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EXHIBIT 10.34
SUBLEASE AGREEMENT
This Sublease Agreement is made between GULLIVER RITCHIE ASSOCIATES,
INC. (hereinafter referred to as "SUBLESSOR"), and NFRONT, INC. (hereinafter
referred to as "SUBLESSEE");
WITNESSETH:
WHEREAS, SUBLESSOR has heretofore entered into that certain Lease dated
July 3, 1996 attached hereto as Exhibit "B", (hereinafter referred to as the
"Lease") with 40 Tech Park, L.P., successor in interest to The First National
Bank of Chicago, as Trustee for New England Mutual Life Insurance Company
Mortgage Pass Through Certificates, Series 1993-1, (hereinafter referred to as
"Landlord"), on certain Premises described as 00 Xxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxx 00000 (hereinafter called "Lease"); and
WHEREAS, SUBLESSOR and SUBLESSEE mutually desire that SUBLESSEE
sublease the entire Premises covered by the Lease from SUBLESSOR; and
WHEREAS, the Lease requires that the Landlord under said Lease consents
to and approves said Sublease;
NOW, THEREFORE, subject to the said consent of the Landlord under the
Lease, SUBLESSOR hereby subleases under the Lease to SUBLESSEE on an "as is"
basis, the entire Premises, covered by the Lease totaling approximately 8,484
rentable square feet as shown on Exhibit "A", attached hereto and by this
reference incorporated herein, for a term commencing on June 1, 1999 and
extending through and including November 30, 1999 at an Annual Base Rental of
$101,808.00 payable $8,484.00 (inclusive of all rent, taxes and other operating
costs) monthly on the first of each month.
In addition, SUBLESSOR and SUBLESSEE agree further as follows:
1. Said rent shall be paid by SUBLESSEE to SUBLESSOR in advance, not later than
the first day of each month, and the first month's rent shall be paid upon
execution of this Sublease. Thereafter, rent shall be forwarded to SUBLESSOR not
later than the first day of the month for which the rent is paid at the
following address:
Gulliver Ritchie Associates, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
2. Each party represents that it has not had dealings with any real estate
broker, finder or other person, with respect to this Sublease and transaction in
any manner except Wm. Xxxxxxx & Co. Wm. Xxxxxxx & Co. has represented the
SUBLESSEE in this transaction and SUBLESSOR shall pay Wm. Xxxxxxx & Co. a
commission pursuant to a separate agreement and shall hold SUBLESSEE harmless
from all costs and damages resulting from any claims that may be asserted
against SUBLESSEE by any broker, finder or other person with whom SUBLESSOR has
dealt.
3. SUBLESSEE agrees to fully perform unto SUBLESSOR and Landlord severally, all
of the obligations of SUBLESSOR (except SUBLESSOR'S obligations to pay rent
including all taxes and other
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operating costs and any escalations thereto to Landlord) under Lease with
respect to the subleased Premises and to accord SUBLESSOR all of the rights,
privileges and indemnities with respect to the subleased Premises which the
Landlord has with respect to and from SUBLESSOR under the Lease.
4. SUBLESSOR and SUBLESSEE agree to perform and comply with all of the terms,
provisions, covenants and conditions of the Lease Agreement and not to do or
suffer anything which would result in a default under or cause the Lease
Agreement to be terminated or forfeited.
5. Any notice or demand which must or may be given or made by a party hereto
shall be in writing signed by an authorized representative of such party given
by certified or registered mail sent,
In the case of SUBLESSOR to: In the case of SUBLESSEE to:
Gulliver Ritchie Associates, Inc. nFront, Inc.
000 Xxxxxxxx Xxxxx 000 Xxxxxxxxx Xxxxx
Xxxxx 000 Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxx, Xxxxxxx 00000
6. This Sublease shall be upon all of the terms, covenants, conditions and
provisions as provided in the Lease Agreement as applicable to the Premises
demised hereunder except such (a) as because of the passage of time now are
inapplicable to this Sublease; or (b) are by this Sublease specified to be of no
effect; or (c) are inconsistent with the express provisions set forth herein;
and the provisions of which Lease Agreement are deemed included herein and made
a part hereof as if herein at length set forth.
7. SUBLESSOR represents to SUBLESSEE that the copy of said Lease Agreement and
Amendments thereto, which is attached hereto, is a true copy thereof, as the
same now exists; that the Lease Agreement is in full force and effect, and has
not been modified or canceled; that SUBLESSOR has no knowledge of any material
default by Landlord or SUBLESSOR thereunder; and that SUBLESSOR has received no
notices of SUBLESSOR'S default thereunder from Landlord.
8. SUBLESSEE shall take the Premises on an "as is" basis. SUBLESSEE shall obtain
approval of SUBLESSOR and if necessary, Landlord, on any additional changes
which SUBLESSEE wishes to make to the Premises, provided that SUBLESSOR shall
cooperate with SUBLESSEE in obtaining approval of Landlord.
9. It is understood and agreed by SUBLESSOR and SUBLESSEE that nothing herein
nor the approval and consent of the Landlord shall release the SUBLESSOR from
the full and faithful performance of all of its obligations to Landlord under
the herein referenced Lease Agreement.
10. Time is of the essence of this Sublease. This Sublease and the rights and
obligation of the parties hereto shall be interpreted, construed and enforced in
accordance with the laws of the State of Georgia.
11. This Sublease contains the entire agreement of the parties hereto and no
representations inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein, shall be of any force or effect. The failure of
either party to insist in any instance on strict performance of any covenant or
condition hereof, or to exercise any option herein contained, shall not be
construed as a waiver of such covenant, condition or option in any other
instance. This sublease can not be modified or terminated orally.
12. Upon execution of this Sublease, SUBLESSEE shall pay a security deposit in
the amount of
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Two Thousand and no/100 dollars ($2,000.00) to SUBLESSOR. Upon termination of
this Sublease and surrender of the Premises by SUBLESSEE, the security deposit
shall be returned to SUBLESSEE, provided that SUBLESSOR may hold said security
deposit for a period of fifteen (15) days following surrender of possession and
may deduct from the amount refunded any rental due and payable, the costs of
repairing any damage or replacing any damaged portion of the Premises and costs
of cleaning the Premises if SUBLESSEE fails to do so prior to surrender of
possession.
13. SUBLESSEE may utilize the network panel and cabling presently located in the
Premises at no charge to SUBLESSEE, provided however, SUBLESSEE shall not
relocate any of the cabling or the network panel.
IN WITNESS WHEREOF, the undersigned parties have executed this Sublease
Agreement by and through their duly authorized representatives on the 1st day of
June, 1999 subject to the approval of Landlord under said Lease.
SUBLESSEE: SUBLESSOR:
NFRONT, INC. GULLIVER RITCHIE ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Gulliver Ritchie Associates, Inc.
-------------------------- --------------------------------------
Title: CFO Title: By its President & COO
---------------------- -----------------------------------
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EXHIBIT A
[Description of the Premises]
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EXHIBIT B
40 TECHNOLOGY PARKWAY
OFFICE BUILDING LEASE AGREEMENT
This Lease Agreement (the "Lease") is entered into as of the 3rd day of
July, 1996, by and between The First National Bank of Chicago, as Trustee for
New England Mutual Life Insurance Company Mortgage Pass Through Certificates,
Series 1993-1 ("Landlord") and Gulliver Ritchie Associates, Inc. ("Tenant").
WITNESSETH:
1. Definitions and Basic Provisions. Certain definitions and provisions
(the "Basic Lease Information") of this Lease are:
Lease Date: June 1, 1996
Tenant: Gulliver Ritchie Associates, Inc.
Tenant's Address: Xxxxx 000
00 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Contact: Xxx X. Xxxxxxxx
Telephone: 770/000-0000
Landlord: The First National Bank of Chicago, as Trustee for New
England Mutual Life Insurance Company Commercial Mortgage
Pass Through Certificates, Series 1993-1
Landlord's Address: Xxxx Management, Inc.
Xxxxx 0000
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Copy to: Lennar Partners, Inc.
Xxxxx 0000
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
1.2 Premises: Suite No. 100 in the office building located at
00 Xxxxxxxxxx Xxxxxxx, Xxxxx (xxx "Building"), known as 40 Technology Park. The
Building and the land upon which it is situated, which land is more particularly
described in Exhibit "A" hereto are herein sometimes collectively called the
"Project".
1.3 Lease Term. The period commencing on August 1, 1996 (or
the earlier date Tenant occupies the Premises, subject to adjustment provided in
the Lease (the "Commencement Date"), and continuing for Sixty-One (61) months
thereafter. If the Commencement Date is a date other than the first day of a
month, the Lease Term shall consist of said number of months in addition to the
remainder of the days in the month in which the Commencement Date occurs.
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Base Rental Schedule; Additional Rent.
Throughout the term of this Lease, Tenant hereby agrees to pay a base
rental in accordance with the following Schedule for each year of the term of
this lease:
Annual Monthly
Year Base Rental Rate Rental
---- ---------------- ---------
1 $106,050.00 $ 8,837.50
2 $114,534.00 $ 9,544.50
3 $120,897.00 $10,074.75
4 $125,139.00 $10,428.25
5 $131,502.00 $10,958.50
Tenant also agrees to pay Additional Rent in accordance with Section
3.2 attached hereto.
1.4 Security Deposit: $8,837.50
Tenant's Share: The percentage that expresses the ratio between the
number of rentable square feet comprising the Premises (8,434), and the number
of rentable square feet of the Building (37,136), which, for the purposes of the
Lease, shall be 22.85%.
1.5 Permitted Use: General office purposes.
1.6 Lease Year: The period of twelve (12) months or less
commencing with the Commencement Date and ending at midnight on the following
December 31, each successive period of twelve (12) months thereafter during the
Lease Term, and the final period of twelve (12) months or less commencing on
January 1 of the year in which the Lease Term expires. During any Lease Year
within the Lease Term that is less than twelve (12) full months, any amount to
be paid for such period shall be prorated, based on the actual number of months
and the actual number of days of any partial month assuming each month to have
thirty (30) days.
2. Lease Grant.
2.1 In consideration of rent to be paid and the other
covenants and agreements to be performed by Tenant, Landlord does hereby lease,
demise and let unto Tenant the Premises, shown in the plan attached hereto as
Exhibit "A-1", commencing on the Commencement Date and ending on the last day of
the Lease Term, unless sooner terminated as herein provided. No easement for
light, air or view is granted, given or implied herein.
2.2 From and after the date hereof, Landlord shall construct
the Premises in accordance with the Final Plans (the "Plans") described in
Exhibit "G" attached hereto, and any changes or amendment thereto which are
properly authorized by Landlord and Tenant, and shall proceed with due diligence
with such construction so that construction is completed on or before August 30,
1996. When the Premises have been substantially completed in accordance with the
Plans (subject to normal minor "punch-list" items which do not materially
interfere with Tenant's intended use and occupancy of the Premises) and Landlord
has obtained a certificate of occupancy entitling Tenant to occupy the Premises,
Landlord shall notify Tenant that the Premises are ready for occupancy.
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Landlord shall diligently complete as soon as reasonably possible any items of
work not completed when the Premises are ready for occupancy. Landlord shall
assign to Tenant all applicable third party warranties and guaranties obtained
by Landlord in connection with the construction of such improvements. As used
herein, the term "Commencement Date" shall mean that date which is the earlier
to occur of (i) the issuance of a Certificate of Occupancy establishing that the
Premises are ready for occupancy by Tenant or (ii) Tenant's actual occupancy of
a majority of the Premises. Notwithstanding anything contained herein or in
Section 29 to the contrary, in the event that the Commencement Date does not
occur prior to September 30, 1996 through no fault of Tenant, Tenant shall have
the right to terminate this Lease by written notice to Landlord, whereupon all
security deposit, advance rent and other deposit paid by Tenant to Landlord
shall be promptly refunded by Landlord whereupon neither party shall have any
further rights or obligations hereunder. If this Lease is executed before the
Premises become vacant, or otherwise available for occupancy, or if any tenant
or occupant of the Premises holds over, and Landlord cannot acquire possession
of the Premises prior to the Commencement Date, Landlord shall not be in default
hereunder, and Tenant shall accept possession of the Premises when Landlord is
able to tender the same. Within ten (10) days after request of Landlord, Tenant
shall give Landlord a document confirming the Commencement Date, and certifying
that Tenant has accepted delivery of the Premises and that the condition of the
Premises complies with Landlord's obligations hereunder subject to such matters
as may be described therein. Such document shall be in the form attached hereto
as Exhibit "B", and by this reference incorporated herein.
3. Rent.
3.1 Base Rent. Tenant agrees to pay to Landlord in advance on
or before the first day of each month the Base Rent, subject to adjustment as
hereinafter provided, without deduction or set off except as may be provided
herein, for each month of the entire Lease Term. The first such monthly
installment together with the Security Deposit shall be due and payable by
Tenant to Landlord upon execution of this lease, and a like monthly installment
shall be due and payable without demand on or before the first day of each
calendar month succeeding the Commencement Date during the Lease Term. Rent for
any period of less than a full month shall be prorated, based on one thirtieth
(1/30) of the current monthly rent for each day of the partial month this Lease
is in effect. Landlord and Tenant acknowledge and agree that notwithstanding any
provision herein to the contrary, the base Monthly Rent payable during the first
month of the Lease term shall be $0.00, with the full base Monthly Rent set
forth in the Schedule in Paragraph 1.3 hereinabove commencing on the second
month after the Commencement Date and continuing thereafter throughout the Lease
Term.
3.2 Payment of Operating Costs by Tenant. In addition to the
Base Rent, Tenant agrees to pay as Additional Rent to Landlord, Tenant's Share
of estimated "Operating Costs" (as hereinafter defined in Paragraph 3.2.3
hereof) in excess of the Operating Costs for the Building for calendar year 1996
(the "Initial Operating Costs"), on a per square foot per annum basis and
adjusted as required herein, which Additional Rent shall be due in twelve (12)
equal installments in each Lease Year. All payments of Tenant's Share of
Operating Costs shall be due and payable without demand, deduction or set off in
advance on or before the first day of each month of the Lease Term beginning
January 1997. During any Lease Year within the Lease Term that is less than
twelve (12) full months, any amount to be paid with respect to such period shall
be proportionately adjusted based on that portion of the Lease Year that this
Lease is in effect.
3.2.1 Calculation of Operating Costs. On or
before December 15 of each Lease Year, Landlord shall provide Tenant with
Landlord's estimate of Tenant's Share of Operating Costs in excess of the
Initial Operating Costs for the following Lease Year (the "Estimated Operating
Costs"). Beginning on the January 1 of each Lease Year the amount of Tenant's
Share of Estimated Operating Costs shall be adjusted to the amount set forth in
Landlord's notice. As promptly as practical after the end of each Lease Year,
Landlord shall compute the actual Operating Costs for the such previous
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Lease Year. If Tenant's Share of the actual Operating Costs in excess of the
Initial Operating Costs is greater than the amount Tenant paid to Landlord as
Tenant's Share of the Estimated Operating Costs for the previous Lease Year,
Tenant shall, within fifteen (15) days after receipt of notice of Tenant's Share
of actual Operating Costs, pay to Landlord as Additional Rent an amount equal to
the difference between Tenant's Share of actual Operating Costs and Tenant's
Share of Estimated Operating Costs. If Tenant's Share of the actual Operating
Costs for any Lease Year is less than the amount Tenant paid to Landlord as
Tenant's Share of Estimated Operating Costs for such Lease Year, such excess
amount shall be applied against the installment of Additional Rent next coming
due until the same has been fully applied, provided however that any such excess
amount paid in the final Lease Year shall be promptly refunded by Landlord to
Tenant.
3.2.2 Adjustments to Operating Costs.
Notwithstanding anything to the contrary contained herein, if the Building is
not fully occupied during any calendar year, appropriate adjustments shall be
made to determine Operating Costs as though the Building has been fully occupied
in such calendar year.
3.2.3 Definitions. The definitions set forth in
this Section 3.2.3 shall be applied whenever any of the following terms are used
in Section 3.2.
3.2.3.1 Operating Costs: shall mean all costs paid
by Landlord or its representatives in connection with the ownership, management,
maintenance, operation, leasing, insuring, repairing, redecorating, cleaning and
securing of the Building, as determined by Landlord to be necessary or
appropriate, including, without limitation, all of the following costs:
(a) All wages, salaries, and related
expenses of all on-site and off-site agents, employees and contractors engaged
in the management, operation, maintenance, repair, redecoration, cleaning, and
security of the Building, plus the costs of all management, maintenance, and
security offices in the Building.
(b) All supplies and materials used and
labor charges incurred in the management, operation, maintenance, repair,
redecoration, cleaning and security of the Building.
(c) All equipment purchased or leased
for the performance of Landlord's obligations hereunder and used solely for the
Project.
(d) All management, maintenance,
cleaning, security and other service agreements for the Building and the
equipment therein, including, without limitation, alarm service, security
service, window cleaning, and elevator and escalator maintenance.
(e) All accounting and engineering fees
and expenses, including, without limitation, the cost of audits by certified
public accountants.
(f) All insurance premiums, including,
without limitation, fire, casualty, extended coverage, public liability, rent
abatement, boiler, and worker's compensation insurance applicable to the
Building, Landlord's employees and Landlord's personal property used in
connection therewith.
(g) All common area redecorating
(including painting, wallpapering and floor covering), maintaining and repairing
of the Building, structural or non-structural, including, without limitation,
the mechanical, electrical, heating, ventilating and air conditioning equipment,
landscape maintenance and the replacement of trees and shrubbery.
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(h) All removing of trash, rubbish,
garbage and other refuse from the Building, as well as removal of ice and snow
from the sidewalks, driveways and parking lots.
(i) All amortization of capital
improvements (including accounting, legal, architectural and engineering fees
incurred in connection therewith) made to the Building subsequent to the
Commencement Date which (i) will improve operating efficiencies; (ii) may be
required by any law; or (iii) improve or enhance the health of persons in the
Building or safety of the Building.
(j) All charges for electricity, gas,
water, sewer, and other utilities furnished to or services or privileges made
available to users of the Building.
(k) All ad valorem property taxes
covering all real and personal property constituting a part of the Building,
including, but not limited to, all general and special assessments of every
kind, but not including the personal property of any other tenant.
(l) All other expenses of owning,
maintaining, operating, insuring, securing, managing, cleaning, redecorating or
repairing the Building.
3.2.3.2 Notwithstanding any of the foregoing to the
contrary, Operating Costs shall not include:
(a) Costs which are required to be reimbursed
to Landlord by other tenants, directly or indirectly;
(b) Costs of leasehold improvements;
(c) Payment of any return on equity to any owner
of the Building;
(d) Costs reimbursed by proceeds of insurance;
(e) Costs of the initial of the Building or any
depreciation thereof;
(f) Payments of claims, damages or expenses
resulting from any grossly negligent or willful misconduct of Landlord or any of
its authorized representatives;
(g) Commissions payable to any real estate
broker(s) for the leasing of space in the Building;
(h) The cost of any work done by Landlord for
and at the expense of any particular tenant(s) in the Building or for which
Landlord is entitled to reimbursement from a third party;
(i) Legal fees, auditing fees, or other
professional fees and expenses paid by Landlord to enforce the obligations of
any other actual or prospective tenant in the Building;
(j) Interest or penalties resulting from
Landlord's negligent failure to pay applicable real property taxes on the
Project in a timely manner;
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(k) Costs to Landlord for repairs or work
required to be made or done on the Project as the result of fire, windstorm, or
other insurable casualty or by the exercise of eminent domain;
(l) Mortgage financing including any interest or
debt or amortization payments on any mortgages and/or under any ground lease or
underlying leases on the Project;
(m) Compensation paid by Landlord to persons
engaged in commercial concessions operated by Landlord (and not by a third
party) on the Project (e.g. newspaper stand, shoeshine service, valet parking
service);
(n) Expenses paid by Landlord for the
advertising and promotion of space for rent in the Building;
(o) Salaries, wages and benefits of Landlord's
employees above the level of "Property Manager";
(p) Painting or repainting any portion of the
Building other that general exterior painting not paid for by any tenant; and
(q) Costs incurred by Landlord resulting from
the purchase of art objects decorations for the Building.
3.3 If any installment of the Base Rent, Additional Rent or
any other sums owed by Tenant to Landlord under this Lease, is not received
within five (5) days after the due date thereof, without implying Landlord's
consent to such late payment, Tenant, to the extent permitted by law, agrees to
pay, in addition to said installment of the Base Rent or such other sum owed, a
late payment charge equal to five percent (5%) of the installment of the Base
Rent or such other sums owed. Said late payments charge shall constitute
liquidated damages and shall be for the purpose of reimbursing Landlord for
additional costs and expenses which Landlord expects to incur in connection with
the handling and processing of late installment payments of the Base Rent and
such other sums owed by Tenant to Landlord hereunder. If there is a late payment
by Tenant, the damages resulting to Landlord will be difficult to ascertain
precisely, and the foregoing charge constitutes a reasonable and good faith
estimate by the parties of the extent of such damages and does not constitute
interest. Notwithstanding the foregoing, such late charges shall not apply to
any sums which may have been advanced by Landlord to or for the benefit of
Tenant to this Lease.
3.4 The Security Deposit shall be held by Landlord as security
for the performance by Tenant of Tenant's covenants and obligations under this
Lease. Such deposit shall not considered an advance payment of rent or a measure
of Landlord's damages in a default by Tenant. Upon any event of default by
Tenant, Landlord may (but shall not be obligated to), with prejudice to any
other remedy, use the Security Deposit to the extent necessary to fund any
arrearage of Rent and any other damage, injury, expense or liability caused to
Landlord by such event of default. Following such application of the Security
Deposit, Tenant shall pay to Landlord on demand the amount so applied to restore
the Security Deposit to its original amount. If there is not then an event of
default, any remaining balance of the Security Deposit shall be returned by
Landlord to Tenant upon termination of this Lease. If Landlord transfers its
interest in the Premises during the Lease Term, Landlord may assign the Security
Deposit to the transferee and following such assignment and written assumption
by such Transferee, Landlord shall have no further liability for the return of
the Security Deposit.
3.5 All sums other than Base Rent payable by Tenant to
Landlord under this Lease shall constitute Additional Rent. Base Rent and
Additional Rent are herein referred to collectively as "Rent". All Rent due
hereunder shall bear interest from the date until paid in full at a rate equal
to the
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lesser of: (a) the prime interest rate in effect from day to day at NationsBank
of Georgia, plus three (3) percentage points; or (b) the maximum legal rate
allowed by law (the "Default Rate"). If more than the maximum legal rate of
interest should ever be collected with regard to any sum due hereunder, said
excess amount shall be credited against future payments of Rent accruing
thereafter. If no such further Rent accrues hereunder, said excess sums shall be
promptly refunded by Landlord to Tenant upon demand by Tenant.
3.6 No payment by Tenant or receipt by Landlord of a lesser
amount than the correct Rent shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction. Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance or to pursue any other remedy.
3.7 Tenant shall have the right, at its sole cost and expense,
and subject to the provisions of this Paragraph 3.7, to review and audit
Landlord's records relating to actual Operating Costs for the preceding Lease
Year, which records Landlord agrees to keep at its principal office or at the
office of Landlord's property manager. In the event that Tenant desires to so
review and audit Landlord's records, such audit and review shall occur within
ninety (90) days of the expiration of the Lease Year to be reviewed and not less
than fifteen (15) business days from the date Landlord receives advance written
notice of same from Tenant. Any such audit shall be conducted by a Certified
Public Accountant in accordance with Generally Accepted Accounting Principles
consistently applied, shall be conducted at the office where such records are
kept during normal business hours, shall not unreasonably interfere with such
office's operations, shall be performed at Tenant's sole cost and expense, shall
not be made more than once during any Lease Year, and shall be limited to the
actual operating Costs for the immediately preceding Lease Year. In the event
that such audit shows that the actual Operating Costs for the Lease Year
reviewed were overstated, Landlord shall have the right at its own expense and
within sixty (60) days of receiving a written copy of Tenant's audit, to perform
its own audit. In the event that Landlord's audit confirms overstatement of
actual Operating Costs, Landlord shall apply Tenant's Share of any such overage
against the next installment of Additional Rent next coming due until the same
has been fully applied, provided however that any such excess amount paid in the
final Lease Year shall be promptly refunded by Landlord to Tenant. In the event
that Tenant's audit reveals that the actual Operating Costs were understated,
Tenant shall promptly pay to Landlord Tenant's Share of the amount understated.
4. Intentionally Omitted.
5. Landlord's Obligations.
5.1 Subject to the limitations hereinafter set forth, Landlord
shall furnish Tenant while occupying the Premises and while Tenant is not in
default under this Lease facilities to provide (a) water at those points of
supply provided for general use of tenants of the Building; (b) heat and air
conditioning in season, from 8:00 a.m. to 6:00 p.m. Monday through Friday and
from 9:00 a.m. to 1:00 p.m. on Saturdays, except for holidays, at temperatures
and amounts reasonably considered by Landlord to be standard, such service at
night and on Saturday afternoons, Sundays and holidays to be furnished only at
the written request of Tenant, who shall pay upon demand Landlord's customary
charges for such services; (c) janitorial services to the Premises on weekdays
other than holidays and window washing as may, in Landlord's judgment, be
reasonably required; and (d) elevators for ingress and egress to the floor on
which the Premises are located, in common with other tenants, provided that
Landlord may limit the number of elevators to be in operation at times other
than during customary business hours for the Building and on holidays. Landlord
also agrees to maintain the public and common areas (the "Common Facilities") of
the Building such as lobbies, stairs, corridors and restrooms in reasonably good
order and condition, except for damage caused by Tenant or its employees, agents
or invitees. If Tenant desires services specified in this
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Section at any time other than times herein designated, such service shall be
supplied to Tenant only at the request of Tenant delivered to Landlord before
3:00 p.m. on the business days preceding such extra usage. Tenant shall pay to
Landlord as Additional Rent the cost of such service upon receipt of a xxxx
therefor.
5.2 Without additional cost to Tenant, Landlord shall provide
standard electric lighting and current for Tenant's use of the Premises and
shall make available electric lighting and current for the common areas of the
Building in the manner and to the extent deemed by Landlord to be standard. If
Tenant's use of electric current (a) exceeds 110 volt power, or (b) exceeds that
required for routine lighting and operation of general office machines (such as
typewriters, desktop computers, dictating equipment, desk model adding machines
and the like) which use 110 volt electrical power, then the Tenant shall pay on
demand the cost (as determined by Landlord) of any such excess. Without
Landlord's prior consent, Tenant shall not install any data processing or
computer equipment in the Premises or any other equipment which it shall require
for its use other than the normal electrical current or other utility service.
Whenever heat generating machines or equipment (other than general office
machines described above) are used in the Premises by Tenant which affect the
temperature otherwise maintained by the air conditioning system or otherwise
overload any utility, Landlord shall have the right to install supplemental air
conditioning units or other supplemental equipment in the Premises, and the cost
thereof (as determined by Landlord), including without limitation, the cost of
installation, separate metering, operation, use and maintenance, shall be paid
by Tenant to Landlord on demand. The rate charged by Landlord shall not exceed
the rate prevailing for Tenant as a user as established by the applicable rate
classification published from time to time by the local electric power company
or other utility supplier. The obligation of the Landlord to make available such
public utilities shall be subject to the rules and regulations of the supplier
of such utilities and of any municipal or other governmental authority
regulating the business providing such utility service. Tenant will be billed
monthly for such additional utility service and all such charges shall be
considered due upon delivery of such xxxx and be deemed Additional Rent due from
Tenant.
5.3 Landlord shall not be liable or responsible to Tenant for
loss, damages or expense Tenant sustains or incurs if either the quantity or
character of any utility service is changed by the service provider or is no
longer available from a public service provider. Tenant covenants and agrees
that its use of a electric current shall never exceed the capacity of existing
feeders to the Building or the risers or wiring installations. Any riser or
risers or wiring required or necessary to meet Tenant's excess electrical
requirements upon written request of Tenant will be installed by Landlord at the
sole cost and expense of Tenant, if, in Landlord's sole judgment, the same are
necessary and will not cause permanent damage or injury to the Building or the
Premises or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or interfere with or
disturb other tenants). If Landlord gives any such notice of discontinuance,
Landlord shall make all the necessary arrangements with the public utility
supplying the utilities to the Premises with respect to obtaining such
additional utility service to the Premises, but Tenant will contract directly
with such public utility for the supplying of such additional utility service to
the Premises).
5.4 Failure to any extent to make available, or any slow-down,
stoppage or interruption of, these defined services resulting from any cause
(including, but not limited to, Landlord's compliance with (a) any voluntary or
similar governmental or business guideline now or hereafter published or (b) any
requirements now or hereafter established by any governmental agency, board or
bureau having jurisdiction over the operation and maintenance of the Building)
shall not render Landlord liable for damages to person, property, or business
(except in the case of Landlord's gross negligence or willful misconduct), nor
be construed as an eviction of Tenant or work an abatement of Rent, nor relieve
Tenant from fulfillment of any covenant or agreement hereof. If any equipment or
machinery furnished by Landlord break down or for any cause cease to function
properly, Landlord shall use reasonable diligence to repair same promptly, but
Tenant shall have no claim for abatement of rent or damages for any
interruptions in service occasioned thereby or resulting therefrom (except in
the case of Landlord's gross negligence or willful misconduct).
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5.5 Tenant's obligations to pay Additional Rent pursuant to
this Article 5 shall constitute to the actual date of expiration or termination
of this Lease. If Landlord terminates this Lease without waiving Landlord's
right to seek damages against Tenant, Tenant's obligation to pay any and all
Additional Rent pursuant to this Article 5 shall not terminate as a result
thereof.
6. Tenant Improvements. The Landlord has agreed to make improvements to
the Premises. The provisions governing the planning, construction, scope of work
and terms of payment shall be set forth in Exhibit "G", which, if attached
hereto, is incorporated herein by this reference.
7. Permitted Use. Tenant shall use the Premises only for the Permitted
Use. Tenant will not occupy or use the Premises, or permit any portion of the
Premises to be occupied or used, for any business or purpose other than the
Permitted Use or for any use or purpose which is unlawful in part or in whole or
deemed to be disreputable in any manner or extra hazardous on account of fire,
nor shall Tenant use, store, discharge any "Hazardous Material" as defined in
Section 45 hereof, nor permit anything to be done which will in any way increase
the rate of insurance on the Building or contents; and if, by act of and to the
extent caused by Tenant, there is any increase in the rate of insurance on the
Building or contents created by Tenant's acts or conduct, then Tenant shall pay
to Landlord the amount of such increase on demand. Acceptance of such payment
shall not constitute a waiver of any of Landlord's other rights provided herein.
Tenant will conduct its business and control its agents, employees and invitees
to not create any nuisance, nor interfere with, annoy or disturb other tenants
or Landlord in the management of the Building. Tenant will maintain the Premises
in a clean, healthful and safe condition and will comply with all laws,
ordinances, orders, rules and regulations (state, federal, municipal and other
agencies of bodies having jurisdiction thereof) with reference to the use,
condition or occupancy of the Premises. Tenant will not, without the prior
consent of Landlord, paint, install lighting or install any signs, window or
door lettering or advertising media of any type on or about the Premises except
as set forth on the Plans and Specifications described on Exhibit "G" attached
hereto. The foregoing notwithstanding, Landlord agrees that Tenant shall have
the right to utilize a portion of the available space on the sign marquis
located or to be located at the entrance driveway for the Property in the area
marked as "sign location" on the plat of survey attached hereto as Exhibit I and
made a part hereof, upon which to place Tenant's sign. The size of such sign
shall not exceed Tenant's Share of the available space on the marquis (after
deducting the area of the Building identification sign), and the design of such
sign shall be subject to Landlord's approval, such approval not to be
unreasonably withheld. Landlord shall not obstruct the view of such sign from
adjoining accessways and rights-of-ways.
8. Tenant's Repairs and Alterations. (a) Tenant will not deface or
injure the Building, and will pay the cost of repairing any damage or injury
done to the Building or any part thereof by Tenant or Tenant's agents, employees
or invitees. Tenant shall take good care of the Premises and keep them from
waste and nuisance of any kind. Tenant shall keep the Premises, including all
fixtures installed by Tenant, in good condition, and to make all necessary
non-structural repairs except those caused by fire, casualty or acts of God
covered by Landlord's insurance policy covering the Building, if any. The
performance by Tenant of its obligations to maintain and make repairs shall be
conducted only by contractors and subcontractors reasonably consented to by
Landlord, and Tenant shall procure and maintain and shall cause such contractors
and subcontractors engaged by or on behalf of Tenant to procure and maintain
insurance coverage against such risks, in such amounts and with such companies
as Landlord requires in connection with such maintenance and repair. Tenant
shall prohibit any contractor it engages or subcontractor or material suppliers
engaged through such contractor from filing from any notice or notices of
commencement of public record as a part of or in connection with work on the
Premises. Tenant hereby further covenants and agrees to provide Landlord with
copies of any notices Tenant receives in connection with such work.
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(b) If Tenant fails to make the repairs described above within fifteen
(15) days after the occurrence of the damage or injury, Landlord may at its
option make such repairs, and Tenant shall, upon demand therefor, pay Landlord
for the cost thereof. At the end or termination of this Lease, Tenant shall
deliver the Premises with all improvements located thereon (except as otherwise
herein provided) in good repair and condition, reasonable wear and tear and
casualty and condemnation excepted; and shall deliver to Landlord all keys to
the Premises. Tenant will not make or allow to be made any alterations or
physical additions in or to the Premises without the prior written consent of
Landlord. All alterations, additions or improvements (whether temporary or
permanent in character) made in or upon the Premises by Landlord or Tenant shall
be Landlord's property on termination or expiration of this Lease and shall
remain on the Premises without compensation to Tenant, provided that Landlord,
at its option, may by notice to Tenant, require Tenant to remove any such
alterations, additions or improvements at Tenant's cost and restore the Premises
to the condition of the Premises at the Commencement Date, normal wear and tear
and condemnation and casualty excepted. All furniture, movable trade fixtures
and equipment installed by Tenant may be removed by Tenant at the termination of
this Lease if Tenant elects, and shall be removed if required by Landlord, or if
not removed shall, at the option of Landlord, become the property of Landlord.
All such installations, removals and restoration shall be accomplished in a good
workmanlike manner so as not to damage the Premises or the structure of the
Building or the plumbing, electrical or other utilities.
9. Subletting and Assigning.
9.1.1 Tenant shall not assign, mortgage or encumber this
Lease, nor sublet, suffer or permit the Premises or any part thereof to be used
by others, without the prior written consent of Landlord. Which consent shall
not be unreasonably withheld. If this Lease is assigned, or if the Premises or
any part hereof be sublet or occupied by anyone other than Tenant, without
Landlord's prior written consent, Landlord may collect from the assignee,
subtenant or occupant, and apply the net amount collected to the Rent, but no
such assignment, subletting, occupancy or collection shall be a waiver of this
covenant, or the acceptance of the assignee, subtenant or tenant, or a release
of Tenant from the further performance of its covenants herein contained. The
consent by Landlord to an assignment or subletting shall not be construed to
relieve Tenant from obtaining landlord's consent to any further assignment or
subletting.
9.1.2 For the purposes of this Lease, an "assignment"
prohibited by this Article 9 shall be deemed to include the following: if Tenant
is a partnership, a withdrawal or change (voluntary, involuntary, by operation
of law) of any one or more of the partners thereof, or the dissolution of the
partnership; or, if Tenant consists of more than one person, a purported
assignment, transfer, mortgage of encumbrance (voluntary, involuntary, by
operation of law or otherwise) from one thereof to the other or other thereof,
or to any third party; or, if Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or any change in the ownership
(voluntary, involuntary, by operation of law, creation of new stock or
otherwise) of fifty percent (50%) or more of its capital stock from the
ownership existing on the date of execution hereof, or, the sale of fifty
percent (50%) of the value of the assets of Tenant.
9.1.3 Notwithstanding the foregoing, without Landlord's
consent, but upon ten (10) days' notice to Landlord, this Lease may be assigned,
or the Premises may be sublet, to any corporation which is a parent, subsidiary
or affiliate of Tenant. For the purpose of this Section a "parent" shall mean a
corporation which owns one hundred percent (100%) of the outstanding stock of
Tenant, a "subsidiary" shall mean any corporation one hundred percent (100%) of
whose outstanding stock shall be owned by Tenant, and an "affiliate" shall mean
any corporation one hundred percent (100%) of whose outstanding stock shall be
owned by Tenant's parent.
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9.2 No less than twenty (20) days prior to the effective date
of a proposed assignment or sublease (other than one made pursuant to Subsection
9.1.3), Tenant shall offer to reconvey to landlord, as of said effective date,
that portion of the Premises which Tenant is seeking to assign or sublet, which
offer shall contain an undertaking by Tenant to accept as full and adequate
consideration for the reconveyance. Landlord's release of Tenant from all future
Rent and other obligations under this Lease for the Premises or portion thereof
so reconveyed. Landlord, in its absolute discretion, shall accept or reject the
offered reconveyance within twenty (20) days of the offer. If Landlord accepts,
the reconveyance shall be evidenced by an agreement acceptable to Landlord in
form and substance. If Landlord fails to accept or reject the offer within the
twenty (20) day period, Landlord shall have rejected the offer.
9.3 If Landlord rejects or is deemed to have rejected Tenant's
offer of reconveyance and if Landlord gives its consent to any assignment of
this lease or to any sublease, or if Tenant is otherwise permitted to make any
assignment or sublease pursuant to this Lease, Tenant shall in consideration
therefore, pay to Landlord, as Additional Rent:
9.3.1 For an assignment, an amount equal to all
sums and consideration paid to Tenant by the assignee for or by reason of such
assignment (including any sums paid for the sale, rental, or use of Tenant's
Property in excess of the then unamoritized value of Tenant's Property as
reflected in Tenant's federal income tax returns) less the reasonable brokerage
commissions, alteration costs and legal fees, if any, actually paid by Tenant in
connection with such assignment; and
9.3.2 For a sublease, any rents, additional charge
or other consideration payable under the sublease to Tenant by the subtenant
(including any sums paid for the sale, rental or use of Tenant's Property in
excess of the then unamoritized value of Tenant's Property as reflected in
Tenant's federal income tax returns) that are in excess of the Rent during the
term of the sublease with respect to the subleased space, less the reasonable
brokerage commissions, alteration costs, and legal fees, if any, actually paid
by Tenant in connection with such subletting.
The sums payable hereunder shall be paid to Landlord as and when
payable by the assignee or subtenant to Tenant.
9.4 Tenant shall reimburse Landlord on demand for any reasonable costs
that Landlord may incur in connection with said assignment or sublease,
including the reasonable costs of investigating the acceptability of the
proposed assignee or subtenant, and reasonable legal costs incurred in
connection with the granting of any requested consent.
9.5 No assignment or subletting shall affect the continuing primary
liability of Tenant (which, following assignment, shall be joint and several
with the assignee), and Tenant shall not be released from performing any of its
obligations hereunder.
10. Indemnity. Landlord shall not be liable for and Tenant will
indemnify and save harmless Landlord of and from all fines, suits, demands,
losses and actions (including attorneys' fees) for any injury to person(s) or
damage to or loss of property in or about the Premises caused in whole or in
part by the negligence or misconduct of, or breach of the Lease by Tenant, its
employees, subtenants, invitees or by any other person entering the Premises or
the Building under express or implied invitation of Tenant, or arising out of
Tenant's use of the Premises. Landlord shall not be liable or responsible for
any loss or damage to any property or death or injury to any person occasioned
by theft, fire, act of god, public enemy, criminal conduct of third parties,
injunction, riot, strike, insurrection, war, court order, requisition of other
governmental body or authority, by other tenants of the Building or any other
matter, or for any injury or damage or inconvenience which may arise through
repair or alteration of any party of the Building, or failure to make repairs,
or from any cause whatever except Landlord's grossly negligent or willful
misconduct. Landlord shall and does hereby indemnify and hold Tenant harmless
from and against any and
16
all loss, damage, claim, demand, liability, or expense (including court costs
and attorney's fees, including without limitation, any damage or injury to
person or property arising out of, as a result of, or in connection with the
willful misconduct or gross negligence of Landlord hereunder.
11. Subordination. This lease and all rights of Tenant hereunder are
subject and subordinate to any deeds to secure debt, mortgages or any other
instruments of security, as well as to any ground leases, that now or hereafter
cover all or any part of the Building, the land situated beneath the Building or
any interest of Landlord therein, and to any and all advances made on the
security thereof, and to any and all increases, renewals, modifications,
consolidations, replacements and extensions of any such instruments, so long as
the holder of any such security instrument agrees in writing not to disturb
Tenant's possession and rights hereunder, unless Tenant is in default hereunder,
after the expiration of any applicable grace, notice and/or cure period. This
provision shall be self-operative and no further instrument shall be required to
effect such subordination of this Lease except for such non-disturbance
agreement. Tenant shall, however upon demand execute, acknowledge and deliver to
Landlord any and all instruments and certificates that in the reasonable
judgment of Landlord may be necessary or proper to confirm or evidence such
subordination. Notwithstanding the generality of the foregoing provisions of
this Section, Tenant agrees that any such mortgagee shall have the right at any
time to subordinate any such instruments to this Lease on such terms and subject
to such conditions as such mortgagee may deem appropriate. Tenant further
covenants and agrees upon demand by Landlord's mortgagee at any time, before or
after the institution of any proceedings for the foreclosure of any such
instruments, or sale of the Building pursuant to any such instruments, to attorn
to such purchaser upon any such sale and to recognize such purchaser as Landlord
under this Lease. The agreement of Tenant to attorn upon demand of Landlord's
mortgagee contained in the immediately preceding sentence shall survive any such
foreclosure sale. Tenant shall upon demand at any time or times before or after
any such foreclosure sale, execute, acknowledge and deliver to Landlord's
mortgagee any and all instruments and certificates that in the reasonable
judgment of Landlord's mortgagee may be necessary or proper to confirm or
evidence such attornment. Tenant hereby irrevocably appoints Landlord's
mortgagee as Tenant's agent and attorney-in-fact for the purpose of executing,
acknowledging and delivering any such instruments and certificates.
12. Rules and Regulations. Tenant and Tenant's agents, employees and
invitees will comply with all the rules and regulations of the Building which
are attached hereto as Exhibit "C", and made a part hereof. Landlord in its sole
judgment shall have the right to change such rules and regulations or to
promulgate other rules and regulations in a manner deemed advisable for safety,
care, or cleanliness of the Building and related facilities or premises, and for
preservation of good order therein, all of which rules and regulations, changes
and amendments will be forwarded to Tenant in writing and shall be carried out
and observed by Tenant. Tenant shall further be responsible for the compliance
with such rules and regulations by the employees, servants, agents, visitors and
invitees of Tenant.
13. Inspection. Landlord or its officers, agents, and representatives
shall have the right to enter into and upon any and all parts of the Premises at
all reasonable hours after providing reasonable advance notice (or, in any
emergency, at any hour without notice) to (a) inspect same or clean or make
repairs or alternations or additions as Landlord may deem necessary (but without
any obligation to do so, except as expressly provided for herein) or (b) show
the Premises to prospective tenants, purchasers or lenders; and Tenant shall not
be entitled to any abatement or reduction of Rent by reason thereof, nor shall
such be deemed to be an actual or constructive eviction.
14. Condemnation. If the Premises, or any part thereof, or if the
Building or any portion of the Building, leaving the remainder of the Building
unsuitable for use as an office building comparable to its use on the
Commencement Date of this Lease or the Property or any portion of the property
leaving less than ______ parking spaces on the Property, shall be taken or
condemned in whole or in part for public purposes, or sold in lieu of
condemnation, then the Lease Term shall, at the sole option of Landlord,
forthwith cease
17
and terminate. All compensation awarded for any taking (or sale proceeds in lieu
thereof) shall be the property of Landlord, and Tenant shall have no claim
thereto, the same being hereby expressly waived by Tenant; provided, however,
that Tenant shall have the right to apply for and collect the value of its trade
fixtures and special equipment installed by it on the Premises and any other
compensable damages resulting from such condemnation not affecting Landlord's
settlement with the condemning authority. If this Lease is not terminated,
Landlord may repair the damage to the Premises caused by the condemnation,
except that Landlord shall not be obligated to repair any damage for which
Tenant has been reimbursed by the condemning authority. If the severance damages
received by Landlord are not sufficient to pay for such repair, Landlord shall
have the right to either terminate this Lease or make such repair at landlord's
expense unless Tenant agrees to fund the shortfall pursuant to disbursement
procedures reasonably acceptable to Landlord.
15. Casualty. If the Building is totally destroyed by fire, tornado, or
other casualty or if the Premises or Building is so damaged that rebuilding or
repairs cannot be completed within one hundred eighty (180) days after the date
of such damage, Landlord or Tenant may at its option terminate this Lease, in
which event the Rent shall be abated during the unexpired portion of this Lease
effective from the date of such damage. If the Building or the Premises are
damaged by fire, tornado or other casualty covered by Landlord's insurance, but
only to such extent that rebuilding or repairs can be completed within one
hundred eighty (180) days after the date of such damage, or if the damage should
be more serious but neither Landlord nor Tenant elects to terminate this Lease,
Landlord shall within ninety (90) days after the date of such damage commence to
rebuild or repair the Building and/or Premises and proceed with reasonable
diligence to restore the Building and/or Premises to not less than substantially
the same condition in which it was immediately prior to the casualty, except
Landlord shall not be required to rebuild, repair or replace any part of the
furniture, equipment, fixtures and other improvements which may have been placed
by Tenant in the Premises. There shall be a fair diminution of Rent during the
time the Premises are unsuitable for occupancy and Landlord is unable to move
Tenant to a substitute space in the Building. If any mortgagee under a deed to
secure debt, security agreement or mortgage requires the insurance proceeds be
applied against the mortgage debt, Landlord shall have no obligation to [Missing
page from original] continue for a period of thirty (30) days following Tenant's
receipt of written notice to cure from Landlord; provided, however, if such
failure is not capable of cure within said thirty (30) day period, but is
capable of cure, Tenant shall not be deemed in default, if Tenant commences to
cure within said thirty (30) day period and diligently and in good faith
prosecutes such cure to completion.
18.3 Tenant or any guarantor of Tenant's obligations hereunder
shall make an assignment for the benefit of creditors.
18.4 Any petition shall be filed by or against Tenant or any
guarantor of Tenant's obligations hereunder under any section or chapter of the
Federal Bankruptcy Act, as amended from time to time, or under any similar law
or statute of the United States or any State thereof and filed against Tenant,
is not dismissed within sixty (60) days from the date of filing; or Tenant or
any guarantor of Tenant's obligations hereunder shall be adjudged bankrupt or
insolvent in proceedings filed thereunder.
18.5 A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant or any guarantor of Tenant's
obligations hereunder and such receiver or trustee is not dismissed within sixty
(60) days of its appointment.
18.6 Any writ of execution, attachment, or garnishment shall
be levied against any interest of Tenant in this Lease, the Premises, or any
property located in the Premises.
19. Remedies. If Tenant defaults under this Lease, then without any
notice or demand to Tenant whatsoever, Landlord shall have the right (but not
any duty) to exercise, on a cumulative basis, any or all of the following
remedies:
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19.1 Landlord may continue this Lease in full force and
effect, and proceed to collect all Rent when due.
19.2 Landlord may continue this Lease in full force and
effect and may enter the Premises and relet all or any portion thereof to other
parties for Tenant's account. Tenant shall pay to Landlord on demand all costs
Landlord incurs in entering the Premises and reletting them, including, without
limitation, brokers' commissions, expenses of repairs and remodeling, attorneys'
fees, and all other actual costs. Reletting may be for a period shorter or
longer than the remaining term of this Lease. During the term of any reletting,
Tenant shall pay to Landlord the Rent due under this Lease on the dates due,
less any net rents Landlord receives from any reletting.
19.3 Landlord may, without any notice or demand whatsoever,
terminate Tenant's rights under this Lease at any time. From and after any such
termination, Landlord shall have the right to recover from Tenant all costs,
expenses, losses and damages caused by, resulting from or incurred in connection
with said default and/or termination, including, but not limited to:
19.3.1 An amount equal to all unpaid Rent that had
accrued prior to the time of
termination of this Lease;
19.3.2 An amount equal to (a) the amount of Rent
that would have accrued under this Lease between (i) the date of termination of
this Lease, and (ii) the date the calculation is made under this subsection
19.3.2 if this Lease had not been so terminated; less (b) any net amounts of
rent actually received by Landlord with respect to such time period; plus
19.3.3 An amount equal to (a) the present value of
all Rent (assuming that the Additional Rent payable hereunder for the future
will be the same as for the most recent Lease Year) which would have accrued
under this Lease had this Lease not been terminated, for the period of time
between (i) the date of calculation of the amounts due under subsection 19.3.2,
and (ii) the date the Lease Term would have expired if this Lease had not been
so terminated; less (b) the present value of rent at that time being actually
collected for comparable leases in the immediate geographic area of the Project;
and
19.3.4 An amount equal to (a) all actual costs and
expenses, including but not limited to attorneys' fees, that have been incurred
by Landlord prior to the date the calculation of said amounts if made, plus (b)
the present value of all costs and expense, including but not limited to
attorneys' fees, that with reasonable certainty are likely to be incurred
thereafter by Landlord, which are reasonably necessary to compensate Landlord
for all economic losses proximately caused by Tenant's default.
In computing the present value of amounts for purposes of this
subsection 19.3, a capitalization rate of eight percent (8%) per annum shall be
used.
19.4 Without any showing of need or the presence of any
statutory or common law grounds, all of which requirements are hereby expressly
waived, Landlord may have a receiver appointed to take possession of and relet
the Premises, in accordance with subsection 19.2. Tenant shall pay to Landlord
on demand all costs Landlord incurs in connection therewith.
19.5 Landlord may cure any default at Tenant's cost. If
Landlord at any time, by reason of Tenant's default, pays any sum to cure any
default, the sum so paid by Landlord shall be immediately due from Tenant to
Landlord on demand, and shall bear interest at the Default Rate from the date
paid by Landlord until Landlord shall have been reimbursed by Tenant. Said sum,
together with interest thereon, shall be Additional Rent.
19
19.6 Landlord may apply all or part of the Security Deposit,
as provided in Section 3.3.
19.7 Landlord may exercise any or all other rights or remedies
available at law or equity, including, without limitation, the right to obtain
restraining orders, injunctions and decrees of specific performance.
19.8 Landlord shall not be in default unless Landlord fails to
perform obligations required of Landlord hereunder within a reasonable time
depending upon the nature thereof (e.g., promptly in the event of imminent
danger to person or property), but in no event later than thirty (30) days after
Landlord's receipt of written notice from Tenant specifying wherein Landlord has
failed to perform such obligation; provided, however, that if the nature of
Landlord's obligations is such that more than thirty (30) days are reasonably
required for its cure then Landlord shall not be in default if Landlord
commences to cure within such thirty (30) day period and thereafter diligently
and in good faith prosecutes such cure to completion. In the event that Landlord
fails to so cure any such default following notice as aforesaid, Tenant may cure
such default and thereafter make demand upon Landlord for the reasonable cost of
such cure.
20. Attorneys' Fees. If Landlord or Tenant brings any action under this
Lease or consults or places said Lease, or any amount payable by the other party
hereunder, with an attorney concerning or for the enforcement of such party's
rights hereunder, each party agrees in each and any such case to pay to the
prevailing party all costs, including, but not limited to, court costs and
attorneys' fees in connection therewith.
21. INTENTIONALLY OMITTED
22. Mechanic's Lien. Tenant will not permit any mechanic's lien to be
placed upon the Premises, the Building or any improvements thereon during the
Lease Term caused by or resulting from any work performed, materials furnished
or obligation incurred by or at the request of Tenant, and in the case of the
filing of any such lien, Tenant will promptly pay, bond, or otherwise discharge
the same. If default in payment, bond, or discharge thereof shall continue for
thirty (30) days after notice thereto from Landlord to Tenant, Landlord shall
have the right at Landlord's option of paying the same without inquiry as to the
validity thereof, and any amounts so paid, including expenses and interest,
shall be so much Additional Rent hereunder due from Tenant to Landlord and shall
be repaid to Landlord immediately on demand.
23. Waiver of Subrogation. Each party to this Lease (the "Waiving
Party") hereby waives any cause of action it might have against the other party
hereto on account of any loss or damage that is covered by any insurance policy
that covers the Premises, Tenant's fixtures, personal property, leasehold
improvements or business and which names Tenant as a party insured, it being
understood and agreed that this provision is cumulative of Section 10 hereof.
Tenant shall require its insurance carrier to endorse all applicable policies
waiving the carrier's rights of recovery under subrogation or otherwise against
Landlord.
24. Tenant's Insurance.
Tenant shall carry (at its sole expense during the Term):
(i) all-risk property insurance, insuring Tenant's interest in
its improvements to the Premises and any and all furniture, fixtures, equipment,
supplies, inventory, contents and other property owned leased, held or possessed
by Tenant and contained therein, such insurance coverage to include business
interruption insurance for one hundred percent (100%) of Tenant's gross revenues
for a period of
20
twelve (12) months. Such insurance shall be in an amount equal to the full
replacement cost of such improvements and property, as such may increase from
time to time, without deduction for depreciation, providing protection against
all perils included within the classification of fire, extended coverage,
vandalism, malicious mischief, special extended peril (all risk), boiler and
machinery, flood, glass breakage and sprinkler leakage, and naming Landlord as
loss payee as its interest may appear;
(ii) worker's compensation insurance required by applicable
law;
(iii) comprehensive or commercial general liability insurance
on an occurrence basis for injury to or death of a person or persons and for
damage to property occasioned by or arising out of any construction work being
done on the Premises by Tenant or Tenant's contractors, or arising out of the
condition, use, or occupancy of the Premises, or other portions of the Building
or Property, and covering Tenant's indemnification obligations imposed by
Paragraph 15 of this Lease, the limits of such policy or policies to be in
amounts not less than One Million and No/100 Dollars ($1,000,000) in primary
liability coverage and Two Million and No/100 Dollars ($2,000,000) in excess
liability coverage; and
(iv) primary automobile liability insurance with limits of
not less than One Million and No/100 Dollars ($1,000,000) per occurrence,
covering owned and non-owned vehicles used by Tenant.
Landlord retains the right, in its sole discretion, to increase the
amount of insurance required to be carried by Tenant not more frequently than
annually based on such factors as inflation, Tenant's insurance claims history,
the advice of Landlord's insurance advisors and any other relevant factors.
Landlord and Tenant shall each have included in all policies of insurance
respectively obtained by them with respect to the Building or Premises a waiver
by the insurer of all right of subrogation against the other (and, with respect
to Tenant's insurance, against Landlord's property manager) in connection with
any loss or damage insured against. To the full extent permitted by law,
Landlord and Tenant each waives all right of recovery against the other (and,
with respect to Tenant, against Landlord's property manager), and agrees to
release the other from liability for loss or damage to the extent such loss or
damage is covered by valid and collectible insurance in effect at the time of
such loss or damage. All said insurance policies shall be carried with companies
licensed to do business in the state reasonable satisfactory to Landlord and
shall be noncancellable except after thirty (30) days written notice to
Landlord. Each policy shall name Landlord, Landlord's property manager and any
other person designated by Landlord as additional insured and provide that it is
primary to, and not contributing with, any policy carried by Landlord,
Landlord's property manager, or other designated person covering the same loss.
Tenant shall deliver duly executed certificates of such insurance to Landlord
prior to the Commencement Date and at least twenty (20) days prior to the
expiration of each prospective policy term. No insurance policy or policies
required to be carried by Tenant will be subject to more than a $25,000.00
deductible limit without Landlord's prior written consent. Landlord reserves the
right to require Tenant to carry such other insurance (including, without
limitation and as applicable, plate glass insurance, automobile liability
insurance, builder's risk insurance and liquor liability insurance) and
endorsements in such amounts as Landlord in its sole but reasonable discretion
may deem necessary or appropriate. If Tenant fails to take out of or keep in
force any insurance required to be carried by Tenant, or to provide evidence of
the same, Landlord shall have the right, but shall not be obligated, to obtain
such insurance at the sole cost and expense of Tenant, and Tenant shall
reimburse Landlord for the cost thereof upon demand.
25. Brokerage. XXXX MANAGEMENT SERVICES, INC. ("XXXX") HAS REPRESENTED
LANDLORD IN THIS TRANSACTION. CB COMMERCIAL, INC. ("CB COMMERCIAL") HAS
REPRESENTED TENANT IN THIS TRANSACTION. BOTH XXXX AND CB COMMERCIAL SHALL BE
PAID A COMMISSION BY LANDLORD IN CONNECTION WITH THIS LEASE, UNDER A SEPARATE
AGREEMENT. Tenant warrants that it has had no dealings with any broker or agent
in connection with the negotiation or execution of this Lease other than with
the brokers
21
specifically identified above, and Tenant agrees to indemnify Landlord against
all costs, expenses, attorneys' fees or other liability for commissions or other
compensation or charges claimed by any broker or agent claiming the same by,
through or under Tenant, other than with the brokers specifically identified
above. Tenant shall cause the broker representing Tenant to execute a lien
waiver to and for the benefit of Landlord, waiving all lien rights with respect
to the Building or Project such broker has or might have.
26. Change of Building Name. Landlord reserves the right to change the
name by which the Building is designated.
27. Estoppel Certificates. Tenant shall furnish from time to time when
requested by Landlord or the holder of any deed to secure debt or mortgage
covering the Building, the Premises, or any interest of Landlord therein, a
certificate signed by Tenant confirming and containing such certifications and
representations deemed appropriate by Landlord or the holder of any deed to
secure debt or mortgage covering the Building, the Premises or any interest of
Landlord therein, and Tenant shall, within ten (10) days following receipt of
said certificate from Landlord, return a fully executed copy of said certificate
to Landlord. If Tenant fails to return a fully executed copy of such certificate
with appropriate modification to Landlord within said period, Tenant shall have
approved and confirmed all of the provisions contained in such certificate.
28. Notices. Each provision of this Lease or of any applicable laws,
ordinances, regulations, and other requirements with reference to the sending,
mailing or delivery of any notice, or with reference to the making of any
payment by Tenant to Landlord, shall be deemed to be complied with when and if
the following steps are taken:
28.1 All Rent and other payments required to be made by Tenant
to Landlord hereunder shall be payable to Landlord at Landlord's Address set
forth in Section 1.5 or at such other address as Landlord may specify from time
to time by written notice delivered in accordance herewith, and
28.2 Any notice or document required to be delivered hereunder
shall be deemed to be delivered if actually received and whether or not received
when deposited in the United States mail, postage prepaid, certified or
registered mail (with or without return receipt requested), addressed to the
parties hereto at the respective addresses set forth in Article 1 or at such
other address as either of said parties shall have theretofore specified by
written notice delivered in accordance herewith.
29. Force Majeure. When a period of time is prescribed for any action
to be taken by Landlord, 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 strikes, riots, acts of God, shortages of labor or materials, war,
laws, regulations or restrictions or any other causes of any kind whatsoever
which are beyond the control of Landlord but in no event shall such delay exceed
thirty (30) days.
30. Severability. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the Lease
Term, then and in that event, it is the intention of the parties hereto that the
remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
31. Amendments; Binding Effect. This Lease may not be altered, changed
or amended, except by instrument in writing signed by both parties hereto. No
provision of this Lease shall be deemed to have been waived by Landlord unless
such waiver be in writing signed by Landlord and addressed to
22
Tenant, nor shall any custom or practice which may evolve between the parties in
the administration of the terms hereof be construed to waive or lessen the right
of Landlord to insist upon the performance by Tenant in strict accordance with
the terms hereof. The terms and conditions contained in this Lease shall apply
to, inure to the benefit of, and be binding upon the parties hereto, and upon
their respective successors in interest and legal representatives, except as
otherwise herein expressly provided.
32. Quiet Enjoyment. Provided Tenant has performed all of the terms and
conditions of this Lease, including the payment of Rent, to be performed by
Tenant, Tenant shall peaceably and quietly hold and enjoy the Premises for the
Lease Term, without hindrance from Landlord, subject to the terms and conditions
of this Lease.
33. Gender. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
34. Joint and Several Liability. If there is more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several. If there
is a guarantor of Tenant's obligations hereunder, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of Tenant and such
guarantor and Landlord need not first proceed against Tenant before proceeding
against such guarantor nor shall any such guarantor be released from its
guaranty for any reason whatsoever, including without limitation, in case of any
amendments hereto, waivers hereof or failure to give such guarantor any notices
hereunder.
35. Captions. The captions contained in this Lease are for convenience
of reference only, and in no way limit or enlarge the terms and conditions of
this Lease.
36. Exhibits and Attachments. All exhibits, attachments, riders and
addenda referred to in this Lease are incorporated into this Lease and made a
part hereof for all intents and purposes.
37. No Joint Venture. Landlord and Tenant are not and shall not be
deemed to be partners or joint venturers with each other.
38. Time of the Essence. Time is of the essence with regard to each
provision of this Lease.
39. Evidence of Authority. If Tenant is other than a natural person,
Tenant shall deliver to Landlord such legal documentation as Landlord may
request to evidence the authority of those signing this Lease to bind the
Tenant.
40. Governing Law. This Lease shall be construed and interpreted in
accordance with and governed by the laws of Georgia.
41. Entire Agreement. This Lease constitutes the entire agreement
between the parties, and there is no other agreement between the parties
relating in any manner to the Project.
42. Exculpation. The term Landlord as used in this Lease so far as
covenants or obligations on the part of Landlord are concerned shall be limited
to mean and include only the owner or owners at the time in question of the
Landlord's interest in the Building. Tenant acknowledges and agrees, for itself
and its successors and assigns, that no trustee, director, officer, employee or
agent of Landlord shall be personally liable for any of the terms, covenants or
obligations of Landlord hereunder, and Tenant shall look solely to Landlord's
interest in the Building for the collection of any judgment (or enforcement or
any other
23
judicial process) requiring the payment of money by Landlord with respect to any
of the terms, covenants and conditions of this Lease to be observed or performed
by Landlord and no other property or assets of Landlord shall be subject to
levy, execution or other enforcement procedures for the satisfaction of any
obligation due Tenant or its successors or assigns.
43. Covenants are Independent. Each covenant of Landlord and Tenant
under this Lease is independent of each other covenant under this Lease, and no
default by either party in performance of any covenant shall excuse the other
party from the performance of any other covenant.
44. Intentionally Deleted.
45. Hazardous Materials.
45.1 Tenant shall not cause or permit any Hazardous Material
(as defined in Section 45.3 below) to be brought, kept or used in or about the
Building by Tenant, its agents, employees, contractors or invitees. Tenant
hereby indemnifies Landlord from and against any breach by Tenant of the
obligations stated in the preceding sentence, and agrees to defend and hold
Landlord harmless from and against any and all loss, damage, cost and/or
expenses (including, without limitation, diminution in value of the Building,
damages for the loss or restriction on use of rentable or usable space or of any
amenity of the Building, damages arising from any adverse impact on marketing of
space in the Building, and sums paid in settlement of claims, attorneys' fees,
consultant fees, and expert fees) which arise during or after the terms of this
Lease as a result of such breach. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state, or local governmental agency or
political subdivision because of Hazardous Material present in the soil or
ground water on or under the Building which results from such a breach. Without
limiting the foregoing, if the presence of any Hazardous Material in the
Building caused or permitted by Tenant results in any contamination of the
Building, Tenant shall promptly take all actions at its sole expense as are
necessary to return the Building to the conditions existing prior to the
introduction of such Hazardous Materials to the Building; provided that the
Landlord's approval of such actions, and the contractors to be used by Tenant in
connection therewith, shall first be obtained.
45.2 Notwithstanding any provision in this Lease to the contrary,
it shall not be unreasonable for Landlord to withhold its consent to any
proposed transfer, assignment, or subletting of the Premises if (i) the proposed
transferee's anticipated use of the Premises involves the generation, storage,
use, treatment, or disposal of Hazardous Material; (ii) the proposed transferee
has been required by any prior landlord, lender, or governmental authority to
take remedial action in connection with Hazardous Material contaminating a
property if the contamination resulted from such transferee's actions or use of
the property in question; or (iii) the proposed transferee is subject to an
enforcement order issued by any governmental authority in connection with the
use, disposal, or storage of a Hazardous Material.
45.3 As used herein, the term "Hazardous Material" means any
hazardous or toxic substance, material, or waste which is or becomes regulated
by any local governmental authority or the United States Government. The term
"Hazardous Material" includes, without limitation, any material or substance
which is (i) defined as a "hazardous waste," "extremely hazardous waste," or
"restricted hazardous waste" or similar term under the law of the jurisdiction
where the property is located, or (ii) designated as a "hazardous substance"
pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.
ss. 1317), (iii) defined as a "hazardous waste" pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 47 U.S.S. ss. 6901 et seq. (42
U.S.C. ss. 6903), or (iv) defined as a "hazardous substance" pursuant to Section
101 of the Comprehensive Environmental response, Compensation and Liability Act,
42 U.S.C. ss. 9601 et seq. (42 U.S.C. ss. 9601).
24
45.4 As used herein, the term "Laws" means any applicable
federal, state or local laws, ordinances or regulation relating to any Hazardous
Material affecting the Building, including, without limitation, the laws,
ordinances, and regulations referred to in Section 45.3 above.
45.5 Landlord and its employees, representatives and agents
shall have access to the Building during reasonable hours and upon reasonable
notice to Tenant in order to conduct periodic environmental inspections and
tests of Hazardous Material contamination of the Building.
Special Provisions. The special provisions set forth in Exhibits "D" and "E"
hereto are made a part hereof.
25
SIGNED, SEALED AND DELIVERED as of the date first above written.
TENANT:
Gulliver Ritchie Associates, Inc.
/s/ Gulliver Ritchie Associates, Inc.(SEAL)
By:
----------------------------------------
Its: President
Attest:
----------------------------
Date Executed -----------------------------------------
Its:
------------------------------------
Tenant Employee Identification Number
By execution and delivery of this Lease, Tenant has made and shall be
deemed to have made a continuous and irrevocable offer to lease the Premises, on
the terms contained in this Lease, subject only to acceptance by Landlord (as
evidenced by Landlord's signature hereon), which Landlord may accept in its sole
and absolute discretion.
LANDLORD:
The First National Bank of Chicago, as
Trustee for New England Mutual Life
Insurance Company Commercial Mortgage
Pass Through Certificates, Series 1993-1
By: Lennar Partners, Inc., a Florida
corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
26
EXHIBIT "A"
[Legal Description of Space]
27
EXHIBIT "B"
MEMORANDUM CONFIRMING TERM
THIS MEMORANDUM ("Memorandum") is made as of _________________, 19__
between The First National Bank of Chicago, as Trustee for New England Mutual
Life Insurance Company Mortgage Pass Through Certificates, Series 1993-1
("Landlord") and Gulliver Ritchie Associates, Inc., a ______________ corporation
("Tenant"), pursuant to that certain Lease Agreement between Landlord and Tenant
dated as of June 1, 1996 (the "Lease") for the premises located at 00 Xxxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx (the "Premises") and more particularly
described in the Lease. All initial capitalized terms used in this Memorandum
have the meanings ascribed to them in the Lease.
1. Landlord and Tenant hereby confirm that:
(a) The Commencement Date of the Term is _______________, 19__.
(b) The Expiration Date of the Term is ______________, 19__.
(c) The date rental commences under the Lease is ___________, 19__.
2. Tenant hereby confirms that:
(a) All commitments, arrangements or understandings made to
induce tenant to enter into the Lease have been satisfied;
(b All space and improvement have been completed and furnished in
accordance with the provisions of the Lease; and
(c) Tenant has accepted and is in full and complete possession of
the Premises.
This Memorandum shall be binding upon and inure to the benefit of the
parties and their permitted successors and assigns.
28
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the
date first set forth above.
LANDLORD: TENANT:
The First National Bank of Chicago, Gulliver Ritchie Associates, Inc.
as Trustee for New England Mutual
Life Insurance Company Commercial -------------------------------------
Mortgage Pass Through Certificates, By:
Series 1993-1 ----------------------------------
Its:
---------------------------------
By: Lennar Partners, Inc., a Attest:
Florida corporation ------------------------------
Its:
---------------------------------
By:
-------------------------
Xxxxxxx X. Xxxxxxxx
29
EXHIBIT "C"
Attached to and made part of
Lease Agreement dated July 3, 1996
Landlord: The First National Bank of Chicago, as Trustee for New England Mutual
Life Insurance Company Mortgage Pass Through Certificates, Series
1993-1
Tenant: Gulliver Ritchie Associates, Inc.
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking garage associated therewith, the land
situated beneath the Building and the appurtenances thereto:
Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by tenants or used by any tenant for any purpose
other than ingress and egress to and from the leased premises and for going from
one to another part of the Building.
Plumbing, fixtures and appliances shall be used only for the purpose
for which designed, and no sweepings, rubbish, rages, Hazardous Material as
defined herein, or other unsuitable material shall be thrown or placed therein.
Damage resulting to any such fixtures or appliances from misuse by a tenant or
such tenant's agents, employees or invitees, shall be paid by such tenant, and
Landlord shall not in any case be responsible therefore.
No signs, advertisements or notices shall be painted or affixed on or
to any windows or doors or other part of the Building except of such color, size
and style and in such places as shall be first approved in writing by Landlord.
No nails, hooks, or screws shall be driven or inserted in any part of the
Building except as a part of the hanging of normal office art, and except by the
building maintenance personnel nor shall any part of the Building be defaced by
tenants. No curtains or other window treatments shall be placed between the
glass and the Building standard window treatments.
Landlord will provide and maintain an alphabetical directory board for
all tenants in the main lobby of the Building, and no other directory shall be
permitted unless previously consented to by Landlord in writing.
Landlord shall provide all locks for doors in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
lock or locks on any door in its leased area without Landlord's prior written
consent. A reasonable number of keys to the locks on the doors in each tenant's
leased premises shall be furnished by Landlord to each tenant, at the cost of
such tenant, and the tenants shall not have any duplicate keys made.
Tenants will refer all contractors, contractors' representatives and
installation technicians rendering any service to them to Landlord for
Landlord's supervision, approval and control before the performance of any
contractual services. This provision shall apply to all work performed in the
Building, including, but not limited to, installations of telephones, telegraph
equipment, electrical devices and attachments, and any and all installations of
every nature affecting floors, walls, woodwork, trim, windows, ceilings,
equipment and any other physical portion of the Building.
Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by tenants of any bulky material, merchandise or materials
which requires the use of elevators or stairways, or
30
movement through the Building entrances or lobby shall be restricted to such
hours as Landlord shall designate. All such movement shall be under the
supervision of Landlord and in the manner agreed between the tenants and
Landlord by prearrangement before performance. Such prearrangement initiated by
a tenant will include determination by Landlord, and subject to it decision and
control, as to the time, method, and routing of movement and as to limitations
for safety or other concern which may prohibit any article, equipment or any
other item from being brought into the Building. Tenant assumes all risks as to
the damage to articles moved and injury to persons or public engaged or not
engaged in such movement, including equipment, property and personnel of
Landlord if damaged or injured as result of acts in connection with carrying out
this service for a tenant from the time of entering the Project to completion of
work; and Landlord shall not be liable for acts of any person engaged in, or any
damage or loss to any of said property or persons resulting from, and act in
connection with such service performed for a tenant.
Landlord shall have the power to prescribe the weight and position of
safes and other heavy equipment or items, which shall, in all cases, to
distribute weight, stand on supporting devices approved by Landlord. All damages
done to the Building by the installation or removal of any property of a tenant,
or done by a tenant's property while in the Building, shall be repaired at the
expense of such tenant.
A tenant shall notify the Building manager when safes or other heavy
equipment are to be taken in or out of the Building, and the moving shall be
done under the supervision of the Building manager, after written permission
from Landlord. Persons employed to move such property must be acceptable to
Landlord.
Corridor doors, when not in use, shall be kept closed.
Each tenant shall cooperate with Landlord's employees in keeping its
leased premises neat and clean. Tenants shall not employ any person for the
purposes of such cleaning other than the Building's cleaning and maintenance
personnel. Landlord shall be in no way responsible to the tenants, their agents,
employees, or invitees for any loss of property from the leased premises or
public areas or for any damages to any property thereon from any cause
whatsoever.
Should a tenant require telegraphic, telephone, enunciator or other
communication service, Landlord will direct the electrician where and how wires
are to be introduced and placed and none shall be introduced or placed except as
Landlord shall direct. Electric current shall not be used for power of heating
without Landlord's prior written permission.
Tenants shall not make or permit any improper, objectionable or
unpleasant noises or odors in the Building or otherwise interfere in any way
with other tenants or persons having business with them.
Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairway. No animals shall be brought into or kept in, on or about the
Building.
No machinery of any kind other than ordinary and necessary office
equipment shall be operated by any tenant in its leased premises without the
prior written consent of Landlord, nor shall any tenant use or keep in the
Building any inflammable or explosive fluid or any other Hazardous Material.
No portion of any tenant's leased premises shall at any time be used or
occupied as sleeping or lodging quarters.
Landlord will not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
31
Smoking is prohibited in all areas of the Building except where
expressly permitted by Landlord (if any such area is permitted). Landlord
reserves the right to relocate or eliminate any such areas where smoking is
permitted, at any time.
Any additional services not required by lease to be performed by
Landlord, which Tenant requests Landlord to perform and which are performed by
Landlord shall be billed to Tenant at Landlord's cost plus twenty percent (20%).
Landlord reserves the right to rescind any of these rules and
regulations and to make such other and further rules and regulations as in its
sole judgment shall from time to time be deemed appropriate for the safety,
protection, care and cleanliness of the Building, the operation thereof, the
preservation of good order therein and the protection and comfort of the tenants
and their agents, employees and invitees, which rules and regulations, when made
and written notice thereof is given to tenant, shall be binding upon it in like
manner as if originally prescribed.
32
EXHIBIT "D"
Attached to and made part of
Lease Agreement dated July 3, 1996.
Landlord: The First National Bank of Chicago, as Trustee for New England Mutual
Life Insurance Company Mortgage Pass Through Certificates, Series
1993-1
Tenant: Gulliver Ritchie Associates, Inc.
(SPECIAL STIPULATIONS)
Parking. Landlord and Tenant agree that Tenant shall have the right to
use Tenant's Share of the parking spaces in the parking lot serving the
Building. Tenant agrees that Tenant shall not utilize, nor shall it permit its
employees or invitees to utilize, parking spaces in excess of the allotment set
forth above.
Expansion. In the event that, following the second (2nd) anniversary
of the Commencement Date, Tenant should desire to lease additional space (the
"Expiration Space") in the Building and Landlord is unable to offer such space
to Tenant for occupancy within six (6) months following written notice from
Tenant of Tenant's bona fide offer to lease such additional space, then tenant
shall have the one-time right to terminate the Lease by written notice
delivered to Landlord not less than 180 days prior to the third
(3rd)anniversary of the Commence Date, which notice shall be accompanied by
payment of a termination fee (the "Termination Fee") in the amount of
$73,500.00. The effective date of cancellation shall be the third (3rd)
anniversary of the Commencement Date. Notwithstanding the foregoing, Tenant
shall have no right of termination with respect to any offer by Tenant to lease
less than 2,000 square fee nor more than 3,500 square feet of space in the
Building. The Expansion Space need not be contiguous with the premises. The
rental rate for the Expansion Space shall be Landlord's reasonable discretion.
The term for the Premises and Expansion Premises shall be 5 years. If, within
six (6) months following the date of cancellation, Tenant shall not have
entered into a new lease for space in a building of comparable equality with
the Building, in the metropolitan Atlanta, Georgia area, for not less than
12,000 rentable square feet and a term of not less than 36 months, then Tenant
shall be in default under this Lease and shall be liable for all damages
hereunder in addition to payment of the Termination Fee.
If at any time after the Commencement Date the Landlord shall receive a
bona fide offer (the "Offer") for the lease of all or any contiguous portion of
the space adjacent to the Premises depicted on Exhibit "J" attached hereto and
made a part hereof (the "Option Space"), Landlord shall promptly notify Tenant
in writing of such Offer. Tenant shall thereafter have four (4) business days
from the receipt of such notice to notify Landlord that Tenant desires to lease
such portion of the Option Space. If Tenant shall so notify Landlord in writing
within said four (4) business days period, then such portion of the Option Space
shall be leased by Tenant for the rental rate contained in such Offer, and with
allowances as provided for tenant improvements as set forth in said Offer. The
term of any such lease of Option Space shall be for the term contained in the
Offer, or such longer period of time as necessary to make such lease coterminous
with the term hereof. Landlord shall thereafter prepare an amendment to this
Lease expanding the Premises to include such portion of the Option Space for the
remaining term of this Lease. If Tenant fails to so notify Landlord within such
four (4) business day period, or if Tenant notifies Landlord in writing that
Tenant does not elect to lease such portion of the Option Space, then Landlord
may lease such portion of the Option Space, then Landlord may lease such portion
of the Option Space to such offer or at any time thereafter. If such transaction
is not consummated with such third-party for any reason, such portion of the
Option Space shall again be subject to the terms of this Section. If such
transaction with such third-party is consummated,
33
the terms of this Section shall automatically terminate and be null and void and
of no further force and effect and be not binding on any subsequent Landlord.
34
EXHIBIT "E"
INTENTIONALLY OMITTED.
35
EXHIBIT "G"
WORK LETTER
This Work Letter is part of the Lease dated July 3, 1996, between The First
National Bank of Chicago, as Trustee for New England Mutual Life Insurance
Company Mortgage Pass Through Certificates, Series 1993-1, as Landlord and
Gulliver Ritchie Associates, Inc., as Tenant, and shall be subject to all of the
same terms, definitions and conditions of the Lease. It is agreed that Landlord
and Tenant will complete construction of the Premises in accordance with the
following:
A. IMPROVEMENTS TO THE PREMISES
1. Tenant Allowance and Credits. Tenant shall bear costs of any and all
improvements to Tenant's Premises including all costs for architectural and
engineering fees and costs for construction management fees payable to
Landlord's construction manager. Tenant shall receive an allowance (the "Base
Allowance") of $67,872.00 (or $8.00) per rental square foot). Landlord shall
fund an additional allowance (the "Additional Allowance") of up to $33,936.00
(or $4.00 per rentable square foot) in addition to the Base Allowance, which
sum, together with interest at the rate of 10% per annum, shall be paid as
Additional Interest in sixty (60) equal monthly installments on the same date as
Base Rent is due. Tenant shall be responsible for all costs and expenses of
designing and constructing the Premises, if any, in excess of Base Allowance and
the Additional Allowance, provided however, that Landlord shall be responsible
for payment of all fees associated with the preliminary design of the Premises.
B. PLANS AND SPECIFICATIONS.
1. Tenant's plans and specifications shall be in such form and detail
as Landlord may reasonably require in order to determine (a) if the materials to
be used by the Tenant meet the quality standard prescribed by the Landlord for
all improvements in the Building; and (b) the effect of Tenant's Work on the
structural components and service systems and facilities of the Building.
Tenant's plans and specifications shall include the following:
a. Space Plans: The "Space Plans" shall be a schematic plan of
the Premises indicating the location of all partitions and doors, and shall
include the locations and structural, mechanical, electrical or plumbing
requirements of any equipment or usage which may affect the structural
components and service systems of the Building.
b. Final Plans: The "Final Plans" shall consist of all plans
and specifications necessary to construct the Tenant's Work, including all
mechanical and electrical working drawings.
The Space Plans and the Final Plans (collectively, the "Plans") shall be
prepared by a certified architect and shall be submitted to Landlord on or
before July 3, 1996. If available at the time of the execution of this Lease,
the Plans shall be attached hereto as Exhibit H. The Final Plans shall be in a
form in which building permits can be readily obtained and shall comply with all
applicable local laws, ordinances, codes and regulations. The architect shall
certify to Landlord and Tenant that the Plans comply with the ADA, as that term
is defined in the Lease, and all other pursuant City and County, State and
Federal rules, laws and regulations. The architect shall issue a certificate
with respect to the Plans in the form attached hereto as Exhibit G.
2. Tenant's Space Plans and Final Plans shall be subject to Landlord's
prior written approval, which approval shall not be unreasonably withheld or
delayed. If Landlord disapproves of any of Tenant's
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Space Plans, Landlord shall advise Tenant of the detailed reason(s) for
withholding approval. After being so advised by Landlord, Tenant shall submit
revised Tenant's Space Plans incorporating the reasonably required revisions for
Landlord's approval. All submissions and resubmissions by Tenant of Tenant's
Space Plans shall be made in accordance with section C, of this Work Letter (the
"Schedule"). Approval by Landlord shall not be deemed to be a representation or
warranty by Landlord with respect to the safety, adequacy, correctness,
efficiency or compliance with the law of Tenant's Plans.
3. Tenant's Final Plans shall contain all mechanical and electrical
working drawings.
C. SCHEDULE
1. Activities. The schedule is based upon and shall include but not be
limited to the following list of activities:
a. Tenant's architect shall prepare the Plans. The Landlord shall
review the Tenant's Plans. The Landlord shall note any areas requiring
additional information for the purpose of implementing the Construction
Drawings, or approve the plans as submitted.
b. Finalization of Construction Drawings. The Tenant shall furnish
the Landlord with all required information describing modifications to the Space
Plans along with any revision of specification or requirements within three days
of execution of the Lease Agreement.
c. Landlord shall approve Tenant's revised Space Plans, if
modified as requested, within ten (10) days of receipt.
D. CONTRACTORS
In connection with the selection of the general contractor, Landlord
shall seek at least two (2) competitive bids. Landlord and Tenant shall jointly
review all competitive bids received, and the decision as to the final accepted
bid shall be made by Landlord with the reasonable approval of Tenant.
E. CERTIFICATE OF OCCUPANCY
Landlord and Tenant shall cooperate with each other in the construction
of the improvements to the Premises and shall endeavor to have a Certificate of
Occupancy issued by the appropriate municipality (but Landlord shall have no
liability for its failure to secure such Certificate of Occupancy).
