "Expansion Space"), is currently occupied by Accelerated
Solutions Incorporated under a lease which terminates on May 31, 1998.
The Expansion Space will be added to, and shall by deemed a part of,
the Premises for the remainder of the Lease Term, on the earlier of (i)
the day Tenant commences its occupancy of the Expansion Space, or (ii)
thirty (30) days after the day on which Accelerated Solutions
Incorporated vacates the Expansion Space (such earlier date being
hereinafter referred to as the "Expansion Space Commencement Date").
From and after the Expansion Space Commencement Date, the Premises
shall be deemed to contain 11,837 rentable square feet, the Initial
Base Rent shall increase to 18,248.71 per month ($18.50) per rentable
square foot), and Tenant's Share shall be increased to 10.71%. Base
Rent for the Expansion Space shall be adjusted pursuant to Section 4 of
the Lease on the same dates, and using the same CPI Index, as will be
used to adjust Base Rent for the initial Premises. Landlord shall
contribute $9,400.00 towards those tenant improvement costs actually
incurred by Tenant with respect to the Expansion Space; all additional
costs and expenses incurred by Tenant, or by Landlord at Tenant's
request, for tenant improvements in the Expansion Space shall be the
responsibility of Tenant. All tenant improvement work performed by or
on behalf of Tenant in the Expansion Space shall performed in
accordance with Sections 8 and 13 of the Lease. Landlord will make the
Expansion Space available for tenant improvement work on the day after
Accelerated Solutions Incorporated vacates the Expansion Space.
Tenant's Initials:_______
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4. RIGHT OF FIRST REFUSAL. Landlord and Tenant acknowledge that Suite 360
on the 3rd floor of the Building contains 2,376 rentable square feet of
space in the location shown on EXHIBIT "G-1" attached hereto
(hereinafter the "Opportunity Space"). The Opportunity Space is
currently under lease to Telecommunications Technology Corp. ("TTC").
Landlord grants to Tenant a right of first refusal to lease the
Opportunity Space in accordance with, and subject to, the following
terms and conditions:
(a) In the event Landlord obtains a written offer from a
prospective tenant (including TTC) to lease all or any portion of the
Opportunity Space after the termination of the TTC lease, and in the
event Landlord desires to accept such offer, then Landlord shall submit
to Tenant in writing all of the material terms and conditions of such
proposed offer to lease (hereinafter referred to as the "Offer") and
Tenant shall have the right and option to lease the Opportunity Space
covered by the Offer upon the same monetary terms and conditions,
including any offer of free rent and leasehold improvement allowances,
as embodied in the copy of such Offer submitted to Tenant by Landlord,
but upon the same terms and conditions as this Lease and for a term
expiring as of the Expiration Date. In the event the remaining months
in the Lease Term or any extension thereof are less than the number of
months in the term embodied in the Offer, then such free rent and
leasehold improvement allowances shall be reduced to the amounts that
bear the same ratio to the free rent and leasehold improvement
allowances embodied in the Offer as the remaining months in the Lease
Term bear to the number of months of the term embodied in the Offer.
(b) If Tenant shall elect to exercise its right to lease the
Opportunity Space covered by the Offer, written notice of such election
shall be given to Landlord within three (3) days from the time that
Tenant first received a copy of the Offer from Landlord (hereinafter
referred to as the "Offer Period"), which notice by Tenant shall
specify a date that Tenant shall lease the space covered by the Offer,
which date shall be not less than fifteen (15) nor more than forty-five
(45) days after the giving of notice thereof.
(c) Upon the exercise of its right to lease the Opportunity
Space covered by the Offer, Landlord and Tenant shall enter into a
written agreement modifying and supplementing this Lease and specifying
that the Opportunity Space is a part of the Premises under this Lease
and containing other appropriate terms and provisions relating to the
addition of such area to this Lease, including, without limitation,
increasing, adjusting or augmenting Rent as a result of the addition of
such space. The right of first refusal contained in this paragraph 4 of
these Special Stipulations to the Lease shall then terminate as to the
balance of the Opportunity Space not leased by Tenant, if any.
(d) If a right to lease pursuant to this Section shall not be
exercised within the Offer Period or shall be waived (no notice is
deemed to be a waiver of such right), then Landlord shall have the
right to offer such space to the prospective tenant, and if such
transaction is consummated, Tenant's rights under this Section shall
automatically terminate and be of no further force or effect. If a
right to lease pursuant to this Section shall not be exercised within
the Offer Period or shall be waived (no notice is deemed to be a waiver
of such right), and Landlord fails to lease the space covered by the
Offer within six (6) months after Landlord's submission of a copy of
the Offer to Tenant, then this Section shall be applicable to any
subsequent offer to lease the Opportunity Space or any portion thereof.
(e) The foregoing right of first refusal is conditioned upon
this Lease being in full force and effect and there being no default
under this Lease. If Tenant fails to exercise the foregoing right of
first refusal as provided in and in strict accordance with the terms of
this paragraph, or if the condition set forth in the first sentence of
this subsection (e) is not entirely satisfied, the foregoing right of
first refusal shall automatically terminate and be of no further force
or effect, or if exercised, shall be null and void.
(f) Tenant shall not have the right to assign its right of
first refusal to any sublessee of the Demised Premises or any portion
thereof or to any assignee of this Lease, nor may any such sublessee or
assignee exercise or enjoy the benefit of such right of first refusal.
Tenant's Initials:_______
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EXHIBIT H
BUILDING RULES AND AGREED REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas of the Building shall not be obstructed by tenants or used by any
tenant for any purpose other than ingress or egress to and from their
premises and for going from one to another part of the building.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any
such fixtures or appliances from misuse by a tenant shall be paid by
such tenant, and Landlord shall not in any case be responsible
therefor.
3. No sign, advertisements or notices shall be painted or affixed on or to
any windows or doors or other parts of the building except of such
color, size and style and in such places as shall be first approved in
writing by Landlord. No nails, hooks or screws shall be driven or
inserted in any part of the Building, nor shall any part of the
Building be defaced by tenants or their agents, servants, employees or
invitees.
4. Landlord will provide and maintain in the first floor (main lobby) of
the building an alphabetical directory board for all tenants and no
other directory shall be permitted unless previously consented to by
Landlord in writing.
5. All tenants will refer all contractors, contractors' representatives
and installation technicians rendering any service to them to Landlord
for Landlord's supervision, approval and control before the performance
of any contractual services. This provision shall apply to all work
performed in the building, including, but not limited to, installations
of telephones, electrical devices and attachments, and any and all
installations of every nature affecting floor, walls, woodwork, trim,
windows, ceilings, equipment and any other physical portion of the
building.
6. Movements in or out of the building of furniture or office equipment,
or dispatch or receipt of any bulky material or merchandise which
requires use of elevators or stairways, or movement through the
building entrances or lobby shall be restricted to such hours as
Landlord shall designate. All such movement shall be under the
supervision of Landlord and in the manner agreed between the tenant and
Landlord by prearrangement before performance. Such prearrangement
initiated by tenant will include determination by Landlord, and subject
to its decision and control, as to the time, method, and routing of
movement and as to limitations for safety or other concern which may
prohibit any article, equipment or any other item from being brought
into the building. The tenants are to assume all risks as to the damage
to articles moved and injury to persons or public engaged or not
engaged in such movement, including equipment, property and personnel
of Landlord if damaged or injured as a result of acts in connection
with carrying out this service for any tenant, from time of entering
upon the land to completion of work; and Landlord shall not be liable
for acts of any person engaged in, or any damage or loss to any of said
property or persons resulting from, any act in connection with such
service performed for a tenant.
7. Tenants shall notify the building manager when safes or other heavy
equipment are to be taken in or out of the building, and the moving
shall be done under the supervision of the building manager, after
written permission from the Landlord. Persons employed to move such
property must be acceptable to Landlord.
8. Corridor doors, when not in use, shall be kept closed.
9. Each tenant shall cooperate with Landlord's employees in keeping its
premises neat and clean. Landlord shall be in no way responsible to the
tenants, their agents, employees, or invitees for any damages to any
property in the tenants' premises or otherwise to the building from any
cause whatsoever.
10. To insure orderly operation of the building, no ice, mineral or other
water, towels, newspapers, etc., shall be delivered to any premises
except by persons appointed or approved by Landlord in writing.
11. Should any tenant require Muzak or other communication or entertainment
service, Landlord will direct the electrician where and how wires are
to be introduced and placed and none shall be introduced or placed
except as Landlord shall direct. Electric current shall not be used for
heating without Landlord's prior written permission.
Tenant's Initials:_______
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12. Without Landlord's prior approval, no tenant shall install any radio or
television antenna, loudspeaker, music system or other device on the
roof or exterior walls of the building or on common walls with adjacent
tenants.
13. No Tenants shall make or permit any improper noises in the building or
otherwise interfere in any way with other tenants or persons having
business with them.
14. Nothing (including, without limitation, boxes, crates or excess trash)
shall be swept into, disposed or deposited in the corridors, halls,
elevator shafts or stairways. No birds or animals shall be brought into
or kept in, or about any tenant's premises. The garage and parking
areas in and around the building shall be used solely for the
temporary, transient parking of automobiles used by tenants.
15. No tenant shall place, install or operate on its premises or in any
part of building, any engine, stove, or machinery, including, without
limitations fans or refrigerating, heating or air conditioning
equipment, or conduct mechanical operations or xxxx thereon or therein,
or place or use in or about premises any explosives, or hazardous
material without written consent of Landlord.
16. No portion of any tenant's premises shall at any time be used or
occupied as sleeping or lodging quarters.
17. Landlord will not be responsible for lost or stolen personal property,
money or jewelry from any tenant's premises or public areas (including,
without limitation, garage areas) regardless of whether or not such
loss occurs when such area is locked against entry.
18. Landlord reserves the right to close the building at 7:00 P.M. on
weekdays and at 12:00 P.M. (Noon) on Saturdays, subject, however, to
tenant's right to admittance under regulations prescribed by Landlord;
and to require all persons entering the building after 6:00 P.M.
weekdays and 12:00 P.M. (Noon) Saturdays to identify themselves to a
watchman other representative of Landlord and establish their right to
enter or leave the building. Landlord reserves the right to install an
electronic entry system in the building. In the event Landlord so
causes such electronic entry system to be installed in the building,
Landlord will supply initial entry devices to tenants and may impose
restrictions on the use thereof and additional rules and regulations
relating thereto.
19. Each tenant shall, before leaving tenant's premises unattended, close
and lock all outside doors and shut off all utilities; damages
resulting from failure to do so shall be paid by the tenant.
20. Each tenant shall give Landlord prompt notice of all accidents to or
defects in air conditioning equipment, plumbing, electric facilities or
any part or appurtenance of tenant's premises.
21. Canvassing, soliciting, and peddling in the building or garage
facilities are prohibited.
22. There shall not be used in any space or in the public halls of the
building, either by any tenant or by jobbers or others in the delivery
or receipt of merchandise, any hand trucks except those equipped with
rubber tires.
23. No tenant shall permit any portion of its premises to be used as an
office for a public secretarial service, for the sale of food, drink,
liquor, tobacco or pornographic materials, for a xxxxxx or manicure
shop, for retail sales to the general public, for an employment bureau
or travel agency, for auctions or sale of personal property, nor shall
any machine or device operated by insertion of a coin, token, or
similar object for the purpose of amusement or skill be permitted
inside or outside the premises unless such use is specifically
described as a part of the sole permitted use.
24. Each tenant shall, unless otherwise expressly stipulated herein, be
required to make all repairs of any kind and character on the tenant's
premises during the term of such tenant's lease, except such repairs as
may be required and executed by normal janitorial and maintenance
operations.
25. Each tenant will be responsible for any damage to carpeting and
flooring as a result of rust or corrosion of file cabinets, pot
holders, roller chairs, and metal objects.
Tenant's Initials:_______
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26. No person or contractor not employed by Landlord shall be used to
perform janitorial work, window washing, cleaning repair or other work
in any tenant's premises. Landlord's janitors shall not be hindered by
any tenant or its agents, servants, employees or invitees after 5:30
P.M.
27. Employees of Landlord shall not receive or carry messages for or to any
tenant or other person, nor contract with or render free or paid
services to any tenant or tenant's agents, employees, or invitees.
28. Each tenant and its employees, agents and invitees, shall observe and
comply with the driving and parking signs and markers on the premises
surrounding the building. Landlord shall not be responsible for any
damage to any vehicle towed because of noncompliance with parking
regulations.
29. Each tenant must dispose of crates, boxes, etc., which will not fit
into office wastepaper baskets.
30. Any tenant employing laborers or others outside the building shall not
have their employees paid in the building.
31. Without Landlord's express consent in writing, no tenant shall
advertise the business, profession, or activities of such tenant in any
manner which violates the letter or spirit of any code of ethics
adopted by any recognized association or organization pertaining
thereto or use the name of the building for any purpose other than that
of the business address of tenant or use any picture or likeness of the
building or the building name in any letterheads, envelopes, circulars,
notices, advertisements, containers, or wrapping material.
32. No tenant shall permit, erect and/or place drapes, furniture, fixtures,
shelving display cases or tables, lights, signs, and advertising
devices in front of or in the proximity of interior and exterior
windows, glass panels, or glass doors providing a view into the
interior of such tenant's premises unless same shall have first been
approved in writing by Landlord.
33. Landlord reserves the right to rescind any of these rules and
regulations and to make such other and further rules and regulations as
in its judgment shall from time to time be needful for the safety,
protection, care and cleanliness of the building, the operation
thereof, the preservation of good order therein and the protection and
comfort of the tenants and their agents, employees and invitees, which
rules and regulations, when made and written notice thereof is given to
a tenant, shall be binding upon tenant in like manner as if originally
herein prescribed.
Tenant's Initials:_______
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EXHIBIT I
CERTIFICATE OF THE SECRETARY
TOWNE SERVICES, INC.
The undersigned, being the duly elected, qualified and acting Secretary
of Towne Services, Inc., a Georgia corporation, does hereby certify that, at a
special meeting of the Directors of the corporation duly called and held on
December ___, 1997, the following resolutions were unanimously adopted:
RESOLVED: That this corporation enter into a lease of certain
space, containing approximately 9,957 square feet,
located at 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxx, xx such terms and conditions as the
officer(s) executing and delivering the same shall in
their sole and absolute discretion deem necessary or
appropriate; and be it further
RESOLVED: That Xxxxx X. Xxxxxx, the President of this
corporation, be, and hereby is, authorized and
directed to execute, acknowledge and deliver, on
behalf of this corporation, one or more counterparts
of such lease, the execution and delivery of such
lease by such officer being conclusive evidence in
favor of all parties of his approval of the terms and
conditions thereof.
The undersigned further certifies that (i) Xxxxx X. Xxxxxx, whose
signature appears below, is the duly elected, qualified and acting president of
this corporation, (ii) the charter documents and by-laws of this corporation are
in full force and effect, and all applicable requirements have been complied
with in the adoption of the foregoing Resolutions, and (iii) the foregoing
Resolutions have not been repealed, amended or modified, and remained in full
force and effect as of the date hereof.
/s/ Xxxxx Xxxxxx
-----------------------------------
Title: President
Signed and sealed this day of December, 1997.
----
/s/ Xxxxx X. Xxxxxx
----------------------------------
Secretary
[Corporate Seal]
Tenant's Initials:_______
