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EXHIBIT 10.51
GALLERIA
ATLANTA
OFFICE LEASE AGREEMENT
ELTRAX SYSTEMS, INC.
TABLE OF CONTENTS
Page
PARAGRAPH 1 TERM AND POSSESSION 1
2 MONTHLY RENTAL 2
3 SECURITY DEPOSIT 7
4 OCCUPANCY AND USE 7
5 COMPLIANCE WITH LAWS 7
6 ALTERATIONS 8
7 REPAIR 9
8 LIENS 9
9 ASSIGNMENT AND SUBLETTING 9
10 INSURANCE AND INDEMNIFICATION 10
11 WAIVER OF SUBROGATION 11
12 SERVICE AND UTILITIES 12
13 ESTOPPEL CERTIFICATE 14
14 HOLDING OVER 14
15 SUBORDINATION 15
16 RE-ENTRY BY LANDLORD 15
17 INSOLVENCY OR BANKRUPTCY 15
18 DEFAULT AND REMEDIES 16
19 DAMAGE BY FIRE 18
20 CONDEMNATION 19
21 SALE BY LANDLORD 20
22 RIGHT OF LANDLORD TO PERFORM 20
23 SURRENDER OF PREMISES 20
24 WAIVER 20
25 NOTICES 21
26 CERTAIN RIGHTS RESERVED TO LANDLORD 21
27 ABANDONMENT 22
28 SUCCESSORS AND ASSIGNS 22
29 ATTORNEY'S FEES 22
30 CORPORATE AUTHORITY 22
31 MORTGAGE APPROVALS 22
32 MISCELLANEOUS 22
33 LANDLORD'S LIEN 23
34 QUIET ENJOYMENT 23
35 LANDLORD'S LIABILITY 23
36 RIGHT TO RELOCATE 24
37 NO ESTATE 24
38 LEASE EFFECTIVE DATE 24
39 RULES AND REGULATIONS 24
40 SPECIAL STIPULATIONS 24
41 GUARANTY 24
42 CONDITION 24
43 BROKERAGE COMMISSIONS 24
44 EXCULPATION 25
EXHIBIT A RULES AND REGULATIONS
B WORK LETTER AGREEMENT
C ESTOPPEL CERTIFICATE
D FLOOR PLAN OF DEMISED PREMISES
E SPECIAL STIPULATIONS
G INSURANCE
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GALLERIA
ATLANTA
OFFICE LEASE AGREEMENT
THIS LEASE is made as of the 20th day of September, 1999 between
Galleria 400, LLC (hereinafter called "Landlord") and Eltrax Systems, Inc.
(hereinafter called "Tenant").
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
those premises (hereinafter called "Premises") shown on Exhibit "D" attached
hereto and made a part thereof, being located in Atlanta Galleria Office Tower
No. 400, a multistory office building (the "Building") constructed on a parcel
of land (the "Property") bounded by I-285 on the North, I-75 on the East, U.S.
41 on the West and Xxxxx Mill Road on the South.
PREMISES: Atlanta Xxxxxxxx-Xxxxxx Xxxxx Xx. 000
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx
Square Feet: 48,859 Suite Number: 200 and 300
Floor(s): 2nd and 3rd
1. TERM AND 1. (a) The term of this Lease as to the portion of the
POSSESSION. Premises located on the 0xx xxxxx xx xxx Xxxxxxxx (xxx "0xx
Xxxxx") shall begin on the earlier to occur of the following
(the "3rd Floor Commencement Date"): (i) February 1, 2000 or
(ii) the date Tenant takes possession of all or a portion of
the 3rd Floor (except for the purpose of installing Tenant's
improvements, equipment and similar items). The term of this
Lease as to the portion of the Premises located on the 2nd
floor of the Building (the "2nd Floor") shall begin on the
earlier to occur of the following (the "2nd Floor Commencement
Date"): (i) February 1, 2000 or (ii) the date Tenant takes
possession of all or a portion of the 2nd Floor (except for the
purpose of installing Tenant's improvements, equipment and
similar items). The term of this Lease (the "Lease Term") shall
extend from the 3rd Floor Commencement Date and the 2nd Floor
Commencement Date as set forth above and shall continue for One
Hundred Twenty (120) months (or until sooner terminated as
provided herein) from the latter to occur of the 2nd Floor
Commencement Date or the 3rd Floor Commencement Date (such
latter date being hereinafter referred to as the "Final
Commencement Date"), except that if such Final Commencement
Date is other than the first day of a calendar month, the Lease
Term shall be extended for the remainder of that calendar
month. The first lease year of the Lease Term shall therefore
extend from the earlier to occur of the 2nd Floor Commencement
Date and the 3rd Floor Commencement Date (such earlier date
being hereinafter referred to as the "Initial Commencement
Date") to the first anniversary of the Final Commencement Date
(unless the Final Commencement Date is other than the first day
of a calendar month, in which event the first lease year shall
extend for the remainder of that calendar month). Unless
otherwise expressly stated herein, any reference in this Lease
to the "Commencement Date" shall be deemed to mean the Initial
Commencement Date.
(b) The Completion Date as to the 3rd Floor or the 2nd
Floor, as the case may be, shall be the earlier of (i) the
date upon which such portion of the Premises have been
substantially completed in accordance with the plans and
specifications of Landlord (other than any work which cannot be
completed on such date provided such incompletion will not
substantially interfere with Tenant's use of the Premises), or
(ii) the date on which Tenant takes possession of a portion of
or all of such portion of the Premises except for purposes of
installing Tenant's improvement's, equipment and similar items;
provided, however, that if Landlord shall be delayed in such
substantial completion as a result of any of the following
(each, a "Tenant Delay"): (1) Tenant's failure to agree to
plans, specifications, or cost estimates before the dates
referred to in the Work Letter Agreement attached hereto as
Exhibit "B" and made a part hereof; (2) Tenant's request for
materials, finishes or installations other than Landlord's
standard provided Landlord notifies Tenant that such materials,
finishes or installations may
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cause a delay; (3) Tenant's changes in plans after Landlord's
and Tenant's approval thereof in accordance with the provisions
of Exhibit "B" hereto; or (4) the physical interference with
Landlord's completion of the Premises by a party employed by
Tenant provided Landlord gives prompt notice of such delay to
Tenant, the Completion Date and the payment of rent hereunder
shall be accelerated by the number of days of such delay, but
in no event prior to February 1, 2000.
(c) Landlord agrees to perform the "Building Standard Work"
or "Building Nonstandard Work" in the Premises as provided in
the Work Letter Agreement (the "Landlord's Work") with
diligence, subject to events and delays due to causes beyond
its reasonable control. The Premises shall be deemed
substantially completed and possession delivered when Landlord
has substantially completed the work to be constructed or
installed pursuant to the provisions of the Work Letter
Agreement, subject only to the completion of items on
Landlord's punch list (and exclusive of the installation of all
telephone and other communications facilities and equipment and
other finish work to be performed by or for Tenant), and a
certificate of occupancy has been issued for the Premises
permitting Tenant to occupy and use the Premises. Tenant shall
have the right to install Tenant's improvements and equipment
in the Premises while Landlord is performing the Landlord's
Work, so long as such installation by Tenant shall not
interfere with Landlord's completion of the Landlord's Work.
(d) The taking of possession by Tenant shall be deemed
conclusively to establish that the Building, other
improvements, and the Premises have been completed in
accordance with the plans and specifications and are in good
and satisfactory condition as of when possession was so taken,
subject to punchlist items, and to latent defects identified by
Tenant within ninety (90) days after the Commencement Date.
2. MONTHLY 2. (a) Tenant shall pay to Landlord throughout the term of
RENTAL. this Lease annual rental payable in equal monthly rental
installments in advance on the first day of each month during
every year of the term hereby demised in lawful money of the
United States, without deduction or offset whatsoever, to
Landlord or to such other firm as Landlord may from time to
time designate in writing in the following amounts:.
Rent Per Rentable
Lease Year Square Foot Annual Rent Monthly Rent
---------- ----------- ----------- ------------
One
(I) PRIOR TO FINAL
COMMENCEMENT DATE 25.00 614,650.00 51,220.83
(II) ON AND AFTER FINAL
COMMENCEMENT DATE 25.00 1,221,475.00 101,789.58
Two 25.60 1,250,790.40 104,232.53
Three 26.20 1,280,105.80 106,675.48
Four 26.80 1,309,421.20 109,118.43
Five 27.40 1,338,736.60 111,561.38
Six 28.00 1,368,052.00 114,004.33
Seven 28.60 1,397,367.40 116,447.28
Eight 29.20 1,426,682.80 118,890.23
Nine 29.80 1,455,998.20 121,333.18
Ten 30.40 1,485,313.60 123,776.13
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notwithstanding the foregoing, rent during the period from the
Initial Commencement Date to the day immediately preceding the
Final Commencement Date shall be reduced by $16,770.00 per month,
and rent during the period on and after the Final Commencement
Date through april 30, 2000 shall be reduced by $33,540.00 per
month (with such amounts being prorated for partial months, if
any); provided, however, that the rent reduction provided in this
sentence shall not extend beyond april 30, 2000 regardless of the
date that the 3rd Floor commencement date and the 2nd Floor
Commencement Date actually occur.
Until notified otherwise, Tenant shall submit all payments to the
following address:
Childress Xxxxx/Galleria 400, LLC
Xxxx Xxxxxx Xxx 000000
Xxxxxxx, XX 00000-0000
Said rental is subject to adjustments as provided herein below. If
this Lease commences on a day other than the first day of a
calendar month, the monthly rental for the fractional month shall
be appropriately prorated.
(b) Tenant recognizes that late payment of any rent or
other sum due hereunder from Tenant to Landlord will result in
administrative expense to Landlord, the extent of which additional
expense is extremely difficult and economically impractical to
ascertain. Tenant therefore agrees that if rent or any other
payment due hereunder from Tenant to Landlord remains unpaid ten
(10) days after said amount is due, the amount of such unpaid rent
or other payment shall be increased by a late charge to be paid to
Landlord by Tenant in an amount equal to five percent (5%) of the
amount of the delinquent rent or other payment. The amount of the
late charge to be paid to Landlord by Tenant for any month shall
be computed on the aggregate amount of delinquent rents and other
payments, including all accrued late charges then outstanding, and
shall be deemed to be rental for all purposes hereunder. Tenant
agrees that such amount is a reasonable estimate of the loss and
expense to be suffered by Landlord as a result of such late
payment by Tenant and may be charged by Landlord to defray such
loss and expense. The provisions of this paragraph in no way
relieve Tenant of the obligation to pay rent or other payments on
or before the date on which they are due, nor do the terms of this
paragraph in any way affect Landlord's remedies pursuant to
Paragraph 18 of this Lease in the event said rent or other payment
is unpaid after the date due. Notwithstanding the foregoing,
Tenant shall not be required to pay a late charge for the first
late payment during each calendar year for which such late payment
would otherwise be due.
(c) The monthly rental payable hereunder shall be subject
to adjustment each calendar year during the term of this Lease,
commencing January 1, 2001, in the following manner:
(i) Tenant shall pay to Landlord as additional
rent Tenant's proportionate share of the amount by which
the Direct Operating Expenses (as hereinafter defined)
incurred by Landlord in the operation of the Building
during each calendar year of the Lease Term exceeds the
Direct Operating Expenses for the base year 2000
(hereinafter called the "Base Year"). Tenant's
Proportionate Share of Direct Operating Expenses (as
hereinafter defined) shall be prorated on a daily basis
using a 365-day calendar year, as necessary for any year
during which this Lease is in effect for less than the full
twelve month calendar year. Direct Operating Expenses
shall be calculated on an accrual basis, using a method
consistent with the Base Year calculation method. For the
purpose of estimating the Direct Operating Expenses during
each subsequent year after the Base Year, Landlord shall
reasonably estimate such expenses (assuming ninety-five
percent (95%) occupancy of the Building if the actual
occupancy is less than ninety-five percent) based on the
actual Direct Operating Expenses for the preceding year and
any then-known cost changes or additional expenses which
can be reasonably anticipated to occur within the year for
which such expenses are estimated. Notwithstanding anything
contained in this Lease to the contrary, for purposes of
determining Direct Operating Expenses for the Base Year and
each calendar year subsequent to the Base Year, in the
event actual occupancy of the Building is less than
ninety-five percent (95%) during any calendar year, the
actual Direct Operating Expenses, including taxes, for such
calendar year shall be increased to the amount which
Landlord reasonably estimates would have been incurred for
such calendar year had the occupancy of the Building been
ninety-five percent (95%) throughout such year and had the
Building been fully assessed for property tax purposes as a
completed building, and the amount so estimated shall be
deemed to be the Direct Operating Expenses for such
calendar year.
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(ii) "Tenant's Proportionate Share of Direct
Operating Expenses" shall mean, for each calendar year (or
portion thereof), the product of (i) the Operating Expense
Amount (defined below) multiplied by (ii) a fraction, the
numerator of which is the number of square feet contained
in the Premises (48,859) and the denominator of which is
the number of rentable square feet contained in the
Building (432,402). As used herein, the "Operating Expense
Amount" shall mean, for each calendar year (or portion
thereof), the amount by which the Direct Operating
Expenses (defined below) exceeds the Base Year's Direct
Operating Expenses.
(iii) For purposes of this Lease, the term "Direct
Operating Expenses" shall consist of all "Operating Costs"
(as hereinafter defined) for the Building, and the
Building's share of all Operating Costs for any parking
area and common area serving the Building, and the Property
(the Building, the parking area, the common area and the
Property being hereinafter referred to collectively as the
"Project"). For purposes of this Lease, the term "Operating
Costs" shall mean all reasonable expenses, costs and
disbursements computed on the accrual basis, incurred or
paid in connection with the operation, maintenance and
repair of the Project, including, but not limited to the
following:
a. Building personnel costs, including, but not
limited to, salaries, wages, fringe benefits, social
security taxes and other direct and indirect costs
of Senior Property Manager, Engineering Manager,
Building Manager, Accounting Manager, Construction
Manager, Promotions Manager, Security Manager, and
each department's supporting personnel and
administrative assistants, engineers, construction
department, superintendents, watchmen, porters and
any other personnel engaged in the operation and
maintenance of the Project and associated overhead.
b. The cost of all supplies, tools, equipment and
materials used in the operation and maintenance of
the Project, except that the cost of motor vehicles
or other similar heavy equipment shall be amortized
over its useful life.
c. The cost of water, sewer, gas, heating, lighting,
ventilation, electricity, air conditioning, and any
other utilities supplied or paid for by Landlord for
the Project (and not for any individual tenant) and
the costs of maintaining the systems supplying the
same, including, but not limited to, any utility and
service costs incurred by Landlord.
d. The cost of all agreements for maintenance and
service of the Project (and not for any individual
tenant) and the equipment therein, including, but
not limited to, agreements relating to security
service, window cleaning, elevator maintenance,
chiller maintenance, Building management, janitorial
service, pest control and landscaping maintenance.
e. The cost of maintaining sprinkler systems, fire
extinguishers and fire hoses, emergency systems and
equipment that may be now or hereafter required by
the Americans With Disabilities Act (except as
provided in Subparagraph 5(c) of this Lease), and
the cost of all security services and protective
services or devices rendered to or in connection
with the Project or any part thereof; any costs
incurred in order to comply with all changes to
governmental laws, statutes, ordinances, rules,
regulations or requirements currently in effect, all
changes in interpretation of governmental laws,
statutes, ordinances, rules, regulations or
requirements currently in effect, and all future
governmental laws, statutes, ordinances, rules,
regulations or requirements; and the costs incurred
in order to comply with requirements of any insurer
or mortgagee, where such requirements concern safety
or structural features of the Building and are
commercially reasonable in light of requirements
generally imposed in the insurance or real estate
lending industries with respect to similar
buildings.
f. Insurance premiums for insurance for the Project
maintained by Landlord hereunder, including, but not
limited to, premiums for insurance maintained
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by Landlord, business interruption or rental
abatement insurance, garage keeper's insurance, and
liability insurance.
g. The cost of repairs and general maintenance of
the Project (excluding repairs, alterations and
general maintenance paid by proceeds of insurance or
attributable solely to tenants of the Project other
than Tenant, but including deductibles paid by
Landlord), including, but not limited to: any
management fees charged by Landlord in an amount not
to exceed the greater of (i) five percent (5%), or
(ii) the percentage charged for the Base Year, of
the Project revenues; promotional or seasonal
expenses; maintenance and cleaning of common areas
and facilities; lawn mowing, gardening, landscaping,
and irrigation of landscaped areas; line painting,
pavement repair and maintenance, sweeping, and
sanitary control; removal of snow, trash, rubbish,
garbage, and other refuse; the cost of personnel to
implement such services, to direct parking, and to
patrol the common areas; the cost of exterior and
interior painting of common areas; all maintenance
and repair costs; and the cost of maintenance of
sewers and utility lines.
h. The amortization amount (including interest at a
market rate generally available to owners of similar
buildings for similar alterations or improvements)
necessary to amortize the cost of capitalized
alterations or improvements to the Project,
including, but not limited to, the replacement of
existing furniture, fixtures, equipment or systems
that have become obsolete or do not function
efficiently and effectively or as they were
originally intended for a first class office
building or are intended to reduce or control
Operating Expenses. The amortization period selected
by the Landlord shall reflect the useful life of the
alteration or improvement.
i. All taxes, assessments, and governmental or other
charges, general or special, ordinary or
extraordinary, foreseen or unforeseen (including,
but not limited to, Community Improvement District
assessments), which are levied, assessed, or
otherwise imposed against the Project, street
lights, personal property or rents, or on the right
or privilege of leasing the Project, collecting
rents therefrom or parking vehicles thereon, by any
federal, state, county, or municipal government or
by any special sanitation district or by any other
governmental or quasi-governmental entity that has
taxing or assessment authority, and any other taxes
and assessments, together with any interest and
penalties thereon (unless resulting from Landlord's
failure to pay such amount when due), attributable
to the Project or its operation (herein collectively
called the "Impositions"), but exclusive of federal,
state and local income taxes of Landlord (and any
other tax imposed or measured by Landlord's income
or profits), inheritance taxes, franchise taxes,
estate taxes, gift taxes, transfer taxes, excess
profit taxes and any taxes imposed in lieu of such
taxes. If at any time during the Lease Term, the
present method of taxation or assessment shall be so
changed that the whole or any part of the
Impositions now levied, assessed or imposed on real
estate and the improvements thereon shall be
discontinued and as a substitute therefor, or in
lieu of and in addition thereof, taxes, assessments,
levies, impositions or charges shall be levied,
assessed and/or imposed wholly or partially as a
capital levy or otherwise on the rents received from
the Project or the rents reserved herein or any part
thereof, then such substitute or additional taxes,
assessments, levies, impositions or charges, to the
extent so levied, assessed or imposed, shall be
deemed to be included within the Impositions and the
operating costs. Tenant will be responsible for ad
valorem taxes on its personal property.
j. All assessments (if any) assessed against the
Project during the Lease Term pursuant to any
protective covenants, easement agreements or common
area maintenance agreements now or hereafter of
record against the Project including, but not
limited to, any common area maintenance charges
assessed pursuant to that certain Common Area
Maintenance Agreement dated July 2, 1985, as said
Agreement has been and may be amended from time to
time.
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k. Reasonable fees of accountants, attorneys and
other consultants, professionals or advisors
incurred by Landlord with respect to operational
issues at the Project and for the benefit of
tenants in the Building as a whole.
1. Any other costs or expenses incurred by Landlord
in the operation of the Project that would be
considered an expense of maintaining, operating or
repairing the Project, all such costs and expenses
being recorded on an accrual basis in accordance
with accepted principles of sound management and
accounting practices applicable to first class
office building complexes and consistently applied.
Direct Operating Expenses shall not include the
following items:
Leasing commissions, finders' fees, brokerage
fees, and costs and fees incurred with the
negotiation of leases (but not management fees);
Costs of marketing the Building; Costs (including
legal fees) incurred by Landlord in enforcing the
terms of any tenant lease; Rent under any ground
leases; Costs of furnishing services to other
tenants or occupants to the extent that such
services are in excess of services Landlord offers
to all tenants at Landlord's expense; Lease takeover
costs incurred by Landlord in connection with leases
at the Property; Costs and expenses of the sale of
all or any portion of the Property; Costs incurred
by Landlord with respect to repairs, goods and
services (including utilities sold and supplied to
tenants and occupants of the Property) to the extent
that Landlord is entitled to reimbursement for such
costs from the tenants; Interest, points and fees on
debt or amortization or for any mortgage or
mortgages encumbering the Property, or any part
thereof, and all principal and other sums incurred
in respect to any indebtedness (whether or not
secured by a mortgage lien) and on any equity
participations of any lender or landlord, and all
costs incurred in connection with any financing,
refinancing or syndication of the Property, or any
part thereof; Costs of the original construction of
the Property; Income, franchise, transfer,
inheritance, capital stock, estate, franchise,
profit or gift taxes; Costs of repairs or
replacements incurred by reason of fire or other
casualty or condemnation in excess of the insurance
deductible; Costs for performing tenant
installations for any individual tenant or for
performing work or furnishing services to or for
individual tenant.
(iv) Nothing contained in this Section shall imply
any duty on the part of Landlord to pay any expense or
provide any service not otherwise imposed by the express
terms of this Lease.
(v) On or about December 31 of each calendar year
during the Lease Term, Landlord shall estimate the amount
of Direct Operating Expenses and Tenant's Proportionate
Share of Direct Operating Expenses for the ensuing calendar
year or (if applicable) fractional part thereof and notify
Tenant in writing of such estimate. Such estimate shall be
made by Landlord in the exercise of its discretion, and
shall not be subject to dispute by Tenant. The amount of
additional rent specified in such notification shall be
paid by Tenant to Landlord in equal monthly installments in
advance on the first day of each month of such ensuing
calendar year, at the same time and in the same manner as
base rent.
(vi) Within One Hundred Twenty (120) days after
December 31 of any calendar year during the Lease Term for
which additional rent is due under this Section, Landlord
shall advise Tenant in writing, of the amount of actual
Direct Operating Expenses for such calendar year. If the
Direct Operating Expenses for such calendar year prove to
be greater than the amount previously estimated, Landlord
shall invoice Tenant for the deficiency as soon as
practicable after the amount of underpayment has been
determined, and Tenant shall pay such deficiency to
Landlord within thirty (30) days following its receipt of
such invoice. If, however, Direct Operating Expenses for
such calendar year are lower than the amount previously
estimated, Tenant shall receive a credit (or in the event
the term of this Lease has then expired, Tenant shall
receive a cash refund) toward the next ensuing monthly
payment or payments of the estimated amount of Tenant's
Proportionate Share of Direct Operating Expenses in the
amount of such overpayment until depleted, but in no
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event shall Tenant's Proportionate Share of Direct
Operating Expenses be deemed to be less than zero.
(vii) Tenant may audit Landlord once a year (for the
previous year only) for the purpose of ascertaining whether
Landlord is in compliance with this Lease regarding the
calculation of Direct Operating Expenses. Tenant shall give
reasonable notice of the audit and a certified public
accounting firm shall conduct the audit at the Landlord's
office in a manner which is not unreasonably disruptive to
Landlord's business. In the event any such audit reveals
that Landlord's evaluation of Direct Operating Expenses for
the Building exceeds actual Direct Operating Expenses for
the Building by more than 10%, Landlord shall promptly (but
not later than 30 days following demand by Tenant)
reimburse Tenant for the reasonable costs of the audit.
In addition, Landlord shall remit to Tenant the amount
of any overcharge to Tenant.
3. SECURITY 3. Tenant shall deposit with Landlord on or before the Fifth
DEPOSIT. (5th) anniversary of the Final Commencement Date the sum equal to
the monthly rent due under this Lease for the full calendar month
of the Lease Term commencing on such fifth (5th) anniversary of
The Final Commencement Date, which sum shall be held by Landlord,
without obligation for interest, as security for the full, timely
and faithful performance of Tenant's covenants and obligations
under this Lease. It is understood and agreed that such deposit is
not an advance rental deposit or prepayment of the last month's
rent due hereunder, and is not a measure of Landlord's damages in
case of Tenant's default. Upon the occurrence of any default or
event of default by Tenant not cured within any applicable cure
period provided for in this Lease, Landlord may, from time to
time, without prejudice to any other remedy provided herein or
provided by law, use such funds to the extent necessary to make
good any arrears of rent or other payments due Landlord hereunder,
and any other damage, injury, expense or liability caused by any
event of Tenant's default; and Tenant shall pay to Landlord on
demand the amount so applied in order to restore the security
deposit to its original amount. Although the security deposit
shall be deemed the property of Landlord, any remaining balance of
such deposit shall be returned by Landlord to Tenant or Tenant's
last permitted assignee at such time not to exceed thirty (30)
days after termination of this Lease when Landlord shall have
determined that all Tenant's obligations under this Lease have
been fulfilled. Landlord shall not be required to keep any
security deposit separate from its general funds. Upon the
occurrence of any events of default or default as described in
this Lease not cured within any applicable cure period provided
for in this Lease, said security deposit shall become due and
payable to Landlord. Subject to the other terms and conditions
contained in this Lease, if the Building is conveyed by Landlord,
said deposit may be turned over to Landlord's grantee, and if so
and to the extent such grantee assumes or is otherwise bound by
Landlord's obligations with respect thereto, Tenant hereby
releases Landlord from any and all liability with respect to said
deposit and its application or return.
4. OCCUPANCY 4. (a) Tenant shall use and occupy the Premises for general office
AND USE. purposes (which, for purposes hereof, may include computer testing
and maintenance and operation of a help center twenty-four (24)
hours a day, seven (7) days a week) and for no other use or
purpose without the prior written consent of Landlord.
(b) Tenant shall not do or permit anything to be done in or
about the Premises which will in any way obstruct or interfere
with the rights of other tenants or occupants of the Building or
injure or annoy them, nor use or allow the Premises to be used for
any improper, immoral, unlawful, or objectionable purposes or for
any business, use or purpose deemed to be disreputable or
inconsistent with the operation of a first class office building,
nor shall Tenant cause or maintain or permit any nuisance in, on,
or about the Premises (Landlord acknowledges that Eltrax Systems,
Inc.'s use of the Premises for the purposes set forth above shall
not in and of itself be deemed a violation of this Paragraph).
Tenant shall not commit or suffer the commission of any waste in,
on, or about the Premises.
5. COMPLIANCE 5. (a) Tenant shall not use the Premises or permit anything to be
WITH LAWS. done in or about the Premises which will in any way conflict with
any law, statute, ordinance, or governmental rule, regulation or
requirement now in force or which may hereafter be enacted or
promulgated. Tenant shall not do or permit anything to be done on
or about the Premises or bring or keep anything therein which will
in any way increase the rate of any insurance upon the Building in
which the Premises are situated or any of its contents or cause a
cancellation of said insurance or otherwise affect said insurance
in any manner, and Tenant shall at its sole cost and expense
promptly comply with all laws, statutes, ordinances, and
governmental rules,
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regulations, or requirements now in force or which may
hereafter be in force and with the requirements of any board
of fire underwriters or other similar body now or hereafter
constituted relating to or affecting the condition, use, or
occupancy of the Premises. Notwithstanding anything contained
in this paragraph to the contrary, Tenant shall not be
responsible for ensuring that the common areas of the
Building comply with applicable laws.
(b) Tenant shall not use, handle, store, deal in,
discharge, or fabricate any Hazardous Materials (as herein
defined) on or about the Premises, except for ordinary office
cleaning supplies and solvents (in amounts customarily
stored in offices), all of which shall be handled, stored
and discharged only in accordance with all applicable laws,
rules, ordinances and regulations. Tenant shall indemnify
Landlord (and anybody claiming by, through, or under
Landlord) from and against any and all claims, damages,
losses, costs, and expenses (including reasonable attorneys'
fees and court costs) incurred by Landlord or anybody
claiming by, through, or under Landlord as a result of the
existence of any Hazardous Materials on or about the Premises
or any environmental problems relating to the Premises to the
extent caused by or related to the delivery, deposit or
creation of Hazardous Materials on or about the Premises
during the term of this Lease by Tenant or Tenant's agents,
employees, contractors or invitees. As used herein,
"Hazardous Materials" means any petroleum or chemical liquids
or solids, liquid or gaseous products, contaminants, oils,
radioactive materials, asbestos, PCB's, ureaformaldhyde, or
any toxic or hazardous waste or hazardous substances, as
those terms are used in (A) the Resources Conservation
Recovery Act, as amended by the Hazardous and Solid Waste
Amendments of 1984, 42 U.S.C. ss. 6901 et seq.; (B) the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. ss. 9601 et seq.;
(C) the Clean Water Act, 33 U.S.C. ss. 1251 et seq.; (D) the
Toxic Substances and Control Act, 15 U.S.C. ss. 2601 et seq.;
(E) the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; (F) any
and all applicable environmental laws and regulations of the
State of Georgia; and (G) any and all other applicable
federal, state or local law or regulation governing hazardous
substances or workplace health or safety, as such laws may be
amended from time to time (collectively, the "Environmental
Laws").
(c) Landlord represents, to Landlord's actual
knowledge, that the Building is in compliance with the
existing provisions of the Americans With Disabilities
Act as currently interpreted and that there are no Hazardous
Materials on the Property in violation of any applicable
environmental laws and regulations. Landlord shall be
responsible for the Premises and the Building common areas
being in compliance on the 2nd Floor Commencement Date and
the 3rd Floor Commencement Date, as applicable, with the
americans with disabilities act and other applicable building
codes and laws, as in effect and as interpreted on the
commencement date, with the cost of such compliance being
born by Landlord as to the Building common areas and by
Landlord and Tenant in accordance with Exhibit "B" hereto as
to the Premises.
6. ALTERATIONS. 6. Tenant shall not make or suffer to be made any
alterations, additions, or improvements in, on, or to the
Premises or any part thereof without the prior written
consent of Landlord, which consent shall not be unreasonably
withheld or delayed unless such alteration, addition or
improvements affects the structural components of the
Building or the roof of the Building, or are visible from the
exterior of the Premises, and no such alterations, additions
or improvements shall be made without the supervision of
Landlord's designated agent or representative. In the event
Landlord consents to the making of any such alterations,
additions, or improvements by Tenant, the same shall be made
by Tenant, at Tenant's sole cost and expense, in accordance
with all applicable laws, ordinances, and regulations and all
requirements of Landlord's and Tenant's insurance policies.
All work shall be performed in accordance with plans and
specifications approved by Landlord, and each contractor and
subcontractor must first be approved in writing by Landlord
(which approval shall not be unreasonably withheld or
delayed), or if such work affects the structural components
or the roof of the Building or are visible from the exterior
of the Premises, at Landlord's option, the alteration,
addition or improvement shall be made by Landlord for
Tenant's account, and Tenant shall reimburse Landlord for the
cost thereof upon demand. Tenant agrees that, except, for the
initial tenant improvements constructed in the Premises,
Landlord shall have the right to charge a fee for any and all
construction supervision provided by Landlord's designated
agents or representatives in connection with any alterations,
additions, or improvements to the Premises by Tenant. Such
fee, at Landlord's option, shall be either a fixed fee or a
fee calculated on an hourly basis, considering the time
expended by Landlord's agents or representatives in
supervising Tenant's construction. Notwithstanding the
foregoing, Tenant may repaint and recarpet the Premises, and
perform other similar
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decorating alterations without the prior approval of
Landlord, but after giving Landlord at least five (5) days
prior notice.
7. REPAIR. Tenant shall, at all times during the term hereof at Tenant's
sole cost and expense, keep the Premises and every part
thereof in good order, condition and repair, excepting
ordinary wear and tear, damage thereto by fire, earthquake,
act of God or the elements. Tenant shall upon the expiration
or sooner termination of the term hereof, unless Landlord
demands otherwise as in Paragraph 23 hereof provided,
surrender to Landlord the Premises and all repairs, changes,
alterations, additions and improvements thereto in the same
condition as when received, or when first installed, ordinary
wear and tear, damage by fire, earthquake, act of God, or the
elements excepted. It is hereby understood and agreed that
Landlord has no obligation to alter, remodel, improve,
repair, decorate, or paint the Premises or any part thereof
except as specified in the Work Letter Agreement, and that no
representations respecting the condition of the Premises or
the Building have been made by Landlord to Tenant, except as
specifically herein set forth.
8. LIENS. 8. Tenant shall keep the Premises free from any liens
arising out of any work performed, material furnished, or
obligations incurred by Tenant. In the event that Tenant
shall not, within twenty (20) days following the
recordation of any such lien, cause the same to be released
of record by payment or posting of a proper bond, Landlord
shall have, in addition to all other remedies provided herein
and by law, the right, but not the obligation, to cause the
same to be released by such means as it shall deem proper,
including payment of the claim giving rise to such lien. All
such sums paid by Landlord and all expenses incurred by it in
connection therewith shall be considered additional rent and
shall be payable to Landlord by Tenant on demand and with
interest at the rate of four percentage points higher than
the prime commercial lending rate from time to time of
SunTrust Bank in Atlanta, Georgia, provided, however, that if
such rate exceeds the maximum rate permitted by law, the
maximum lawful rate shall apply; the interest rate so
determined is hereinafter called the "Agreed Interest Rate".
Landlord shall have the right at all times to post and keep
posted on the Premises any notices permitted or required by
law, or which Landlord shall deem proper, for the protection
of Landlord, the Premises, the Building, and any other party
having an interest therein, from mechanics' and materialmen's
liens, and Tenant shall give to Landlord at least five (5)
business days prior notice of commencement of any
construction on the Premises.
9. ASSIGNMENT 9. (a) Tenant shall not sell, assign, encumber or otherwise
AND SUBLETTING transfer by operation of law or otherwise this Lease or any
interest herein, sublet the Premises or any portion thereof,
or suffer any other person to occupy or use the Premises or
any portion thereof, without the prior written consent of
Landlord as provided herein, which shall not be unreasonably
withheld or delayed, nor shall Tenant permit any lien to be
placed on the Tenant's interest by operation of law. Tenant
shall, by written notice, advise Landlord of its desire from
and after a stated date (which shall not be less than fifteen
(15) days nor more than ninety (90) days after the date of
Tenant's notice) to sublet the Premises or any portion
thereof for any part of the term hereof; and supply Landlord
with such information, financial statements, verifications
and related materials as Landlord may request or desire to
evaluate the written request to sublet; and in such event
Landlord shall have the right, to be exercised by giving
written notice to Tenant within ten (10) days after receipt
of Tenant's notice and all said information, financial
statements, verifications and related materials requested by
Landlord, to terminate this Lease as to the portion of the
Premises described in Tenant's notice and such notice shall,
if given, terminate this Lease with respect to the portion of
the Premises therein described as of the date stated in
Tenant's notice. Said notice by Tenant shall state the name
and address of the proposed subtenant, and Tenant shall
deliver to Landlord a true and complete copy of the proposed
sublease with said notice. If said notice shall specify all
of the Premises and Landlord shall give said termination
notice with respect thereto, this Lease shall terminate on
the date stated in Tenant's notice. If, however, this Lease
shall terminate pursuant to the foregoing with respect to
less than all the Premises, the rent, as defined and reserved
hereinabove and as adjusted pursuant to Paragraph 19(c),
shall be adjusted on a pro rata basis to the number of square
feet retained by Tenant, and this Lease as so amended shall
continue thereafter in full force and effect. If Landlord,
upon receiving said notice by Tenant with respect to any of
the Premises, shall not exercise its right to terminate,
Landlord may in its reasonable discretion withhold or grant
its consent to Tenant's subletting the Premises specified in
said notice. Tenant shall, at Tenant's own cost and expense,
discharge in full any commissions which may be due and owing
as a result of any proposed assignment or subletting, whether
or not the Lease is terminated pursuant
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hereto (except that Tenant shall not be obligated for
leasing commissions due for periods beyond the original
term of this Lease if Landlord terminates this Lease
pursuant to this Paragraph) and rented by Landlord to the
proposed subtenant or any other tenant. Tenant agrees to
pay to Landlord, promptly after request therefor, (i) the
amount of all reasonable attorneys' fees and expenses
incurred by Landlord in connection with any assignment or
subletting issues or review of documentation relating
thereto, and (ii) $500.00 as an administrative fee for
Landlord's time and effort in connection with any
assignment or subletting issues.
(b) Any subletting or assignment hereunder by Tenant
shall not result in Tenant being released or discharged
from any liability under this Lease. As a condition to
Landlord's prior written consent as provided for in this
paragraph, the assignee or subtenant shall agree in writing
to comply with and be bound by all of the terms, covenants,
conditions, provisions and agreements of this Lease, and
Tenant shall deliver to Landlord promptly after execution,
an executed copy of each sublease or assignment and an
agreement of said compliance by each sublessee or assignee.
Notwithstanding any provision to the contrary contained
herein, except for any Affiliate Transfer (as defined in
Paragraph 9(g) below), any subletting or assignment by
Tenant hereunder shall result in all rights of first
refusal, rights of first offer, rights to expand, and
renewal options granted herein being forfeited by Tenant
and its assignee or subtenant. Tenant expressly
acknowledges that Landlord intends for all of such rights
to be personal and exclusive to Tenant, and that such
rights are not subject to transfer to any other party.
(c) Landlord's consent to any sale, assignment,
encumbrance, subletting, occupation, lien or other transfer
shall not release Tenant from any of Tenant's obligations
hereunder or be deemed to be a consent to any subsequent
occurrence. Any sale, assignment, encumbrance, subletting,
occupation, lien or other transfer of this Lease which does
not comply with the provisions of this Paragraph 9 shall be
void.
(d) For purposes of this Section, an assignment of
stock or other direct or indirect ownership interest in
Tenant which constitutes a controlling interest in Tenant
shall be deemed an assignment within the meaning of and be
governed by this Section, except during any period when
Tenant's stock is publicly traded.
(e) Notwithstanding any provision contained herein,
Tenant agrees that it shall not sell, assign, encumber or
otherwise transfer by operation of law or otherwise this
Lease or any interest herein, or sublet the Premises or any
portion thereof, to any tenant who currently leases space
in the Building unless Landlord cannot accommodate such
tenant in other space in the Building.
(f) If this Lease is assigned, or if the Premises or
any part thereof are sublet or occupied by anyone other
than Tenant during the Lease Term (with or without
Landlord's consent), Landlord shall be entitled to fifty
percent (50%) of all rents, fees and other considerations
paid by such subtenant, assignee or occupant with respect
to the Premises, determined after commissions and tenant
improvements paid by Tenant to third parties with respect
thereto, in excess of the rental specified in this Lease.
Notwithstanding the foregoing, Landlord shall not be
entitled to any portion of such consideration received by
Tenant in connection with a merger or reorganization
involving Tenant or a sale of substantially all of the
assets of Tenant.
(g) Notwithstanding the foregoing provisions of this
Paragraph 9, such consent of Landlord shall not be
necessary or required in connection with any assignment or
subletting to any firm, person, corporation, partnership or
other entity (an "Affiliate"), now or hereafter directly or
indirectly in control of, controlled by or under common
control with Tenant, or which acquires all or substantially
all of the assets or stock of Tenant, or into which or
with which Tenant shall merge or consolidate (collectively,
an "Affiliate Transfer"), provided that Tenant shall remain
liable for performance of its obligations hereunder and, if
Tenant shall not survive any such Affiliate Transfer as a
separate, on-going business entity, the then
creditworthiness of any successor to Tenant is at least
substantially equal to the then creditworthiness of Tenant,
as determined in Landlord's reasonable judgment. Tenant
shall provide to Landlord at least ten (10) business days
prior written notice of any proposed Affiliate Transfer,
including information regarding the creditworthiness of the
proposed transferee.
10. INSURANCE AND 10. (a) Landlord shall not be liable to Tenant and Tenant
INDEMNIFICATION. hereby waives all claims against Landlord for any injury or
damages to any person or property in or about the Premises
by or from any cause whatsoever covered by Tenant's
insurance or which would be covered by Tenant's insurance
if Tenant maintained the insurance required by Tenant under
this Lease, without limiting the generality of the
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foregoing, whether caused by water leakage of any character
from the roof, walls, basement, or other portion of the
Premises or the Building, or caused by gas, fire, or
explosion of the Building or the complex of which it is a
part or any part thereof; except to the extent caused by the
gross negligence or willful misconduct of Landlord or
Landlord's property manager or their respective employees
acting within the scope of their duties or in the course of
their employment with Landlord.
(b) Tenant shall hold Landlord harmless from and defend
and indemnify Landlord against any and all claims or
liability for any injury or damage to any person or property
whatsoever: (i) occurring in, on or about the Premises or any
part thereof, (ii) occurring in, on, or about any facilities
(including, without limitation, elevators, stairways,
passageways or hallways), the use of which Tenant may have in
conjunction with other tenants of the Building, to the extent
such injury or damage shall be caused by the act, neglect,
fault of, or omission of any duty with respect to the same by
Tenant, its agents, employees, or invitees. Tenant further
agrees to indemnify, defend and save harmless Landlord
against and from any and all claims in any manner relating to
any work or thing whatsoever done by Tenant in or about, or
any transactions of Tenant concerning, the Premises, and will
further indemnify, defend and save Landlord harmless against
and from any and all claims arising from any breach or
default on the part of Tenant in the performance of any
covenant or agreement on the part of Tenant to be performed
pursuant to the terms of this Lease, or arising from any act
or negligence of Tenant, or any of its agents, contractors,
employees and licensees, and from and against all costs,
counsel fees, expenses and liabilities incurred in connection
with any such claim or action or proceeding brought thereon.
Furthermore, in case any action or proceeding be brought
against Landlord by reason of any claims or liability, Tenant
agrees to defend such action or proceeding at Tenant's sole
expense by counsel reasonably satisfactory to Landlord. The
provisions of this Lease with respect to any claims or
liability occurring prior to the termination or expiration of
this Lease shall expressly survive such termination or
expiration of this Lease.
(c) Landlord shall hold Tenant harmless from and defend
and indemnify Tenant against any and all claims or
liabilities for any injury or damage to any person or
property whatsoever occurring in, on or about the Building or
the Property, but excluding the Premises, unless relating to
Landlords entry into the Premises) to the extent such injury
or damage shall be caused by the negligent acts or omissions
of Landlord or Landlord's agents, employees, or contractors.
Landlord further agrees to indemnify, defend and save Tenant
harmless against any and all claims arising from any breach
or default on the part of Landlord in the performance of any
covenant or agreement on the part of Landlord to be performed
pursuant to the terms of this Lease. The indemnifications by
Landlord set forth in this Paragraph 10(c) are subject to any
limitations contained in Paragraph 11 or elsewhere in this
Lease. Furthermore, in case any action or proceeding be
brought against Tenant by reason of any claims or liability,
Landlord agrees to defend such action or proceeding at
Landlord's sole expense by counsel reasonably satisfactory to
Tenant. The provisions of this Lease with respect to any
claims or liability occurring prior to the termination or
expiration of this Lease shall expressly survive such
termination or expiration of this Lease.
(d) Tenant agrees to purchase at its own expense and to
keep in force during the term of this Lease all insurance
coverages required by Landlord to be maintained by tenants in
the Building, including, but not limited to, the policies of
insurance specified on Exhibit "G" attached to this Lease.
11. WAIVER OF 11. Each of Landlord and Tenant hereby releases the other
SUBROGATION. from any and all liability or responsibility to the other or
anyone claiming through or under them by way of subrogation
or otherwise for any loss or damage to property caused by
fire or any other perils insured in policies of insurance
covering such property, even if such loss or damage shall
have been caused by the fault or negligence of the other
party, or anyone for whom such party may be responsible,
including any other tenants or occupants of the remainder of
the Building in which the Premises are located; provided,
however, that this release shall be applicable and in force
and effect only to the extent that such release shall be
lawful at that time and in any event only with respect to
loss or damage occurring during such time as the releasors's
policies shall contain a clause or endorsement to the effect
that any such release shall not adversely affect or impair
said policies or prejudice the right of the releasor to
coverage thereunder and then only to the extent of the
insurance proceeds payable under such policies. Each of
Landlord and Tenant agrees that it will request its insurance
carriers to include in its policies such a clause or
endorsement. If extra cost shall be charged therefor, each
party shall advise the other thereof and of the amount of the
extra cost, and the other party, at its election, may pay the
same, but
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shall not be obligated to do so. If such other party fails to
pay such extra cost, the release provisions of this
Paragraph shall be inoperative against such other party to
the extent necessary to avoid invalidation of such releasor's
insurance.
12. SERVICE AND 12. (a) Landlord shall maintain, repair and replace in a
UTILITIES. manner consistent with comparable Class A office buildings in
the metropolitan Atlanta area, the public and common areas of
the Building, including lobbies, stairs, elevators, corridors
and restrooms, the windows in the Building, the mechanical,
plumbing and electrical equipment serving the Building, the
roof, the exterior, and the structure itself, in reasonably
good order and condition except for damage occasioned by the
act of Tenant (other than normal wear and tear from Tenant's
usage), which damage shall be repaired by Landlord at
Tenant's expense. In the event Tenant requires or needs to
have one or more separate systems of either heating,
ventilating, air conditioning or other similar systems over
and above that provided by Landlord, the installation, care,
expenses and maintenance of each such system shall be borne
by and paid for by Tenant.
(b) Subject to the provisions elsewhere herein
contained and to the rules and regulations of the Building,
Landlord agrees to furnish to the Premises during ordinary
business hours of generally recognized business days (but
exclusive, in any event, of Sundays and legal holidays, which
legal holidays, for purposes hereof shall be New Year's Day,
Memorial Day, Fourth of July, Labor Day, Thanksgiving Day,
Christmas, and such other days as are identified by Landlord
and are recognized in other Class A office buildings in the
metropolitan Atlanta area), heat and air-conditioning
required in Landlord's judgment for the comfortable use and
occupation of the Premises, replacement of bulbs for building
standard fluorescent lights and non-building standard lights,
provided Tenant stocks the bulbs for all of Tenant's
non-building standard lights, janitorial services during the
times and in the manner that such services are, in Landlord's
judgment, customarily furnished in comparable office
buildings in the immediate market area, and elevator service.
Landlord acknowledges that Tenant intends to conduct
business in certain portions of the premises twenty-four (24)
hours per day, seven (7) days per week, and that such usage
will require heating and/or air conditioning beyond the
normal operating hours of the Building. to accommodate such
usage by Tenant, Tenant shall tie directly into the cooling
tower for the Building so that heating and air conditioning
to such portions of the premises can be provided on a
twenty-four (24) hour per day, seven (7) day per week
basis. to compensate Landlord for such after hours heating
and cooling, including, but not limited to, depreciation and
maintenance expenses for the cooling tower, Tenant shall pay
to Landlord monthly, at the same time and in the same manner
that payments of monthly rent are due under this Lease, the
amount of $2,607.00 per month; provided, however, that in
the event any other Tenant in the Building requires and is
provided after hours heating and/or cooling for such Tenant's
Premises, and Landlord collects a charge for such after hours
heating and/or cooling, Landlord shall apply as a credit
against such monthly amount due and payable by Tenant, an
amount equal to $5.50 for each hour of after hours heating
and/or cooling scheduled by each such other Tenant for which
Landlord receives payment. Tenant agrees to keep and cause to
be kept closed all window coverings, if any, when necessary
because of the sun's position, and Tenant also agrees at all
times to cooperate fully with Landlord and to abide by all
the regulations and requirements which Landlord may prescribe
for the proper functioning and protection of said heating,
ventilating, and air-conditioning system and to comply with
all laws, ordinances and regulations respecting the
conservation of energy. Wherever heat-generating machines,
excess lighting or equipment are used in the Premises which
affect the temperature otherwise maintained by the
air-conditioning system, Landlord reserves the right to
install supplementary air conditioning units in the Premises,
and the cost thereof, including the cost of electricity
and/or water therefor, shall be paid by Tenant to Landlord
upon demand by Landlord. Subject to the reasonable approval
of Landlord, Tenant, at Tenant's expense, shall also have the
right to install and separately meter supplementary
air-conditioning units in the Premises. Landlord agrees to
furnish to the Premises water for lavatory and drinking
purposes, subject to the provisions of subparagraph 12(c)
below. Landlord shall in no event be liable for any
interruption or failure of utility services on the Premises,
but Landlord will exercise due diligence to furnish
uninterrupted service.
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(c) Landlord and Tenant acknowledge that Tenant's actual
usage of electrical current at the 2nd floor (the "Actual
Electrical Usage") is anticipated to exceed the standard
amount of electrical current provided generally to other
tenants in the Building without additional charge (the
"Building Standard Electrical Usage"), and that the Actual
Electrical Usage at the 2nd floor shall be separately
metered. Tenant shall pay to Landlord as additional rent
under this Lease the amount by which the Actual Electrical
Usage costs for the 2nd Floor exceed the Building Standard
Electrical Usage costs applicable to the 2nd floor (during
each lease year of the Lease Term. At or about the
commencement of each lease year during the Lease Term,
Landlord shall estimate the Building Standard Electrical
Usage costs, on a square foot basis, for such lease year.
Using the metered electrical readings for the 2nd Floor for
each month during the Lease Term, Landlord shall notify
Tenant, after the expiration of each such month, of the
amount by which Actual Electrical Usage costs for the 2nd
Floor for such month exceed the estimated Building Standard
Electrical usage costs for the 2nd Floor for such month.
Tenant shall pay to Landlord the amount specified in such
notification within thirty (30) days after receipt of such
notification from Landlord. Within one hundred twenty (120)
days after the end of such lease year, Landlord shall advise
Tenant in writing of the actual Building Standard Electrical
Usage costs for such Lease Year. if the estimated amount
charged to Tenant for such Lease Year shall prove to be less
than the actual amount owed by Tenant for such Lease Year,
Landlord shall invoice Tenant for the deficiency as soon as
practicable after the amount of underpayment has been
determined, and Tenant shall pay such deficiency to Landlord
within thirty (30) days following its receipt of such
invoice. If, however, the estimated amount charged to Tenant
for such Lease Year is greater than the actual amount owed by
Tenant for such Lease Year, Tenant shall receive a credit (or
in the event the Lease Term has then expired, Tenant shall
receive a cash refund) toward the next ensuing monthly
payment or payments of estimated excess electrical usage
costs owed by Tenant in the amount of such overpayment until
depleted; provided, however, that the credit (or cash refund)
to which Tenant shall be entitled for any such lease year
shall not exceed the total estimated amount charged to and
paid by Tenant for such Lease Year. Notwithstanding any of
the foregoing provisions to the contrary, the estimated
Building Standard Electrical Usage costs for the first year
of the Lease Term shall be $0.80 per rentable square foot.
(d) Tenant will not without the written consent of
Landlord use any apparatus or device in the Premises which
will result in electrical usage for the 3rd Floor or water
usage for the Premises exceeding the amounts of such
utilities that would be used if the Premises were used for
standard office usage, including but not limited to, office
desk top computers and related electronic equipment, typical
for business offices at the time this Lease is entered into
(the "Standard Office Usage"); nor connect with electric
current, except through existing outlets in the 3rd Floor
or water pipes, any apparatus or device for the purposes of
using electrical current on the 3rd floor or water. If Tenant
in Landlord's judgment shall require water or electrical
current for the 3rd Floor or any other resource (other than
electrical current for the 2nd Floor, which is separately
metered) in excess of the Standard Office Usage (it being
understood that such an excess may result from the number of
fixtures, apparatus and devices in use, the nature of such
fixtures, apparatus and devices, the hours of use, or any
combination of such factors), Tenant shall first procure the
consent of Landlord (which consent shall not be required for
the use specifically permitted in Paragraph 4(a) of this
Lease), which Landlord may refuse, to the use thereof, and
Landlord may cause a special meter to be installed in the
Premises so as to measure the amount of water, 3rd Floor
electrical current or other such resource consumed. The cost
of any such meters and of installation, maintenance, and
repair thereof shall be paid for by Tenant, and Tenant agrees
to pay Landlord promptly upon demand by Landlord for all such
water, 3rd Floor electrical current or other such resource
consumed, as shown by said meters, at the rates charged by
the local public utility furnishing the same, plus any
additional expense incurred in keeping account of the water,
3rd Floor electrical current or other such resource so
consumed.
(e) Landlord shall not be in default hereunder or be
liable for any damages directly or indirectly resulting from,
nor shall the rental herein reserved be abated by reason of
(i) the installation, use or interruption of use of any
equipment in connection with the furnishing of any of the
foregoing utilities and services, (ii) failure to furnish or
delay in furnishing any such utilities or services when such
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failure or delay is caused by acts of God or the elements,
labor disturbances of any character, any other accidents or
other conditions beyond the reasonable control of Landlord,
or by the making of repairs or improvements to the Premises
or to the Building, (iii) the limitation, curtailment,
rationing or restriction on use of water or electricity, gas
or any other form of energy or any other service utility
whatsoever serving the Premises or the Building. Furthermore,
Landlord shall be entitled to cooperate voluntarily in a
reasonable manner with the efforts of national, state or
local governmental agencies or utilities suppliers in
reducing energy or other resources consumption.
Notwithstanding anything to the contrary in Paragraph 12 or
elsewhere in this Lease, if the suspension, delay,
discontinuance, or interruption of water or sewer service, or
electrical service from the boundary of the Property to the
main breaker panel for the Premises, continues for more than
seven (7) consecutive business days, or for a total of thirty
(30) business days in any calendar year, rendering all or a
material portion of the Premises untenantable, and the
restoration of such services is within the reasonable control
of the Landlord, Tenant shall be entitled to an equitable
abatement of rent and other charges for the continuing period
the Premises are thereby rendered untenantable.
(f) Any sums payable under this Paragraph 12 shall be
considered additional rent and may be added to any
installment of rent thereafter becoming due, and Landlord
shall have the same remedies for a default in payment of such
sums as for a default in the payment of rent.
(g) Tenant shall not provide any janitorial services
without Landlord's written consent and then only subject to
supervision of Landlord and by a janitorial contractor or
employees at all times satisfactory to Landlord. Any such
services provided by Tenant shall be at Tenant's sole risk
and responsibility.
13. ESTOPPEL 13. Within seven (7) days following the Commencement Date or
CERTIFICATE. any written request which Landlord may make from time to
time, Tenant shall execute and deliver to Landlord a
certificate substantially in the form attached hereto as
Exhibit "C" and made a part hereof, indicating thereon any
exceptions thereto which may exist at that time. Failure of
Tenant to execute and deliver such certificate shall at
Landlord's option constitute a default hereunder or
constitute an acceptance of the Premises and acknowledgment
by Tenant that the statements included in Exhibit "C" are
true and correct without exception. Landlord and Tenant
intend that any statement delivered pursuant to this
paragraph may be relied upon by Landlord or by any mortgagee,
beneficiary, purchaser or prospective purchaser of the
Building or any interest therein or anyone to whom Landlord
may provide said certificate. Within twenty (20) days
following any written request which Tenant may make from time
to time (but not more than two (2) times in any given
calendar year), Landlord shall execute and deliver to Tenant
a certificate with similar types of information as the
certificate attached hereto as Exhibit "C".
14. HOLDING OVER. 14. Tenant will, at the termination of this Lease by lapse
of time or otherwise, yield up immediate possession to
Landlord. If Tenant retains possession of the Premises or
any part thereof after such termination, then Landlord may,
at its option, serve written notice upon Tenant that such
holding over constitutes any one of (i) creation of a month
to month tenancy, upon the terms and conditions set forth in
this Lease, or (ii) creation of a tenancy of sufferance, in
any case upon the terms and conditions set forth in this
Lease; provided, however, that the monthly rental (or daily
rental under (ii)) shall, in addition to all other sums which
are to be paid by Tenant hereunder, whether or not as
additional rent, be equal to one hundred fifty percent (150%)
of the rental being paid monthly to Landlord under this Lease
immediately prior to such termination (prorated in the case
of (ii) on the basis of a 365 day year for each day Tenant
remains in possession). If no such notice is served, then a
tenancy at sufferance shall be deemed to be created at the
rent in the preceding sentence. Tenant shall also pay to
Landlord all damages sustained by Landlord resulting from
retention of possession by Tenant, including the loss of any
proposed subsequent tenant who has executed a lease for any
portion of the Premises. The provisions of
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this paragraph shall not constitute a waiver by Landlord of
any right of reentry as herein set forth; nor shall receipt
of any rent or any other act in apparent affirmance of the
tenancy operate as a waiver of the right to terminate this
Lease for a breach of any of the terms, covenants, or
obligations herein on Tenant's part to be performed.
15. SUBORDINATION. 15. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a
subordination, this Lease shall be subject and subordinate at
all times to: (a) all ground leases or underlying leases
which may now exist or hereafter be executed affecting the
Building, the land upon which the Building or any common
areas are situated, and (b) the lien or interest of any
mortgage or deed to secure debt which may now exist or
hereafter be executed in any amount for which said Building,
land, ground leases or underlying leases, or Landlord's
interest or estate in any of said items is specified as
security. Notwithstanding the foregoing, Landlord shall have
the right to subordinate or cause to be subordinated any such
ground leases or underlying leases or any such liens or
interests of mortgages or deeds to secure debt to this Lease.
In the event that any ground lease or underlying lease
terminates for any reason or any mortgage or deed to secure
debt is foreclosed or a conveyance in lieu of foreclosure is
made for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the
successor in interest to Landlord at the option of such
successor in interest. Tenant agrees to execute such
non-disturbance and attornment agreements as the holder of
any mortgage or deed to secure debt on the Building may
reasonably require. Tenant covenants and agrees to execute
and deliver, upon demand by Landlord and in the form
requested by Landlord, any additional documents evidencing
the priority or subordination of this Lease with respect to
any such ground leases or underlying leases or the lien of
any such mortgage or deed to secure debt. Landlord represents
that there are no existing mortgages superior to this Lease.
Landlord shall obtain for Tenant's benefit from any future
mortgagee of the Building a nondisturbance and attornment
agreement with respect to this Lease.
16. RE-ENTRY 16. Landlord reserves and shall at all times have the right
BY LANDLORD. upon reasonable prior verbal or written notice to Tenant
(except in the event of an emergency, in which event no prior
notice shall be required) to re-enter the Premises to inspect
the same, to supply janitor service and any other service to
be provided by Landlord to Tenant hereunder, to show said
Premises to prospective purchasers, mortgagees or tenants, to
post notices of nonresponsibility, and to alter, improve, or
repair the Premises as required by law or to fulfill
Landlord's obligations under this Lease and any portion of
the Building of which the Premises are a part or to which
access is conveniently made through the Premises, without
abatement of rent, and may for that purpose erect, use, and
maintain scaffolding, pipes, conduits, and other necessary
structures in and through the Premises where reasonably
required by the character of the work to be performed,
provided that entrance to the Premises shall not be blocked
thereby, and further provided that the business of Tenant
shall not be interfered with unreasonably and Landlord shall
use good faith efforts to minimize any interference with
Tenant's operations within the Premises. Tenant hereby waives
any claim for damages for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or
quiet enjoyment of the Premises, and any other loss
occasioned thereby, provided Landlord complies with the
agreements in this paragraph. For each of the aforesaid
purposes, Landlord shall at all times have and retain a key
with which to unlock all of the doors, in, upon, and about
the Premises, and Landlord shall have the right to use any
and all means which Landlord may deem necessary or proper to
open said doors in an emergency, in order to obtain entry to
any portion of the Premises, and any entry to the Premises,
or portions thereof obtained by Landlord by any of said
means, or otherwise, shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into,
or a detainer of, the Premises, or an eviction, actual or
constructive, of Tenant from the Premises or any portions
thereof. Landlord shall also have the right at any time upon
reasonable prior notice to Tenant, without the same
constituting an actual or constructive eviction and without
incurring any liability to Tenant therefor, to change the
arrangement and/or location of entrances or passage ways,
doors and doorways, and corridors, elevators, stairs,
toilets, or other public parts of the Building and to change
the name, number or designation by which the Building is
commonly known; provided that no such change voluntarily
conducted by Landlord shall materially and adversely affect
Tenant's access to or use of the Premises.
17. INSOLVENCY OR 17. The appointment of a receiver to take possession of all
BANKRUPTCY. or substantially all of the assets of Tenant, or an
assignment of Tenant for the benefit of creditors, or any
action taken or suffered by Tenant under any insolvency,
bankruptcy, or reorganization act, shall at Landlord's option
constitute a breach of this Lease by Tenant. Upon the
happening of any such event or at any time thereafter, this
Lease
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shall terminate five (5) days after written notice of
termination from Landlord to Tenant. In no event shall this
Lease be assigned or assignable by operation of law or by
voluntary or involuntary bankruptcy proceedings or otherwise
and in no event shall this Lease or any rights or privileges
hereunder be an asset of Tenant under any bankruptcy,
insolvency, or reorganization proceedings.
18. DEFAULT AND 18. The following events shall be deemed to be events of
REMEDIES. default by Tenant under this Lease:
(a) Tenant shall fail to pay when or before due any sum
of money becoming due to be paid to Landlord hereunder,
whether such sum be any installment of the rent herein
reserved, any other amount treated as additional rent
hereunder, or any other payment or reimbursement to Landlord
required herein, whether or not treated as additional rent
hereunder, and such failure shall continue for a period of
ten (10) days after written notice to Tenant; or
(b) Tenant shall fail to comply with any term,
provision or covenant of this Lease other than by failing to
pay when or before due any sum of money becoming due to be
paid to Landlord hereunder, and shall not cure such failure
within (i) twelve (12) hours after written notice to Tenant
if the failure involves a condition hazardous or dangerous
to life or property or (ii) thirty (30) days after written
notice to Tenant in the case of any other failure; provided,
however, that if such failure is not capable of being cured
within such thirty (30)-day period, Tenant shall not be in
default if Tenant commences such cure within said thirty
(30)-day period and diligently pursues such cure to
completion (but in no event later than ninety (90) days
after such notice to Tenant); or
(d) Tenant shall create or allow to be created in or
about the demised Premises any condition or circumstance
constituting a hazard to people or property, a nuisance, a
trespass, or other condition offensive to Landlord or
others, whether or not such condition or circumstance rises
to the level of a civil or criminal law violation or action,
and such condition or circumstance is not removed by Tenant
within a reasonable period of time, not to exceed ten (10)
days, after written notice to Tenant; or
(e) Tenant shall fail to vacate the Premises
immediately upon termination of this Lease, by lapse of time
or otherwise, or upon termination of Tenant's right to
possession only;
(f) If, in spite of the provisions hereof, the interest
of Tenant shall be levied upon under execution or be
attached by process of law or Tenant shall fail to contest
diligently the validity of any lien or claimed lien and give
sufficient security to Landlord to insure payment thereof or
shall fail to satisfy any judgment rendered thereon and have
the same released, and such default shall continue for
thirty (30) days after written notice thereof to Tenant; or
(g) Tenant shall assign, sublet or transfer its
interest hereunder in violation of this Agreement.
Upon the occurrence of any such events of default
described in this paragraph or elsewhere in this Lease,
Landlord shall have the option to pursue any one or more of
the following remedies without any additional notice or
demand whatsoever:
(aa) Landlord may, at its election, terminate
this Lease or terminate Tenant's right to possession only,
without terminating the Lease.
(bb) Upon any of this Lease, whether by lapse of
time or otherwise, or upon any termination of Tenant's right
to possession without termination of the Lease, Tenant shall
surrender possession and vacate the Premises immediately,
and deliver possession thereof to Landlord, and Tenant
hereby grants to Landlord full and free license to enter
into and upon the Premises in such event with or without
process of law and to repossess the Premises and to expel or
remove Tenant and any others who may be occupying or within
the Premises and to remove any and all property therefrom,
without being deemed in any manner guilty of trespass,
eviction or forcible entry or detainer, and without
incurring any liability for any damage resulting therefrom,
all to the extent permitted by, and exercised in accordance
with, applicable law, lapse of time, by Tenant hereby
waiving any right to claim damage for such reentry and
expulsion, and without relinquishing Landlord's right to
rent or any other right given to Landlord hereunder or by
operation of law.
(cc) Upon termination of this Lease, whether by
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or in connection with a dispossessory proceeding or
otherwise, Landlord shall be entitled to recover as
Landlord's actual accrued damages, all rent, including any
amount treated as additional rent hereunder, and other sums
due and payable by Tenant on the date of termination, plus,
as Landlord's liquidated damages for the balance of the
stated term hereof and not as a forfeiture or penalty, the
sum of: (i) an amount equal to the then present value of the
rent, including any amounts treated as additional rent
hereunder, and other sums provided herein to be paid by
Tenant for the residue of the stated term hereof, less the
fair rental value of the Premises for such residue (taking
into account the time and expenses necessary to obtain a
replacement tenant or tenants, including expenses
hereinafter described in subparagraph (dd)(ii) relating to
recovery of the Premises, preparation for reletting and for
reletting itself), and (ii) the cost of performing any other
covenants which would have otherwise been performed by
Tenant.
(dd) (i) Upon termination of Tenant's right to
possession of the demised Premises, regardless of whether
such termination occurs as a result of a dispossessory
proceeding, distraint proceeding, exercise of right of
termination, re-entry, lease expiration or otherwise, Tenant
shall remain liable for payment of all rent thereafter
accruing and for performance of all obligations thereafter
performable under this Lease. Landlord may, at Landlord's
option, enter the Premises, remove Tenant's signs and other
evidences of tenancy, and take and hold possession thereof as
provided in subparagraph (bb) above, without such entry and
possession releasing Tenant from any obligation, including
Tenant's obligation to pay rent, including any amounts
treated as additional rent, hereunder for the full term of
the Lease.
(ii) Landlord may, but need not, relet the
Premises or any part thereof for such rent and upon such
terms as Landlord in its sole discretion shall determine
(including the right to relet the Premises for a greater or
lesser term than that remaining under this Lease, the right
to relet the Premises as a part of a larger area, and the
right to change the character and use made of the Premises)
and Landlord shall not be required to accept any tenant
offered by Tenant or to observe any instructions given by
Tenant about such reletting. In any such case, Landlord may
make repairs, alterations and additions in or to the
Premises, and redecorate the same to the extent Landlord
deems necessary or desirable, and Tenant shall, upon demand,
pay the cost thereof, together with Landlord's expenses for
reletting, including, without limitation, any broker's
commission incurred by Landlord (such amounts to be prorated
over the term of any replacement lease in which the original
term thereof extends beyond the original term of this
Lease). If the consideration collected by Landlord upon any
such reletting plus any sums previously collected from
Tenant are not sufficient to pay the full amount of all
rent, including any amounts treated as additional rent
hereunder and other sums reserved in this Lease for the
remaining term hereof, together with the costs of repairs,
alterations, additions, redecorating, and Lessor's expenses
of reletting (such amounts to be prorated over the term of
any replacement lease in which the original term thereof
extends beyond the original term of this Lease) and the
collection of the rent accruing therefrom (including
attorneys' fees and broker's commissions), Tenant shall pay
to Landlord, as Landlord's liquidated damages and not as a
forfeiture or penalty, the amount of such deficiency as it
occurs and Tenant agrees that Landlord may file suit to
recover any sums falling due under this section from time
to time.
(ee) Landlord may, at Landlord's option, in
accordance with and to the extent permitted by applicable
law, enter into and upon the Premises, with or without
process of law, if Landlord determines in its sole
discretion that Tenant is not acting within a commercially
reasonable time to maintain, repair or replace anything for
which Tenant is responsible hereunder, and correct the same,
without being deemed in any manner guilty of trespass,
eviction or forcible entry and detainer and without
incurring any liability for any damage resulting therefrom,
and Tenant agrees to reimburse Landlord, on demand, as
additional rent, for any expenses which Landlord may incur
in thus effecting compliance with Tenant's obligations under
this Lease.
(ff) Any and all property which may be removed
from the Premises by Landlord pursuant to the authority of
the Lease or of law, to which Tenant is or may be entitled,
may be handled, removed and stored, as the case may be, by
or at the direction of Landlord at the risk, cost and
expense of Tenant, and Landlord shall in no event be
responsible for the preservation or safekeeping thereof.
Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges
against such property so long as the same shall be in
Landlord's possession or under Landlord's control. Any such
property of Tenant not retaken by Tenant from storage within
thirty (30) days after notice to
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Tenant of its removal from the Premises shall, at
Landlord's option, be deemed conveyed by Tenant to Landlord
under this Lease as by a xxxx of sale without further
payment or credit by Landlord to Tenant.
Pursuit of any of the foregoing remedies shall not
preclude pursuit of any of the other remedies herein
provided or any other remedies provided by law or available
in equity (all such remedies being cumulative), nor shall
pursuit of any remedy herein provided constitute a
forfeiture or waiver of any rent due to Landlord hereunder
or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants
herein contained. No act or thing done by Landlord or its
agents during the term hereby granted shall be deemed a
termination of this Lease or an acceptance of the surrender
of the Premises, and no agreement to terminate this Lease or
accept a surrender of said Premises shall be valid unless in
writing signed by Landlord. No waiver by Landlord of any
violation or breach of any of the terms, provisions and
covenants herein contained shall be deemed or construed to
constitute a waiver of any other violation or breach of any
of the terms, provisions and covenants herein contained.
Landlord's acceptance of the payment of rental or other
payments hereunder after the occurrence of an event of
default shall not be construed as a waiver of such default,
unless Landlord so notifies Tenant in writing. Forbearance
by Landlord in enforcing one or more of the remedies herein
provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default or of
Landlord's right to enforce any such remedies with respect
to such default or any subsequent default. If, on account of
any breach or default by Tenant in Tenant's obligations
under the terms and conditions of this Lease, it shall
become necessary or appropriate for Landlord to employ or
consult with an attorney concerning or to enforce or defend
any of Landlord's rights or remedies hereunder, Tenant
agrees to pay reasonable attorneys' fees so incurred, if
Landlord prevails in any such action or claim.
Without limiting the foregoing, to the extent permitted
by law, Tenant hereby: (i) appoints and designates the
Premises as a proper place for service of process upon
Tenant, and agrees that service of process upon any Manager
employed by Tenant upon the Premises constitute personal
service of such process upon Tenant (provided, however,
Landlord does not hereby waive the right to serve Tenant
with process by any other lawful means);(ii) expressly
waives any right to trial by jury; and (iii) expressly
waives the service of any notice under any existing or
future law of the State of Georgia applicable to landlords
and tenants.
19. DAMAGE BY 19. (a) If the Building, improvements, or Premises are
FIRE, ETC. rendered partially or wholly untenantable by fire or other
casualty, and if such damage cannot, in Landlord's
reasonable estimation, be materially restored within ninety
(90) days of such damage, then Landlord or Tenant may, at
its sole option, terminate this Lease as of the date of
such fire or casualty. Landlord and Tenant each shall
exercise its option provided herein by written notice to
the other within sixty (60) days of such fire or other
casualty. For purposes hereof, the Building, improvements,
or Premises shall be deemed "materially restored" if they
are in such condition as would not prevent or materially
interfere with Tenant's use of the Premises for the
purpose for which it was then being used. Landlord shall
exercise its option to terminate provided in this paragraph
only if Landlord also terminates the leases of similarly
affected tenants that Landlord has the right to terminate.
(b) If this Lease is not terminated pursuant to
Paragraph 19(a), then to the extent of available insurance
proceeds, Landlord shall proceed with all due diligence
to repair and restore the Building, improvements or
Premises, as the case may be (except that Landlord may elect
not to rebuild if such damage occurs during the last year
of the term of this Lease exclusive of any option which
is unexercised at the date of such damage); (provided,
however, that Tenant may exercise its next available renewal
option, if any, at such time to avoid the exercise by
Landlord of such right).
(c) If this Lease shall be terminated pursuant to this
Paragraph 19, the term of this Lease shall end on the date
of such damage as if that date had been originally fixed in
this Lease for the expiration of the term hereof. If this
Lease shall not be terminated by Landlord or Tenant pursuant
to this Paragraph 19 and if the Premises is untenantable in
whole or in part following such damage, the rent payable
during the period in which the Premises is untenantable
shall be reduced to such extent, if any, as may be fair and
reasonable under all of the circumstances. In the event
that Landlord shall fail to complete such repairs and
material restoration within one hundred fifty (150) days
after the date of such damage, Tenant may at its option and
as its sole remedy terminate this Lease by delivering
written notice to Landlord, whereupon the Lease shall end on
the date of such notice as if the date of such notice
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were the date originally fixed in this Lease for the
expiration of the term hereof; provided, however, that if
construction is delayed because of changes, deletions, or
additions in construction requested by Tenant, strikes,
lockouts, casualties, acts of God, war, material or labor
shortages, governmental regulation or control or other
causes beyond the reasonable control of Landlord, the period
for restoration, repair or rebuilding shall be extended for
the amount of time Landlord is so delayed, up to a maximum
extension of sixty (60) days.
In no event shall Landlord be required to rebuild,
repair or replace any part of the partitions, fixtures,
additions or other improvements which may have been placed
in or about the Premises by Tenant, except to the extent
covered by Landlord's insurance and not Tenant's insurance.
Any insurance which may be carried by Landlord or Tenant
against loss or damage to the Building or Premises shall be
for the sole benefit of the party carrying such insurance
and under its sole control except that Landlord's insurance
may be subject to control by (i) the holder or holders of
any indebtedness secured by a mortgage or deed to secure
debt covering any interest of Landlord in the Premises, the
Building, or the Property, and/or (ii) the ground lessor of
any portion of the Property.
(d) Notwithstanding anything herein to the contrary,
in the event the holder of any indebtedness secured by a
mortgage or deed to secure debt covering the Premises,
Building or Property, or the ground lessor of the Property,
requires that any insurance proceeds be paid to it, then
Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within
fifteen (15) days after such requirement is made by any such
person, whereupon the Lease shall end on the date of such
damage as if the date of such damage were the date
originally fixed in this Lease for the expiration of the
term.
(e) In the event of any damage or destruction to the
Building or the Premises by any peril covered by the
provisions of this Paragraph 19, Tenant shall, upon notice
from Landlord, remove forthwith, at its sole cost and
expense, such portion or all of the property belonging to
Tenant or its licensees from such portion or all of the
Building or the Premises as Landlord shall reasonably
request and Tenant, except to the extent resulting from the
gross negligence or willful misconduct of Landlord, hereby
indemnifies, defends and holds Landlord harmless from any
loss, liability, costs, and expenses, including attorneys'
fees, arising out of any claim of damage or injury as a
result of such removal and any alleged failure to properly
secure the Premises prior to such removal; provided,
however, that Tenant may store its property at the Premises
so long as such storage does not interfere with any repair
or restoration of the Premises or the Building.
20. CONDEMNATION. 20. (a) If any substantial part of the Property, or any
portion of the Premises or such portion of the parking areas
for the Building as will result in the Building having
insufficient parking spaces under applicable zoning
ordinances and insufficient parking spaces to provide 3.2
spaces per 1,000 square feet of rentable space in the
Building, should be taken for any public or quasi-public
use under governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu
thereof, and the taking would prevent or materially
interfere with access to the Premises or the use of the
Premises for the purpose for which it is then being used,
this Lease shall terminate effective when the physical
taking shall occur in the same manner as if the date of such
taking were the date originally fixed in this Lease for the
expiration of the term hereof.
(b) If part of the Premises shall be taken for any
public or quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain, or
by private purchase in lieu thereof, and this Lease is not
terminated as provided in the subparagraph above, this Lease
shall not terminate but the rent payable hereunder during
the unexpired portion of this Lease shall be reduced to
such extent, if any, as may be fair and reasonable under all
of the circumstances and Landlord shall undertake to restore
the Premises to a condition suitable for Tenant's use, as
near to the condition thereof immediately prior to such
taking as is reasonably feasible under all circumstances.
(c) Tenant shall not share in any condemnation award
or payment in lieu thereof or in any award for damages
resulting from any grade change of adjacent streets, the
same being hereby assigned to Landlord by Tenant; provided,
however, that Tenant may separately claim and receive from
the condemning authority, if legally payable, compensation
for Tenant's removal and relocation costs, for Tenant's loss
of business and/or business interruption, and for the value
of Tenant's personal property.
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21. SALE BY 21. In the event of a sale or conveyance by Landlord of the
LANDLORD. Building, the same shall operate to release Landlord from
any future liability upon any of the covenants or
conditions, express or implied, herein contained in favor of
Tenant, and in such event Tenant agrees to look solely to
the responsibility of the successor in interest of Landlord
in and to this Lease, which successor in interest shall be
bound by the obligations and provisions hereof accruing
during such party's ownership of the Building. Tenant agrees
to attorn to the purchaser or assignee in any such sale.
22. RIGHT OF 22. All covenants and agreements to be performed by Tenant
LANDLORD TO under any of the terms of this Lease shall be performed by
PERFORM. Tenant at Tenant's sole cost and expense and without any
abatement of rent. If Tenant shall fail to perform any acts,
covenants or agreements to be performed by Tenant under any
of the terms of this Lease or to pay any sum of money, other
than rent, required to be paid by it hereunder, and such
failure shall continue for ten (10) days after notice
thereof by Landlord (or such longer period of time
reasonably necessary to cure such failure, provided Tenant
commences such cure within such ten (10)-day period and
thereafter diligently pursues the same completion), Landlord
may, but shall not be obligated so to do, and without
waiving or releasing Tenant from any obligations of Tenant,
make any such payment or perform any such act, covenant or
agreement on Tenant's part to be made or performed as in
this Lease provided. All sums so paid by Landlord or costs
related to Landlord's performance of such acts, covenants or
agreements and all necessary incidental costs, together with
interest thereon at the Agreed Interest Rate as defined in
Paragraph 8 hereof from the date of such payment by
Landlord, shall be payable as additional rent to Landlord on
demand, and Tenant covenants to pay any such sums, and
Landlord shall have, in addition to any other right or
remedy of the Landlord, the same rights and remedies in the
event of nonpayment thereof by Tenant as in the case of
default by Tenant in the payment of the rent. Nothing in
this paragraph shall be deemed to create an event of default
not otherwise provided for in paragraph 18 of this Lease.
23. SURRENDER 23. (a) If requested by Landlord, tenant shall, at least
OF PREMISES. one hundred eighty (180) days before the last day of the
term hereof, give to Landlord a written notice of intention
to surrender the Premises on that date, but nothing
contained herein or in the failure of Tenant to give such
notice shall be construed as an extension of the term hereof
or as consent of Landlord to any holding over by Tenant.
(b) At the end of the Lease Term, Tenant agrees to
peaceably deliver up to the Landlord possession of the
Premises, in the same condition as received on the 2nd Floor
Commencement Date and the 3rd Floor Commencement Date,
ordinary wear and tear, damage by fire, earthquake, and
other acts of God excepted. Unless otherwise agreed to in
writing by Landlord, Tenant shall remove, at Tenant's sole
cost and expense, all permanent improvements or additions to
the Premises installed by or at the expense of Tenant after
the lease commencement date, together with all furniture,
equipment and computer and telephone cables belonging to
Tenant (whenever installed), and repair any damage resulting
from such removal. Any property not so removed shall be
deemed abandoned by the Tenant, and title to the same shall
thereupon pass to Landlord. Landlord shall have the right
to remove and dispose of such abandoned property, and the
costs associated therewith shall be promptly reimbursed by
Tenant.
(c) The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work
a merger, and shall, at the option of the Landlord,
terminate all or any existing subleases or subtenancies, or
may, at the option of Landlord, operate as an assignment to
it of any or all such subleases or subtenancies.
24. WAIVER. 24. If either Landlord or Tenant waives the performance of
any term, covenant or condition contained in this Lease,
such waiver shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or
condition contained herein. Furthermore, the acceptance of
rent by Landlord shall not
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constitute a waiver of any preceding breach by Tenant of any
term, covenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time
Landlord accepted such rent. Failure by Landlord to enforce
any of the terms, covenants or conditions of this Lease for
any length of time shall not be deemed to waive or to
decrease the right of Landlord to insist thereafter upon
strict performance by Tenant. Waiver by Landlord of any
term, covenant or condition contained in this Lease may only
be made by a written document signed by Landlord.
25. NOTICES. 25. Whenever any notice, demand or request is required or
permitted hereunder, such notice, demand or request shall be
hand-delivered in person, by reputable courier service or
sent by United States Mail, registered, postage prepaid, to
the addresses set forth below:
If to Landlord: Galleria 400, LLC
c/o Childress Xxxxx Properties
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
If to Tenant: Eltrax Systems, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: MANAGER
With a copy to: Xxxxxx Xxxxx
Eltrax Systems, Inc.
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Any notice, demand or request which shall be served
upon either of the parties in the manner aforesaid shall be
deemed sufficiently given for all purposes hereunder (i) at
the time such notices, demands or requests are hand-
delivered in person or by overnight courier service or (ii)
on the third day after the mailing of such notices, demands
or requests in accordance with the preceding portion of this
paragraph.
Either Landlord or Tenant shall have the right from
time to time to designate by written notice to the other
party such other places in the United States as Landlord or
Tenant may desire written notice to be delivered or sent in
accordance herewith; provided, however, at no time shall
either party be required to send more than an original and
two copies of any such notice, demand or request required or
permitted hereunder.
Notwithstanding the foregoing, all rental payments
under this Lease shall be sent to the address specified in
paragraph 2(a) above.
26. CERTAIN RIGHTS 26. Landlord reserves and may exercise the following rights
RESERVED TO without affecting Tenant's obligations hereunder:
THE LANDLORD.
(a) To change the name of the Building;
(b) To designate all sources furnishing sign painting
and lettering, ice, drinking water, towels, coffee cart
service and toilet supplies, lamps and bulbs used in the
Premises;
(c) To retain at all times pass keys to the
Premises;
(d) To grant to anyone the exclusive right to conduct
any particular business or undertaking in the Building, as
long as such business or undertaking does not alter the
Class A nature of the Building; and
(e) To close the Building after regular work hours
and on legal holidays subject, however, to Tenant's right
to admittance, under such reasonable regulations as
Landlord may prescribe from time to time, which may include
by way of example but not of limitation, that persons
entering or leaving the Building register and provide
sufficient forms of identification to a watchman and that
said persons establish their right to enter or leave the
Building; and
(f) To take any and all measures, including
inspections, repairs, alterations, decorations, additions
and improvements to the Premises or the Building, and
identification and admittance procedures for access to the
Building as may be reasonably necessary or desirable for the
safety, protection, preservation or security of the Premises
or the Building or Landlord's interest, or as may be
necessary or desirable in the operation of the Building.
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Subject to the provisions of this Lease, and provided
Landlord complies with all requirements of law, Landlord
may enter upon the Premises and may exercise any or all of
the foregoing rights hereby reserved without being deemed
guilty of an eviction or disturbance of Tenant's use or
possession and without being liable in any manner to Tenant
and without abatement of rent or affecting any of Tenant's
obligations hereunder.
27. ABANDONMENT.
28. SUCCESSORS 28. Subject to the provisions of Paragraph 9 hereof, the
AND ASSIGNS. terms, covenants, and conditions contained herein shall be
binding upon and inure to the benefit of the heirs,
successors, executors, administrators and assigns of the
parties hereto.
29. ATTORNEYS' 29. In the event that any action or proceeding is brought to
FEES 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 reasonable attorneys' fees
to be fixed by the Court in such action or proceeding.
30. CORPORATE 30. If Tenant signs as a corporation, each of the persons
AUTHORITY. executing this Lease on behalf of Tenant does hereby
covenant and warrant that Tenant is a duly authorized and
existing corporation, that Tenant has and is qualified to do
business in Georgia, that the corporation has full right and
authority to enter into this Lease, and that each and both
of the persons signing on behalf of the corporation were
authorized to do so. Upon Landlord's request, Tenant shall
provide Landlord with evidence reasonably satisfactory to
Landlord confirming the foregoing covenants and warranties.
If Tenant signs as any other legal entity, Tenant shall
provide Landlord with reasonable evidence of authority.
Landlord represents to Tenant that Landlord is a duly
authorized and existing limited liability company, that
Landlord has and is qualified to do business in Georgia,
that Landlord has full right and authority to enter into
this Lease, and that each of the persons signing on behalf
of Landlord were authorized to do so.
31. MORTGAGE 31. Any provisions of this Lease requiring the approval or
APPROVALS. consent of Landlord shall not be deemed to have been
unreasonably withheld if any mortgagee (which shall include
the holder of any deed to secure debt) of the Premises,
Building or Property or any portion thereof shall refuse or
withhold its approval or consent thereto. Any requirement of
Landlord pursuant to this Lease which is imposed pursuant to
the direction of any such mortgagee shall be deemed to have
been reasonably imposed by Landlord if made in good faith.
32. MISCELLANEOUS. 32. (a) The paragraph headings herein are for convenience
of reference and shall in no way define, increase, limit, or
describe the scope or intent of any provision of this Lease.
The term "Landlord" as used in this Lease shall include the
Landlord, its successors and assigns. In any case where this
Lease is signed by more than one person, the obligations
hereunder shall be joint and several. The term "Tenant" or
any pronoun used in place thereof shall indicate and include
the masculine or feminine, the singular or plural number,
individuals, firms or corporations, and each of their
respective successors, executors, administrators, and
permitted assigns, according to the context hereof.
(b) Time is of the essence of this Lease and all of
its provisions. This Lease shall in all respects be governed
by the laws of the State of Georgia. This Lease, together
with its exhibits, contains all the agreements of the
parties hereto and supersedes any previous negotiations.
There have been no representations made by the Landlord or
understandings made between the parties other than those set
forth in this Lease and its exhibits. This Lease may not be
modified except by a written instrument by the parties
hereto.
(c) If for any reason whatsoever any of the
provisions hereof shall be unenforceable or ineffective, all
of the other provisions shall be and remain in full force
and effect.
(d) All obligations of Tenant hereunder not fully
performed as of the expiration or earlier termination of the
term at this Lease shall survive the expiration or earlier
termination of the term hereof.
(e) If any clause, phrase, provision or portion of
this Lease or the application
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thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not
affect, impair or render invalid or unenforceable the
remainder of this Lease or any other clause, phrase,
provision or portion hereof, nor shall it affect the
application of any clause, phrase, provision or portion
hereof to other persons or circumstances, and it is also the
intention of the parties to this Lease that in lieu of each
such clause, phrase, provision or portion of this Lease that
is invalid or unenforceable, there be added as a part of
this Lease a clause, phrase, provision or portion as similar
in terms to such invalid or unenforceable clause, phrase,
provision or portion as may be possible and be valid and
enforceable.
(f) Whenever a period of time is herein prescribed
for action to be taken by Landlord, the Landlord shall not
be liable or responsible for, and there shall be excluded
from the computation for any such period of time, any delays
due to causes of any kind whatsoever which are beyond the
control of Landlord. Whenever a period of time is herein
prescribed for any repairs or other nonmonetary actions to
be made by Tenant, Tenant shall not be liable or responsible
for, and there shall be excluded from the computation for
any such period of time, any delays due to causes of any
kind whatsoever which are beyond the control of Tenant;
excepting, however, that such limitations shall in no
manner apply to any obligation to pay rent or any other
obligation that can be satisfied solely by the payment of
money.
33. LANDLORD'S
LIEN.
34. QUIET 34. Landlord represents and warrants that it has full right
ENJOYMENT. and authority to enter into this Lease and that Tenant,
while paying the rental and performing its other covenants
and agreements herein set forth, shall peaceably and quietly
have, hold and enjoy the Premises for the term hereof
without hindrance, interference or molestation from Landlord
or those claiming by or through Landlord, subject to the
terms and provisions of this Lease; provided, however, that
Landlord shall not be liable for any interference, nuisance
or disturbance by other tenants or third persons, nor shall
Tenant be released from any of the obligations of this Lease
because of such interference, nuisance or disturbance.
Landlord shall use good faith efforts to stop any other
tenant in the Building from taking actions not permitted in
its lease that interfere with or disturb Tenant's occupancy
of the Premises.
35. LANDLORD'S
LIABILITY. Any liability of Landlord hereunder shall be enforceable
only out of the interest of Landlord in the Building and the
Property and in no event out of the separate assets of
Landlord or any shareholder or partner of Landlord.
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36. RIGHT TO
RELOCATE.
37. NO ESTATE. 37. This contract shall create the relationship of
Landlord and Tenant, and 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 for herein and in compliance herewith.
38. LEASE 38. Submission of this instrument for examination or
EFFECTIVE DATE. signature by Tenant does not constitute a reservation of
or option for lease, and it is not effective as a lease
or otherwise until execution and delivery by both
Landlord and Tenant.
39. RULES AND
REGULATIONS. 39. (a) Tenant shall faithfully observe and comply with
the rules and regulations printed on or annexed to this
Lease as Exhibit "A" which is attached hereto and made a
part hereof and all reasonable modifications thereof and
additions thereto from time to time put into effect by
Landlord. Landlord shall supply Tenant with any changes
or amendments to said rules. Landlord shall not be
responsible for the nonperformance by any other tenant
or occupant of the Building of any of said rules and
regulations. Tenant shall faithfully observe and comply
with the rules and regulations put into effect from time
to time by the owners of other buildings and property
within the Atlanta Galleria complex and applicable to
the common areas serving the Atlanta Galleria complex.
Tenant will be responsible for causing its employees,
customers, subtenants, licensees, invitees, agents,
concessionaires and contractors to comply with all such
rules and regulations. Landlord shall not enforce any
such rules and regulations in a discriminatory manner.
(b) Tenant acknowledges and agrees that Landlord
may insist upon compliance with and enforce the rules
and regulations as well as any laws, statutes,
ordinances or governmental rules or regulations as
mentioned in Paragraph 5 above, and may, pursuant to the
Georgia Criminal Trespass Statute (Official Code of
Georgia Annotated, Section 16-7-21), prohibit any person
including any of Tenant's employees, agents, customers,
licensees, guests, invitees, concessionaires, or
contractors from entering or remaining upon all or any
portion of the Building, including the Premises, or any
other building or property within the Atlanta Galleria
complex, including the hotel, xxxxxx xxxxxx, xxxxx,
xxxxxxx, xxxxxxxx, parking lots, parking decks,
performance stages, and all other buildings, land or
property, if Landlord reasonably determines that said
person has not complied with any law, ordinance, rule or
regulation or poses a threat to the safety, welfare or
health of any person or to the maintenance or
orderliness of the administration of the Building.
Tenant shall not be responsible for enforcing any such
prohibition by Landlord. Tenant further agrees that it
shall not interfere with or object to Landlord's
enforcement of any such laws, ordinances, rules and
regulations including Official Code of Georgia
Annotated, Section 16-77-21 or any similar statute.
40. SPECIAL 40. Special Stipulations to this Lease are set forth on
STIPULATIONS. Exhibit "E" attached hereto and made a part hereof. In
the event of any conflict between any provision set
forth in Exhibit "E" and any provision contained
elsewhere in this Lease, the former in all events shall
supersede, prevail and control.
41. GUARANTY.
42. CONDITION.
43. BROKERAGE 43. Each Landlord and Tenant represents that it has not
COMMISSIONS. engaged or worked with any real estate brokers or agents
other than The Xxxxxx Team and Childress Xxxxx
Properties (collectively, "Brokers") in connection with
this Lease for the Premises. Tenant shall indemnify and
hold harmless Landlord and Landlord's agents from and
against any and all claims for commissions or other
compensation, and any liabilities, damages and costs
relating thereto, that may be asserted by any
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person or entity other than Brokers to the extent that
Tenant has engaged such person or such claim results
from any action of Tenant. Landlord shall be responsible
for the payment of commissions to Brokers pursuant to
separate agreements with Landlord. Landlord shall
indemnify and hold harmless Tenant and Tenant's agents
from and against any and all claims for commissions or
other compensation, and any liabilities, damages and
costs relating thereto, that may be asserted by any
person or entity to the extent that Landlord has engaged
such person or such claim results from any action of
Landlord.
44. EXCULPATION 44. This Lease is executed by certain employees of The
State Teachers Retirement System of Ohio, not
individually, but solely on behalf of Landlord, the
authorized nominee and agent for The State Teachers
Retirement Board of Ohio ("XXXXX"). In consideration for
entering into this Lease, Tenant hereby waives any
rights to bring a cause of action against the
individuals executing this Lease on behalf of Landlord
(except for any cause of action based upon lack of
authority or fraud), and all persons dealing with
Landlord must look solely to Landlord's assets for the
enforcement of any claim against Landlord, and the
obligations hereunder are not binding upon, nor shall
resort be had to the private property of any of, the
trustees, officers, directors, employees or agents of
XXXXX. Nothing contained in this Paragraph 44 shall be
deemed to limit the provisions of Paragraph 35 above.
IN WITNESS WHEREOF, the parties hereto have executed
this Lease the day and year first above written.
LANDLORD: GALLERIA 400, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------
Title: Deputy Executive -
Director - Investments
-----------------------------
Attest: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------
Title: RE Support Asst. -
MW Region
--------------------------
TENANT: ELTRAX SYSTEMS, INC.
By: /s/ Xxx X. Xxxxxxx
-----------------------------------
Name: Xxx X. Xxxxxxx
------------------------------
Title: President & CEO
-----------------------------
Attest: /s/ Xxxxxxx X. Xxxxxxx, III
-------------------------------
Name: Xxxxxxx X. Xxxxxxx, III
--------------------------
Title: CFO
--------------------------
(CORPORATE SEAL)
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EXHIBIT "A"
RULES AND REGULATIONS
1. Sidewalks, halls, passages, exits, entrances, elevators, escalators
and stairways shall not be obstructed by Tenants or used by them for
any purpose other than for ingress and egress from their respective
Premises. The halls, passages, exits, entrances, elevators and
stairways are not for the use of the general public and Landlord
shall in all cases retain the right to control and prevent access
thereto by all persons whose presence, in the judgment of Landlord,
shall be prejudicial to the safety, character, reputation and
interests of the Building and its Tenants, provided that nothing
herein contained shall be construed to prevent such access to
persons with whom any Tenant normally deals in the ordinary course
of such Tenant's business unless such persons are engaged in illegal
activities. No Tenant, and no employees or invitees of any Tenant,
shall go upon the roof of the Building, except as authorized by
Landlord or in this Lease.
2. Except for exterior signage of Tenant otherwise expressly permitted
in this Lease, no sign, placard, picture, name, advertisement,
notice or other such item visible from the exterior of Premises
shall be inscribed, painted, illuminated, affixed, installed or
otherwise displayed by any Tenant either on its Premises or any part
of the Building without the prior written consent of Landlord, and
Landlord shall have the right to remove any such sign, placard,
picture, name, advertisement, notice or other such item without
notice to and at the expense of Tenant.
If Landlord shall have given such consent to any Tenant at any time,
whether before or after the execution of the Lease, such consent
shall in no way operate as a waiver or release of any of the
provisions hereof or of such Lease, and shall be deemed to relate
only to the particular sign, placard, picture, name, advertisement
or notice so consented to by Landlord and shall not be construed as
dispensing with the necessity of obtaining the specific written
consent of Landlord with respect to any other such sign, placard,
picture, name, advertisement or notice.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed and inscribed at the expense of the Tenant by a
person approved by Landlord.
3. The bulletin board or directory of the Building will be provided
exclusively for the display of the name and location of Tenants only
and Landlord reserves the right to exclude any other names
therefrom, including the names of any subtenants of Tenant.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to,
hung or placed in, or used in connection with, any window or door
on any Premises without the prior written consent of Landlord. In
any event with the prior written consent of landlord, all such items
shall be installed inboard of Landlord's standard window covering
and shall in no way be visible from the exterior of the Building. No
articles shall be placed or kept on the window xxxxx so as to be
visible from the exterior of the Building. No articles shall be
placed against glass partitions or doors which might appear
unsightly from outside Tenant's Premises.
5. Landlord reserves the right to exclude from the Building between the
hours of 6pm and 8am on Monday through Friday and at all hours on
Saturdays, Sundays, and holidays all persons who are not Tenants or
their accompanied guests in the Building. Each Tenant shall be
responsible for all persons for whom it allows to enter the Building
and shall be liable to Landlord for all acts of such persons.
Landlord shall in no case be liable for damages for error with
regard to the admission to or exclusion from the Building of any
person.
During the continuance of any invasion, mob, riot, public excitement
or other circumstances rendering such action advisable in Landlord's
opinion, Landlord reserves the right to prevent access to the
Building by closing and/or locking the doors, or otherwise, for the
safety of Tenants and protection of the Building and property in the
Building.
6. No Tenant shall employ any person or persons for the purpose of
cleaning Premises unless otherwise agreed to by Landlord in writing.
Except with the written consent of Landlord no person or persons
other than those approved by Landlord shall be permitted to enter
the Building for the purpose of cleaning same. No Tenant shall cause
any unnecessary labor by reason of such Tenant's carelessness or
indifference in the preservation of good order and cleanliness of
the Premises. Landlord shall in no way be responsible to any tenant
for any loss of property on the Premises, however occurring, or for
any damage done to the effects of any Tenant by the janitor or any
other employee or any other person.
7. No Tenant shall accept barbering or bootblacking or carwashing
services in its Premises or in the Building, or on the Property,
except from persons authorized by Landlord.
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8. Each Tenant shall see that all doors of its Premises are closed and
securely locked and must observe strict care and caution that all
water faucets, water apparatus, coffee makers and any other
electrical appliances or equipment are entirely shut off before the
Tenant or its employees leave such Premises, and that all utilities
shall likewise be carefully shut off so as to prevent waste or
damage, and for any default or carelessness the Tenant shall make
good all injuries sustained by other Tenants or occupants of the
Building of Landlord. On multiple tenancy floors, all Tenants shall
keep the door or doors to the Building corridors closed at all times
except for ingress and egress.
9. As more specifically provided in the Tenant's Lease of the Premises,
Tenant shall not waste electricity, water or air-conditioning and
agrees to cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air-conditioning, and shall
refrain from attempting to adjust any controls.
10. No Tenant shall alter any lock or access device or install a new or
additional lock or access device or any bolt on any door of its
Premises without the prior written consent of Landlord.
11. No Tenant shall make or have made additional copies of any keys or
access devices provided by Landlord. Each Tenant, upon the
termination of the Tenancy, shall deliver to Landlord all the keys
or access devices for the Building, offices, rooms and toilet rooms
which shall have been furnished Tenant or which Tenant shall have
had made. In the event of the loss of any keys or access devices so
furnished by Landlord, Tenant shall pay Landlord $7.00 per key and
$10.00 per card for replacement thereof, which amounts are subject
to change based upon changes in Landlord's actual costs for
replacement thereof.
12. The toilet rooms, toilets, urinals, wash bowls and other apparatus
within the Premises shall not be used for any purpose other than
that for which they were constructed and no foreign substance of any
kind whatsoever, including, but not limited to, coffee grounds shall
be thrown therein, and the expense of any breakage, stoppage or
damage resulting from the violation of this rule shall be borne by
the Tenant, who, or whose employees or invitees, shall have caused
it.
13. No Tenant shall use or keep in its Premises or the Building any
kerosene, gasoline or flammable or combustible fluid or material
other than limited quantities necessary for the operation or
maintenance of office equipment. No tenant shall use any method of
heating or air-conditioning other than that supplied by Landlord or
as permitted in this Lease. In the event flammable or combustible
fluids or materials are permitted by Landlord in the Premises, these
materials must be maintained and secured so as to comply with all
laws, rules and regulations governing such materials, including but
not limited to, all fire codes.
14. No Tenant shall use, keep or permit to be used or kept in its
Premises any foul or noxious gas or substance or permit or suffer
such Premises to be occupied or used in a manner offensive or
objectionable to Landlord or other occupants of the Building by
reason of noise, odors and/or vibrations or interfere in any way
with other Tenants or those having business therein, nor shall any
animals or birds be brought or kept in or about any Premises of the
Building.
15. No cooking shall be done or permitted by any Tenant on its Premises
without the consent of Landlord (except that use by the Tenant of
Underwriters' Laboratory approved microwaves and/or equipment for
the preparation of coffee, tea, hot chocolate and similar beverages
for Tenants and their employees shall be permitted, provided that
such equipment and use is in accordance with applicable federal,
state and city laws, codes, ordinances, rules and regulations) nor
shall Premises be used for lodging.
16. Except with the prior written consent of Landlord, no Tenant shall
sell, permit the sale, at retail, of newspapers, magazines,
periodicals, theater tickets or any other goods or merchandise in or
on any Premises, nor shall Tenant carry on, or permit or allow any
employee or other person to carry on, the business of stenography,
typewriting or any similar business in or from any Premises for the
service or accommodation of occupants of any other portion of the
Building, nor shall the Premises of any Tenant be used for the
storage of merchandise or for manufacturing of any kind, or the
business of a public xxxxxx shop, beauty parlor, nor shall the
Premises of any Tenant be used for any improper, immoral or
objectionable purpose, or any business activity other than that
specifically provided for in such Tenant's lease.
17. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's
instructions in their installation.
18. Landlord will direct electricians as to where and how telephone,
telegraph and electrical wires are to be introduced or installed.
No boring or cutting for wires will be allowed without the prior
written consent of Landlord. The location of burglar alarms,
telephones, call boxes or other office equipment affixed to all
Premises shall be subject to the written approval of Landlord.
19. No Tenant shall install any radio or television antenna, loudspeaker
or any other device on the exterior walls or the roof of the
Building except as permitted in this Lease. Tenant shall not
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interfere with radio or television broadcasting or reception from or in the
Building or elsewhere.
20. No Tenant shall lay linoleum, tile, carpet or any other floor covering so
that the same shall be affixed to the floor of its Premises in any manner
except as approved in writing by Landlord. The expense of repairing any
damage resulting from a violation of this rule or the removal of any floor
covering shall be borne by the Tenant by whom, or by whose contractors,
employees or invitees, the damage shall have been caused.
21. No furniture, freight, equipment, materials, supplies, packages,
merchandise or other property will be received in the Building or carried
up or down the elevators except between such hours and in such elevators as
shall be reasonably designated by Landlord. Except with respect to Tenant's
initial move into the Premises, in the event Landlord permits use of the
Building's loading dock and/or elevators after normal Building hours, then
Landlord shall have the right to impose reasonable charges on Tenant for
such use. Landlord shall have the right to prescribe the weight, size and
position of all safes, furniture, files, bookcases or other heavy equipment
brought into the Building. Safes or other heavy objects shall, if
considered necessary by Landlord, stand on wood strips of such thickness as
determined by Landlord to be necessary to properly distribute the weight
thereof. Landlord will not be responsible for loss of or damage to any such
safe, equipment or property from any cause, and all damage done to the
Building by moving or maintaining any such safe, equipment or other
property shall be repaired at the expense of Tenant.
Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the Building
or to any space therein to such a degree as to be objectionable to Landlord
or to any tenants in the Building shall be placed and maintained by Tenant,
at Tenant's expense, on vibration eliminators or other devices sufficient
to eliminate noise or vibration. The persons employed to move such
equipment in or out of the Building must be acceptable to Landlord.
22. No Tenant shall place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. No Tenant shall xxxx, or drive nails, screws or drill
into, the partitions, woodwork or plaster or in any way deface such
Premises or any part thereof.
23. There shall not be used in any space, or in the public areas of the
Building, either by Tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material-handling equipment
as Landlord may approve. No other vehicles of any kind shall be brought by
any Tenant into or kept in or about the Premises.
24. Each Tenant shall store all its trash and garbage within the interior of
its Premises. No materials shall be placed in the trash boxes or
receptacles if such material is of such nature that it may not be disposed
of in the ordinary and customary manner of removing and disposing of trash
and garbage in this area without violation of any law or ordinance
governing such disposal. All trash, garbage and refuse disposal shall be
made only through entryways and elevators provided for such purposes and at
such times as Landlord may designate.
25. Canvassing, soliciting, distributing of handbills or any other written
material, and peddling in the Building are prohibited and each Tenant
shall cooperate to prevent the same. No Tenant shall make room-to-room
solicitation of business from other tenants in the Building.
26. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of alcohol or drugs or who is in violation of any of the rules and
regulations of the Building.
27. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
28. Tenant shall comply with all energy conservation, safety, fire protection
and evacuation procedures and regulations established by Landlord or any
governmental agency.
29. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
30. The requirements of Tenants will be attended to only upon application at
the office of the Building by an authorized individual. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless given special instructions from Landlord, and no employees
will admit any person (Tenant or otherwise) to any office without specific
instructions from Landlord.
31. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular Tenant or Tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of
any other Tenant or Tenants, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against any or all Tenants of the
Building.
30
Landlord shall not enforce the Rules and Regulations in a discriminatory
manner.
32. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order therein. Tenant agrees to abide by all such
Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted, provided such additional rules and
regulations are of a type customarily adopted for similar first-class
office buildings and apply to all tenants of the Building.
33. All wallpaper or vinyl fabric materials which Tenant may install on painted
walls shall be applied with a strippable adhesive. The use of nonstrippable
adhesives will cause damage to the walls when materials are removed, and
repairs made necessary thereby shall be made by Landlord at Tenant's
expense.
34. All work proposed by Tenant in the Premises must be pre-approved by
Landlord. Tenant will refer all contractors, contractors representatives
and installation technicians, rendering any service to Tenant, to Landlord
for Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in
the Premises and other portions of the Building, including installations of
telephones, telegraph equipment, electrical devices and attachments and
installations of any nature affecting floors, walls, woodwork, trim,
windows, ceilings, equipment or any other physical portion of the Building.
35. Tenant shall give prompt notice to Landlord of any accidents to or defects
in plumbing, electrical fixtures, or heating apparatus so that such
accidents or defects may be attended to properly.
36. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invitees and guests.
37. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any Lease of Premises in the
Building.
38. Smoking of tobacco products (including, but not limited to, cigarettes,
cigars, pipes or similar utensils) is expressly prohibited in the lobby,
hallways, elevators, building entrances, restrooms, stairwells and common
areas in and around the Building. Tenant shall not permit any of its
employees, agents, servants, licensees, contractors or invitees to smoke in
those areas specified in the immediately preceding sentence. Tenant further
agrees either (i) to prohibit smoking within the Premises, or (ii) if
smoking is permitted by Tenant within the Premises, to take, at Tenant's
sole expense, such steps (which steps may include, but not be limited to,
installing exhaust equipment to supplement the Building's heating,
ventilation and air conditioning system) as shall be required by Landlord
to avoid any infiltration of smoke from the Premises into the space of
other tenants or the common areas in the Building. Tenant further agrees
that if Tenant shall have taken steps to reduce or eliminate infiltration
of smoke into the space of other tenants, and, notwithstanding these steps,
smoke from the Premises continues to be a nuisance to other tenants in the
Building, then Landlord shall have the right to prohibit smoking in the
Premises altogether. Tenant acknowledges and agrees that (a) Landlord has
the right under this paragraph to restrict and/or prohibit smoking in the
Premises, (b) smoking in the Premises is not an absolute or inherent right
of Tenant and (c) Landlord's determination that smoking in the Premises
must be abated shall be final. To enable smokers to have an area outside of
the Building in which to smoke, the Landlord shall designate from time to
time specific areas where smoking is permitted, to the extent permitted by
applicable laws and regulations. Smokers are required to keep all
designated smoking areas clean, attractive and free of litter. In order to
comply with present or future laws, regulations or guidelines of
governmental entities relating to workplace health and safety, Landlord
retains the right to further alter, move or eliminate such smoking areas
from time to time and to establish regulations relating thereto as Landlord
reasonably deems necessary or appropriate.
31
EXHIBIT "B"
WORK LETTER AGREEMENT
1. IMPROVEMENTS
(a) At Tenant's expense, Landlord shall furnish and install substantially
in accordance with the construction drawings and specifications approved by
Tenant and Landlord, partitions, doors, lighting fixtures, acoustical ceiling,
floor coverings, electrical outlets, telephone outlets, air conditioning, fire
sprinklers, signage, wall finishes, and construction clean-up and other
improvements required by Tenant which are normally performed by the construction
trades, but excluding those items to be constructed by Landlord pursuant to
Paragraph 1(b) below (collectively, the "Tenant Improvements"). Landlord shall
cause to be prepared at Tenant's expense all architectural plans and
specifications, and all structural, mechanical and electrical engineering plans
and specifications (the "Plans") required for Tenant's occupancy. The
preparation of the Plans shall not include selection of non-building standard
finishes, or any fixtures or furniture, or any other elements of interior
design.
(b) At Landlord's expense, Landlord shall or has provided the following
(hereinafter referred to as "Landlord's Work"):
1. HEATING, VENTILATION AND AIR-CONDITIONING: Building standard primary
duct work and perimeter supply and return grilles served by a central air system
to provide normal air conditioning and heating. The cost of changes necessitated
by Tenant's work shall be paid by Tenant.
2. CEILING GRID AND STANDARD LIGHTING: Building standard ceiling grid.
Building standard acoustical ceiling tiles in crates stacked on floor.
Twenty-four (24) fluorescent building standard lighting fixtures per 2,000
rentable square feet in vacuum packed containers stacked on floor. All costs to
install ceiling tiles and light fixtures to be at Tenant's expense.
3. SUBFLOOR: Concrete floor, finished, ready for application of carpet,
vinyl composition tile or other floor covering.
4. FIRE SPRINKLERS: Building sprinkler heads turned up to within twelve
(12) inches of structure in a general protective pattern as required by code.
The cost of changes necessitated by Tenant's work shall be paid by Tenant.
5. RESTROOMS: Building standard restrooms complete and operational.
6. ELEVATOR LOBBY: Elevator lobby walls taped and sanded, ready for Tenant
finish: concrete floors ready for Tenant finish, and painted drywall ceilings.
2. LANDLORD'S ALLOWANCE
As Landlord's contribution to work provided in Paragraph 1(a), Landlord
shall provide Tenant with an allowance of One Million Twenty-Six Thousand
Thirty-Nine and No/100 Dollars ($1,026,039.00), hereinafter referred to as
"Landlord's Allowance". Notwithstanding the above, Tenant may, at Tenant's
discretion, use all or any portion of the Landlord Allowance for costs related
to design and construction of the Tenant Improvements, Tenant's signage costs,
moving expenses and installation of Tenant's furniture; provided, however, that
as a condition to Tenant's right to use Landlord's Allowance for the foregoing
purposes, Tenant first shall be required to improve and finish all portions of
the Premises in accordance with the Plans.
3. TENANT'S COST
(a) Tenant shall bear the cost, if any, of the work described in Paragraph
1(a) over and above the Landlord's Allowance provided by Landlord under
Paragraph 2 (Paragraph 3 work is hereinafter referred to as "Tenant's Cost").
Any modifications of any part of the work described in Paragraph 1(a) already
completed that are requested by Tenant shall constitute part of Tenant's Cost.
(b) Subject to application of the Landlord's Allowance, Tenant shall pay
for all costs associated with any Tenant-requested changes or modifications of
the improvements as defined by the Plans in Paragraph 1(a) of this Exhibit "B"
after the Plans have been approved by Tenant. Tenant will be liable for any
increase in construction costs resulting from any Tenant Delay as defined in
Paragraph 1(b) of the Lease.
(c) Tenant shall pay one-half (1/2) of all amounts payable by Tenant to
Landlord pursuant to this Exhibit "B" immediately following Tenant's approval of
the price to be paid to Landlord as per Paragraph 4(b) hereof, and Tenant shall
pay the remaining amounts immediately upon the Commencement Date of the Lease.
4. PLANNING SCHEDULE
(a) Preparation and Approval of Plans:
(i) Landlord and Tenant shall diligently pursue the preparation of the
plans for the Tenant Improvements.
32
(ii) The Plans shall then be prepared in conformance with Landlord's
requirements and all applicable codes, ordinances and laws, and shall specify
materials and details of equal or better quality to Landlord's building
standard. The Plans shall be subject to approval of Landlord and the Code
Officials having jurisdiction. Landlord shall submit complete construction plans
to Tenant for approval.
(b) Upon receipt of the approved Plans, Landlord shall provide a quotation
based upon competitively bid sub-contract pricing for the work to Tenant for
approval as the price for the Tenant Improvements and the amount to be paid by
Tenant to Landlord for Tenant's Cost. Upon written approval of such price by
Tenant, Landlord and Tenant shall be deemed to have given final approval to the
Plans as the basis on which the quotation was made, and Landlord shall be
authorized to proceed with the improvements of the Premises in accordance with
such Plans. Tenant will not unreasonably withhold its approval of such price.
5. TENANT'S WORK
All work not within the scope of the normal construction trades employed in
the Building, including, but not limited to, furnishing and installing of
telephones, furniture, and office equipment, shall be furnished and installed by
Tenant at Tenant's expense. Tenant shall adopt a schedule in conformance with
the schedule of Landlord's contractors and conduct its work in such a manner as
to maintain harmonious labor relations and as not to interfere unreasonably with
or delay the work of Landlord's contractors. Tenant's contractors,
subcontractors, and labor shall be acceptable to and approved by Landlord and
shall be subject to the administrative supervision of Landlord. Contractors and
subcontractors engaged by Tenant shall employ persons and means to insure so far
as may be possible the progress of the work without interruption on account of
strikes, work stoppages or similar causes for delay. Landlord shall give access
and entry to the Premises to Tenant and its contractors and subcontractors and
reasonable opportunity and time and reasonable use of facilities to enable
Tenant to adapt the Premises for Tenant's use; provided, however, that if such
entry is prior to the Commencement Date, such entry shall be subject to all the
terms and conditions of the Lease, except the payment of rent (including monthly
base rent and payments of Direct Operating Expenses).
33
EXHIBIT "C"
TENANT LEASE ESTOPPEL CERTIFICATE
Landlord: GALLERIA 400, LLC
Tenant: ELTRAX SYSTEMS, INC.
Premises: XXXXX 000 XXX XXXXX 000
Xxxx: Xx. Ft. Lease Date:
---------------- --------------------
The undersigned Tenant under the above-referenced lease (the "Lease")
hereby ratifies the Lease and certifies to ("Landlord") as owner
of the real property of which the premises demised under the Lease (the
"Premises") is a part, as follows:
1. That the term of the Lease commenced on , 19 and the
Tenant is in full and complete possession of the Premises demised under the
Lease and has commenced full occupancy and use of the Premises, such possession
having been delivered by Landlord and having been accepted by the Tenant.
2. That the Lease calls for monthly rent installments of $ to
date and that the Tenant is paying monthly installments of rent of $
which commenced to accrue on the day of , 19 .
3. That no advance rental or other payment has been made in connection with
the Lease, except rental for the current month. There is no "free rent" or other
concession under the remaining term of the Lease, and the rent has been paid to
and including , 19 .
4. That a security deposit in the amount of $ is being held by
Landlord, which amount is not subject to any set off or reduction or to any
increase for interest or other credit due to Tenant.
5. That all obligations and conditions under said Lease to be performed to
date by Landlord or Tenant have been satisfied, free of defenses and set-offs
including all construction work in the Premises.
6. That the Lease is a valid lease and in full force and effect and
represents the entire agreement between the parties; that there is no existing
default on the part of Landlord or the Tenant in any of the terms and conditions
thereof and no event has occurred which, with the passing of time or giving of
notice or both, would constitute an event of default; and that said Lease has:
(Initial One)
( ) not been amended, modified, supplemented, extended, renewed or
assigned.
( ) been amended, modified, supplemented, extended, renewed or
assigned as follows by the following described agreements:
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
7. That the Lease provides for a primary term of months; the term
of the Lease expires on the day of , 19 ; and that:
(Initial One)
( ) neither the Lease nor any of the documents listed in Paragraph 6
(if any), contain an option for any additional term or terms.
( ) the Lease and/or the documents listed under Paragraph 6, above,
contain an option for additional term(s) of
year(s) and month(s) (each) at a rent to be
determined as follows:
-------------------------------------------------
-------------------------------------------------
-------------------------------------------------
8. That Landlord has not rebated, reduced or waived any amounts due from
Tenant under the Lease, either orally or in writing, nor has Landlord provided
financing for, made loans or advances to, or invested in the business of Tenant.
34
9. That, to the best of Tenant's knowledge, there is no apparent or
likely contamination of the real property or the Premises by hazardous
materials by Tenant or anyone for whom Tenant is responsible, and Tenant
does not use, nor has Tenant disposed of, hazardous materials in violation
of environmental laws on the real property or the Premises.
10. That there are no actions, voluntary or involuntary, pending against
the Tenant under the bankruptcy laws of the United States or any state thereof.
11. That this is made knowing that Landlord is relying upon the
representations herein made.
Tenant:
-------------------------------------
Dated: By:
--------------------- ----------------------------------
Typed Name:
-----------------------
Title:
----------------------------
35
[400 GALLERIA DIAGRAM]
400 GALLERIA FORMATO CONSULTING, INC.
CHILDRESS XXXXX PROPERTIES "THE COTTAGE"
-------------------------- 0000 XXXXX XXXXXXXXXX XXXX
000 XXXXXXXX XXXXXXX, X.X. XXXXX 000 XXXXXX, XXXXXXX 00000
XXXXXXX, XX 00000 PH 678.319.0600
PH 000-000-0000 / FAX 000-000-0000 REVISED 2.17.99 FAX 000.000.0000
Exhibit "D"
Added to and made part of Lease Agreement between
Galleria 400, LLC ("Landlord") and
Eltrax Systems, Inc. ("Tenant")
Suite: 000
Xxxxxxxx Xxxxxx Feet: 24,273
36
[400 GALLERIA DIAGRAM]
-------------------------------------------------------------------------------
400 GALLERIA FORMATO CONSULTING, INC.
CHILDRESS XXXXX PROPERTIES "THE COTTAGE"
-------------------------- 0000 XXXXX XXXXXXXXXX XXXX
000 XXXXXXXX XXXXXXX, X.X. XXXXX 000 XXXXXX, XXXXXXX 00000
XXXXXXX, XX 00000 PH 678.319.0600
PH 000-000-0000 / FAX 000-000-0000 REVISED 2.17.99 FAX 000.000.0000
-------------------------------------------------------------------------------
Added to and made part of Lease Agreement between
Galleria 400, LLC ("Landlord") and
Eltrax Systems, Inc. ("Tenant")
Suite: 000
Xxxxxxxx Xxxxxx Feet: 24,586
37
EXHIBIT "E"
SPECIAL STIPULATIONS
Added to and made part of Lease Agreement between Galleria 400, LLC ("Landlord")
and Eltrax Systems, Inc. ("Tenant").
1.
2. At or before the execution and delivery of this Lease, Tenant shall deliver
to Landlord an irrevocable and unconditional Letter of Credit (herein,
together with all replacements thereof, being called the "Letter of
Credit") issued by State Street Bank or another bank or financial
institution acceptable to Landlord. The Letter of Credit shall be in an
initial amount equal to $250,000.00. On or before the Commencement Date,
Tenant shall cause the Letter of Credit amount to be increased to
$500,000.00. The Letter of Credit amount shall decrease by $100,000.00 on
each anniversary of the final Commencement Date. The term of the Letter of
Credit shall extend from the date of the Lease through the Fifth (5th)
anniversary of the final commencement date. At Tenant's option, the initial
Letter of Credit may be for a term of not less than one (1) year, and, in
such event, such Letter of Credit shall be extended by Tenant for periods
of not less than one (1) year each so that the Letter of Credit, as
extended and replaced, remains continually in existence during the entire
period required. Notwithstanding any provision to the contrary herein, if
such Letter of Credit is for a term shorter than the entire period required
for the Letter of Credit in this Paragraph, Landlord, upon ten (10) days
prior notice to Tenant, may draw upon the entire amount of the Letter of
Credit in the event Landlord shall not receive, at least forty (40) days
prior to the expiration date of such Letter of Credit, a replacement Letter
Of Credit in form and substance identical to said Letter Of Credit so
expiring and otherwise satisfying the obligations herein. The failure of
Tenant to provide a replacement Letter of Credit in accordance with the
provisions hereof for any expiring Letter of Credit shall be an event of
default by Tenant under this Lease if the Letter of Credit is not drawn in
full by Landlord and Tenant does not either replace the Letter of Credit or
pay to Landlord the amount thereof within ten (10) days after written
request by Landlord and shall entitle Landlord to exercise any and all
remedies provided in this Lease or otherwise available to Landlord.
The Letter of Credit shall be in form acceptable to Landlord and shall
provide that the only condition to a draw under the Letter of Credit shall
be the presentation by Landlord of a sight draft and a statement that
Landlord is entitled to draw under the Letter of Credit. The form of letter
of credit attached hereto as Exhibit "E-1" and made a part hereof is
acceptable to Landlord. The Letter of Credit shall be transferable and
assignable by Landlord to Landlord's successor in interest in the Building,
in whole or in part, without cost to Landlord. Tenant shall pay all costs
and shall take all steps necessary for any such proposed transfer or
assignment of the Letter of Credit. If Tenant fails to pay such costs or
take such steps in connection with a proposed transfer or assignment of the
Letter of Credit, then Landlord, without any further notice to Tenant, may
draw upon the Letter of Credit in whole or in part (at Landlord's option)
and may transfer the proceeds of such draw. The Letter of Credit may be
drawn in whole or in part by Landlord (at Landlord's option) from time to
time (and more than one time for partial draws) upon the occurrence of any
event of default by Tenant under this Lease, which default is not cured
within any applicable cure period, and without any further notice to
Tenant. Landlord may draw upon the Letter of Credit without proceeding
against any person or exhausting any other remedies which Landlord may have
and without resorting to any other security held by Landlord. Landlord may
apply the proceeds of the Letter of Credit in any order or manner to any
amounts owed by Tenant under or pursuant to the Lease, and the balance of
the Letter of Credit proceeds, if any, after expiration or termination of
this Lease and payment in full of all amounts at any, time due to Landlord
under this Lease, shall be paid to Tenant. All amounts drawn by Landlord
under the Letter of Credit which Landlord is entitled to so apply shall
immediately become the property of Landlord and shall be retained by
Landlord. In no event shall any such application cure any event of default
by Tenant under this Lease. Furthermore, in no event shall the Letter of
Credit, or Landlord's right to draw upon the Letter of Credit, be affected
or impaired by (i) the waiver, compromise, settlement, termination or other
release of the performance or observance by any person liable or to become
liable for the obligations under this Lease; (ii) the modification or
amendment (whether material or otherwise) of any obligation, covenant or
agreement set forth in this Lease; (iii) the voluntary or involuntary
liquidation, dissolution, sale of all or substantially all of the assets,
marshalling of assets and liabilities, receivership, conservatorship,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of, or any similar
proceeding affecting Tenant, or any allegation or contest of the validity
of this Lease; or (iv) the taking or the omission of any of the actions
referred to in this Lease. Notwithstanding any provisions to the contrary
herein, in the event that the Letter of Credit is drawn upon by Landlord,
then upon the application of any proceeds of such draw to any amounts owed
by Tenant under or pursuant to this Lease, Tenant shall restore and repay
to
38
Landlord the amount so applied by Landlord within ten (10) days after
notice by Landlord to Tenant of such application by Landlord.
Failure of Tenant to comply with the provisions of this Paragraph shall
constitute an event of default under this Lease.
3. (a) Prior to the second (2nd) anniversary of the final commencement date,
Tenant shall lease an additional 12,947 rentable square feet on the fourth
(4th) floor of the Building, such space being more particularly identified
on Exhibit "E-2" attached hereto and made a part hereof. Such expansion
space shall be incorporated into this, Lease at the then current rental
rate set forth in this Lease. The Landlord's Allowance for such space shall
be prorated based upon the date Tenant commences paying rent for such
expansion space and the remaining initial term of this Lease.
(b) Provided Tenant is not in default, Tenant shall have a right of first
refusal on the remainder of the fourth (4th) floor of the Building.
Landlord agrees to retain the fourth (4th) floor as a multi-tenant floor
unless the fourth (4th) floor is leased entirely by Tenant. Upon receipt of
written notice from Landlord that a third party has made a bonafide offer
to lease any portion of the fourth (4th) floor that Landlord intends to
Lease, Tenant shall respond to Landlord within seven (7) days whether it
intends to lease the space at the financial terms offered by Landlord,
excepting that the lease form shall be consistent with the form of this
Lease and (i) if the term of such lease offered by Landlord is less than
the then remaining term under this Lease, the term of the lease of such
space by Tenant shall be for the remaining term of this Lease or (ii) if
the term of such lease offered by Landlord is greater than the then
remaining term under this Lease, the term of the lease of such space by
Tenant shall be for the term so offered by Landlord, not to exceed the
greater of the then remaining term under this Lease or five (5) years. If
the term of the lease of such space by Tenant is different than the term
offered by Landlord as a result of the application of the immediately
preceding sentence, then Landlord and Tenant agree to use good faith
efforts to appropriately adjust the tenant improvement allowance and other
economic terms of such lease (but not the stated monthly rent) that are
appropriately impacted by the length of the term of such lease. If Tenant
indicates that it will not lease the space offered, Landlord may proceed to
lease it to another party and Tenant shall have waived its right to lease
that space. If Tenant indicates that it will lease the space offered,
Tenant and Landlord shall execute an amendment to this Lease for the space
within ten (10) days of notifying Landlord of its intention to lease the
space.
4. Provided that Tenant shall not then be in default under any of the terms
and conditions of this Lease, Tenant shall have the right to extend the
Lease Term for two (2) additional successive periods of five (5) years each
(individually an "Option Term" and collectively the "Option Terms"),
provided that Tenant shall deliver to Landlord written notice of its
election to extend the initial Lease Term at least seven (7) months prior
to the expiration date of such Lease Term or the expiring Option Term, as
the case may be. Except as expressly otherwise provided herein, all the
covenants, agreements, terms and conditions contained herein shall remain
in full force and effect during each Option Term. The rent for each Option
Term shall be established as the Building Market Rate in effect at the time
Tenant notifies Landlord of its election to extend the term hereof, taking
into account the savings afforded the Landlord as a result of the
avoidance, if applicable, of a new tenant improvement allowance and leasing
commissions. Landlord shall notify the Tenant (the "Rent Notice") of the
Building Market Rate for the applicable Option Term within fifteen (15)
days after receipt of the Tenant's extension notice, and Tenant shall have
the right, exercisable within fifteen (15) days of Tenant's receipt of the
Rent Notice, to either accept the Building Market Rate, in which case this
Lease shall be extended for such next Option Term, or advise the Landlord
that the Building Market Rate is not acceptable, in which case, this Lease
shall not be extended for such Option Term, notwithstanding the Tenant's
prior notice.
5. Tenant shall have the right to install its name on exterior Building
monument sign. The signage must be approved by Landlord and any costs
associated are to be paid for by Tenant.
6. Tenant may install a satellite dish or antennae on the rooftop at a cost of
$300.00 per month. The location of either dish or antennae must have prior
approval by Landlord and must not interfere with other dishes or antennae
on the roof. After installation by Tenant of any such dish or antenna,
which dish or antenna does not interfere with other dishes or antennae on
the roof of the Building, Landlord agrees to prohibit other tenants in the
Building from locating other dishes or antennae on the roof of the Building
that will interfere with Tenant's dish or antenna.
39
7. Tenant may have up to 3,000 square feet of storage in the basement at a
rental rate of $13.00 per square foot, such square footage of storage
space to be specified by Tenant prior to the Commencement Date. Any costs
associated with the build-out will be the responsibility of Tenant.
8. Landlord agrees that Tenant's parking shall be available on a first come,
first served basis, whether covered or uncovered, and is available at a
ratio of 3.2/1,000 square feet. In the event Landlord permits another
tenant in the Building to have parking spaces reserved specifically for
such other tenant, Landlord agrees to permit Tenant the right, upon the
same terms and conditions agreed to by such other tenant, to have reserved
parking spaces in the same ratio to rentable square feet of the Premises as
such other tenant has to rentable square feet in such other tenant's space;
provided, however, that such foregoing right shall not be applicable in the
event Landlord permits executive reserved parking for all tenants in the
Building.
9. [Intentionally omitted]
10. On the Fifth (5th) Anniversary of the Final Commencement Date, Landlord
shall pay Tenant a refurbishment allowance of $4.00 per rentable square
foot for refurbishment of the Premises. At Tenant's option, in lieu of
receiving a portion of such refurbishment allowance on the Fifth (5th)
Anniversary of the Final Commencement Date, Tenant may elect to increase
the Landlord's Allowance (as defined in Exhibit B to this Lease) by the
amount of such portion of the refurbishment allowance, discounted over a
sixty (60)-month period at the rate of ten percent (10%) per annum.
11. [Intentionally omitted]
12. [Intentionally omitted]
13. Subject to the following provisions, Tenant shall have the right, at
Tenant's sole cost and expense, to install, maintain and operate an
electric power generator (the "Generator") at a location on the Property
approved by Landlord. The Generator shall be adequately screened from view
and landscaped in a manner approved by Landlord. Landlord shall have the
right to review and approve the Generator and all plans relating thereto
prior to Tenant's installation of the Generator. Tenant will exercise every
reasonable effort to minimize any, disruption of activity otherwise
occurring in or about the Project in connection with Tenant's installation,
operation, maintenance and removal of the Generator. If Landlord is
required by applicable law to relocate the Generator, then, at Landlord's
request, Tenant shall, at Tenant's cost and expense, relocate the Generator
to an area designated by Landlord. Tenant will insure that the Generator
and each part of it will be installed and operated in accordance with all
applicable laws. Tenant will immediately remove and hereby agrees to
indemnify, defend and hold Landlord harmless in connection with any
mechanic's liens on the Project or the Property which result from work
associated with the installation, operation, maintenance or removal of the
Generator. Tenant will obtain all licenses or approvals required to install
the Generator and will operate the Generator in a manner that will not
interfere with the quiet enjoyment or business operations of other tenants
in the Building or the Project. Tenant shall indemnify and hold Landlord
harmless from and against any and all claims, costs, demands, damages and
liabilities arising from Tenant's installation, operation, maintenance or
removal of the Generator, except if resulting from Landlord's gross
negligence. Such indemnity shall include damage to property and injury or
death to persons. At Landlord's request given within thirty (30) days after
termination of this Lease, Tenant, at Tenant's sole cost and expense, shall
remove the Generator upon the expiration or termination of this Lease and
shall repair all damage as a result of Tenant's installation of the
Generator, thereby restoring the Property to its condition prior to the
installation of the Generator, normal wear and tear excepted.
14. In the event of any failure to perform any of the terms, conditions or
covenants of this Lease to be observed or performed by Landlord for more
than thirty (30) business days after written notice of such failure shall
have been furnished to Landlord, or with respect to a failure which
Landlord is able to cure but which cannot be cured within the said thirty
(30) business day period, if within the said thirty (30) business day
period Landlord has not started to pursue performance or if Landlord shall
fail to continue to diligently pursue such performance, then Tenant shall
have the right to perform on behalf of Landlord, and any reasonable cost or
expense incurred by Tenant in any such performance shall be reimbursed to
Tenant by Landlord.
40
15. During the Lease Term, Landlord shall provide security for the Building at
a level consistent with the level of security provided to other office
buildings in the Atlanta Galleria complex.
41
EXHIBIT "E-1"
LETTER OF CREDIT FORM
LETTER OF CREDIT NO. 001-LC-000000-99
DATE:
[SAMPLE]
TO: Galleria 400, LLC
C/O Childress Xxxxx Properties, Inc.
000 Xxxxxxxx Xxxxxxx, XX
Xxxxx 000,
Xxxxxxx, XX 00000
("Beneficiary")
At the request of Eltrax Systems, Inc. ("Applicant"), 0000 Xxxx Xxxxxx, Xxx
000, Xxxxxxxxxx, XX 00000, we hereby establish this irrevocable, and
transferable Letter of Credit No: 001-LC-000000-99 in your favor in the amount
of USD500,000.00 (Five Hundred Thousand and 00/100 United States Dollars)
effective immediately and available for payment against your draft(s) at sight
on us at our office at 000 Xxxxxxxx Xxxxxx Xxxxxx, XX 00000 Attn: Manager,
Global Trade Banking, 18th Floor. This letter of Credit expires at our close of
business on January 1, 2001, subject to automatic extension as provided below.
Drafts must be accompanied by, a written statement, signed by a authorized agent
of the beneficiary in either of the following forms:
1. "I certify that in accordance with the Office Lease Agreement (the
"Lease"), dated _______, 1999, between Galleria 400, LLC as Landlord,
and Eltrax Systems, Inc. as Tenant, as may be amended and assigned,
the undersigned, as the current landlord under the Lease, is entitled
to draw under this Letter of Credit in the amount requested."
OR
2. "I certify that the undersigned, as the current landlord under the
Office Lease Agreement (the "Lease"), dated _________, 1999, between
Galleria 400, LLC as Landlord, and Eltrax Systems, Inc. as Tenant, as
may be amended and assigned, received a written notice of the election
of State Street Bank not to renew its Letter of Credit no.
001-LC-000000-99, and as a result thereof, the undersigned is entitled
to draw under this Letter of Credit in the amount requested."
42
[SAMPLE]
Page Two of Letter of Credit No: 001-LC-000000-99
It is a condition of this Letter of Credit that it will be automatically reduced
annually on it anniversary date as follows:
Effective January 1, 2001 Balance reduced to $400,000.00
" January 1, 2002 " " $300,000.00
" January 1, 2003 " " $200,000.00
" January 1, 2004 " " $100,000.00
" January 1, 2005 " " $0.00
Partial Drawings are permitted under this Letter of Credit.
Upon the request of the Beneficiary and without any consent or approval of
Applicant, this Letter of Credit is transferable by the Beneficiary to its
successor in interest in the ownership of the Building in which the premises
covered by the Lease are located, without charge to the Beneficiary or
Applicant. This Letter of Credit may be transferred more than once in
accordance with the foregoing provisions, at the sole request of the then
current Beneficiary. The attached Exhibit A must accompany any request for
transfer.
All charges under this Letter of Credit are for the account of the
Applicant.
This Letter of Credit shall be deemed to be automatically extended without
amendment for one year from the expiration date hereof, and all future
expiration dates but not beyond January 1, 2005 unless at least Ninety (90) days
prior to any expiration date we notify you, or your Transferee (provided we
receive written notice of any such transferee's address) by overnight courier
that we elect not to consider this Letter of Credit renewed for any such
additional period.
This letter of credit sets forth in full the terms of our undertaking, and
such undertaking shall not in any way be modified, amended or amplified by
reference to any note, document, instrument or agreement referred to herein or
in which this Letter of Credit is referred to or to which this Letter of Credit
relates and any such reference shall not be deemed to be incorporated herein by
reference to any note, document or agreement.
Sight Drafts drawn under this Letter of Credit must bear upon their face "Drawn
under State Street Bank Letter of Credit No. 001-LC-000000-99."
All drawings must be made by presentation of each Draft to our Office at 000
Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, XX as aforesaid, Attention: Manager Letter
of Credit Department.
Payments under this Credit will be effected only to the Beneficiary or
Beneficiary's transferee. No payments will be made to third parties.
43
[SAMPLE]
Except as otherwise expressly stated herein, this Letter of Credit is Subject to
the Uniform Customs and Practice for Documentary Credits (1993 Revision), of the
International Chamber of Commerce, (Publication 500).
We engage with you that all drafts drawn under and in compliance with the terms
and conditions of this Letter of Credit shall be duly and unconditionally
honored on presentation to us at our office at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX.
Very Truly Yours,
State Street Bank and Trust Company
By: By:
--------------------------- ----------------------------
WE CONCUR WITH THE TERMS AND
CONDITIONS AS STATED HERE IN.
-----------------------------
AUTHORIZED SIGNATURE(S)
44
[SAMPLE]
EXHIBIT A TO LETTER OF CREDIT
State Street Bank and Trust Company
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000 Date:
----------------
Attention: Manager, Letter of Credit Department
Re: State Street Bank Irrevocable Letter of Credit No.
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to the following (the "Transferee")
(Name of Transferee)
(Address)
All rights of the undersigned beneficiary to draw under the above Letter of
Credit in its entirety.
By this transfer, all rights of the undersigned beneficiary, in the Letter
of Credit, are transferred to the Transferee. The Transferee shall have the
sole rights as beneficiary thereof, including sole rights relating to any
amendments to the Letter of Credit, whether increases in the amount to be drawn
thereunder, extensions of the Stated Expiration Date thereof, or other
amendments, and whether such amendments now exist or are made after the date
hereof. All amendments of the Letter of Credit are to be advised directly to
the Transferee without necessity of a consent of or notice to the undersigned
beneficiary.
The original of such Letter of Credit is returned herewith, and in
accordance therewith we ask you to endorse the transfer on the reverse thereof,
and forward it directly to the Transferee with your customary notice of
transfer.
Your Transfer Commission and any expenses which may be incurred by you in
connection with this transfer will be billed to your customer, and the payment
of any such amounts shall not be a condition to this transfer.
Yours very truly,
SIGNATURE AUTHENTICATED -------------------------------------
By
--------------------------------- -----------------------------------
(Bank) Authorized Officer
---------------------------------
(Authorized Signature)
45
EXHIBIT "E-2"
ADDITIONAL PREMISES
[400 GALLERIA DIAGRAM]
================================================================================
EXHIBIT F
[INTENTIONALLY OMITTED]
46
EXHIBIT "G"
INSURANCE
1. COMMERCIAL GENERAL LIABILITY POLICY (1986 OR LATER EDITION)
General Liability Limits:
$2,000,000 General Aggregate
$2,000,000 Products and Completed Operations
$1,000,000 Personal and Advertising Injury
$1,000,000 Each Occurrence
$ 50,000 Fire Damage Limit (any one fire)
$ 5,000 Medical Expense Limit (any one person)
Said policy shall have no deductible or Self Insured Retention without
prior written approval.
2. UMBRELLA/EXCESS LIABILITY
General Limits:
$ 1,000,000 Each Occurrence
$ 1,000,000 General Aggregate
3. WORKERS COMPENSATION
The policy must comply with all statutory requirements
Employer's Liability:
$ 100,000 Bodily injury by accident
$ 500,000 Policy limit by disease
$ 100,000 Bodily injury by disease each employee
4. TENANT PROPERTY
The policy must cover all direct physical loss equal to 100% replacement
cost of Tenant's personal property, all improvements and alterations, fixtures
and equipment.
All of said policies shall: (i) name Landlord, Landlord's agent, and Childress
Xxxxx Properties, Inc., together with their respective affiliates, as additional
insureds and insure Landlord's contingent liability under this Lease (except for
the worker's compensation policy, which shall instead include a waiver of
subrogation endorsement in favor of Landlord), (ii) be issued by an insurance
company licensed to do business in the State of Georgia which is acceptable to
Landlord and rated at least "A" by A.M. Bests Rating Guide, and (iii) provide
that said insurance shall not be canceled unless thirty (30) days prior written
notice shall have been given to Landlord and Landlord's property manager. Said
policies or certificates thereof shall be delivered to Landlord and Landlord's
property manager by Tenant upon commencement of the term of the Lease and upon
each renewal of said insurance.
