1
EXHIBIT 10.28
[EQUITY OFFICE LETTERHEAD]
July 7, 1999
VIA HAND DELIVERY
Exactium, Inc.
Lakeside Building
0000-X Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Re: Office Lease Agreement dated as of December 4, 1997, by and between EOP-
LAKESIDE OFFICE, L.L.C., a Delaware limited liability company (as
successor by merger to Beacon Properties, L.P.), as Landlord, and
EXACTIUM, INC., a Delaware corporation, as Tenant, relating to which
Landlord has leased to Tenant certain premises containing approximately
10,638 rentable square feet (the "Premises") on the 2nd floor of the
building commonly known as Lakeside Building B located at 0000-X Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Building"), which lease has been
previously amended by instruments dated May 14, 1999 (the "First
Amendment") and June 22, 1999 (the "Second Amendment") (collectively, the
"Lease").
Dear Xx. Xxxxxx:
In order to correct a clerical error, the parties to the Lease hereby
agree that Section II.D of the Second Amendment is revised by deleting Section
II.D. and replacing it with the following: "Twelve (12) equal installments of
$2,322.55 each payable on or before the first day of each month during the
period beginning February 1, 2002, and ending January 31, 2003."
Please acknowledge your agreement to the foregoing by executing all three
(3) copies of this letter agreement and return two (2) fully executed copies of
the same to my attention.
Sincerely,
EOP Operating Limited Partnership, a
Delaware limited partnership, as agent for
Landlord
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By: /s/ XXXX XXXX
-----------------------------------
Name: Xxxx Xxxx
Title: Property Manager
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Xx. Xxxxxx X. Xxxxxx
July 7, 1999
Page 2
The undersigned hereby agree to the
foregoing as of 7/7, 1999
EXACTIUM, INC., A DELAWARE CORPORATION
By: XXXXXX X. XXXXXX
--------------------------
Name: XXXXXX X. XXXXXX
------------------------
Title: CFO
-----------------------
3
[EQUITY OFFICE LETTERHEAD]
LAKESIDE
Date: 03/16/99
Tenant: Exactium, Inc.
Address: 0000 X Xxxxxxxxx Xxxxx
Xxxxx - 000
Xxxxxxx, Xxxxxxx 00000
Re: Commencement Letter with Respect to that certain Lease Dated DECEMBER
4, 1997 by and between BEACON PROPERTIES, L.P. whose interest has been
assigned to EQUITY OFFICE PROPERTIES TRUST as Landlord, and EXACTIUM,
INC., as Tenant, for 6,968 square feet of Rentable Area on the SECOND
floor of the Building located at 0000 X XXXXXXXXX XXXXX XXXXXXX, XXXXXXX
00000.
Dear Xxx. Xxxxxx:
In Accordance with the terms and conditions of the above reference Lease, Xxxxxx
hereby accepts possession of the Premises and agrees as follows:
1. The Commencement Date of the Lease is JANUARY 23, 1998.
2. The Termination Date of the Lease is JANUARY 31, 2003.
Please acknowledge your acceptance of possession and agreement to the terms set
forth above by signing all three (3) copies of this Commencement Letter in the
space provided and returning two (2) fully executed copies of the same to my
attention
Sincerely,
[ILLEGIBLE]
Property Manager
Agreed and Accepted:
Tenant: EXACTIUM, INC.
---------------------
By: /s/ XXXXXX X. XXXXXX
-------------------------
Name: XXXXXX X. XXXXXX
-----------------------
Title: CFO
----------------------
Date: 1/16/99
-----------------------
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XXXXX(TM) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YY)
4/06/99
------------------------------------------------------------------------------------------------------------------------------------
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.
JSL & CO. OF ATLANTA THIS CERTIFICATE DOES NOT AMEND, EXTEND, OR ALTER THE
X. Xxxxx Xxxxxx & Company COVERAGE AFFORDED BY THE POLICIES BELOW.
P.O. Box 80707 -------------------------------------------------------
Atlanta, GA 30366-0707 COMPANIES AFFORDING COVERAGE
(000) 000-0000 -------------------------------------------------------
COMPANY
A Federal Insurance Co.
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INSURED COMPANY
B
Exactium, Inc -------------------------------------------------------
5775-B Glenridge Dr. COMPANY
Atlanta, GA 30328 C
-------------------------------------------------------
COMPANY
D
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COVERAGES
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THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THE
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
------------------------------------------------------------------------------------------------------------------------------------
CO POLICY EFFECTIVE POLICY EXPIRATION
LTR TYPE OF INSURANCE POLICY NUMBER DATE (MM/DD/YY) DATE (MM/DD/YY) LIMITS
------------------------------------------------------------------------------------------------------------------------------------
A GENERAL LIABILITY 35364820T16 12/30/98 12/30/99 GENERAL AGGREGATE $2,000
-------------------------------------
X COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/OP AGG $2,000
--- -------------------------------------
CLAIMS MADE X OCCUR PERSONAL & ADV INJURY $1,000
--- --- -------------------------------------
OWNER'S & CONTRACTOR'S PROT EACH OCCURRENCE $1,000
--- -------------------------------------
FIRE DAMAGE (Any one fire) $ 350
--- --------------------------- -------------------------------------
MED EXP (Any one person) $ 10
------------------------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $
-------------------------------------
ANY AUTO BODILY INJURY $
--- (Per person)
ALL OWNED AUTOS -------------------------------------
--- BODILY INJURY $
SCHEDULED AUTOS (Per accident)
--- -------------------------------------
HIRED AUTOS PROPERTY DAMAGE
--- -------------------------------------
NON-OWNED AUTOS
---
--- ---------------------------
--- ---------------------------
------------------------------------------------------------------------------------------------------------------------------------
GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $
-------------------------------------
ANY AUTO OTHER THAN AUTO ONLY:
--- -------------------------------------
EACH ACCIDENT $
--- --------------------------- -------------------------------------
AGGREGATE $
--- ---------------------------
------------------------------------------------------------------------------------------------------------------------------------
A EXCESS LIABILITY 79766562ATL 12/30/98 12/30/99 EACH OCCURRENCE $1,000
-------------------------------------
X UMBRELLA FORM AGGREGATE $1,000
--- -------------------------------------
OTHER THAN UMBRELLA FORM
---
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WORKERS COMPENSATION AND WC STATUTORY LIMITS OTHER
EMPLOYERS' LIABILITY -------------------------------------
EL EACH ACCIDENT $
THE PROPRIETOR/ [ ] INCL. -------------------------------------
PARTNERS/EXECUTIVE [ ] EXCL. EL DISEASE-POLICY LIMIT $
OFFICERS ARE: -------------------------------------
EL DISEASE-EA EMPLOYEE $
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OTHER
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DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS EOP-Lakeside Office, L.L.C., a Delaware limited liability
company, Equity Office Properties Trust, a Maryland real estate investment trust, EOP Operating Limited Partnership, A Delaware
limited partnership, and their respective agents, members, partners, employees and mortgagees as Additional Insureds.
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CERTIFICATE HOLDER CANCELLATION
Lakeside Office Park SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
0000 X Xxxxxxxxx Xxxxx Xxx 000 XXXXXXXXXX DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO ????
Atlanta, GA 30328-1223 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE ????
BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR
LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR
REPRESENTATIVES.
-------------------------------------------------------------------
AUTHORIZED REPRESENTATIVE
[SIGNATURE ILLEGIBLE]
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XXXXX 25-S (1/95) (C) XXXXX CORPORATION
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CERTIFICATE: 001/001/00001
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[EQUITY OFFICE LETTERHEAD]
SOUTHEAST REGION
June 24, 1999
Xx. Xxxxxxx Xxxxxx
Exactium, Inc.
0000-X Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
RE: Second Amendment to Lease Agreement
Lakeside Building B
Dear Xxxxxxx:
Enclosed please find one (1) fully executed copy of the above referenced
document. This copy is for your permanent records.
Should you have any questions regarding the enclosed, please do not hesitate to
contact Xxxxxxx Xxxxx or myself.
Sincerely,
/s/ XXXXX X. XXXXX
Xxxxx X. Xxxxx
Leasing Assistant
Enclosures
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FIRST AMENDMENT
THIS FIRST AMENDMENT (the "Amendment") is made and entered into as of the
14 day of MAY, 1999, by and between EOP-LAKESIDE OFFICE, L.L.C., a Delaware
limited liability company ("Landlord"), and EXACTIUM, INC., a Delaware
corporation ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (as successor by merger to Beacon Properties, L.P.) and
Tenant are parties to that certain lease dated the 4th day of December,
1997 (the "Lease"), for space currently containing approximately 6,968
rentable square feet (the "Original Premises") described as Suite No. 200
on the 2nd floor of the building commonly known as Lakeside Building B and
the address of which is 0000-X Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000
(the "Building"); and
B. WHEREAS, Xxxxxx has requested that additional space containing
approximately 2,332 rentable square feet described as Suite No. 250 on the
2nd floor of the Building shown on EXHIBIT A hereto (the "Expansion
Space") be added to the Original Premises and that the Lease be
appropriately amended and Landlord is willing to do the same on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree as follows:
I. EXPANSION AND EFFECTIVE DATE.
A. Effective as of June 1, 1999 (the "Expansion Effective Date"),
the Premises, as defined in the Lease, is increased from 6,968
rentable square feet on the 2nd floor to 9,300 rentable square
feet on the 2nd floor by the addition of the Expansion Space,
and from and after the Expansion Effective Date, the Original
Premises and the Expansion Space, collectively, shall be
deemed the Premises, as defined in the Lease. The Term for the
Expansion Space shall commence on the Expansion Effective Date
and end on the Expiration Date, which the parties hereby agree
is deemed to mean January 31, 2003. The Expansion Space is
subject to all the terms and conditions of the Lease except as
expressly modified herein and except that Tenant shall not be
entitled to receive any allowances, abatements or other
financial concessions granted with respect to the Original
Premises unless such concessions are expressly provided for
herein with respect to the Expansion Space.
B. The Expansion Effective Date shall be delayed to the extent
that Landlord fails to deliver possession of the Expansion
Space for any reason, including but not limited to, holding
over by prior occupants. Any such delay in the Expansion
Effective Date shall not subject Landlord to any liability for
any loss or damage resulting therefrom. If the Expansion
Effective Date is delayed, the Expiration Date under the Lease
shall not be similarly extended.
II. BASE RENT.
In addition to Tenant's obligation to pay Base Rent for the Original
Premises, Tenant shall pay Landlord the sum of One Hundred Seventy
One Thousand One Hundred Thirty Seven and 60/100 Dollars
($171,137.60) as aggregate Base Rent for the Expansion Space in
forty four (44) monthly installments ("Monthly Rental") as follows:
A. Eight (8) equal installments of Three Thousand Seven Hundred
Three and 99/100 Dollars ($.3,703.99) each payable on or
before the first day of each month during the period beginning
June 1, 1999, and ending January 31, 2000, provided that the
installment of Monthly Rental for the first full calendar
month of the Term for the Expansion Space shall be payable
upon the execution of this Amendment by Tenant.
B. Twelve (12) equal installments of Three Thousand Eight Hundred
Fourteen and 76/100 Dollars ($3,814.76) each payable on or
before the first day of each month during the period beginning
February 1, 2000, and ending January 31, 2001.
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C. Twelve (12) equal installments of Three Thousand Nine Hundred
Twenty Nine and 42/100 Dollars ($3,929.42) each payable on or
before the first day of each month during the period beginning
February 1, 2001, and ending January 31, 2002.
D. Twelve (12) equal installments of Four Thousand Forty Seven
and 96/100 Dollars ($4,047.96) each payable on or before the
first day of each month during the period beginning February
1, 2002, and ending January 31, 2003.
All such Base Rent shall be payable by Tenant in accordance with the
terms of the Lease.
III. ADDITIONAL SECURITY DEPOSIT. Upon Xxxxxx's execution hereof, Tenant
shall pay Landlord the sum of Three Thousand Seven Hundred Three and
99/100 Dollars ($3,703.99) which is added to and becomes part of the
Security Deposit, if any, held by Landlord as provided under the
Lease as security for payment of Rent and the performance of the
other terms and conditions of the Lease by Xxxxxx. Accordingly,
simultaneous with the execution hereof, the Security Deposit is
increased from $28,781.44 to $32,485.43.
IV. TENANT'S SHARE AND OPERATING COSTS.
A. Effective as of the date of this Amendment, the "Total
Building Rentable Area", as defined in Section 3(c) of the
Lease, shall be deemed to mean 390,721 rentable square feet,
rather than 388,832 rentable square feet, as previously
provided in the Lease.
B. Effective as of the date of this Amendment, Xxxxxx's Share for
the Original Premises is deemed to mean 1.7834% rather than
1.8%.
C. For the period commencing with the Expansion Effective Date
and ending on the Expiration Date, Tenant's Share for the
Expansion Space shall be deemed to mean .5968%. For the
period commencing with the Expansion Effective Date and ending
on the Expiration Date, Tenant shall pay, as Additional Rent,
for Tenant's Share of Operating Costs applicable to the
Expansion Space in accordance with the terms of Section 3 of
the Lease.
V. IMPROVEMENTS TO EXPANSION SPACE.
A. CONDITION OF EXPANSION SPACE AND THE ORIGINAL PREMISES. Tenant
has inspected the Expansion Space and the Original Premises
and agrees to accept the same "as is" without any agreements,
representations, understandings or obligations on the part of
Landlord to perform any alterations, repairs or improvements,
except as may be expressly provided otherwise in this
Amendment.
B. COST OF IMPROVEMENTS TO EXPANSION SPACE AND THE ORIGINAL
PREMISES. Provided Tenant is not in default, Tenant shall be
entitled to receive an improvement allowance (the "Improvement
Allowance") in an amount not to exceed Thirteen Thousand Nine
Hundred Ninety Two 00/100 Dollars ($13,992.00) to be applied
toward the cost of performing initial construction, alteration
or improvement of the Expansion Space and the Original
Premises, including but not limited to the cost of space
planning, design and related architectural and engineering
services. In the event the total cost of the initial
improvements to the Expansion Space and the Original Premises
exceeds the Improvement Allowance, Tenant shall pay for such
excess upon demand. The entire unused balance of the
Improvement Allowance if any, shall accrue to the sole benefit
of Landlord. Landlord shall pay such Improvement Allowance
directly to the contractors retained to perform the
construction, design or related improvement work to the
Expansion Space and the Original Premises. Landlord shall be
entitled to deduct from the Improvement Allowance a
construction management fee for Landlord's oversight of the
improvements in an amount equal to four and half percent
(4.5%) of the total cost of such improvements.
C. RESPONSIBILITY FOR IMPROVEMENTS TO EXPANSION SPACE AND THE
ORIGINAL PREMISES. Landlord shall enter into a direct contract
for the initial improvements to the Expansion Space and the
Original Premises with a general contractor selected by
Landlord. Tenant shall devote such time in
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consultation with Landlord or Xxxxxxxx's architect as may be
required to provide all information Landlord deems necessary
in order to enable Landlord to complete, and obtain Tenant's
written approval of, the plans for the initial improvements to
the Expansion Space and the Original Premises in a timely
manner. All plans for the initial improvements to the
Expansion Space and the Original Premises shall be subject to
Landlord's consent, which consent shall not be unreasonably
withheld. If the cost of such improvements exceeds the
Improvement Allowance, then prior to commencing any
construction of improvements to the Expansion Space and the
Original Premises, Landlord shall submit to Tenant a written
estimate setting forth the anticipated cost, including but not
limited to the cost of space planning, design and related
architectural and engineering services, labor and materials,
contractor's fees, and permit fees. Within a reasonable time
thereafter, Tenant shall either notify Landlord in writing of
its approval of the cost estimate or specify its objections
thereto and any desired changes to the proposed improvements.
In the event Tenant notifies Landlord of such objections and
desired changes, Tenant shall work with Landlord to reach a
mutually acceptable alternative cost estimate.
X. Xxxxxx acknowledges that the improvement work in the Expansion
Space and the Original Premises may be performed by Landlord
in the Expansion Space and Original Premises during normal
business hours prior to or subsequent to the Expansion
Effective Date. Landlord and Xxxxxx agree to cooperate with
each other in order to enable such work to be performed in a
timely manner and with as little inconvenience to the
operation of Tenant's business as is reasonably possible.
Notwithstanding anything herein to the contrary, any delay in
the completion of the improvement work or inconvenience
suffered by Tenant during the performance of such work; shall
not subject Landlord to any liability for any loss or damage
resulting therefrom or entitle Tenant to any credit, abatement
or adjustment of Rent or other sums payable under the Lease.
VI. EARLY ACCESS TO EXPANSION SPACE. During any period that Tenant shall
be permitted to enter the Expansion Space prior to the Expansion
Effective Date (e.g., to perform alterations or improvements, if
any), Tenant shall comply with all terms and provisions of the
Lease, except those provisions requiring payment of Base Rent or
Additional Rent as to the Expansion Space. If Tenant takes
possession of the Expansion Space prior to the Expansion Effective
Date for any reason whatsoever (other than the performance of work
in the Expansion Space with Landlord's prior approval), such
possession shall be subject to all the terms and conditions of the
Lease and this Amendment, and Tenant shall pay Base Rent and
Additional Rent as applicable to the Expansion Space to Landlord on
a per diem basis for each day of occupancy prior to the Expansion
Effective Date.
VII. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that,
effective as of the date hereof (unless different effective date(s)
is/are specifically referenced in this Section), the Lease shall be
amended in the following additional respects:
A. LANDLORD ADDRESSES. Section 20 of the Lease, "Notices", and
the first (1st) sentence of Section 2(a) of the Lease are
modified to reflect that the address for notices to Landlord
and payments of Rent shall be as follows:
EOP-Lakeside Office, L.L.C.
c/o Equity Office Properties Trust
0000X Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Building Manager
with a copy to:
Equity Office Properties Trust
Two North Riverside Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Regional Counsel - Southeast Region
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Payments of Rent only shall be made payable to the order of
EQUITY OFFICE PROPERTIES and forwarded to the following
address:
EOP Operating Limited Partnership,
as agent for EOP-Lakeside Office, L.L.C.
P.O. Box 931591
Atlanta, Georgia 31193-1591
B. PARKING AND ACCESS AREAS. Section 27, "Parking and Access
Areas", of the Lease, regarding the parking spaces which are
available to Tenant and its employees, remains unmodified
hereby and, effective as of the Expansion Effective Date with
respect to the Expansion Space, ten (10) additional unreserved
parking spaces shall be made available to Tenant with respect
to the Expansion Space for parking by Tenant and its
employees, free of charge, during the remainder of the Term.
The use of such parking spaces shall be subject to the terms
of Section 27 and Section 44 of the Lease. The parking spaces
available in connection with the Original Premises remains
unchanged for the remainder of the Term.
C. Section 9 of Exhibit C, "Rules and Regulations", of the Lease
is modified so that all references to "7:00 a.m." in Section 9
of Exhibit C shall be deemed to mean "8:00 a.m.".
VIII. CONTINGENCY. The parties hereto acknowledge that the Expansion Space
currently is subject to the terms of that certain lease agreement
dated April 24, 1995, as amended (the "Prior Lease") by and between
Landlord and PM Group Life Insurance Company ("Prior Tenant"). This
Amendment specifically is contingent upon Landlord entering into an
agreement with the Prior Tenant to terminate the Prior Lease with
respect to the Expansion Space (the "Prior Lease Termination
Agreement"). If the Prior Lease Termination Agreement has not been
executed on or before May 21, 1999 (the "Contingency Date"), then
Landlord may terminate this Amendment by providing written notice
thereof to Tenant on or before the earlier of (i) five (5) days
after the Contingency Date and (ii) execution of the Prior Lease
Termination Agreement by Prior Tenant, whereupon, this Amendment
shall be null and void and of no force or effect and the Lease shall
continue in full force and effect as if this Amendment had not been
executed.
IX. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There
have been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in
connection with entering into the Lease, unless specifically
set forth in this Amendment.
B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and
in full force and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment
shall govern and control.
D. Submission of this Amendment by Xxxxxxxx is not an offer to
enter into this Amendment but rather is a solicitation for
such an offer by Xxxxxx. Landlord shall not be bound by this
Amendment until Xxxxxxxx has executed and delivered the same
to Xxxxxx
E. The capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease to the extent that
such capitalized terms are defined therein and not redefined
in this Amendment.
X. Xxxxxx hereby represents to Landlord that Xxxxxx has dealt
with no broker in connection with this Amendment. Xxxxxx
agrees to indemnify and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors,
employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the
"Landlord
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Related Parties") harmless from all claims of any brokers
claiming to have represented Tenant in connection with this
Amendment. Landlord hereby represents to Tenant that Xxxxxxxx
has dealt with no broker in connection with this Amendment.
Xxxxxxxx agrees to indemnify and hold Tenant, its members,
principals, beneficiaries, partners, officers, directors,
employees, and agents, and the respective principals and
members of any such agents (collectively, the "Tenant Related
Parties") harmless from all claims of any brokers claiming to
have represented Landlord in connection with this Amendment.
IN WITNESS WHEREOF, Landlord and Xxxxxx have duly executed this Amendment
as of the day and year first above written.
LANDLORD:
EOP-LAKESIDE OFFICE, L.L.C., a Delaware
limited liability company
By: EOP Operating limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general
partner
By: /s/ XXXX XXXXXXX
------------------------------
Name: XXXX XXXXXXX
----------------------------
Title: V.P. LEASING
---------------------------
TENANT:
EXACTIUM, INC., a Delaware corporation
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Name: XXXXXX X. XXXXXX
-------------------------------------
Title: CHIEF FINANCIAL OFFICER
------------------------------------
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EXHIBIT A
Attach Floor Plan
Showing Expansion Space
[FLOOR PLAN]
6
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SECOND AMENDMENT
THIS SECOND AMENDMENT (the "Amendment") is made and entered into as of
the 22nd day of June, 1999, by and between EOP-LAKESIDE OFFICE, L.L.C., a
Delaware limited liability company ("Landlord"), and EXACTIUM, INC., a Delaware
corporation ("Tenant").
WITNESSETH
A. WHEREAS, Landlord (as successor by merger to Beacon Properties, L.P.) and
Tenant are parties to that certain lease dated the 4th day of December,
1997, for space currently containing approximately 9,300 rentable square
feet (the "Original Premises") described as Suite Nos. 200 and 250 on the
2nd floor of the building commonly known as Lakeside Building B and the
address of which is 0000-X Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 (the
"Building"), which lease has been previously amended by instrument dated
May 14, 1999, (the "First Amendment") (collectively, the "Lease"); and
B. WHEREAS, Xxxxxx has requested that additional space described as Suite 290
containing approximately 1,338 rentable square feet on the 2nd floor of
the Building shown on EXHIBIT A hereto (the "Expansion Space") be added to
the Original Premises and that the Lease be appropriately amended and
Landlord is willing to do the same on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and Tenant
agree as follows:
I. EXPANSION AND EFFECTIVE DATE. Effective as of the Expansion Effective Date
(as hereinafter defined), the Premises, as defined in the Lease, is
increased from 9,300 rentable square feet on the 2nd floor to 10,638
rentable square feet on the 2nd floor by the addition of the Expansion
Space, and from and after the Expansion Effective Date, the Original
Premises and the Expansion Space, collectively, shall be deemed the
Premises, as defined in the Lease. The Term for the Expansion Space shall
commence on the Expansion Effective Date and end on the Expiration Date.
The Expansion Space is subject to all the terms and conditions of the
Lease except as expressly modified herein and except that Tenant shall not
be entitled to receive any allowances, abatements or other financial
concessions granted with respect to the Original Premises unless such
concessions are expressly provided for herein with respect to the
Expansion Space.
A. The Expansion Effective Date shall be the later to occur of
(i) August 1, 1999, ("Target Expansion Effective Date"), and
(ii) the date upon which Landlord's improvement work in the
Expansion Space has been substantially completed; provided,
however, that if Landlord shall be delayed in substantially
completing the Landlord's work in the Expansion Space as a
result of the occurrence of any of the following (a "Delay"):
1. Tenant's failure to furnish information or to respond to
any request by Landlord for any approval or information
within any time period prescribed or, if no time period
is prescribed, then within two (2) business days of such
request; or
2. Xxxxxx's insistence on materials, finishes or
installations that have long lead times after having
first been informed by Landlord that such materials,
finishes or installations will cause a Delay; or
3. Changes in any plans and specifications requested by
Tenant after approval of same; or
4. The performance or nonperformance by a person or entity
employed by Tenant in the completion of any work (all
such work and such persons or entities being subject to
the prior approval of Landlord); or
5. Any request by Tenant that Landlord delay the completion
of any of the Landlord's work; or
6. Any delay resulting from Xxxxxx having taken possession
of the Expansion Space for any reason prior to
substantial completion of the Landlord's work; or
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7. Any other delay chargeable to Tenant, its agents,
employees or independent contractors;
then, for purposes of determining the Expansion Effective
Date, the date of substantial completion shall be deemed to be
the day that said Xxxxxxxx's work would have been
substantially completed absent any such Delay(s). The
Expansion Space shall be deemed to be substantially completed
on the date that Landlord reasonably determines that all
Landlord's work has been performed (or would have been
performed absent any Delays), other than any details of
construction, mechanical adjustment or any other matter, the
noncompletion of which does not materially interfere with
Xxxxxx's use of the Expansion Space. The adjustment of the
Expansion Effective Date and, accordingly, the postponement of
Tenant's obligation to pay Rent on the Expansion Space, shall
be Tenant's sole remedy and shall constitute full settlement
of all claims that Tenant might otherwise have against
Landlord by reason of the Expansion Space not being ready for
occupancy by Tenant on the Target Expansion Effective Date.
B. In addition to the postponement, if any, of the Expansion
Effective Date as a result of the applicability of Paragraph
I.A. of this Amendment, the Expansion Effective Date shall be
delayed to the extent that Landlord fails to deliver
possession of the Expansion Space for any other reason (other
than Delays by Tenant), including but not limited to, holding
over by prior occupants. Any such delay in the Expansion
Effective Date shall not subject Landlord to any liability for
any loss or damage resulting therefrom. If the Expansion
Effective Date is delayed, the Termination Date under the
Lease shall not be similarly extended.
II. BASE RENT
In addition to Tenant's obligation to pay Base Rent for the Original
Premises, Tenant shall pay Landlord the sum of $93,941.10 as
aggregate Base Rent for the Expansion Space in forty two (42)
monthly installments ("Monthly Rental") as follows:
A. Six (6) equal installments of $2,125.19 each payable on or
before the first day of each month during the period beginning
August 1, 1999, and ending January 31, 2000, provided that the
installment of Monthly Rental for the first full calendar
month of the Term for the Expansion Space shall be payable
upon the execution of this Amendment by Xxxxxx.
B. Twelve (12) equal installments of $2,188.75 each payable on or
before the first day of each month during the period beginning
February 1, 2000, and ending January 31, 2001.
C. Twelve (12) equal installments of $2,254.53 each payable on or
before the first day of each month during the period beginning
February 1, 2001, and ending January 31, 2002.
D. Twelve (12) equal installments of $2,322.55 each payable on or
before the first day of each month during the period beginning
February 1, 2002, and ending January 31, 2003.
All such Base Rent shall be payable by Tenant in accordance with the
terms of the Lease.
Landlord and Tenant acknowledge that the foregoing schedule is based
on the assumption that the Expansion Effective Date is the Target
Expansion Effective Date. If the Expansion Effective Date is other
than the Target Expansion Effective Date, the schedule set forth
above with respect to the payment of any installments of Base Rent
for the Expansion Space shall be appropriately adjusted on a per
diem basis to reflect the actual Expansion Effective Date and the
actual Expansion Effective Date shall be set forth in a confirmation
letter to be prepared by Landlord. However, the effective date of
any increases or decreases in the Base Rent rate shall not be
postponed as a result of an adjustment of the Expansion Effective
Date as provided above.
III. ADDITIONAL SECURITY DEPOSIT. Upon Xxxxxx's execution hereof, Tenant
shall pay Landlord the sum of $2,125.19 which is added to and
becomes part of the Security Deposit, if any, held by Landlord as
provided under the Lease as security for payment of Rent and the
performance of the other terms and conditions of the
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Lease by Xxxxxx. Accordingly, simultaneous with the execution
hereof, the Security Deposit is increased from $32,485.43 to
$34,610.62.
IV. TENANT'S SHARE AND OPERATING COSTS. For the period commencing with
the Expansion Effective Date and ending on the Expiration Date,
Tenant's Share for the Expansion Space is 0.3424%. For the period
commencing with the Expansion Effective Date and ending on the
Expiration Date, Tenant shall pay, as Additional Rent, for Tenant's
Share of Operating Costs applicable to the Expansion Space in
accordance with the terms of Section 3 of the Lease.
V. IMPROVEMENTS TO EXPANSION SPACE.
A. CONDITION OF EXPANSION SPACE. Xxxxxx has inspected the
Expansion Space and agrees to accept the same "as is" without
any agreements, representations, understandings or obligations
on the part of Landlord to perform any alterations, repairs or
improvements, except as may be expressly provided otherwise in
this Amendment.
B. COST OF IMPROVEMENTS TO EXPANSION SPACE. Provided Tenant is
not in default, Tenant shall be entitled to receive an
improvement allowance (the "Expansion Improvement Allowance")
in an amount not to exceed $8,028.00 (i.e., $6.00 per rentable
square foot of the Expansion Space) to be applied toward the
cost of performing initial construction, alteration or
improvement of the Expansion Space, including but not limited
to the cost of space planning, design and related
architectural and engineering services. In the event the total
cost of the initial improvements to the Expansion Space
exceeds the Expansion Improvement Allowance, Tenant shall pay
for such excess upon demand. The entire unused balance of the
Expansion Improvement Allowance, if any, shall accrue to the
sole benefit of Landlord. Landlord shall pay such Expansion
Improvement Allowance directly to the contractors retained to
perform the construction, design or related improvement work
to the Expansion Space. Landlord shall be entitled to deduct
from the Expansion Improvement Allowance a construction
management fee for Landlord's oversight of the improvements in
an amount equal to four and half percent (4.5%) of the total
cost of such improvements.
C. RESPONSIBILITY FOR IMPROVEMENTS TO EXPANSION SPACE. Landlord
shall enter into a direct contract for the initial
improvements to the Expansion Space with a general contractor
selected by Landlord. Tenant shall devote such time in
consultation with Landlord or Landlord's architect as may be
required to provide all information Landlord deems necessary
in order to enable Landlord to complete, and obtain Tenant's
written approval of, the plans for the initial improvements to
the Expansion Space in a timely manner. All plans for the
initial improvements to the Expansion Space shall be subject
to Landlord's consent, which consent shall not be unreasonably
withheld. If the cost of such improvements exceeds the
Expansion Improvement Allowance. then prior to commencing any
construction of improvements to the Expansion Space,
Landlord shall submit to Tenant a written estimate setting
forth the anticipated cost, including but not limited to the
cost of space planning, design and related architectural and
engineering services, labor and materials, contractor's fees,
and permit fees. Within a reasonable time thereafter, Tenant
shall either notify Landlord in writing of its approval of the
cost estimate or specify its objections thereto and any
desired changes to the proposed improvements. In the event
Tenant notifies Landlord of such objections and desired
changes, Tenant shall work with Landlord to reach a mutually
acceptable alternative cost estimate.
VI. EARLY ACCESS TO EXPANSION SPACE. During any period that Tenant shall
be permitted to enter the Expansion Space prior to the Expansion
Effective Date (e.g., to perform alterations or improvements, if
any), Tenant shall comply with all terms and provisions of the
Lease, except those provisions requiring payment of Base Rent or
Additional Rent as to the Expansion Space. If Tenant takes
possession of the Expansion Space prior to the Expansion Effective
Date for any reason whatsoever (other than the performance of work
in the Expansion Space with Landlord's prior approval), such
possession shall be subject to all the terms and conditions of the
Lease and this Amendment, and Tenant shall pay Base Rent and
Additional Rent as applicable to the Expansion Space to Landlord on
a per diem basis for each day of occupancy prior to the Expansion
Effective Date.
VII. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that,
effective as of the
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date of this Amendment (unless different effective date(s) is/are
specifically referenced in this Section), the Lease shall be amended
in the following additional respects:
A PARKING AND ACCESS AREAS. Section 27, "Parking and Access
Areas", of the Lease, regarding the parking spaces which are
available to Tenant and its employees, remains unmodified
hereby and, in accordance with said Section 27, effective as
of the Expansion Effective Date with respect to the Expansion
Space, six (6) additional unreserved parking spaces shall be
made available to Tenant with respect to the Expansion Space
for parking by Tenant and its employees, free of charge,
during the remainder of the Term. The use of such parking
spaces shall be subject to the terms of Section 27 and Section
44 of the Lease. The parking spaces available in connection
with the Original Premises remains unchanged for the remainder
of the Term.
B. DELETED PROVISION. Special Stipulation 1, "Right of First
Refusal", of Exhibit F of the Lease has been satisfied or
otherwise expired and is hereby deleted in its entirety and is
of no further force and effect.
VIII. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There
have been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in
connection with entering into the Lease, unless specifically
set forth in this Amendment.
B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and
in full force and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment
shall govern and control.
D. Submission of this Amendment by Xxxxxxxx is not an offer to
enter into this Amendment but rather is a solicitation for
such an offer by Xxxxxx. Landlord shall not be bound by this
Amendment until Xxxxxxxx has executed and delivered the same
to Xxxxxx.
E. The capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease to the extent that
such capitalized terms are defined therein and not redefined
in this Amendment.
X. Xxxxxx hereby represents to Landlord that Xxxxxx has dealt
with no broker in connection with this Amendment. Xxxxxx
agrees to indemnify and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors,
employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the
"Landlord Related Parties") harmless from all claims of any
brokers claiming to have represented Tenant in connection with
this Amendment. Landlord hereby represents to Tenant that
Xxxxxxxx has dealt with no broker in connection with this
Amendment. Xxxxxxxx agrees to indemnify and hold Tenant, its
members, principals, beneficiaries, partners, officers,
directors, employees, and agents, and the respective
principals and members of any such agents (collectively, the
"Tenant Related Parties") harmless from all claims of any
brokers claiming to have represented Landlord in connection
with this Amendment.
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IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have duly executed this Amendment
as of the day and year first above written.
LANDLORD:
EOP-LAKESIDE OFFICE, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general
partner
By: /s/ XXXX XXXXXXX
-------------------------------
Name: XXXX XXXXXXX
-----------------------------
Title: V. P. LEASING
----------------------------
TENANT:
EXACTIUM, INC., A DELAWARE CORPORATION
By: /s/ XXXXXX X. XXXXXX
---------------------------------------
Name: XXXXXX X. XXXXXX
-------------------------------------
Title: CFO
------------------------------------
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EXHIBIT A
Expansion Space
[FLOORPLAN]
6
18
[BEACON MANAGEMENT COMPANY LETTERHEAD]
December 12, 1997
Xx. Xxxxxxx Xxxxxx
Director of Finance
& Administration
0000 - X Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
RE: New Lease Agreement between BEACON PROPERTIES, L.P., a Delaware limited
partnership (the "Landlord"), and EXACTIUM, INC. (the "Tenant").
Dear Xxxxxxx:
Enclosed please find one (1) fully executed original of the New Lease Agreement
for Exactium. Please retain this original for your records.
Feel free to call if you should require any further assistance in this matter.
Best regards,
/s/ XXXXX XXXXXX
Xxxxx Xxxxxx
Leasing Assistant
Enclosure
cc: Xx. Xxx Xxxxxxxx - w/copy of enclosure
19
LEASE AGREEMENT
LAKESIDE
ATLANTA, GEORGIA
LANDLORD: BEACON PROPERTIES, L.P.
TENANT: EXACTIUM, INC.
BUILDING: 5775-B
SUITE: 200
SQ. FT.: 6,968 RENTABLE SQUARE FEET
TERM: FIVE (5) YEARS
20
TABLE OF CONTENTS
Item Page
---- ----
1. PREMISES AND TERM .................................................. 1
2. RENT ............................................................... 2
3. REIMBURSEMENT FOR INCREASES IN OPERATING EXPENSES AND .............. 3
4. DELIVERY OF THE PREMISES ........................................... 6
5. ACCEPTANCE OF THE PREMISES ......................................... 7
6. USE ................................................................ 7
7. CARE OF THE PREMISES ............................................... 7
8. SERVICES ........................................................... 9
9. DESTRUCTION OR DAMAGE TO PREMISES .................................. 9
10. DEFAULT BY TENANT; LANDLORD'S REMEDIES ............................. 10
11. ASSIGNMENT AND SUBLETTING .......................................... 12
12. CONDEMNATION ....................................................... 14
13. INSPECTIONS ........................................................ 15
14. SUBORDINATION ...................................................... 15
15. INDEMNIFICATION AND HOLD HARMLESS .................................. 16
16. TENANT'S INSURANCE ................................................. 16
17. REMEDIES CUMULATIVE ................................................ 17
18. ENTIRE AGREEMENT - NO WAIVER ....................................... 17
19. HOLDING OVER ....................................................... 17
20. NOTICES ............................................................ 17
21. HEIRS, SUCCESSORS, AND ASSIGNS - PARTIES ........................... 18
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21
22. ATTORNEY'S FEES .................................................... 18
23. TIME OF THE ESSENCE ................................................ 18
24. NO ESTATE IN LAND .................................................. 18
25. SECURITY DEPOSIT ................................................... 18
26. COMPLETION OF THE PREMISES ......................................... 19
27. PARKING AND ACCESS AREAS ........................................... 19
28. RULES AND REGULATIONS .............................................. 19
29. RIGHT TO RELOCATE .................................................. 19
30. LATE PAYMENTS -- ACCORD AND SATISFACTION ........................... 20
31. ESTOPPEL CERTIFICATE ............................................... 20
32. SEVERABILITY AND INTERPRETATION .................................... 20
33. MULTIPLE TENANTS ................................................... 20
34. FORCE MAJEURE ...................................................... 20
35. QUIET ENJOYMENT .................................................... 21
36. BROKERAGE COMMISSION; INDEMNITY .................................... 21
37. EXCULPATION OF LANDLORD ............................................ 21
38. ORIGINAL INSTRUMENT ................................................ 21
39. APPLICABLE LAW ..................................................... 21
40. NO RECORDATION OF LEASE ............................................ 21
41. HAZARDOUS WASTES ................................................... 21
42. BANKRUPTCY ......................................................... 22
43. SIGNS .............................................................. 25
44. CONTROL OF COMMON AREAS AND PARKING FACILITIES ..................... 25
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22
45. NO SMOKING ......................................................... 26
46. PRIOR OCCUPANCY .................................................... 26
47. GUARANTEE .......................................................... 26
48. LEASE BINDING UPON DELIVERY ........................................ 26
49. SPECIAL STIPULATIONS ............................................... 26
50. HEADINGS ........................................................... 26
51. SURRENDER OF LEASE NOT MERGER ...................................... 27
52. MORTGAGEE PROTECTION ............................................... 27
53. INTERFERENCE ....................................................... 27
54. NO PARTNERSHIPS .................................................... 27
55. ADA ................................................................ 27
56. USE OF PRONOUN, RELATIONSHIP ....................................... 27
57. SURRENDER .......................................................... 27
58. WAIVER OF JURY TRIAL ............................................... 27
59. NO THIRD PARTY BENEFICIARY ......................................... 28
60. REPRESENTATIONS OF TENANT .......................................... 28
Exhibit "A" - Space Plan of Premises
Exhibit "B" - Legal Description of Land
Exhibit "C" - Rules and Regulations
Exhibit "D" - Work Agreement
Exhibit "E" - Prohibited Use of Premises
Exhibit "F" - Special Stipulations
Exhibit "G" - Complex Standard Services
Exhibit "H" - Guaranty
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DEFINITIONS
Term Paragraph
---- ---------
ADA 54
Additional Rental Exhibit "D"
Adjusted Monthly Rental 2(b)
Allowance Exhibit "D"
Bankruptcy Code 42
Base Rent 2
Complex 1(b)
Complex Operating Hours Exhibit "G"
Complex Standard Services Exhibit "G"
Commencement Date 1(c)
Common Areas 44
Expiration Date 1(c)
Hazardous Substances or Materials 41
Holidays Exhibit "G"
Initial Calendar Year 3(a)
Initial Monthly Rental 2(a)
Initial Operating Costs 3(a)
Insolvency Laws 42
Landlord Caption
Lease Caption
Lease Year 1(d)
Monthly Rental 2
Mortgagee 14(a)
Operating Costs 3(b)
Premises 1(a)
Property 1(e)
Rent 2
Rentable Square Foot (Feet) 1(b)
Rules 6 and Exhibit "F"
Scheduled Commencement Date 4
Services 37
Tenant Caption
Tenant's Share 3(c)
Term 1(c)
Work Agreement 4
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), made this 4th day of December 1997,
by and between BEACON PROPERTIES, L.P. ("Landlord") a Delaware limited
partnership which has as its address for all purposes hereunder as follows:
Beacon Properties, L.P. c/o
Beacon Properties Corporation
00 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000
Attn: General Counsel
with a copy of all notices to:
Beacon Properties, L.P.
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
and EXACTIUM, INC. ("Tenant"), a corporation of the State of Delaware which has
as its address:
0000-X Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
WITNESSETH:
WHEREAS, the Mutual Life Insurance Company of New York ("MONY") and
ARAD, Inc. ("ARAD") did enter into a Lease Agreement (the "Existing Lease"),
dated as of December 5, 1996, for space in the Building known as "Suite 410."
WHEREAS, MONY has conveyed its interest as "Landlord" in the Existing
Lease to Landlord.
WHEREAS, XXXX has conveyed its interest as "Tenant" in the Existing
Lease to Tenant.
WHEREAS, Landlord and Tenant desire to enter into this Lease, to replace
the Existing Lease.
1. PREMISES AND TERM
(a) Landlord hereby rents and leases to Tenant, and Tenant hereby rents
and leases from Landlord, the following described space (the "Premises"):
Floor: 2nd
Suite: 200
Square Feet: 6,968 rentable square feet
Tenant's Share: 1.8%
(subject to re-calculation pursuant to Section 3(c))
(b) The Premises are more particularly shown and outlined on the space
plans attached hereto as Exhibit "A", and made a part hereof, designated as
Suite 200 in the building (the "Building") known as 0000-X Xxxxxxxxx Xxxxx,
having an address of 0000-X Xxxxxxxxx Xxxxx, in the development known as
Lakeside comprised of the Building and four (4) other buildings (the five (5)
buildings including the Building being collectively referred to as the
"Complex".) For all purposes under this Lease, Landlord and Tenant have agreed
that the Premises shall be deemed to
25
include 6,968 rentable square feet of area (including both Tenant's exclusive
usable area contained in the Premises and common areas in the Complex
attributable to Tenant's usable area). Landlord and Xxxxxx acknowledge to each
other that each party has had the opportunity to measure the square footage
contained in the Premises and waive any claims after the date of this Lease to
adjust the rental or amounts due under this Lease resulting from any error in
the measurement of the square footage of the Premises.
(c) The term of this Lease (the "Term") shall commence (the
"Commencement Date"), subject to the provisions of Paragraph 4 herein, on the
earlier of (i) January 1, 1998 (the "Scheduled Commencement Date") or (ii) the
date on which Landlord delivers possession of the Premises to Tenant in
accordance with Paragraph 4 of this Lease or the date Landlord would have so
delivered possession of the Premises but for any omission, delay or default
caused by the Tenant or other "Tenant Delays" (as hereinafter defined in the
Work Agreement) and end at midnight on the last day of the month in which the
fifth (5th) anniversary of the Commencement Date occurs (the "Expiration Date")
or on such earlier date as the Term may expire or be terminated pursuant to the
provisions of this Lease or pursuant to law. This Lease shall be effective and
enforceable between Landlord and Tenant upon its execution and delivery, whether
such execution and delivery occurs on, prior to, or after the Commencement Date.
Upon the Commencement Date, the Existing Lease shall be deemed null, void and of
no further force and effect, and Tenant shall have vacated the space leased
under the Existing Lease and left such space in the condition required
thereunder.
(d) "Lease Year" as used herein shall mean (i) each and every twelve
(12) month period during the Term of this Lease, or (ii) in the event of Lease
expiration or termination, the period between the end of the then most recently
completed twelve (12) month period and said expiration or termination. The first
such twelve (12) month period shall commence on the Commencement Date.
(e) The Complex and land upon which said Complex is located, described
on Exhibit "B", attached hereto and by reference incorporated herein, is
referred to as the "Property". All drives, parking areas, parking lots,
walkways, terraces and landscaped areas that shall be used and maintained in
connection with the Complex that are contiguous to the Property whether in fact
located within the boundaries of the Land for purposes of this Lease shall be
included in the definition of "Complex" and "Property".
(f) Subject to the terms herein provided, the Premises shall include the
appurtenant right to use, in common with others, on a non-exclusive basis,
public lobbies, entrances, stairs, corridors, elevators, all drives, parking
areas, parking lots and other public portions of the Complex. All the windows
and outside walls of the Premises, and any space in the Premises used for
shafts, pipes, conduits, ducts, telephone ducts and equipment, electric or other
utilities, sinks or other Building facilities, and the use thereof and access
thereto through the Premises for the purposes of operation, maintenance,
inspection, display and repairs are hereby reserved to Landlord. No easement for
light, air or view, is granted or implied hereunder, and the reduction or
elimination of Tenant's light, air or view will not affect Tenant's liability
under this Lease.
2. RENT
(a) Tenant shall pay to Landlord at P.O. Box 102309, Atlanta, Georgia
30368-2309, or at such other place as Landlord may designate in writing, without
demand, deduction or set off, an annual rental for each year of the Term in the
amounts set forth hereinbelow (the "Base Rent"):
Lease Year Base Rent P.S.F. Base Monthly Base Annual Rent
---------- ---------------- ------------ ----------------
1 $18.50 $10,742.33 $128,908.00
2 $19.06 $11,067.51 $132,810.08
3 $19.63 $11,398.49 $136,781.84
4 $20.22 $11,741.08 $140,892.96
5 $20.83 $12,095.29 $145,143.44
(b) Base Rent shall be due and payable in equal monthly installments
(the "Monthly Rental") in advance on the first (1st) day of each calendar month
during the Term. The term "Rent" as used herein shall mean the Monthly Rental,
"Additional Rent" (as that term is herein defined) and any additional amounts or
charges due from Tenant hereunder.
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26
(c) Should this Lease commence at any time other than the first day of a
calendar month, or terminate at any time other than the last day of a calendar
month, the amount of Rent due from Tenant shall be proportionately adjusted
based on that portion of the month that this Lease is in effect.
(d) At all times that Landlord shall direct Tenant to pay Monthly Rental
or Additional Rental to a "lockbox" or other depository whereby checks issued in
payment of Rent are initially cashed or deposited by a person or entity other
than Landlord (albeit on Landlord's authority), then, for any and all purposes
under this Lease: (i) Landlord shall not be deemed to have accepted such payment
until ten (10) days after the date on which Landlord shall have actually
received such funds, and (ii) Landlord shall be deemed to have accepted such
payment if (and only if) within said ten (10) day period, Landlord shall not
have refunded (or attempted to refund) such payment to Tenant. Nothing contained
in the immediately preceding sentence shall be construed to place Tenant in
default of Tenant's obligation to pay Rent if and for so long as Tenant shall
timely pay the rent required pursuant to this Lease in the manner designated by
Landlord.
3. REIMBURSEMENT FOR INCREASES IN OPERATING EXPENSES AND TAXES
(a) The Monthly Rental provided for herein is based, in part, upon
Xxxxxxxx's estimate of "Operating Costs," as hereinafter defined. The "Initial
Operating Costs" are stipulated to be the Operating Costs for the calendar year
1998 (the "Initial Calendar Year").
(b) The term "Operating Costs" shall mean all operating expenses of the
Building and the "Building's Allocated Share" (hereinafter defined) of the
common areas of the Complex, all of which shall be computed on a modified cash
basis and which shall include all expenses, costs, and disbursements of every
kind and nature, which Landlord (i) shall pay; or (ii) become obligated to pay
in connection with the ownership, operation, management, maintenance, repair,
replacement and security of the Building, including, but not limited to, the
following:
(i) Wages and salaries of all employees engaged in the operation
and maintenance of the Building, including, but not limited to, taxes, insurance
and benefits relating thereto;
(ii) All supplies and materials used in the operation and
maintenance of the Building.
(iii) Cost of water, sewage, electricity and other utilities
furnished in connection with the operation of the Building;
(iv) Cost of all service agreements and maintenance for the
Building and/or the Property and/or the equipment therein, including, but not
limited to, trash removal, security services, alarm services, window cleaning,
janitorial service, HVAC maintenance, elevator maintenance, and grounds
maintenance;
(v) Cost of all insurance relating to the Complex including, but
not limited to, the cost of casualty and liability insurance applicable to the
Complex and Landlord's personal property used in connection therewith;
(vi) All taxes (ad valorem and otherwise), assessments, and
governmental charges whether federal, state, county, or municipal, and whether
by taxing districts or authorities presently taxing the Building or by others,
subsequently created or otherwise, and any other taxes (other than federal and
state income taxes) and assessments attributable to any portion of the Building
or its operation or any Rent or any personal property in connection with the
operation of the Building, and any reasonable consultants and legal fees
incurred with respect to issues, concerns or appeals involving the taxes or the
Building;
(vii) Cost of repairs and general maintenance of the interior and
exterior of the Building (including, but not limited to, glass breakage).
3
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(viii) Cost of management fees for general operation and
management of the Building, which service may be provided by an affiliated
company or subsidiary of Landlord, provided that such management fee shall not
exceed the management fee paid for the management of comparable office buildings
in the area of the Property for comparable services negotiated at arms length;
and
(ix) A reasonable amortization cost due to any capital
expenditures incurred (i) which are incurred to have the effect of reducing or
limiting Operating Costs of the Building, or improving the operating efficiency
of the Complex and the Property, if such reduction or limitation would inure to
Tenant's benefit, or (ii) which may be required by governmental authority or by
Landlord's insurance carrier, or (iii) which are designed to protect or enhance
the health, safety or welfare of the tenants in the Complex or their invitees.
(x) Cost of repairs, replacements, damages in respect to the
Building incurred due to casualties or other causes to the extent uninsured
including any deductible amounts.
(xi) Cost of auditing and maintaining accounting books and
records in respect to the Building.
(xii) Cost of conducting any indoor air quality testing in any
portions of the Building deemed necessary or desirable by Landlord, including
regularly scheduled testing, and any costs incurred in connection with work
arising out of the results of such tests or reports or the recommendations in
such tests or reports.
(xiii) The Building's Allocated Share of all costs and expenses
for the general operation, management, maintenance and repair of all common
areas of the Complex, including all such costs and expenses described in items
(i) through (xii) above in respect to the common areas of the Complex.
Landlord shall be permitted to contract with its affiliates for
supplies, materials, and services used for the operation, maintenance, and
management of the Property and Complex and its affiliates shall be permitted to
subcontract for the acquisition of said supplies, materials, and services;
provided, however, Landlord's payments to any affiliates for such supplies,
services, and materials shall not exceed the costs normally charged by third
parties for such supplies, materials, and services.
Notwithstanding any provision herein to the contrary, to the extent that
Landlord incurs any Operating Costs which are allocable to the Building but
shall not be directly and allocable only to the Building or other building in
the Complex, then Landlord shall allocate such Operating Cost to the Building
and the other buildings that such Operating Costs are allocable on a consistent
basis determined by Landlord.
Expressly excluded from the definition of the term "Operating Costs"
are:
(i) Replacement of capital investment items (excepting those
expenditures referred to above)
(ii) Landlord's home office expense;
(iii) Leasing commissions;
(iv) Reimbursements paid by specific tenants or other third
parties for direct costs incurred at their request;
(v) Depreciation;
(vi) Principal, interest, and other costs directly related to
financing the Property;
(vii) The cost of any repairs or general maintenance paid by the
proceeds of insurance policies carried by Landlord on the Property;
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(viii) The wages and salaries of any supervisory or management
employee of Landlord not involved in the day-to-day operation and maintenance of
the Complex.
(c) The term "Tenant's Share" shall mean the portion that the Rentable
Square Feet in the Premises bears to the "Total Building Rentable Area" (as
hereinafter defined). Notwithstanding anything to the contrary contained herein,
in the event the Total Building Rentable Area does not have an average occupancy
of ninety-five percent (95%) during any calendar year, appropriate adjustments
shall be made to determine Operating Costs as though the Complex had been
ninety-five percent (95%) occupied, but in no event shall Tenant ever be
required to pay more than Tenant's Share of the determined Operating Costs. The
average occupancy shall be determined by adding together the total leased space
on the last day of each month during the calendar year in question and dividing
by twelve (12). For purposes of this Lease, the Total Building Rentable Area is
388,832 square feet (which is the square footage of all of the buildings in the
Complex) and the "Tenant's Share" equals 1.8%.
(d) On or about January 31st of each calendar year after the Initial
Calendar Year (or as soon thereafter as practical) Landlord shall provide Tenant
with a comparison of the Initial Operating Costs and the projected Operating
Costs for such current calendar year, and Tenant shall thereafter pay, as
"Additional Rent", Xxxxxx's Share of any excess of Landlord's projected
Operating Costs in such calendar year over the Initial Operating Costs. Such
projected increase in Operating Costs shall be payable in advance on a monthly
basis by paying one-twelfth (1/12th) of such projected increase during each
month of such respective calendar year. If Landlord has not furnished Tenant
such comparison by January 1 of a calendar year after the calendar year
immediately following the Initial Calendar Year, Tenant shall continue to pay on
the basis of the prior year's estimate until the month after such comparison is
given. Landlord shall, within a period of one hundred twenty (120) days (or as
soon thereafter as practical) after the close of each such respective calendar
year following the Initial Calendar Year provide Tenant an unaudited statement
of such year's actual Operating Costs compared to the Initial Operating Costs
(such unaudited statement shall be herein referred to as the "Final Annual
Statement of Operating Costs"). If the actual Operating Costs are greater than
the projected Operating Costs as shown on the Final Annual Statement of
Operating Costs, Tenant shall pay Landlord, within thirty (30) days of such
statement's receipt, Xxxxxx's Share of the difference thereof. If such year's
projected Operating Costs are greater than the actual Operating Costs as shown
on the Final Annual Statement of Operating Costs, Landlord shall credit Tenant,
within thirty (30) days of such statement issuance, Xxxxxx's Share of the
difference between the projected Operating Costs and the greater of actual
Operating Costs or Initial Operating Costs. In no event, however, shall Tenant
pay as Operating Costs an amount which is less than the Initial Operating Costs
for the Initial Calendar Year.
(e) Anything herein to the contrary notwithstanding, in no event shall
the Monthly Rental as set forth in Paragraph 2(a) ever be reduced on account of
Operating Costs.
(f) Should this Lease commence at any time other than the first day of a
calendar year, or terminate at any time other than the last day of a calendar
year, the amount of Additional Rent due from Tenant shall be proportionately
adjusted based on that portion of the year that this Lease was in effect.
(g) (i) Tenant shall have the right for a period of thirty (30) days
after receipt of the Final Annual Statement of Operating Costs to review
Landlord's books and records with respect to actual annual Operating Costs for
the period covered by the Final Annual Statement of Operating Costs. Such review
shall take place in Xxxxxxxx's manager's office in the Complex or at such other
place as designated by Landlord. Tenant shall give Landlord not less than ten
(10) days nor more than twenty (20) days written notice of the date on which
Tenant intends to conduct such review. In the event Tenant either fails to give
written notice or thereafter fails to complete such inspection within ten (10)
business days after the date for the inspection set forth in Tenant's written
notice, then Xxxxxx's right to review Landlord's books and records shall
terminate on such 10th day and the Final Statement of Operating Costs in
question shall be binding on both Landlord and Tenant. The results of such
review shall be for the benefit of Landlord and Tenant only, shall be maintained
in confidence by Xxxxxx, and shall not be disseminated or furnished to any other
person or entity. Tenant may use accountants or other professionals to aid
Tenant in conducting the audit, but Tenant may not use any auditing services or
consultants that are paid on a contingent fee basis or owned by, affiliated
with, employed by or related to any office building landlords or office building
management companies or services.
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(ii) If, as a result of Tenant's review, Xxxxxx claims that any
particular items shall be incorrectly included as an Operating Costs under this
Lease or Tenant claims any mathematical errors exist in the Final Statement of
Operating Costs, Tenant may give written notice to Landlord within ten (10) days
after the thirty (30) day review period. Said notice may only contest Xxxxxxxx's
Final Statement of Operating Costs for the two (2) reasons included in this
subparagraph (g) and said notice shall clearly reflect the reasons for the
disagreement and the amount claimed by Xxxxxx as owed from Landlord. Tenant and
Landlord shall then meet in an effort to resolve the differences in their
respective findings.
(iii) If a resolution is not reached within twenty (20) days of
Tenant's written notice, then Landlord shall designate an independent certified
public accountant to audit the actual annual Operating Expenses for the period
in question. The findings of said accountant shall be binding on both Landlord
and Tenant.
(iv) To the extent that the accountant's determination of
Operating Expenses is less than ninety percent (90%) of the amount reflected on
Landlord's final statement, Landlord shall bear the cost of the audit.
Conversely, to the extent that the accountant's determination of the amount
reflected on Xxxxxxxx's final statement is equal to or within ninety percent
(90%) of said statement, then Tenant shall bear the cost of the audit.
(v) If as a result of such audit it is determined that the amount
of Additional Rent due from Tenant shall be less than that shown due on
Landlord's statement, Landlord shall make such adjustments as necessary to
correct such statement and Landlord shall refund to Tenant any over payments of
Additional Rent made by Tenant.
(h) Tenant's payments of Additional Rent shall not be deemed payments of
base rental as that term is construed relative to governmental wage and price
controls or analogous governmental actions affecting the amount of rent which
Landlord may charge Tenant for the Premises.
4. DELIVERY OF THE PREMISES
(a) Landlord shall endeavor to deliver possession of the Premises to
Tenant, substantially complete on the Scheduled Commencement Date with the
improvements to be installed or constructed pursuant to the work agreement
attached as Exhibit "D" (the "Work Agreement"), which is incorporated herein and
made a part of this Lease. If Landlord, for any reason whatsoever, cannot
deliver possession of the Premises to Tenant, with the improvements to be
installed or constructed pursuant to the Work Agreement substantially complete,
on the Scheduled Commencement Date, this Lease shall not be void or voidable,
nor shall Landlord be liable to Tenant for any loss or damage resulting
therefrom. If the delay is due to any "Unavoidable Delays" (as defined in
Section 4 (a) of the Work Agreement) or to any reason other than "Tenant Delays"
(as defined in Section 4 (c) of the Work Agreement), the Commencement Date shall
be postponed until the date, and Rent shall be waived for the period between the
Scheduled Commencement Date and the date, which Landlord has advised Tenant is
the date that Landlord can deliver possession of the Premises to Tenant with the
improvements to be installed or constructed pursuant to the Work Agreement
substantially complete, and Xxxxxx agrees that such waiver shall constitute a
full settlement of any and all claims Tenant might have against Landlord arising
out of Landlord's failure to tender possession on the Scheduled Commencement
Date. If the delay is due to any Tenant Delays, the Scheduled Commencement Date
shall not be postponed, and the Term and Tenant's obligation to pay Rent shall
commence as of the Scheduled Commencement Date plus any delays caused by
Unavoidable Delays, if any, and not Tenant Delays. If Landlord delivers
possession of the Premises prior to the Scheduled Commencement Date, the Term
and Xxxxxx's obligation to pay Rent shall commence on the date of such delivery.
(b) Upon delivery of possession of the Premises by Landlord in
accordance with the Work Letter, Tenant shall execute and deliver an agreement
confirming the Commencement Date and Expiration Date, and Xxxxxx's acceptance of
the Premises, which agreement shall be in the form of Exhibit D, Schedule 2.
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5. ACCEPTANCE OF THE PREMISES
The taking of possession of any portion of the Premises by Tenant shall
be conclusive evidence that Xxxxxx has inspected the Premises and accepts the
same "as is" and that said portion of the Premises and the Complex are in good
and satisfactory condition for the use intended at the time such possession was
taken.
6. USE
Tenant shall use the Premises only for office purposes, generally in
accordance with the manner of use by other tenants in the Complex. The foregoing
notwithstanding, the Premises shall not be used for any of the purposes or uses
described in Exhibit "E"; any illegal purposes; nor in any manner to create any
nuisance or trespass; nor in any manner to vitiate the insurance or increase the
rate of insurance on the Premises. Tenant's use of the Premises shall not
violate any ordinance, law or regulation of any governmental body or the "Rules
and Regulations" of Landlord (the "Rules") as set forth in Exhibit "C" attached
hereto and made a part hereof, or cause an unreasonable amount of use of any of
the services provided in the Complex. Tenant agrees, at its own expense, to
promptly comply with any and all municipal, county, state and federal statutes,
regulations, or requirements applicable or in any way relating to the use and
occupancy of the Premises. Xxxxxx agrees to conduct its business in the manner
and according to the generally accepted business principles of the business or
profession in which Xxxxxx is engaged.
7. CARE OF THE PREMISES
(a) LANDLORD'S REPAIRS
(i) Xxxxxx agrees that no representations respecting the Premises
or the Complex, or the condition thereof, and that no promises to decorate,
alter, repair or improve the Premises, either before or after the execution
hereof, have been made by Landlord or its agents to Tenant, unless the same are
contained in this Lease.
(ii) Landlord shall maintain and repair only the common hallways
and corridors, common rest rooms, main lobby area, heating, ventilating and
air-conditioning systems, driveways and parking areas located on the Land, if
any, the roof, foundation, floors and exterior walls and glass of the Building.
Tenant shall immediately give Landlord written notice of any defect or need for
repairs, after which Landlord shall have a reasonable time within which to
repair same or cure such defect. Xxxxxxxx's liability hereunder shall be limited
only to the cost of correcting such defects or making such repairs.
Notwithstanding Landlord's obligation to maintain and repair under this Section
7(a), Tenant shall reimburse Landlord for the repair of any damage caused by
Tenant, or Tenant's employees, agents, contractors, invitees or licensees, or
caused by Xxxxxx's default hereunder.
(iii) Notwithstanding any other provisions herein, Landlord shall
not be liable to Tenant for any damage occasioned by plumbing, electrical, gas,
water, steam or other utility pipes, systems or facilities or by the bursting,
stopping, leaking or running of any tank, sprinkler, washstand, water closet or
pipes in or about the Premises or the Building; nor for any damage occasioned by
water being upon or coming through or around the roof or any flashing, window,
skylight, vent, door, or the like unless directly resulting from Xxxxxxxx's act
or willful neglect after reasonable notice; nor for any damage arising out of
any acts or neglect of co-tenants, other occupants of the Building, occupants of
adjacent property or the public.
(b) TENANT'S REPAIRS. Tenant will, at its sole cost and expense,
maintain the Premises and the fixtures and appurtenances therein in good order,
condition and repair, and will neither commit nor suffer any active or
permissive waste or injury thereof. At all times, Tenant shall maintain the
Premises in accordance with all laws, rules and regulations governing its
occupancy of the Premises. Tenant's responsibilities in conjunction therewith
shall include, but not be limited to maintain the Premises in a first-class
condition and state of repair. All such repair work, maintenance and any
alterations permitted by Landlord (i) shall be done at Tenant's sole cost and
expense; (ii) shall be done by Landlord's employees or agents or, with
Xxxxxxxx's express written consent, by persons requested by Xxxxxx; and (iii)
shall first be consented to in writing by Landlord. Tenant shall, at Xxxxxx's
expense, but under the direction of Landlord and performed by Landlord's
employees or agents, or with Landlord's express written consent, by persons
requested
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by Xxxxxx and consented to in writing by Landlord, promptly repair any injury or
damage to the Premises or Complex caused by the misuse or neglect thereof by
Tenant, by Xxxxxx's contractors, subcontractors, customers, employees,
licensees, agents, or invitees permitted or invited (whether by express or
implied invitation) on the Premises by Tenant, or by Tenant moving in or out of
the Premises. In the event any repairs are required to be made in or to the
Premises as a result of the actions or inactions of Tenant, its agents,
contractors, servants, employees, subtenant, concessionaires, licensees,
invitees or guests, Tenant shall be responsible for payment of all such repairs,
which shall be made by Landlord or its contractors. If Tenant does not make
repairs promptly and adequately, Landlord may, but need not, make repairs, and
Tenant shall promptly pay the cost thereof as Rent in addition to the Base
Rental and Additional Rent. Tenant shall pay Landlord as Rent in addition to the
Base Rental and Additional Rent for overtime and for any other expense incurred
in the event repairs, alterations, decorating or other work in the Premises are
not made, at Tenant's request, during ordinary business hours. Upon expiration
or other termination of the Term, Tenant shall quit and surrender to Landlord
the Premises, broom clean, in good order and condition as provided in this
Lease, ordinary wear and tear excepted, and Tenant shall remove all of its
property.
(c) ALTERATIONS. Tenant will not, without Xxxxxxxx's prior written
consent, (which consent may be withheld for any reason whatsoever in Landlord's
sole and absolute discretion) make alterations, additions or improvements
(including, but not limited to, structural alterations, additions or
improvements) in or about the Premises and will not do anything to or on the
Premises which will increase the rate of fire or other insurance on the Complex
or the Property. If Landlord shall fail to notify Tenant in writing of such
election within said thirty (30) day period, Landlord shall be deemed to have
elected to deny such consent. All alterations, additions or improvements of a
permanent nature made or installed by Tenant to the Premises shall become the
property of Landlord at the expiration or earlier termination of this Lease.
Landlord reserves the right to require Tenant, at Tenant's sole cost and
expense, to remove any improvements or additions made to the Premises by Tenant
and to repair and restore the Premises to their condition prior to such
alteration, addition or improvement, reasonable wear and tear, unrepaired
casualty not caused by Tenant (or by Tenant's contractors, subcontractors,
customers, employees, licensees, agents or invitees permitted or invited
[whether by express or implied invitation]) and condemnation excepted, unless
Xxxxxxxx has agreed in writing, at or prior to the time Tenant requests the
right to make such alteration, addition or improvement, that such item need not
be removed by Tenant at the expiration or earlier termination of the Term.
Landlord shall have the right to assess an administrative fee and a legal
processing fee to cover Landlord's review of materials for any proposed Tenant
alteration, addition or improvement.
(d) CONDITION OF PREMISES ON SURRENDER OF PREMISES. Prior to the
Expiration Date or upon any earlier termination of this Lease, Tenant, at
Tenant's sole cost and expense, will remove all Tenant's personal property and
repair all injury done by or in connection with installation or removal of said
property and surrender the Premises (together with all keys, access cards or
entrance passes to the Premises or the Complex) in as good a condition as they
were when delivered to Tenant at the beginning of the Term, reasonable wear and
tear, insured casualty not caused by Tenant (by Xxxxxx's contractors,
subcontractors, customers, employees, licensees, agents or invitees permitted or
invited [whether by express or implied invitation]) and condemnation excepted.
All property of Tenant remaining in the Premises after expiration of the Term or
earlier termination of this Lease shall be conclusively deemed to be abandoned,
shall thereupon at the election of Landlord, become the property of Landlord and
Landlord may remove and dispose of such property in any way Landlord sees fit
without liability to Tenant. Tenant shall reimburse Landlord for the cost of
removing and storing such abandoned property. The foregoing notwithstanding,
Landlord shall continue to have the right (which shall survive termination or
expiration of the Lease) to require Tenant to remove any improvements or
additions made to the Premises by Tenant pursuant to (b) above.
(e) CONTRACTORS DOING WORK. In doing any work related to the
installation of Xxxxxx's furnishings, fixtures, or equipment in the Premises,
Tenant will use only contractors or workers consented to by Landlord in writing
prior to the time such work is commenced. Landlord may condition its consent
upon its receipt from such contractors or workers of acceptable (i) lien
waivers; and (ii) evidence that such contractors have contractor's liability
insurance with at least $5,000,000 coverage; automobile liability insurance with
at least $1,000,000 coverage; and worker's compensation insurance in the
statutory amounts required by the State of Georgia which coverage shall be
obtained from carriers satisfactory to Landlord. Landlord shall have the right
to
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periodically review and modify the coverages required hereunder. Landlord and
Xxxxxxxx's property manager shall be named additional insureds on the policies
required hereunder. Tenant shall within ten (10) days of filing promptly remove
any lien or claim of lien for material or labor claimed against the Premises,
the Building or Complex, or both, by such contractors or workers if such claim
should arise, and Tenant shall and does hereby indemnify and hold harmless
Landlord from and against any and all claims, loss, cost, damage, expense or
liabilities including, but not limited to, reasonable attorney's fees, incurred
by Landlord, as a result of or in any way related to such claims or such liens.
(f) PERSONAL PROPERTY AT RISK. All personal property brought into the
Premises by Tenant, its employees, licensees and invitees shall be at the sole
risk of Tenant. Landlord shall not be liable for theft thereof or of money
deposited therein or for any damages thereto, such theft or damage being the
sole responsibility of Tenant.
(g) LANDLORD'S RIGHT TO DO WORK. Landlord shall also have the right, at
any time, without the same constituting an actual or constructive eviction and
without incurring any liability to Tenant therefor, to reasonably change the
arrangement and/or location of entrances or passageways, doors and doorways,
corridors, elevators, toilets or other public parts of the Property, and to
reasonably close entrances, doors, corridors, elevators or other facilities.
8. SERVICES
Provided Tenant is in compliance with the terms and conditions of this
Lease, Landlord shall furnish the services described in Exhibit "G", attached
hereto and by reference made a part hereof (certain costs of which services
shall be reimbursed to Landlord in accordance with Section 3 herein). Landlord
will provide to Tenant heating or air conditioning service after the Complex
operating hours (defined in "Exhibit "G" provided Tenant gives Landlord notice
of the desire for such service by 4:00 p.m. on the business day on which Tenant
desires the service, and by 4:00 p.m. on the Thursday prior to any Saturday,
Sunday or holiday on which Tenant desires such service. Such service will be
provided by Landlord at such rates as shall be established by Landlord from time
to time. As of the date of this Lease, such rates are $40.00 per floor per hour,
provided such rates are subject to increase in connection with increases costs
of administrative services, labor, equipment and utilities.
9. DESTRUCTION OR DAMAGE TO PREMISES
(a) If the Premises, the Building or the Complex or any building in the
Complex or the parking in the Complex are totally destroyed (or so substantially
damaged as to be wholly untenantable or not usable or not repairable within one
hundred eighty (180) days in the determination of Landlord's architect or
engineer) by storm, fire, earthquake or other casualty, Landlord shall have the
option to:
(i) Terminate this Lease as of the date of the occurrence of the
storm, earthquake, fire or other casualty by giving written notice to Tenant
within ninety (90) days from the date of such damage or destruction; or
(ii) Commence the process of restoration of the Premises to a
tenantable condition within thirty (30) days from the date of receipt by
Landlord of all of the insurance proceeds paid with respect to such casualty,
and proceed with due diligence to complete said restoration of the Premises.
Provided, however, that Landlord shall not be obligated to expend for such
repair an amount in excess of the net insurance proceeds actually received as a
result of such damage and in no event shall Landlord be required to repair or
replace any alteration or improvement made by or for Tenant, including but not
limited to Tenant's Work (as defined in the Work Agreement), nor any trade
fixtures, furniture, equipment or other property belonging to the Tenant. If
Landlord chooses to restore the Premises, Rent shall xxxxx with respect to the
untenantable portion of the Premises from the date of such casualty until the
date of substantial restoration thereof.
If Landlord shall not elect to terminate this Lease, the Landlord shall
complete such restoration with reasonable diligence within one hundred eighty
(180) days of the date of receipt by Landlord of all of the insurance proceeds
paid with respect to such casualty, as described above subject Tenant Delays.
During such period of repair, if any portion of the Premises shall be
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untenantable as a result of casualty, Base Rental and Additional Rent shall
xxxxx beginning with the date of such casualty and ending on the date the
Premises are rendered tenantable by an amount bearing the same ratio to the
total amount of Base Rental and Additional Rent due under this Lease as the
untenantable portion of the Premises bears to the entire Premises.
Notwithstanding such abatement, Tenant shall remain obligated to perform and
discharge all of its remaining covenants under this Lease during the period of
abatement.
(b) If such damage or destruction occurs within one (1) year of the
expiration of the Term, either party may, at its option on written notice to the
other party within thirty (30) days of such destruction or damage, terminate
this Lease as of the date of such destruction or damage.
(c) Rent shall not xxxxx if the damage or destruction of the Premises,
whether total or partial, is the result of the negligence of Tenant, its
contractors, subcontractors, agents, employees, guests or invitees.
10. DEFAULT BY TENANT; LANDLORD'S REMEDIES
(a) The occurrence of any of the following shall constitute an event of
default hereunder by Xxxxxx:
(i) The Rent or any other sum of money due of Tenant hereunder is
not paid within five (5) days of the date when Xxxxxx receives written notice
thereof from Landlord; provided however, that Landlord shall not be required to
give any such notice of nonpayment more than two (2) times in any 12-month
period; and for the third (3rd) and any subsequent nonpayment; it shall be an
event of default if payment is not received within five (5) days or when due;
(ii) The Premises are deserted or vacated, and Tenant does not
occupy the Premises within ten (10) days after notice from Landlord to Tenant;
(iii) Tenant fails to bond off or otherwise remove (in a manner
acceptable to Landlord) any lien filed against the Premises or the Complex by
reason of Tenant's actions, within ten (10) days after Xxxxxx has notice of the
filing of such lien;
(iv) Tenant fails to observe, perform and keep any of the other
covenants, agreements, provisions, stipulations, conditions and Rules herein
contained to be observed, performed and kept by Tenant and persists in such
failure after ten (10) days written notice by Landlord requiring that Tenant
remedy, correct, desist or comply (or if any such failure to comply on the part
of Tenant would reasonably require more than ten (10) days to cure, unless
Tenant commences curing within the ten (10) day notice period and thereafter
promptly, effectively and continuously proceeds with the curing of the failure
to comply on the part of Tenant and, in all such events, cures such failure to
comply on the part of Tenant no later than forty-five (45) days after such
notice).
(b) Upon the occurrence of an event of default, Landlord shall have the
option to do and perform any one or more of the following:
(i) Terminate this Lease, in which event Xxxxxx shall immediately
surrender the Premises to Landlord. If Tenant shall fail to do so, Landlord may,
without further notice and without prejudice to any other remedy Landlord may
have, enter upon the Premises without the requirement of resorting to the
dispossessory procedures set forth by applicable law, if any, and expel or
remove Tenant and Tenant's effects without being liable for any claim for
trespass or damages therefor. Upon any such termination, Tenant shall remain
liable to Landlord for damages, due and payable monthly on the day Rent would
have been payable hereunder, in an amount equal to the Rent and any other
amounts which would have been owing by Tenant for the balance of the Term, had
this Lease not been terminated, less the net proceeds, if any, of any reletting
of the Premises by Landlord, plus the aggregate amount of all of Landlord's
costs and expenses (including, without limitation, advertising expenses and
professional fees) incurred in connection with or in any way related to the
termination of this Lease, eviction of Tenant and such reletting; or
(ii) Enter the Premises as the agent of Tenant without the
requirement of resorting to the dispossessory procedures set forth in
O.C.G.A. Section 44-7-50 et. seq., and without being liable for any claim for
trespass or damages therefor, and, in connection therewith, re-key the Premises,
remove Tenant's effects therefrom and store the same at Tenant's expense,
without being liable for any damage thereto, and relet the Premises as the agent
of Tenant, without advertisement, by private negotiations, for any term Landlord
deems proper, and receive the rent therefor. Upon
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such reletting, all rentals received by the Landlord from such re-letting shall
be applied first, to the payment of any indebtedness other than the Rent due
hereunder from Tenant to Landlord; secondly, to the payment of any costs and
expenses of such reletting, including, without limitation, brokerage fees and
attorneys' fees and the costs of such alterations and repairs as may be
necessary relative to such re-letting; third, to the payment of the Rents then
due and unpaid under the Lease; and the residue, if any, shall be held by the
Landlord and applied in payment of future Rents as same may become due and
payable hereunder. Tenant shall pay Landlord on demand any deficiency that may
arise by reason of such reletting, but Tenant shall not be entitled to any
surplus so arising. Tenant shall reimburse Landlord for all costs and expenses
(including, without limitation, advertising expenses and professional fees)
incurred in connection with or in any way related to the eviction of Tenant and
reletting the Premises, and for the amount of any other Rent which would have
been due of Tenant to Landlord hereunder if not for certain concessions granted
by Landlord to Tenant. Notwithstanding any such re-letting without termination,
Landlord may at any time thereafter elect to terminate this Lease for such
previous breach; or
(iii) Landlord, in addition to but not in lieu of or in
limitation of any other right or remedy provided to Landlord under the terms of
this Lease or otherwise (but only to the extent such sum is not reimbursed to
Landlord in conjunction with any other payment made by Tenant to Landlord),
shall have the right to be immediately repaid by Tenant the amount of all sums
expended by Landlord and not repaid by Tenant in connection with preparing or
improving the Premises to Tenant's specifications and any and all costs and
expenses incurred in renovating or altering the Premises to make it suitable
for reletting; or
(iv) As agent of Tenant, do whatever Tenant is obligated to do by
the provisions of this Lease, including, but not limited to, entering the
Premises, without being liable to prosecution or any claims for damages, in
order to accomplish this purpose. Xxxxxx agrees to reimburse Landlord
immediately upon demand for any expenses which Landlord may incur in thus
effecting compliance with this Lease on behalf of Tenant, and Xxxxxx further
agrees that Landlord shall not be liable for any damages resulting to Tenant
from such action, whether caused by the negligence of Landlord or otherwise.
(v) Landlord may declare the entire amount of Base Rental,
Additional Rent and other sums which would have become due and payable during
the remainder of the Term of this Lease to be due and payable immediately
without notice to Tenant, and thereafter Landlord may terminate this Lease and
recover from Tenant, as full liquidated damages, all damages Landlord may incur
by reason of Tenant's default, which damages shall be limited to (a) the amounts
due and owing prior to such termination, plus (b) the cost of recovering the
Premises, plus (c) reasonable attorney's fees and costs, plus (d) a sum which,
at the date of such termination, equals the present value [discounted at ten
percent (10%) per annum] of (i) the Base Rental, Additional Rent and all other
sums which would have been due and payable by Tenant hereunder for the remainder
of the Term (including any Extended Term, if the Term of the Lease has been
extended) less (ii) the aggregate reasonable rental value of the Premises for
the same period, accounting for the cost, time and other factors necessary to
relet the Premises, all of which amounts shall be immediately due and payable;
provided, however, if Landlord elects to pursue this remedy, Landlord shall do
so exclusively and shall not thereafter pursue any of the other remedies set
forth in section 10(b)(i)(iv) to collect Base Rental and Additional Rent due
from Tenant. The foregoing limitation of remedies is without prejudice to
Landlord's right to enforce Tenant's indemnity obligation with respect to
claims, damages and liabilities (other than Base Rental and Additional Rent)
resulting to Landlord by or through Tenant's use and occupancy of the Premises.
Landlord and Tenant agree that such amounts constitute a good faith reasonable
estimate of the damages which might be suffered by Landlord upon the occurrence
of a Default and that it as impossible to estimate more precisely such damages.
Xxxxxxxx's receipt of the aforesaid amount is intended not as a penalty but as
full liquidated damages.
(c) Pursuit by Landlord of any of the foregoing remedies shall not
preclude the pursuit of general or special damages incurred, or of any of the
other remedies provided herein, at law or in equity; provided, however,
Landlord's election to pursue the remedy in Section 10(b)(v) shall be
exclusive of any other remedies available to Landlord except as provided in said
Section 10(b)(v).
(d) No act or thing done by Landlord or Landlord's employees or agents
during the Term shall be deemed an acceptance of a surrender of the Premises.
Neither the mention in this Lease of any particular remedy, nor the exercise by
Landlord of any particular remedy hereunder, at
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law or in equity, shall preclude Landlord from any other remedy Landlord might
have under this Lease, at law or in equity. Any waiver of or redress of or any
violation of any covenant or condition contained in this Lease or any of the
Rules now or hereafter adopted by Landlord, shall not prevent a subsequent act,
which would have originally constituted a violation, from having all the force
and effect of an original violation. The receipt by Landlord of Rent with
knowledge of the breach of any covenant in this Lease shall not be deemed a
waiver of such breach.
(e) Xxxxxxxx's reentry, demand for possession, notice that the tenancy
hereby created will be terminated on the date therein named, institution of an
action of unlawful detainer or ejectment or the entering of a judgment for
possession in such action or any other act or acts resulting in the termination
of Xxxxxx's right to possession of the Premises shall not relieve Tenant from
Tenant's obligation to pay all sums due hereunder during the balance of the
Term, except as herein expressly provided. Landlord may collect and receive any
Base Rental, Additional Rent, or charges due from Tenant, and the payment
thereof shall not constitute a waiver of or affect any notice or demand given,
suit instituted or judgment obtained by Landlord, or be held to waive, affect,
change, modify or alter the rights or remedies which Landlord has in equity or
at law by virtue of this Lease.
(f) The Base Rental is calculated for the Term of this Lease and a
substantial portion of the Base Rental includes reimbursement to Landlord of
direct out-of-pocket investment costs and expenses with respect to leasing the
Premises to Tenant that Landlord has incurred or will incur during the Term for
tenant improvements, leasing commissions and other costs, various tenant
concessions, and other similar direct costs and expenses relating to Landlord's
investment in the Premises, the aggregate amount of which Landlord has spread
over the entire Term. Tenant acknowledges that Landlord will suffer damages,
including, but not limited to, such unreimbursed direct out-of-pocket costs and
expenses unless Tenant pays to Landlord all the Base Rental due to Landlord for
the entire Term.
(g) In the event Landlord commences any proceedings for nonpayment of
Base Rental, Additional Rent or other sums due hereunder, Xxxxxx will not
interpose any counterclaim of whatever nature or description which is not
directly related to the Lease in any such proceeding. This shall not, however,
be construed as a waiver of Tenant's right to assert such claims in any separate
action or actions brought by Xxxxxx.
(h) Except as expressly provided in this Lease, Tenant hereby waives any
and every form of demand and notice prescribed by statute or other law,
including without limitation the notice of any election of remedies made by
Landlord under this Section, demand for payment of any rent, or demand for
possession.
(i) All rights and remedies of Landlord created or otherwise existing at
law or in equity are cumulative and the exercise of one or more rights or
remedies shall not be taken to exclude or waive the right to exercise any other.
(j) Tenant shall and hereby agrees to pay all costs and expenses
incurred by Landlord, including, but not limited to, reasonable attorneys' fees
in enforcing any of the covenants and agreements of this Lease or as a result of
any action brought by Landlord against Tenant for an unlawful detainer of the
Premises, and all such costs, expenses and attorneys' fees shall be paid by
Tenant to Landlord within ten (10) days after Xxxxxxxx's written demand
therefor.
(k) Notwithstanding anything in this Lease to the contrary, Tenant shall
have no claim, and hereby waives the right to any claim, against Landlord for
money damages by reason of any refusal, withholding or delaying by Landlord of
any consent, approval or statement of satisfaction, and in such event, Xxxxxx's
only remedies therefor shall be an action for specific performance or injunction
to enforce any such requirements. If the result of any such action or
arbitration shall be adverse to Landlord, Landlord shall be liable to Tenant for
Tenant's reasonable expenses and attorney's fees thereby incurred.
11. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not sublet any part of the Premises, nor assign this
Lease or any interest herein, without the prior written consent of Landlord. Any
sublease or assignment made without Xxxxxxxx's consent shall be void. Landlord
shall be entitled to deny consent to an assignment or
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sublease for any reason or no reason. For illustration only, without limiting in
any respect the reasons Landlord may withhold its consent, the following are
examples of reasons Landlord may withhold its consent: (i) the proposed
subtenant or assignee may, in Landlord's judgment unreasonably burden the
Complex, its amenities or services (ii) if the rate of compensation, including,
but not limited to, all rent requested by Tenant for the portion of the Premises
to be subleased or subject to an assignment of the Lease, impacts upon or
impairs Landlord's ability to rent space in the Complex at the then market rate
as offered by Landlord, (iii) the financial statements or the business
experience of the proposed assignee or sublessee are unsatisfactory to Landlord,
(iv) the proposed use of the Premises conflicts with other uses within the
Complex, (v) the prospective assignee or sublessee is an existing tenant of the
Complex and in Landlord's judgment such sublease or assignment may affect
Landlord's lease relationship with such tenant, or (vi) Xxxxxx's proposed
subletting or assignment will in Landlord's judgment compete with landlord's
ability to lease other vacant space in the Complex. Consent by Landlord to one
assignment or sublease shall not destroy or waive this provision, and all later
assignments and subleases shall likewise be made only upon prior written consent
of Landlord. If a sublease or assignment is consented to by Landlord, any
sublessees or assignees shall become liable directly to Landlord for all
obligations of Tenant hereunder without relieving or in any way modifying
Tenant's liability hereunder.
If Tenant desires to assign this Lease or sublet the Premises or any
part thereof, Tenant shall give Landlord written notice at least sixty (60) days
in advance of the date on which Tenant desires to make such assignment or
sublease, which notice shall specify: (a) the name and business of the proposed
assignee or sublessee; (b) the amount and location of the space in the Premises
affected; (c) the proposed effective date of the subletting or assignment; and
(d) the proposed rental to be paid to Tenant by such sublessee or assignee.
If Tenant shall give such notice, Tenant shall pay on demand Landlord's
reasonable costs, including attorneys' fees incurred to consider and as
necessary to document such transaction. If Tenant notifies Landlord of Tenant's
intent to sublease or assign this Lease, Landlord shall within thirty (30) days
from receipt of such notice (a) consent to such proposed assignment or
subletting; (b) deny such consent (if Landlord shall fail to notify Tenant in
writing of such election within said thirty (30) day period, Landlord shall be
deemed to have elected to deny such consent); or (c) elect to cancel this Lease,
or to reduce the Premises by the area requested to be subleased or assigned if
the area is less than the entire Premises.
If Landlord's election is to cancel or to reduce the area of the
Premises as provided in the foregoing clause (c) (such election being referred
to herein as "Landlord's Modification Election"), Tenant shall have ten (10)
days from receipt of Landlord's Modification Election to notify Landlord of
Tenant's acceptance of such cancellation or reduction or Tenant's desire to
remain in possession of the Premises under this Lease for the remainder of the
Term. If Xxxxxx fails to notify Landlord of Tenant's election to accept
termination or reduction or to continue as Tenant hereunder, such failure shall
be deemed an election to terminate or have the area of the Premises reduced, as
the case may be, in accordance with Landlord's Modification Election and such
termination or reduction shall be effective at the end of the ten (10) day
period provided for above. If Landlord gives its consent to any such assignment
or sublease, any rent or other cost to the assignee or subtenant for all or any
portion of the Premises over and above the Rent payable by Tenant for such space
shall be due and payable, and shall be paid, to Landlord.
If this Lease is cancelled, the area of the Premises is reduced or a
sublease or assignment is made as herein provided, Tenant shall pay Landlord a
charge equal to the actual costs incurred by Landlord, in Landlord's reasonable
judgment (including, but not limited to, the use and time of Landlord's
personnel), for all of the necessary legal, management, leasing or accounting
services required to accomplish such cancellation, reduction of area of the
Premises, assignment or subletting, as the case may be.
Any physical alterations necessary with respect to any such assignment,
subletting or reduction of the area of the Premises shall be subject to the
provisions of this Lease regarding alterations and shall be at Tenant's sole
cost and expense and subject to applicable building codes. No acceptance by
Landlord of any rent or any other sum of money from any assignee, sublessee, or
other category of transferee shall release Tenant from any of its obligations
under this Lease or be deemed to constitute Landlord's consent to such
assignment, sublease or transfer.
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(b) The sale or transfer of Tenant's voting stock (if a corporation) or
a partnership interest (if a partnership) or member interest (if a limited
liability company) in Tenant resulting in the transfer of control of a majority
of such stock or interest, or the occupancy of the Premises by any successor
firm of Tenant or by any firm into which or with which Tenant may become merged
or consolidated shall be deemed an assignment of this Lease requiring the prior
written consent of Landlord.
(c) The joint and several liability of Tenant named herein and any
immediate and remote successor in interest of Tenant (by assignment or
otherwise), and the due performance of the obligations of this Lease on Tenant's
part to be performed or observed, shall not in any way be discharged, released
or impaired by any (i) agreement which modifies any of the rights or obligations
of the parties under this Lease, (ii) stipulation which extends the time within
which an obligation under this Lease is to be performed, (iii) waiver of the
performance of an obligation required under this Lease, or (iv) failure to
enforce any of the obligations set forth in this Lease; provided, however, that
(a) in the case of any modification of this Lease made after the date of an
assignment or other transfer of this Lease by Tenant, if such modification
increases or enlarges the obligations of Tenant or reduces the rights of Tenant,
then Tenant named herein and each respective assignor or transferor shall not be
liable under or bound by any such increase, enlargement or reduction; and (b) in
the case of any waiver by Landlord of a specific obligation of an assignee or
transferee of Tenant, such waiver shall also be deemed a waiver of such
obligation with respect to the immediate and remote assignors or transferors of
such assignee or transferee.
(d) Tenant shall have no right whatsoever to encumber any of the
Tenant's rights, title or interest under this Lease, without the prior written
consent of the Landlord.
(e) Nothing in this Lease shall in any way restrict Landlord's right to
assign or encumber this Lease in its sole and absolute discretion. Should the
Landlord assign this Lease as provided for above, or should Landlord encumber
all or any portion of the Complex and should the holder of such encumbrance
succeed to the interest of Landlord, Tenant shall be bound to said assignee or
any such holder under all the terms, covenants and conditions of this Lease for
the balance of the Lease term remaining after such succession and Tenant shall
attorn to such succeeding party as its Landlord under this Lease promptly under
any such succession. Xxxxxx agrees that should any party so succeeding to the
interest of Landlord require a separate agreement of attornment regarding the
matters covered by this Lease, then Tenant shall enter into such attornment
agreement, provided the same does not substantially modify any of the provisions
of this Lease and has no material adverse effect upon Xxxxxx's continued
occupancy of the Premises.
12. CONDEMNATION
(a) If all or a part of the Premises is taken by virtue of eminent
domain or other similar proceeding, or are conveyed in lieu of such taking, this
Lease shall expire on the date when title or right of possession shall vest, and
any Rent paid for any period beyond said date shall be repaid to Tenant. If all
or a part of the Complex other than the Premises is taken by virtue of eminent
domain or other similar proceeding, or is conveyed in lieu of such taking
rendering the remaining part of the Complex not subject to such condemnation
shall be substantially and adversely affected thereby, then Landlord, in its
sole discretion may terminate this Lease. If there is a partial taking where
this Lease is not terminated, the Rent shall be adjusted in proportion to the
Rentable Square Footage of the Premises taken, as determined by the Landlord's
architect or engineer. In any event, Landlord shall be entitled to, and Tenant
shall not have any right to claim, any award made in any condemnation
proceeding, action or ruling relating to the Complex or the Land; provided
however, in the event of a termination of this Lease Tenant shall be entitled to
make a separate claim in any condemnation proceeding, action or ruling relating
to the Complex for Tenant's moving expenses, loss of goodwill and the
unamortized value of leasehold improvements in the Premises actually paid for by
Tenant without contribution by Xxxxxxxx, to the extent such claim does not in
any manner impact upon or reduce Landlord's claim or award in such eminent
domain proceeding, action or ruling and Tenant shall likewise have no claim
against Landlord for the value of any unexpired portion of this Lease.
(b) Landlord shall have, in Landlord's sole discretion, the option of
terminating this Lease if any such condemnation, action or ruling or conveyance
in lieu thereof makes continuation of Landlord's use of the Complex economically
unfeasible, and Landlord shall be entitled to the
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entire award as above provided, and in such case, Tenant shall likewise have no
claim against Landlord for the value of any unexpired portion of this Lease.
13. INSPECTIONS
Landlord, its agents, employees, contractors and subcontractors, may
enter the Premises at reasonable hours to (a) exhibit the Premises to
prospective purchasers or tenants of the Premises or the Complex; (b) inspect
the Premises to see that Tenant is complying with its obligations hereunder; and
(c) make repairs or alterations (i) required of Landlord under the terms hereof;
(ii) to any adjoining space in the Complex; or (iii) to any systems serving the
Complex which run through the Premises; and (d) to perform any and all of
Landlord's obligations under this Lease, or any other lease, where entry to such
Premises is reasonably required for such performance. In addition to the
foregoing, Landlord, its agents, employees, contractors and/or sub-contractors
may enter the Premises at any time if an emergency requires such entry. Any such
entry shall not constitute an eviction of Tenant or be deemed as disturbing
Xxxxxx's quiet enjoyment of the Premises and no abatement of rent shall result
because of such entry and/or performance. Landlord shall be allowed to take all
material into and upon Premises that may be required therefor without the same
constituting an eviction of Tenant in whole or in part; and the Base Rental and
Additional Rent reserved shall in no way xxxxx while said decorations, repairs,
alterations, improvements or additions are being made. If Tenant shall not be
personally present to open and permit an entry into the Premises, at any time,
when for any reason an entry therein shall be necessary or permissible, Landlord
or Landlord's agents may enter the same by a pass key, or when for any reason an
entry therein shall be necessary and entry by pass key is not possible, may
forcibly enter the same, without rendering Landlord or such agents liable
therefor (if during such entry Landlord or such agents shall accord reasonable
care to Tenant's property), and without in any manner affecting the obligations
and covenants of this Lease. All entries shall, where possible, be performed at
such times and in such fashion so as not to unreasonably interfere with the
conduct and operation of Tenant's business. Nothing herein contained, however,
shall be deemed or construed to impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, supervision or repair of
the Premises or Complex other than as herein provided.
14. SUBORDINATION
(a) This Lease shall be subject and subordinate to any underlying land
leases or deeds to secure debt which may now or hereafter affect this Lease, the
Complex or the Property and also to all renewals, modifications, extensions,
consolidations, and replacements of such underlying land leases and such deeds
to secure debt. In confirmation of the subordination set forth in this Section
14, Tenant shall, at Landlord's request, execute and deliver such further
instruments as may be desired by the holder(s) of the deed(s) to secure debt (a
"Mortgagee") or by any lessor under any such underlying land leases.
Notwithstanding the foregoing, Landlord or such Mortgagee shall have the right
to subordinate or cause to be subordinated, in whole or in part, any such
underlying land leases or deed(s) to secure debt to this Lease (but not in
respect to priority of entitlement of insurance or condemnation proceeds). If
any such underlying land leases or deed(s) to secure debt terminates for any
reason or any such deed(s) to secure debt is foreclosed or a conveyance in lieu
of foreclosure is made for any reason, Tenant shall, notwithstanding any
subordination, deliver to Mortgagee or the Landlord within ten (10) days of
written request an attornment agreement, providing that such Tenant shall
continue to abide by and comply with the terms and conditions of this Lease.
(b) If any proceedings are brought for the foreclosure of, or in the
event of exercise of the power of sale or conveyance in lieu of foreclosure
under any deed to secure debt, Tenant shall at the option of the purchaser at
such foreclosure or other sale, attorn to such purchaser and recognize such
person as Landlord under this Lease. Xxxxxx agrees that the institution of any
suit, action or other proceeding by a Mortgagee or a sale of the Property
pursuant to the powers granted to a Mortgagee under its deed to secure debt,
shall not, by operation of law or otherwise, result in the cancellation or the
termination of this Lease or of the obligations of the Tenant hereunder.
(c) If such purchaser requests and accepts such attornment, from and
after the time of such attornment, Tenant shall have the same remedies against
such purchaser for the breach of an agreement contained in this Lease that
Tenant might have had against Landlord if the deed to secure debt had not been
terminated or foreclosed, except that such purchaser shall not be (i) liable for
any act or omission of the prior Landlord; (ii) subject to any offsets or
defenses which Tenant
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might have against the prior Landlord; (iii) bound by any Rent or security
deposit which Tenant might have paid in advance to the prior Landlord; (iv)
obligated to cure any default of any prior Landlord under the Lease that
occurred prior to the time that such purchaser succeeded to the interest of
Landlord in the Property; or (v) bound by any amendment or modification of the
Lease made without the prior written consent of such purchaser.
(d) As used in this Section 14, the term "deed(s) to secure debt" shall
also include mortgage(s) and deed(s) of trust.
15. INDEMNIFICATION AND HOLD HARMLESS
(a) Tenant hereby indemnifies and holds harmless Landlord from and
against any injury, expense, damage, liability or claim, imposed on Landlord by
any person whomsoever, whether due to damage to the Premises, claims for
injuries to the person or property of any other tenant of the Complex or of any
other person in or about the Complex or the Property for any purpose whatsoever,
or administrative or criminal action by a governmental authority, if such
injury, expense, damage, liability or claim results either directly or
indirectly from the act, omission, negligence, misconduct or breach of any
provisions of this Lease by Xxxxxx, the agents, servants, or employees of
Tenant, or any other person entering in the Complex or upon the Premises under
express or implied invitation or consent of Tenant. Xxxxxx further agrees to
reimburse Landlord for any costs or expenses, including, but not limited to,
court costs and reasonable attorney's fees, which Landlord may incur in
investigating, handling or litigating any such claim or any action by a
governmental authority.
(b) Tenant shall report in writing to Landlord any defective condition
in or about the Premises known to Tenant, and further agrees to attempt to
contact Xxxxxxxx immediately in such instance.
16. TENANT'S INSURANCE
(a) Tenant shall carry (at its sole expense during the Term): (i) fire
and extended coverage insurance insuring Tenant's improvements to the Premises
and any and all furniture, equipment, supplies, contents and other property
owned, leased, held or possessed by Tenant and contained therein, such insurance
coverage to be equal to the full replacement value of such improvements and
property, as such may increase from time to time; (ii) worker's compensation
insurance required by the State of Georgia; and (iii) commercial general
liability coverage 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 the
condition, use, or occupancy of the Premises, or other portions of the Complex,
including contractual liability and such other coverages and endorsements as are
reasonably required by Landlord, such policy to have a combined single limit of
not less than Three Million and No/100 Dollars ($3,000,000) for any bodily
injury or property damage occurring as a result of or in connection with the
above. Landlord and Xxxxxxxx's property manager, asset manager, and their
respective partners, officers, shareholders, policyholders, employees, attorneys
and agents, and employees shall be named additional insureds on the policies
required hereunder and such policies shall provide that the coverage thereunder
is primary to, and not contributing with, any policy carried by any such
additional insured.
(b) Tenant shall have included in all policies of insurance respectively
obtained by it with respect to the Complex or Premises a waiver by the insurer
of all right of subrogation against Landlord in connection with any loss or
damage thereby insured against, and Landlord shall have included in all property
insurance policies required to be maintained by Landlord under this Lease a
waiver by the insurer of all right of subrogation against Tenant in connection
with any loss or damage thereby insured against. To the full extent permitted by
law, Landlord as to its property insurance policies and Tenant as to all its
policies, each waives all right of recovery against the other for, and agrees to
release the other from liability for, loss or damage to the extent such loss or
damage results from a cause covered by valid and collectible insurance in effect
at the time of such loss or damage; provided however, that the foregoing release
by each party is conditioned upon the other party's carrying insurance with the
above described waiver of subrogation to the extent required above, and if such
coverage is not obtained or maintained by either party, then the other party's
foregoing release shall be deemed to be rescinded until such waiver is either
obtained or reinstated.
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(c) All said insurance policies shall be carried with companies licensed
to do business in the State of Georgia reasonably satisfactory to Landlord
having a Best's Rating of A XII or better and shall be noncancellable and
nonamendable except after thirty (30) days' written notice to Landlord. At
Landlord's request, duly executed certificates of such insurance shall be
delivered to Landlord prior to the Commencement Date and at least thirty (30)
days prior to the expiration of each respective policy term. Landlord shall have
the right to periodically review the coverages required hereunder and if
Landlord deems it reasonably necessary to require additional coverage resulting
from inflation or from increases in jury verdicts or other economic conditions
in the jurisdiction where the Property is located, Tenant shall obtain the
coverage requested by Landlord.
17. REMEDIES CUMULATIVE
The rights given to Landlord and Tenant herein are in addition to any
rights that may be given to Landlord or Tenant by any statute or under law. The
utilization by a party of any remedy shall not be deemed an election of
remedies, so as to preclude said party from utilizing other remedies at the same
time.
18. ENTIRE AGREEMENT - NO WAIVER
(a) This Lease contains the entire agreement of the parties hereto and
no representations, inducements, promises or agreements, oral or otherwise,
between the parties not embodied herein shall be of any force and 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 Lease (except for changes to "Rules" (as defined below) pursuant
to Section 28 hereof) cannot be changed or terminated orally, and can be
modified only in writing, executed by each party hereto. Xxxxxx acknowledges and
agrees that Xxxxxx has not relied upon any statement, representation, prior
written promises, or prior oral promises, agreements or warranties, except such
as are expressed herein.
(b) Failure of Landlord to declare any default immediately upon
occurrence thereof, or delay in taking any action in connection therewith, shall
not waive such default, but Landlord shall have the right to declare any such
default at any time and take such action as might be lawful or authorized
hereunder, in law or in equity. No waiver by Landlord of a default by Tenant
shall be implied, and no express waiver by Landlord shall affect any default
other than the default specified in such waiver, and that only for the time and
extension therein stated.
19. HOLDING OVER
If Tenant remains in possession of the Premises after expiration of the
Term, or after any permitted termination of the Lease by Landlord, with
Landlord's acquiescence and without any written agreement between the parties,
Tenant shall be a tenant at sufferance and such tenancy shall be subject to all
the provisions hereof, except that the Monthly Rental for said holdover period
shall be double the amount of Rent due in the last month of the Term. Nothing
herein shall be deemed to require Landlord to so acquiesce and any acquiescence,
if given, can be terminated by Landlord, at any time. The provisions of this
paragraph do not exclude Xxxxxxxx's rights of re-entry or any other right or
remedies provided or allowed hereunder and/or by law. There shall be no renewal
of this Lease by operation of law. Nothing in this Paragraph shall be construed
as a consent by Landlord to the possession of the Premises by Tenant after the
expiration of the Term or any permitted termination of the Lease by Landlord.
20. NOTICES
(a) Any notice by either party to the other shall be valid only if in
writing and shall be deemed to be duly given only if delivered personally or
sent by certified mail return receipt requested addressed (i) if to Tenant, at
the Premises and (ii) if to Landlord, at Landlord's addresses set forth above,
or at such other address for either party as that party may designate by notice
in writing to the other. Notice shall be deemed given, if delivered personally,
upon delivery thereof, and if sent by certified mail return receipt requested,
three (3) days after deposit with the United States Postal Service.
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(b) Tenant hereby appoints as its agent to receive service of all
dispossessory or distraint proceedings, an employee of Tenant at the Premises at
the time of such service.
21. HEIRS, SUCCESSORS, AND ASSIGNS-PARTIES
(a) The provisions of this Lease shall bind and inure to the benefit of
Landlord and Tenant, and their respective successors, heirs, legal
representatives and permitted assigns, it being understood that the term
"Landlord" as used in this Lease means only the owner (or the ground lessee) for
the time being of the Building of which the Premises are a part, so that in the
event of any sale or sales of said Building (or of any lease thereof), Landlord
named herein shall be and hereby is entirely released of all covenants and
obligations of Landlord hereunder accruing thereafter, and it shall be deemed
without further agreement that the purchaser, or the new ground lessee, as the
case may be, has assumed and agreed to carry out any and all covenants and
obligations of Landlord hereunder during the period such party has possession of
the Building. Should the Complex be severed as to ownership by sale and/or
lease, then the owner of the Building or lessee of the Building that has the
right to lease space in the Building to tenants shall be deemed "Landlord".
Tenant shall be bound to any such succeeding party for performance by Xxxxxx of
all the terms, covenants, and conditions of this Lease and agrees to execute any
attornment agreement not in conflict with the terms and provisions of this Lease
at the request of such party.
(b) The terms "Landlord" and "Tenant" and pronouns relating thereto, as
used herein, shall include male, female, singular and plural, corporation,
partnership or individual, as may fit the particular parties.
22. ATTORNEY'S FEES
In the event of any law suit or court action between Landlord and Tenant
arising out of or under this Lease or the terms and conditions stated herein,
the prevailing party in such law suit or court action shall be entitled to and
shall collect from the non-prevailing party the reasonable attorney's fees and
court costs actually incurred by the prevailing party with respect to said
lawsuit or court action.
23. TIME OF THE ESSENCE
It is understood and agreed between the parties hereto that time is of
the essence of all the terms, provisions, covenants and conditions of this
Lease.
24. NO ESTATE IN LAND
Xxxxxx has only a usufruct under this Lease, not subject to levy or
sale. No estate shall pass out of Landlord by this Lease.
25. SECURITY DEPOSIT
Landlord shall retain the security deposit paid under the Existing Lease
of $28,781.44 as a security deposit for the performance by Tenant of all the
terms, covenants and conditions of this Lease upon Tenant's part to be
performed. Unless required to do so by law, Landlord shall have no obligation
to segregate such security deposit from any other funds of Landlord, and
interest earned on such security deposit, if any, shall belong to Landlord.
Security deposits shall not be considered advance payments of Rent or a measure
of Landlord's damages, in the case of a default by Xxxxxx. The security deposit
shall be returned to Tenant within thirty (30) days after the Expiration Date,
provided Xxxxxx has fully performed its obligations hereunder. Regardless of any
permitted assignment of this Lease by Xxxxxx, Xxxxxxxx may return the security
deposit to the original Tenant in the absence of evidence satisfactory to
Landlord of an assignment of the right to receive the security deposit or the
balance thereof, which shall satisfy in full Landlord's obligation to return the
security deposit. Landlord shall have the right to apply any part of said
security deposit to cure any default of Tenant and if Landlord does so, Tenant
shall upon demand deposit with Landlord the amount so applied so that Landlord
shall have the full security deposit on deposit at all times during the Term of
this Lease. In the event of a sale or lease of the Building subject to this
Lease, Landlord shall transfer the security deposit to the Purchaser or lessee,
and Landlord shall thereupon be released from all liability for the return of
such security deposit and Tenant shall look solely to
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the successor Landlord for the return of the security deposit. This provision
shall apply to every transfer or assignment made of the security deposit to a
successor Landlord. The security deposit shall not be assigned or encumbered by
Tenant without the prior written consent of Landlord and any such unapproved
assignment or encumbrance shall be void.
26. COMPLETION OF THE PREMISES
The Work Agreement sets forth, among other things, Xxxxxxxx's and
Tenant's agreement regarding improvements if any, to be made to the Premises.
Any work required by Xxxxxx as provided for in said Exhibit "D" shall be
performed within the provisions and according to all standards of said Exhibit
"D".
27. PARKING AND ACCESS AREAS
(a) Landlord shall maintain unreserved parking facilities for the
purpose of accommodating Tenant, Xxxxxx's invitees and employees, and other
tenants, their invitees and employees, subject to such limitations and
conditions from time to time imposed by Landlord and subject to reservation of
certain parking spaces for particular tenants. Said parking shall be maintained
on the Property or on areas located in the vicinity of the Property. Said
parking shall be provided in quantities which are in accordance with the zoning
regulations or variances then in effect for the Property in which the Building
is located.
(b) Xxxxxx agrees that the number of parking spaces in the Project
actually used by Tenant and its employees and guests will never at any time
exceed the ratio of 4.0 parking spaces per 1,000 rentable square feet of the
Premises. Landlord shall have the right to undertake any measures or promulgate
and enforce any rules and regulations which Landlord deems necessary or
appropriate to enforce this provision, including, by way of illustration but not
limitation, restricting access to such parking spaces, or parking fines against
or towing the automobiles of violating parties.
28. RULES AND REGULATIONS
The Rules and Regulations (collectively "Rules") set forth on Exhibit
"C" are incorporated into and made a part of this Lease. Landlord may from time
to time amend, modify, delete or add new and additional reasonable Rules for the
use, operation, safety, cleanliness and care of the Premises and the Building.
Such new or modified Rules shall be effective upon notice thereof to Tenant.
Tenant will cause its employees and agents, or any others permitted by Tenant to
occupy or enter the Premises to abide by the Rules at all times. In the event of
any breach of any Rules and failure to cure as permitted hereunder, Landlord
shall have all remedies provided for in this Lease in the event of default by
Tenant and shall, in addition, have any remedies available at law or in equity,
including but not limited to, the right to enjoin any breach of the Rules.
Landlord shall not be responsible to Tenant for the nonobservance of the Rules
by any other tenant or person.
29. RIGHT TO RELOCATE
If the Premises contains less than 5,000 square feet of rentable area,
Landlord may move Tenant from the Premises to other office space within the
Complex by giving Tenant not less than thirty (30) days' written notice,
provided such other office space is substantially equivalent in area and
interior finish (but not necessarily floor plan lay-out) to the Premises. If
Tenant fails to relocate to such other office space or, in Xxxxxxxx's sole
opinion, unreasonably delays in relocating to such other office space, Tenant
shall be in default hereunder, and notwithstanding any other provision herein to
the contrary, Landlord, upon giving Tenant not less than fifteen (15) days
written notice, shall immediately, without any further notice, be entitled to
exercise any and all of Landlord's remedies hereunder in the event of default.
If Landlord shall exercise its rights under this provision, Landlord shall
reimburse Tenant for Tenant's actual and reasonable out-of-pocket expenses
(including but not limited to moving costs, new stationery, business cards and
similar paper products of Tenant which include Xxxxxx's address) incurred in
moving to such relocated Premises after Tenant shall submit to Landlord an
invoice together with evidence of the actual expenses incurred by Tenant.
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30. LATE PAYMENTS - ACCORD AND SATISFACTION
Any payment due of Tenant hereunder not received by Landlord within ten
(10) days of the date when due shall be assessed a five percent (5%) charge for
Landlord's administrative and other costs in processing and pursuing the payment
of such late payment, and shall be assessed an additional five percent (5%)
charge for the aforesaid costs of Landlord for each month thereafter until paid
in full. No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of Rent then due shall be deemed to be other than on
account of the earliest stipulated Rent or other sums then due and payable under
this Lease; nor shall any endorsement or statements on any check or any letter
or other writing 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 of such Rent or other sums then due
under this Lease or pursue any other remedy provided in this Lease.
31. ESTOPPEL CERTIFICATE
At any time, Tenant shall, within ten (10) days of the request by
Xxxxxxxx, execute, acknowledge and deliver to Landlord, any Mortgagee,
prospective Mortgagee or any prospective purchaser of the Property, the Building
and the Complex, or both (as designated by Landlord), an Estoppel Certificate in
recordable form, or in such other form which Landlord requires, evidencing
whether or not (a) this Lease is in full force and effect; (b) this Lease has
been amended in any way; (c) Tenant has accepted and is occupying the Premises;
(d) there are any existing defaults on the part of Landlord hereunder or
defenses or offsets against the enforcement of this Lease to the knowledge of
Tenant (specifying the nature of such defaults, defenses or offsets, if any) (e)
the date to which Rent and other amounts due hereunder, if any, have been paid;
and (f) any such other information reasonably requested by Landlord. Each
certificate delivered pursuant to this Paragraph may be relied on by Landlord,
any prospective purchaser or transferee of Landlord's interest hereunder, or any
Mortgagee or prospective Mortgagee. Tenant irrevocably appoints Landlord as its
attorney-in-fact, coupled with an interest, to execute and deliver, for and in
the name of Tenant, any document or instrument provided for in this paragraph,
if Xxxxxx fails to provide same in a timely manner.
32. SEVERABILITY AND INTERPRETATION
(a) If any clause or provision of this Lease shall be deemed illegal,
invalid or unenforceable under present or future laws effective during the Term,
the remainder of this Lease shall not be affected by such illegality, invalidity
or unenforceability, and in lieu of each clause or provision of this Lease that
is illegal, invalid or unenforceable, there shall 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.
(b) Should any provisions of this Lease require judicial interpretation,
it is agreed that the court interpreting or construing the same shall not apply
a presumption that the terms of any such provision shall be more strictly
construed against one party or the other by reason of the rule of construction
that a document is to be construed most strictly against the party who itself or
through its agent prepared the same, it being agreed that the agents of all
parties hereto have participated in the preparation of this Lease.
33. MULTIPLE TENANTS
If more than one individual or entity comprises and constitutes Tenant,
then all individuals and entities comprising Tenant are and shall be jointly and
severally liable for the due and proper performance of Tenant's duties and
obligations arising under or in connection with this Lease.
34. FORCE MAJEURE
Notwithstanding any provision in this Lease to the contrary, Landlord
shall be excused for the period of any delay and shall not be deemed in default
with respect to the performance of any of the terms, covenants, and conditions
of this Lease when prevented from so doing by causes beyond Landlord's control,
which shall include, but not be limited to, all labor disputes, governmental
regulations or controls, fire or other casualty, inability to obtain any
material or services, or acts of God.
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35. QUIET ENJOYMENT
So long as Tenant is in full compliance with the terms and conditions of
this Lease, Landlord shall warrant and defend Tenant in the quiet enjoyment and
possession of the Premises during the Term against any and all claims made by,
through or under Landlord, subject to the terms of this Lease.
36. BROKERAGE COMMISSION; INDEMNITY
XXXXXX & ASSOCIATES, INC. ("XXXXXX") HAS ACTED AS AGENT FOR LANDLORD IN
THIS TRANSACTION. NO BROKER HAS ACTED AS AGENT FOR TENANT IN THIS TRANSACTION.
XXXXXX SHALL BE PAID A COMMISSION BY LANDLORD. Tenant warrants that there are no
other claims for broker's commissions or finder's fees in connection with its
execution of this Lease. Tenant hereby indemnifies Landlord and holds Landlord
harmless from and against all claims, loss, cost, damage or expense, including,
but not limited to, reasonable attorney's fees actually incurred without regard
to any statutory presumption and court costs, incurred by Landlord as a result
of or in conjunction with a claim of any real estate agent or broker, if made
by, through or under Tenant relative to this Lease. Xxxxxxxx hereby indemnifies
Tenant and holds Tenant harmless from and against all claims, loss, cost, damage
or expense, including, but not limited to, reasonable attorney's fees actually
incurred without regard to any statutory presumption and court costs, incurred
by Xxxxxx as a result of or in conjunction with a claim of any real estate agent
or broker, if made by, through or under Landlord, relative to this Lease.
37. EXCULPATION OF LANDLORD
(a) Notwithstanding any provision in this Lease to the contrary,
Landlord and Xxxxxxxx's managing agent's liability with respect to or arising
from or in connection with this Lease shall be limited solely to Landlord's
interest in the Complex. Neither Landlord, any of the partners of Landlord, any
officer, director, principal, trustee, policyholder, shareholder, attorney nor
employee of Landlord or its managing agent shall have any personal liability
whatsoever with respect to this Lease.
(b) Landlord and Xxxxxxxx's managing agent shall have absolutely no
personal liability with respect to any provision of this Lease or any obligation
or liability arising from this Lease or in connection with this Lease. Tenant
shall look solely to the equity of Landlord in the Complex for the satisfaction
of any money judgment to Xxxxxx. Such exculpation of liability shall be absolute
and without exception whatsoever.
38. ORIGINAL INSTRUMENT
Any number of counterparts of this Lease may be executed, and each such
counterpart shall be deemed to be an original instrument.
39. APPLICABLE LAW
This Lease has been made under and shall be construed, interpreted and
enforced under and in accordance with the laws of the State of Georgia.
40. NO RECORDATION OF LEASE
Without the prior written consent of Landlord, neither this Lease nor
any memorandum hereof shall be recorded or placed on public record.
41. HAZARDOUS WASTES
Neither Tenant, its successors or assigns, nor any permitted assignee or
sublessee, licensee or other person or entity acting by or through Tenant, shall
(either with or without negligence) cause or permit the escape, disposal or
release of any "Hazardous Substances, or Materials" (as hereinafter defined).
Tenant shall not allow the storage or use of such Hazardous Substances or
Materials in any manner not sanctioned by law and by the highest standards
prevailing in the
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industry for the storage and use of such Hazardous Substances or Materials, nor
allow to be brought into the Complex, the Property or the Premises any such
Hazardous Substances or Materials except to use in the ordinary course of
Tenant's business, relative to office copiers and then only if such Hazardous
Substances or Materials are not prohibited by (and are only in amounts permitted
by) law, after notice is given to Landlord of the identity of such Hazardous
Substances or Materials. Without limitation, Hazardous Substances or Materials
shall include any biologically or chemically active substance and any waste,
substance or material described in Section 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended from
time to time, 42 U.S.C. Section 9601 et seq., the Resource Conservation and
Recovery Act, as amended from time to time, 42 U.S.C. Section 6901 et seq., any
applicable state or local laws and the regulations adopted under these acts. If
any lender or governmental agency shall ever require testing to ascertain
whether or not there has been any release of Hazardous Substances or Materials,
then the reasonable costs thereof shall be reimbursed by Tenant to Landlord upon
demand as additional charges if such requirement applies to the Premises. In
addition, Xxxxxx shall execute affidavits, representations and the like from
time to time at Landlord's request concerning Xxxxxx's best knowledge and belief
regarding the presence of Hazardous Substances or Materials on the Premises, the
Complex or the Property. Tenant indemnifies and covenants and agrees at its sole
cost and expense, to protect and save Landlord harmless against and from any and
all damages, losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, proceedings, costs, or expenses of any kind
or of any nature whatsoever (including without limitation, reasonable attorney's
fees and expert's fees) which may at any time be imposed upon, incurred by or
asserted or awarded against Landlord arising from or out of any Hazardous
Substances or Materials on, in, under or affecting the Premises, the Complex or
the Property or any part thereof as a result of any act or omission by Xxxxxx,
its successors or assigns, or any permitted assignee, permitted sublessee or
licensee or other person or entity acting at the direction with the consent of
Tenant. The within covenants shall survive the expiration or earlier termination
of the Lease Term.
42. BANKRUPTCY
(a) The following shall be events of bankruptcy under this Lease: (i)
Xxxxxx's becoming insolvent, as that term is defined in Title 11 of the United
States Code, entitled "Bankruptcy, 11 U.S.C., Sec. 101, et. seq." (the
"Bankruptcy Code"), or under applicable insolvency laws (the "Insolvency Laws");
(ii) the appointment of a receiver or custodian for any or all of Tenant's
property or assets, if such appointment shall not be dismissed within ninety
(90) days; or (iii) the filing of a voluntary petition under the provisions of
the Bankruptcy Code or the Insolvency Laws; or (iv) the filing of an involuntary
petition under the provisions of the Bankruptcy Code or the Insolvency Laws,
which is not dismissed within sixty (60) days of filing; or (v) Tenant's making
or consenting to an assignment for the benefit of creditors or a common law
composition of creditors.
In the event of Tenant's bankruptcy, Landlord at its option may,
in addition to all other rights and remedies provided in this Lease at law or in
equity, terminate this Lease by giving written notice to Tenant. If termination
of this Lease shall be stayed by order of any court having jurisdiction over any
bankruptcy or insolvency proceeding or by federal or state statute, then,
following the expiration of any such stay, or if Tenant or Tenant as
debtor-in-possession or the trustee appointed in any such proceeding (being
collectively referred to as "Tenant" only for the purposes of this Section)
shall fail to assume Tenant's obligations under this Lease within the period
prescribed therefor by law or within fifteen (15) days after entry of the order
for relief or as may be allowed by the court, or if Tenant shall fail to provide
adequate protection of Landlord's right, title and interest in and to the
Premises or adequate assurance of the complete and continuous future performance
of Tenant's obligation under this Lease, Landlord, to the extent permitted by
law or by leave of the court having jurisdiction over such proceeding, shall
have the right, at its election, to terminate this Lease on fifteen (15) days'
notice to Tenant and upon the expiration of said fifteen (15) day period this
Lease shall cease and expire as aforesaid and Tenant shall immediately quit and
surrender the Premises as aforesaid. Upon the termination of this Lease as
provided above, Landlord, without notice, may re-enter and repossess the
Premises using such force for that purpose as may be necessary without being
liable to indictment, prosecution or damages therefor and may dispossess Tenant
by summary proceedings or otherwise.
(b) For the purposes of the preceding paragraph (a), adequate protection
of Xxxxxxxx's right, title and interest in and to the Premises, and adequate
assurance of the complete and
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continuous future performance of Tenant's obligations under this Lease, shall
include, without limitation, the following requirements:
(i) that Tenant comply with all of its obligations under this Lease;
(ii) that Tenant pay to Landlord, on the first day of each month
occurring subsequent to the entry of such order, or the effective
date of such stay, a sum equal to the amount by which the Premises
diminished in value during the immediately preceding monthly
period, but, in no event, shall such amount be less than the
aggregate Rental payable for such monthly period;
(iii) that Tenant continue to use the Premises in the manner originally
required by the Lease;
(iv) that Landlord be permitted to supervise the performance of
Tenant's obligations under this Lease;
(v) that Tenant pay to Landlord within fifteen (15) days after entry
of such order or the effective date of such stay, as partial
adequate protection against future diminution in value of the
premises and adequate assurance of the complete and continuous
future performance of Tenant's obligations under this Lease, an
additional security deposit in an amount acceptable to Landlord;
(vi) that Tenant has and will continue to have unencumbered assets
after the payment of all secured obligations and administrative
expenses to assure Landlord that sufficient funds will be
available to fulfill the obligations of Tenant under this Lease;
(vii) that if Xxxxxx assumes this Lease and proposes to assign the same
(pursuant to Title 11 U.S.C. Section 365, or as the same may be
amended) to any person who shall have made a bona fide offer to
accept an assignment of this Lease on terms acceptable to such
court having competent jurisdiction over Xxxxxx's estate, then
notice of such proposed assignment, setting forth (x) the name and
address of such person, (y) all of the terms and conditions of
such offer, and (z) the adequate assurance to be provided Landlord
to assure such person's future performance under this Lease,
including, without limitation, the assurances referred to in Title
11 U.S.C. Section 365(b)(3), as it may be amended, shall be given
to Landlord by Tenant no later than fifteen (15) days after
receipt by Tenant of such offer, but in any event no later than
thirty (30) days prior to the date that Tenant shall make
application to such court for authority and approval to enter into
such assignment and assumption, and Landlord shall thereupon have
the prior right and option, to be exercised by notice to Tenant
given at any time prior to the effective date of such proposed
assignment, to accept, or to cause Xxxxxxxx's designee to accept,
an assignment of this Lease upon the same terms and conditions and
for the same consideration, if any, as the bona fide offer made by
such person less any brokerage commissions which may be payable
out of the consideration to be paid by such person for the
assignment of this Lease; and
(vii) that if Xxxxxx assumes this Lease and proposes to assign the same,
and Landlord does not exercise its option pursuant to paragraph
(vii) of this Section, Tenant hereby agrees that:
(A) such assignee shall have a net worth not less that the net
worth of Tenant as of the Commencement Date, or such Tenant's
obligations under this Lease shall be unconditionally
guaranteed by a person having a net worth equal to Xxxxxx's
net worth as of the Commencement Date;
(B) such assignee shall not use the Premises except subject to
all the restrictions contained in this Lease;
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(C) such assignee shall assume in writing all of the terms,
covenants and conditions of this Lease including, without
limitation, all of such terms, covenants and conditions
respecting the Uses permitted herein and payment of Rent, and
such assignee shall provide Landlord with assurances
satisfactory to Landlord that it has the operating experience
sufficient to enable it so to comply with the terms, covenants
and conditions of this Lease and successfully operate the
Premises;
(D) such assignee shall indemnify Landlord against, and pay to
Landlord the amount of, any payments which may be obligated to
be made to any Mortgagee by virtue of such assignment;
(E) such assignee shall pay to Landlord an amount equal to the
unamortized portion of any construction allowance made to
Tenant; and
(F) if such assignee makes any payment to Tenant, or for
Tenant's account, for the right to assume this Lease
(including, without limitation, any lump sum payment,
installment payment or payment in the nature of rent over and
above the Rental payable under this Lease), Tenant shall pay
over to Landlord one-half of any such payment, less any amount
paid to Landlord pursuant to clause (E) above on account of
any construction allowance.
As a material inducement to Landlord executing this Lease, Tenant
acknowledges and agrees that Landlord is relying upon (i) the financial
condition and specific operating experience of Tenant and Tenant's obligation to
use the Premises specifically in accordance with this Lease, (ii) Tenant's
timely performance of all of its obligations under this Lease notwithstanding
the entry of an order for relief under the Bankruptcy Code or the Insolvency
Laws for Tenant and (iii) all defaults under the Lease being cured promptly and
the Lease being assumed within 60 days of any order for relief entered under the
Bankruptcy Code or the Insolvency Laws for Tenant, or the Lease being rejected
within such 60-day period and the Premises surrendered to Landlord.
Accordingly, in consideration of the mutual covenants contained in this
Lease and for other good and valuable consideration, Xxxxxx hereby agrees that:
(i) All obligations that accrue under this Lease (including the
obligation to pay rent), from and after the date that a petition
is filed or other action is commenced under the Bankruptcy Code or
the Insolvency Laws (an "Action") shall be timely performed
exactly as provided in this Lease and any failure to so perform
shall be harmful and prejudicial to Landlord;
(ii) Any and all rents that accrue from and after the date that an
Action is commenced and that are not paid as required by this
Lease shall, in the amount of such rents, constitute
administrative expense claims allowable under the Bankruptcy Code
with priority of payment at least equal to that of any other
actual and necessary expenses incurred after the commencement of
the Action;
(iii) Any extension of the time period within which Tenant may assume or
reject the Lease without an obligation to cause all obligations
under the Lease to be performed as and when required under the
Lease shall be harmful and prejudicial to Landlord;
(iv) Any time period designated as the period within which Tenant must
cure all defaults and compensate Landlord for all pecuniary losses
that extends beyond the date of assumption of the Lease shall be
harmful and prejudicial to Landlord;
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(v) Any assignment of the Lease must result in all terms and
conditions of the Lease being assumed by the assignee without
alteration or amendment, and any assignment that results in an
amendment or alteration of the terms and conditions of the Lease
without the express written consent of Landlord shall be harmful
and prejudicial to Landlord;
(vi) Any proposed assignment of the Lease to an assignee: (1) that will
not use the Premises specifically in accordance with the Lease,
(2) that does not possess financial condition, operating
performance and experience characteristics equal to or better than
the financial condition, operating performance and experience of
Tenant as of the date of this Lease, or (3) that does not provide
guarantors of the Lease obligations with financial condition equal
to or better than the financial condition of the original
guarantors of the Lease as of the date of this Lease, shall be
harmful and prejudicial to Landlord;
(vii) The rejection (or deemed rejection) of the Lease for any reason
whatsoever shall constitute cause for immediate relief from the
automatic stay provisions of the Bankruptcy Code, and Tenant
stipulates that such automatic stay shall be lifted immediately
and possession of the Premises will be delivered to Landlord
immediately without the necessity of any further action by
Landlord.
No provision of this Lease shall be deemed a waiver of Landlord's rights
or remedies under the Bankruptcy Code, the Insolvency Laws, or applicable law to
oppose any assumption and/or assignment of this Lease, to require timely
performance of Tenant's obligations under this Lease, or to regain possession of
the Premises as a result of the failure of Tenant to comply with the terms and
conditions of this Lease or the Bankruptcy Code.
Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated as such, shall constitute "rent" for purposes of the
Bankruptcy Code.
For purposes of this Section addressing the rights and obligations of
Landlord and Tenant if an Action is commenced, the term "Tenant" shall include
Tenant's successor in bankruptcy, whether a trustee, Tenant as debtor in
possession or other responsible person."
43. SIGNS
No sign of any type or description shall be erected, placed or painted
in or about the Premises, the Complex or the Property, except those signs
submitted to Landlord in writing, and approved by Landlord in writing, which
signs shall be in conformance with Landlord's sign criteria established for the
Complex.
44. CONTROL OF COMMON AREAS AND PARKING FACILITIES
All automobile parking areas, driveways, entrances and exits thereto,
and other facilities furnished by Landlord, including all parking areas, truck
way or ways, loading areas, pedestrian walkways and ramps, landscaped areas,
stairways, corridors, and other areas and improvements provided by Landlord for
the general use, in common (the "Common Areas"), of tenants, their officers,
agents, employees, servants, invitees, licensees, visitors, patrons and
customers, shall be at all times subject to the exclusive control and management
of Landlord, and Landlord shall have the right but not the obligation from time
to time to establish, modify, and enforce reasonable rules and regulations with
respect to the Common Areas; to police same, from time to time (it being
expressly understood that such right of Landlord shall in no event be construed
to create any affirmative duty or obligation on the part of Landlord to police
or provide security or protection or give rise to any liability of Landlord in
the event of a third-party's criminal act); to change the area, level and
location and arrangement of parking areas and other facilities hereinabove
referred to; to restrict parking by, and enforce parking charges (by operation
of meters or otherwise) to tenants, their officers, agents, invitees, employees,
servants, licensees, visitors, patrons, and customers; to close all or any
portion of said areas or facilities to such extent as may, in the opinion of
Landlord's counsel, be legally sufficient to prevent a dedication thereof or the
accrual of any rights to any
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person of the public therein; to close temporarily all or any portion of the
Common Areas; to discourage non-tenant parking; to charge a fee for visitors and
customer parking; and to do and perform such other acts in and to said areas and
improvements as, in the sole judgment of Landlord, shall be advisable with a
view to the improvement of the convenience and use thereof by tenants, their
officers, agents, employees, servants, invitees, visitors, patrons, licensees
and customers. Landlord will operate and maintain the Common Areas in such a
reasonable manner as Landlord shall determine from time to time. Without
limiting the scope of such discretion, Landlord shall have the full right and
authority but not the obligation to designate a manager of the parking
facilities or Common Areas or other facilities, who shall have full authority to
make and enforce rules and regulations regarding the use of the same and to
employ all personnel and to make and enforce all Rules pertaining to, and
necessary for, the proper operation and maintenance of the parking areas or the
Common Areas. Tenant shall comply (and shall require all persons within its
control to comply) with such Rules, upon notice of same.
45. NO SMOKING
Tenant acknowledges that "smoking" is prohibited in all areas of the
Premises, the Complex (including common areas and all grounds) and the Property
except in areas, if any, outside the Building (and outside any other building in
the Complex) that are designated by Landlord as "Designated Smoking Areas".
Landlord shall have the right, but not the obligation, to designate an area or
areas outside buildings in the Complex as "Designated Smoking Areas". Landlord
shall have the right from time to time to change and or limit such Designated
Smoking Areas and to enact future rules and regulations concerning smoking in
such Designated Smoking Areas, including the right in Landlord's discretion, to
prohibit smoking in the Designated Smoking Areas or the right to refuse to
designate Designated Smoking Areas. Xxxxxx agrees to comply in all respects with
Landlord's prohibition and regulation of smoking and to enforce compliance
against its employees, agents, invitees and other persons under the control and
supervision of Tenant on the Premises, Complex and Property. Any violation of
this provision shall be a default under this Lease and in addition and without
limiting Landlord's rights and remedies in consequence of such default, entitle
Landlord to assess a monetary fine against Tenant for each violation of this
Section in the amount of $25.00. For purposes hereof, "smoking" means inhaling,
exhaling, burning or carrying any lighted cigar, cigarette, pipe or other
smoking equipment or device in any manner or form. Notwithstanding anything in
this Lease to the contrary, no liability shall attach to Landlord for any
failure to enforce this provision (or similar provisions in other leases).
46. PRIOR OCCUPANCY
If Tenant, with Xxxxxxxx's consent shall occupy the Premises prior to
the beginning of the Term specified in Section 1(c) hereof, all provisions of
this Lease shall be in full force and effect commencing upon such occupancy, and
Rent for such period shall be paid by Tenant at the same rate herein specified.
47. GUARANTEE
As an inducement for Landlord to enter into this Lease, Landlord shall
be provided with a guaranty in the form attached as Exhibit "H".
48. LEASE BINDING UPON DELIVERY
This Lease shall not be binding until and unless all parties have duly
executed said Xxxxx and a fully executed counterpart of said Xxxxx has been
delivered to Tenant.
49. SPECIAL STIPULATIONS
The special stipulations attached hereto on Exhibit "F" and made a part
hereof, if any, shall control if in conflict with any of the foregoing
provisions of this Lease.
50. HEADINGS
The headings in this Lease are included for convenience only and shall
not be taken into consideration in any construction or interpretation of any
part of this Lease.
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51. SURRENDER OF LEASE NOT MERGER
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation hereof, shall not work a merger and may, at the option of Landlord,
terminate all or any existing subleases or subtenants, or may, at the option of
Landlord, operate as an assignment to Landlord of any or all such subleases or
subtenants.
52. MORTGAGEE PROTECTION
If there is a default by Landlord under this Lease, Tenant covenants to
give notice by registered mail to, in addition to Landlord, any grantee of a
deed to secure debt, mortgagee under a mortgage, or beneficiary under a deed of
trust encumbering the Premises, whose address shall have been furnished it, and
shall offer such grantee, mortgagee or beneficiary, a reasonable opportunity to
cure the default, including time to obtain possession of the Premises by power
of sale or judicial foreclosure, if such should prove necessary to effect a
cure.
53. INTERFERENCE
Landlord shall have no liability to Tenant nor shall Tenant have any
right to terminate this Lease or claim any offset against or reduction in any
sum to be paid hereunder because of interference with, or impairment to any
extent, of light, air, visibility, or view, or because of damage or
inconvenience due to noise, vibration or other matters resulting from the
excavation, construction, repair or addition of or to, buildings adjacent to or
near the Complex. No easement of light or air is granted in this Lease or
otherwise.
54. NO PARTNERSHIPS
Landlord shall not by the execution of this Lease in any way or for any
purpose become a partner of Tenant in the conduct of its business or otherwise,
or joint venturer or a member of a joint enterprise with Tenant.
55. ADA
Tenant shall be responsible for compliance with Title III of the
American with Disabilities Act of 1990 ("ADA") within the Premises and Landlord
shall be responsible for compliance with Title III of the ADA relative to the
Common Areas within the remainder of the Complex.
56. USE OF PRONOUN, RELATIONSHIP
The use of the neuter singular pronoun to refer to Landlord or Tenant
shall be deemed a proper reference even though Landlord or Tenant may be an
individual, a partnership, a corporation, a trust or a group of two or more
individuals or corporations. The necessary grammatical changes required to make
the provisions of this Lease apply in the plural sense when there is more than
one Tenant and to either corporations, trusts, associations, partnerships, or
individuals, males or females, shall in all instances be assumed as though in
each case fully expressed.
57. SURRENDER
No surrender of the Premises, or of the remainder of the Term of this
Lease, shall be valid unless accepted in writing by Landlord.
58. WAIVER OF JURY TRIAL
TO THE EXTENT PERMITTED BY LAW, IT IS MUTUALLY AGREED BY AND BETWEEN
LANDLORD AND TENANT THAT THE RESPECTIVE PARTIES HERETO SHALL, AND THEY DO
HEREBY, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT
BETWEEN THE PARTIES HERETO OR THEIR SUCCESSORS OR ASSIGNS ON ANY MATTERS ARISING
OUT OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE, THE RELATIONSHIP OF LANDLORD
AND TENANT, AND/OR TENANT'S USE OF, OR OCCUPANCY OF, THE PREMISES. TENANT
FURTHER AGREES THAT IT SHALL NOT INTERPOSE ANY COUNTERCLAIM OR
27
51
COUNTERCLAIMS IN A SUMMARY PROCEEDING OR IN ANY ACTION BASED UPON NON-PAYMENT OF
RENT OR ANY OTHER PAYMENT REQUIRED BY TENANT HEREUNDER. THIS WAIVER IS MADE
FREELY AND VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER EACH OF THE PARTIES HERETO
HAS HAD THE BENEFIT OF ADVICE FROM LEGAL COUNSEL ON THIS SUBJECT.
59. NO THIRD PARTY BENEFICIARY.
This Agreement is only intended to benefit, and is only enforceable by
and against the parties hereto, their successors and assigns and no provisions
herein are intended to benefit or be enforceable by any persons not a party to
or successor or assign to any of the parties herein.
60. REPRESENTATIONS OF TENANT.
Tenant, by its execution hereof, represents and warrants to Landlord and
its successors and assigns that as of the date hereof Tenant is a duly
established and validly existing corporation of the State of __________ and that
the individual(s) signing this Lease on behalf of Tenant has/have been duly
authorized to do so and thereby bind Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed under seal, on the day and year first above written.
TENANT:
EXACTIUM, INC.
/s/ XXX XXXXX
------------------------------------
Authorized Signature
Xxx Xxxxx
------------------------------------
Type Name of Signatory
/s/ XXXXXX X. XXXXXX
------------------------------------
Authorized Signature
Xxxxxx X. Xxxxxx
------------------------------------
Type Name of Signatory
Tenant Tax Identification Number
00-0000000
------------------------------------
Date Executed by Tenant: 12/2/97
-----------
(CORPORATE SEAL)
Note: If Tenant is a corporation, two authorized corporate officers must
execute this Lease in their appropriate capacities for Tenant, affixing
the corporate seal.
"LANDLORD"
BEACON PROPERTIES, L.P., a Delaware
limited partnership
By: Beacon Properties Corporation,
General Partner
By: /s/ XXXXXX X. XXXXXX
------------------------------------
Xxxxxx X. Xxxxxx, Senior Vice President
Date Executed by Landlord: 12-10-97
-------------
(CORPORATE SEAL)
11/5/97
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52
EXHIBIT "A"
[FLOOR PLAN SUITE 200 GRAPHIC]
53
EXHIBIT "B"
LEGAL DESCRIPTION OF THE LAND
All that tract and parcel of land lying and being in land lot 37 of the 17th
district of Xxxxxx County, Georgia as shown and described on Property Line Plat
for The Landmarks Group prepared by Xxxxx X. Xxxxxx & Associates and dated
August 19,1970 and being more particularly described as follows:
Beginning at a point on the southerly line of land lot 37, said district and
county, located 150.0' easterly, as measured along said land lot line from the
easterly right-of-way line of Glenridge Drive and running thence n.01 degrees
33'30"w. 220.9' to a point; thence n.03 degrees 33'w. 98.8' to a point; thence
s.85 degrees 14'30"w.5.0' to a point; thence n.06 degrees 13'30"w.5.0' to a
point; thence s.63 degrees 55'30"w. 156.7' to the easterly right-of-way line of
Glenridge Drive; thence northerly along said Glenridge Drive 51.9' to a point;
thence s.85 degrees 14'30"w. along said Glenridge Drive 5.0' to a point; thence
northerly along said Glenridge Drive 7.1' to a point; thence n. 63 degrees
55'30"s. 159.4' to a point; thence n. 06 degrees 13'30"w. 76.3' to a point;
thence n.09 degrees 41'w. 75.0' to a point, thence s. 63 degrees 55'30"w. 139.6'
to a point; thence s.06 degrees 13'30"e. 77.8' to a point; thence s.63 degrees
55'30"w. 15.0" to the easterly right-of-way line of Glenridge Drive; thence
northerly along said Glenridge Drive 190.8' to a point; thence n.78 degrees
16'30"e. 145.9' to a point; thence n.09 degrees 41'w. 188.1' to the
southeasterly line of property now or formerly owned by Lane; thence n.66
degrees 41'30"e. along said Lane property 1,064.7' to the westerly right-of-way
and limit of access line of the North Xxxxxx Expressway; thence s. ll degrees
32'e. along said North Xxxxxx Expressway 241.2' to a concrete monument at the
beginning of a ramp connecting said expressway with said Interstate Highway 285;
thence southwesterly along, and following the curvature of said right-of-way and
limit of access line of said ramp 1,342.9' to an iron pin corner on the
southerly line of said land lot 37; thence n.89 degrees 07'30"w. along said land
lot line 170.2' to the point of beginning. Together with full fights of ingress
and egress to and from Glenridge Drive over the parcel of land separating the
herein described parcel from said Glenridge Drive.
54
EXHIBIT "C"
RULES AND REGULATIONS
1. No sign, picture, advertisement or notice shall be displayed by
Tenant on any part of the Premises or the Complex unless the same is first
approved by Landlord. Any such sign, picture, advertisement or notice approved
by Landlord shall be painted or installed for Tenant by Landlord at Tenant's
expense. No awnings, curtains, blinds, shades or screens shall be attached to or
hung in, or used in connection with any window or door of the Premises without
the prior consent of the Landlord, including approval by Landlord of the
quality, type, design, color and manner of attachment.
2. Tenant agrees that its use of electrical current shall never exceed
the capacity of existing feeders, risers or wiring installation.
3. Tenant shall not do or permit to be done in or about the Premises or
Complex anything which shall increase the rate of insurance on said Complex or
obstruct or interfere with the rights of other lessees of Landlord or annoy them
in any way, including, but not limited to, using any musical instrument, making
loud or unseemly noises, or singing, etc., nor use the Premises for sleeping,
lodging, or cooking by any person at any time except with permission of
Landlord. Tenant will be permitted to use for its own employees within the
Premises a conventional coffeemaker. No vending machines of any kind will be
installed, permitted or used on any part of the Premises. No part of said
Complex or Premises shall be used for gambling, immoral or other unlawful
purposes. No intoxicating beverage shall be sold in said Complex or Premises
without prior written consent of Landlord. No area outside of the Premises shall
be used for storage purposes at any time.
4. No bicycles, motorcycles or other motorized vehicles, birds or
animals of any kind shall be brought into said Complex. All vehicles shall be
parked only in areas designated therefor by Landlord.
5. The sidewalks, entrances, passages, corridors, halls, elevators, and
stairways in the Complex shall not be obstructed by Tenant or used for any
purposes other than those for which same were intended as ingress and egress. No
windows, floors or skylights that reflect or admit light into the Complex shall
be covered or obstructed by Tenant. Toilets, wash basins and sinks shall not be
used for any purpose other than those for which they were constructed, and no
sweeping, rubbish, or other obstructing or improper substances shall be thrown
therein. Any damage resulting to them, or to heating apparatus, from misuse by
Tenant or its employees, shall be borne by Tenant.
6. Only one key for each office in the Premises will be furnished Tenant
without charge. No additional lock, latch or bolt of any kind shall be placed
upon any door nor shall any changes be made in existing locks or mechanisms
thereof without written consent of Landlord. At the termination of the Lease,
Tenant shall return to Landlord all keys furnished to Tenant by Landlord, or
otherwise procured by Tenant, and in the event of loss of any keys so furnished,
Tenant shall pay to Landlord the cost thereof.
7. Landlord shall have the right to prescribe the weight, position and
manner of installation of heavy articles such as safes, filing cabinets,
machines and other equipment which Tenant may use in the Premises. No safes,
furniture, boxes, large parcels or other kind of freight shall be taken to or
from the Premises or allowed in any elevator, hall or corridor at any time
except by permission of and at times allowed by Landlord. Tenant shall make
prior arrangements with Landlord for use of freight elevator for the purpose of
transporting such articles and such articles may be taken in or out of said
Complex only between or during such hours as may be arranged with and designated
by Landlord. The persons employed to move the same must be approved by Landlord.
In no event shall any weight be placed upon any floor by Tenant so as to exceed
50 pounds per square foot of floor space without prior written approval of
Landlord.
8. Tenant shall not cause or permit any gases, liquids or odors to be
produced upon or permeate from the Premises, and no flammable, combustible,
explosive, toxic or other hazardous fluid, chemical or substance shall be
brought into the Complex.
55
9. The Complex shall be open to Tenant, its employees, and business
visitors, between the hours of 7:00 a.m. and 6:00 p.m., on all days except
Saturdays, Sundays and holidays and on Saturdays between the hours of 7:00 a.m.
and 1:00 p.m. Landlord may implement a card access security system to control
access during other times. Landlord shall not be liable for excluding any person
from the Complex during other times, or for admission of any person to the
Complex at any time, or for damages or loss for theft resulting therefrom to any
person, including Tenant.
10. Unless explicitly permitted by the Lease, Tenant shall not employ
any person other than Landlord's contractors and employees for the purpose of
cleaning and taking care of the Premises. Landlord shall not be responsible for
any loss, theft, mysterious disappearance of or damage to, any property, however
occurring. Only persons authorized by Landlord may furnish ice, drinking water,
towels, and other similar services within the Complex and only at hours and
under regulations fixed by Landlord.
11. No connection shall be made to the electric wires or gas or electric
fixtures, without the consent in writing on each occasion of Landlord. All
glass, locks and trimmings in or upon the doors and windows of the Premises
shall be kept whole and in good repair. Tenant shall not injure, overload or
deface the Complex, the woodwork or the walls of the Premises, nor permit upon
the Premises any noisome, noxious, noisy or offensive business.
12. If Tenant requires wiring for a bell or buzzer system, such wiring
shall be done by the electrician of the Landlord only, and no outside wiring men
shall be allowed to do work of this kind unless by the written permission of
Landlord or its representatives. If telegraph or telephonic service is desired,
the wiring for same shall be approved by Landlord, and no boring or cutting for
wiring shall be done unless approved by Landlord or its representatives, as
stated. The electric current shall not be used for power or heating unless
written permission to do so shall first have been obtained from Landlord or its
representatives in writing, and at an agreed cost to Tenant.
13. Tenant and its employees and invitees shall observe and obey all
parking and traffic regulations as imposed by Landlord.
14. Canvassing, peddling, soliciting and distribution of handbills or
any other written materials in the Complex are prohibited, and Tenant shall
cooperate to prevent the same.
15. Landlord shall have the right to change the name of the Complex and
to change the street address of the Complex, provided that in the case of a
change in the street address, Landlord shall give Tenant not less than 180 days'
prior notice of the change, unless the change is required by governmental
authority.
16. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular lessee, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of any other
lessee, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the other lessees of the Complex.
17. These Rules and Regulations are supplemental to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease.
18. Landlord reserves the right to make such other and reasonable Rules
and Regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Complex and the Property, and for the
preservation of good order therein.
56
EXHIBIT D
WORK AGREEMENT
In consideration of the mutual covenants and agreements contained in
this Lease and in this Exhibit D, Landlord and Tenant do hereby expressly agree
as follows:
1. DESIGN OF TENANT'S WORK. Landlord and Tenant have agreed on a
preliminary plan described on Exhibit D - Schedule 3 (the "Preliminary Plan")
for the improvements required by Tenant for the Premises, and the current
estimate of the cost to complete the work contemplated by this preliminary plan
is $21,164.53 (which cost shall be Tenant's cost, if incurred). Tenant shall, at
Tenant's cost and expense, using an architect that shall be first approved by
Landlord, cause final detail design plans, specifications and working drawings
designated as being ready for construction to be prepared in accordance with all
applicable laws, ordinances, rules, regulations and codes of all governmental or
quasi- governmental bodies (hereinafter collectively referred to as "Legal
Requirements") and to be approved, in writing, by both Landlord and Tenant
(hereinafter collectively referred to as "Tenant's Plans"). Subject to the
provisions of paragraph 7 below in this Work Agreement Tenant may use "Tenant's
Allowance" (hereinafter defined) for payment of preparation of Tenant's Plans.
For the convenience of Tenant and on behalf of the Tenant, Landlord, as Xxxxxx's
agent, has contracted with __________ to prepare Tenant's Plans for Tenant
pursuant to the provisions hereof. Tenant's Plans shall include, but not be
limited to demolition plans, the location of all interior partitions, doors,
electrical switches and outlets and telephone outlets; reflected ceiling plan
showing the location of all lights, fans, diffusers, and vents, electrical
outlets, plumbing and mechanical plans, floor and wall coverings; signs and such
other items as may be necessary or desirable in order to determine if, in
Landlord's sole opinion, the work shown on Tenant's Plans is aesthetically
compatible with the surrounding improvements, and in order to allow the Landlord
to obtain accurate bids on, and to accurately determine the cost to complete the
installation of all such work shown on the Tenant's Plans (hereinafter
collectively referred to as "Tenant's Work"). Tenant's Plans shall be minimum
1/8-inch scale architectural and engineering drawings although details may be
shown with a different scale. Tenant shall submit four (4) copies of Tenant's
Plans to Landlord within thirty (30) days after the execution and delivery of
this Lease by both Landlord and Xxxxxx. Tenant's Plans shall conform to and be
consistent with the Preliminary Plan. Landlord shall within five (5) business
days either approve (or approve with conditions) Tenant's Plans or disapprove
Tenant's Plans and give Tenant the reasons for such disapproval. If Landlord
shall disapprove Tenant's Plans, Tenant shall make the changes to Tenant's Plans
as required by Landlord in order to obtain Landlord's approval of Tenant's Plans
and Tenant shall resubmit Tenant's Plans to Landlord for Landlord's written
approval. If Landlord has "approved with conditions" Tenant shall either accept
in writing such conditions or resubmit the Tenant's Plans with changes to
correct the issues that are the basis for such conditions and in such event,
such resubmission shall be treated in the same way as if the Tenant's Plans had
been initially disapproved by Landlord. This procedure shall continue until
Tenant's Plans shall be finally approved, in writing, by Landlord and Tenant.
Landlord agrees to give Tenant its approval or disapproval of Xxxxxx's Plans
within five (5) business days of the date Tenant shall submit or resubmit any
plans to Landlord. If Tenant shall fail to obtain Xxxxxxxx's approval of
Tenant's Plans within forty (40) days after the date of this Lease, for reasons
other than a Landlord delay approving or giving comments to Tenant's Plans, then
such delay after forty (40) days shall be a Tenant Delay for purposes of Section
4 (b) hereof. Four (4) sets of Tenant's Plans as finally approved by both
Landlord and Tenant shall be signed and dated by both Landlord and Tenant as
ready for construction. Three (3) signed copies of same shall be retained by
Landlord and one (1) signed copy shall be retained by Xxxxxx. Tenant's Work
performed pursuant to this Exhibit D shall be deemed permanent fixtures and
shall become the property of Landlord upon completion of same by Landlord.
2. REVIEW OF TENANT'S PLANS. The review and approval of Tenant's Plans
by Landlord are solely for purposes of determining, in Landlord's sole opinion,
whether or not Tenant's Plans are compatible with the function, design, capacity
and layout of the mechanical, structural, electrical and plumbing systems,
facilities and equipment located in the Building. The Landlord shall not be
liable in any way whatsoever to the Tenant or to any other person for the
performance, design or
57
quality of Tenant's Work, for its failure to comply with applicable legal
requirements or for the utility or functional aspects of Tenant's Work.
3. PERFORMANCE OF TENANT'S WORK
(a) Unless Landlord and Tenant otherwise agree, after approval of
Xxxxxx's Plans, Landlord shall obtain, if Landlord does not act as CM
coordinator, three (3) bids from outside contractors approved by Landlord to
perform Tenant's Work. Xxxxxxxx agrees to use the contractor providing the
lowest bid and such bid price plus Landlord's direct contractor cost(s) and
construction management fee (as set forth in 3(e) below) shall for purposes of
this Lease be the "Cost of Tenant's Work".
(b) If Landlord shall be delayed in completing Landlord's
construction as a result of:
(i) Tenant's request for materials, finishes or installations other
than Landlord's standard; or
(ii) Tenant's changes in the approved plans; or
(iii) Tenant's failure to approve the plans and specifications or
the estimate of construction costs in a timely manner pursuant to the
provisions hereinabove set forth; or
(iv) The performance of work by a person, firm or corporation
employed by Xxxxxx and delays in the completion of said work by said
person, firm or corporation, then, Xxxxxx agrees to pay to Landlord, in
addition to any sum provided above, a sum equal to any additional cost
to Landlord in completing Xxxxxxxx's construction resulting from any of
the foregoing failures, acts or omissions of Tenant. Any such sums may
be collected by Landlord as "additional rent" from time to time, upon
demand, whether or not the Term shall have commenced and in the event of
the default in payment thereof, Landlord shall (in addition to all other
remedies) have the same rights as in the event of default in payment of
Rent. All such delays in this Section shall be called Tenant Delays and
shall not cause any extension or delay of the Commencement Date of this
Lease as provided in Section 1 and 4 of the Lease.
(c) Promptly after approval of Tenant's Plans and the "Cost of
Tenant's Work" (as hereinafter defined) by Landlord and Tenant, and provided
Tenant has paid Landlord the "Cost Differential" (as hereinafter defined), if
any, Landlord shall cause construction of Tenant's Work to be commenced.
Landlord shall use reasonable efforts to cause Tenant's Work to be completed
substantially in accordance with the Tenant's Plans in a prompt manner subject,
however, to an extension of said number of days for a period of time equal to
the period of time that the performance of Landlord's obligations is prevented,
delayed, retarded or hindered by acts of God, weather or unusual severity, fire,
earthquake, flood, explosion, action of the elements, malicious mischief,
inability to procure or general shortage of labor, services material, equipment,
facilities, or supplies in the open market, failure of transportation, strikes,
lockouts, actions of labor unions, condemnation, public requisition, laws,
orders of government or civil or defense authorities, or any other cause,
whether similar or dissimilar to the foregoing, not within the reasonable
control of Landlord (all the foregoing hereinafter collectively referred to as
"Unavoidable Delays"). In the event of any Unavoidable Delays, from time to
time, during the course of performing Tenant's Work, the number of days set
forth above in this Paragraph 4 shall be increased each time by a number of days
equal to the number of days of each such delay.
(d) Tenant hereby appoints XXXXXX X. XXXXXX as the authorized
representative of Tenant for purposes of dealing with Landlord with respect to
all matters involving, directly or indirectly, Xxxxxx's Plans and Tenant's Work
including without limitation, change orders to Xxxxxx's Plans (such person
hereinafter referred to as the "Designated Representative"). Tenant hereby
warrants and represents to Landlord that the Designated Representative has the
requisite power and authority to deal with Landlord in the manner
58
contemplated herein and that Tenant shall be bound by the acts and omissions of
the Designated Representative.
(e) Subject to the provisions set forth in this Exhibit D and
Xxxxxxxx's receipt of a building permit, Landlord shall commence construction of
Tenant's Work within ten (10) days after final approval by Landlord of Tenant's
Plans and approval by Landlord of the cost to complete Xxxxxx's Work
(hereinafter referred to as the "Cost of Tenant's Work"). Tenant acknowledges
and agrees that the Cost of Tenant's Work shall include a construction
management fee payable to Landlord in the amount of six (6%) percent of the Cost
of Tenant's Work as CM coordinator.
5. NOTICE OF SUBSTANTIAL COMPLETION. Upon completion of the Tenant's
Work substantially in accordance with Tenant's Plans, Landlord shall furnish
Tenant with notice thereof. Within five (5) days after receipt of such notice
from Landlord:
(a) Tenant shall execute and deliver to Landlord an Estoppel
Statement in the form attached hereto as Schedule 1 and incorporated herein by
this reference;
(b) Tenant shall execute and deliver to Landlord the Certificate as
to Term of Lease attached hereto as Schedule 2 and incorporated herein by this
reference if requested by Xxxxxxxx;
(c) Tenant shall pay the first installment of Base Rental due under
the Lease;
(d) Tenant shall pay to Landlord the unpaid balance, if any, of the
Cost Differential (which is hereinafter defined in Section 8 below); and
(e) Tenant shall furnish Landlord at Tenant's expense with final
as-built plans of Xxxxxx's Work on reproducible mylar drawn to minimum 1/8-inch
architectural scale.
Promptly upon receipt of all of the items set forth above in this
Paragraph 5, or at Landlord's election prior to such receipt, Landlord shall
tender possession of the Premises to Tenant by written notice to Xxxxxx.
6. TENANT'S INSPECTION OF PREMISES.
(a) Within five (5) days after the date of notice of substantial
completion referred to in Paragraph 5 of this Exhibit D, the Designated
Representative and Landlord shall jointly inspect the Premises for purposes of
determining whether or not any unfinished work required to be performed pursuant
to Tenants' Plans (such unfinished work hereinafter referred to as "Punchlist
Items") remains incomplete. Landlord shall be responsible for causing the
Punchlist Items to be completed as expeditiously as reasonably practicable, but
in any event within ninety (90) days after the date of notice of substantial
completion, subject, however, to extensions of such ninety (90) day period
resulting from Unavoidable Delays. Substantial completion of the Premises shall
be deemed to have occurred so long as any Punchlist item does not reasonably
prevent Tenant from beneficially occupying substantially all of the Premises and
using the Premises for the purposes set forth in Paragraph 6 of this Lease.
(b) The Designated Representative may, from time to time, visit the
Premises and inspect same and may consult with Landlord and its supervisors,
architects, engineers, and agents, provided, however, that the Designated
Representative shall comply with all applicable legal requirements and the
requirements of all insurance policies carried by Landlord with respect to the
Premises which may prohibit, limit or condition access to the Premises by
Tenant, or others, during the period of such construction. Tenant shall promptly
notify Landlord of any deviations from Tenant's Plans in the construction of the
Premises of which Xxxxxx has knowledge.
7. TENANT'S WORK. Tenant shall take and accept the Premises "as is,
where is", with no obligation on the part of Landlord to provide any work within
the Premises or any allowance therefor.
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8. CHANGE ORDERS. After commencement of Tenant's Work by Xxxxxxxx, but
before the commencement of any changes to Tenant's Plans, such changes to
Tenant's Plans and the cost thereof (either deductive or additional) shall be
mutually agreed upon in writing by Landlord and Xxxxxx and the cost of Xxxxxx's
Work shall be adjusted accordingly. No changes to Tenant's Work will be
performed without written approval from Landlord and Tenant. Tenant shall comply
with all of Landlord's requirements (as to submittals, details, cost figures,
cooperation, and any other items and procedures) as to each such request for a
change to Tenant's Plans. If any change results in an increase in the cost of
Tenant's Work, an amount of money equal to such increase shall be paid to
Landlord simultaneously with the approval of such change by both Landlord and
Tenant or the payment thereof shall otherwise be secured in a manner acceptable
to Landlord. If, in Landlord's opinion, any change will prevent the Landlord
from completing Tenant's Work within the number of days set forth in Paragraph 4
of this Exhibit D, then such number of days shall be increased by a number of
days which shall be sufficient, in Landlord's reasonable estimation, to allow
completion of Tenant's Work and such change.
60
EXHIBIT D SCHEDULE 1
ESTOPPEL STATEMENT
RE: Lease Dated: Amended:
Landlord: BEACON PROPERTIES, L.P.
Tenant: EXACTIUM, INC.
Premises:
As Tenant under the above-referenced Lease, the undersigned hereby
acknowledges for the benefit of Beacon Properties, L.P., which has or is about
to acquire the property in which the Premises are located, the truth and
accuracy of the following statements pertaining to the Lease.
1. Xxxxxx has accepted, is satisfied with, and is in full possession of
said Xxxxxxxx, including all improvements, additions and alterations thereto
required to be made by Landlord under the Lease.
2. The Lease is in full force and effect, and Tenant is paying the full
rent stipulated in the Lease with no offsets, defenses or claims.
3. Landlord has not been and is not presently in default under any of
the terms, covenants or provisions of the Lease.
4. Xxxxxxxx has complied with all of the requirements and conditions
precedent to the commencement of the term of the Lease as specified in the
Lease.
5. The fixed annual base rent under the Lease is $______ and no monies
have been paid to Landlord in advance of the due date set forth in the Lease
described above, except.______________________________________________.
6. The Lease is for a term of ______ years expiring __________, and
Tenant has been in occupancy and paying rent since the term commenced
on__________________________.
7. No monetary or other considerations, including but not limited to
rental concessions by Landlord, tenant improvements in excess of building
standard, or Landlord's assumption of prior lease obligations of Tenant, have
been granted to Tenant by Landlord for entering into the Lease,
except ____________________.
8. Tenant has not been and is not presently in default under any of the
terms, covenants or provisions of the Lease.
9. Tenant has delivered to Landlord a security deposit in the amount of
$___________.
10. Tenant acknowledges (a) that there have been no modifications or
amendments to the Lease other than herein specifically stated, (b) it has no
notice of a prior assignment, hypothecation or pledge of rents or of the Lease,
and (c) the Lease represents the entire agreement between Landlord and Tenant,
(d) no prepayment or reduction of rent and no modification, termination, or
acceptance of surrender of the Lease will be valid as to Beacon Properties, L.P.
without the consent of said company, and (e) notice of the proposed assignment
of Landlord's
61
interest in the Lease may be given it by certified or registered mail, return
receipt requested, at the Premises, or as otherwise directed below.
TENANT:
EXACTIUM, INC.
By:
---------------------------------
Title:
------------------------------
Date:
-------------------------------
(Address to which notices are
to be sent to Tenant if other
than to the Premises)
-----------------------------------
-----------------------------------
-----------------------------------
62
EXHIBIT D SCHEDULE 2
CERTIFICATE AS TO TERM OF LEASE
WHEREAS, Beacon Properties, L.P. ("Landlord") and EXACTIUM, INC.
("Tenant") entered into that certain Lease dated _____ (the "Lease");
WHEREAS, Xxxxxxxx has delivered possession of the Premises pursuant to
the Lease;
WHEREAS, Landlord and Tenant desire to confirm the date the Lease
commences the date the Term expires, the dates Base Rent is due during the Term
and the Base Year for purposes of the Lease.
NOW, THEREFORE, Landlord and Xxxxxx hereby agree as follows:
1. For all purposes of this Certificate, all terms used herein that are
defined in the Lease shall have the same meanings ascribed to them in the Lease.
2. The Term commenced on the _____ day of _______, 19__, and, unless
sooner terminated or extended as provided in the Lease, shall expire _____day of
_______, 19__, at 5:00 o'clock p.m.
3. Xxxxxx has accepted possession of the Premises, including all
improvements, additions and alterations to be made by Landlord under the Lease.
4. The first monthly installment of Base Rental in accordance with the
Lease has been paid, and each monthly installment of Base Rental thereafter
shall be due and payable on the first (1st) day of each month commencing _______
through and including _______. Accordingly, Base Rental shall be due and payable
in the following amounts in accordance with the Lease through the following
dates:
DATE MONTHLY INSTALLMENT AMOUNT
---- --------------------------
5. The Base Year for the Lease shall be the calendar year _____.
6. Landlord and Tenant hereby ratify and affirm the Lease and agree the
Lease remains in full force and effect in accordance with its term, provided,
however, to the extent of any conflict between the Lease and this Certificate,
this Lease Certificate shall control.
63
IN WITNESS WHEREOF, Landlord and Xxxxxx hereby execute this Certificate
under seal this _____ day of _______, 19__.
LANDLORD:
BEACON PROPERTIES, L.P.
By: Beacon Properties Corporation, General Partner
-----------------------------------------------
By:
-----------------------------------------------
Xxxxxx X. Xxxxxx, Senior Vice President
TENANT:
EXACTIUM, INC.
By:
------------------------------------
Print or Type Name:
--------------------
Title:
---------------------------------
64
EXHIBIT D SCHEDULE 3
PRELIMINARY PLAN
[FLOOR PLAN SUITE 200 GRAPHIC]
65
EXHIBIT "E"
PROHIBITED USES OF PREMISES
Notwithstanding anything to the contrary contained in the Lease, the
Premises shall not be used for or as:
(a) a school or other school or instructional activities and purposes; a
church or other religious activities; a trade association office or facility or
to promote any trade association activities or similar purposes; a union office
or to promote union activities or purposes; government owned or affiliated
office or facility; any pornographic or prurient sex related activity or purpose
(such as, but not limited to, an escort service or telephone sex service); a
medical or dental office; or
(b) any office that, by its nature, shall involve operations
substantially on a round-the-clock, 24 hour basis; or shall constitute a
material additional burden to the services of the Building as compared to normal
general office uses for standard building hours and holidays.
66
EXHIBIT "F"
SPECIAL STIPULATIONS
1. Right of First Refusal. Provided this Lease is then in full force and
effect and Tenant is in full compliance with the terms and conditions of this
Lease, and there is no sublease of any portion of the Premises or assignment of
any of Tenant's interest in the Lease, Landlord hereby grants Tenant the right
to lease the approximately 1,338 rentable square feet known as "Suite 290" in
the Building (the "Expansion Space") in accordance with the within terms and
conditions. Should Landlord receive an offer from an unaffiliated third party to
lease the Expansion Space, upon terms and conditions and at a rental rate
acceptable to Landlord, Landlord shall notify Tenant thereof in writing, and
offering to lease the Expansion Space to Tenant upon the same terms and
conditions as leased under this Lease. Tenant shall have three (3) days to
accept or reject such offer. If Tenant rejects such offer or fails to respond
within said three (3) day period, then Landlord shall be entitled to rent said
space to such third party. If Xxxxxx accepts said offer, then Tenant shall have
leased such space upon the same terms and conditions as leased under this Lease
and for a term co-terminus with the Lease, except that the space shall be leased
"as is, where is". The Rent for said Expansion Space shall commence on the
earlier to occur of (i) thirty (30) days after Tenant accepts such offer for
such Expansion Space, or (ii) on the date Tenant occupies said Expansion Space.
2. See "Exactium Additional Language" regarding additional space
67
EXACTIUM ADDITIONAL LANGUAGE
If Tenant desires to lease at least an additional five thousand (5,000)
rentable square feet in the Building (the "Expansion Space"), as such desire is
evidenced by a notice to Landlord, then Landlord shall endeavor to provide such
space to Tenant in the Building, subject to and conditioned upon the following:
(i) Tenant must be in compliance with all terms and conditions of
this Lease for such options to be effective;
(ii) Landlord may provide such Expansion Space to Tenant in any
location or locations within the Building as Landlord elects as
long as such space is at least five thousand (5,000) rentable
square feet in size, in the aggregate, and such space may be
offered in one or more blocks of space, and may not be
contiguous to the Premises;
(iii) Once Landlord provides the Expansion Space, then Tenant shall
be obligated and hereby covenants and agrees to lease such
Expansion Space. Such Expansion Space shall be leased to Tenant
on an "as is, where is" basis, on the same terms and conditions
as the Premises is leased to Tenant, at the same rate of Rent
(on a per square foot per annum basis), for a term co-terminus
with the Term, with any allowances provided for under the Lease
pro-rated to reflect the shorter duration of the Term.
(iv) If Landlord is not able to provide such space to Tenant within
ninety (90) days after Tenant first gives notice to Landlord of
Tenant's desire to so lease such Expansion Space, then Tenant
shall have the right to terminate this Lease and lease space in
another building owned by Landlord, such option to be
exercised, if at all, within ten (10) days after Tenant first
has notice that Landlord is unable to provide such space to
Tenant, and such termination to be effective no less than
ninety (90) days after Xxxxxx's notice of termination to
Landlord; provided, however, as a part of and at the time of
such cancellation Tenant shall pay to Landlord the unamortized
amount of the leasing commissions incurred as a part of this
Lease (such amortization occurring over the full term of the
Lease, on a straight-line basis).
68
EXHIBIT "G"
COMPLEX STANDARD SERVICES
Landlord shall furnish the following services to Tenant during the Term
(the "Building Standard Services"):
(a) Hot and cold domestic water and common-use restrooms and toilets at
locations provided for general use and as reasonably deemed by Landlord to be in
keeping with comparable office buildings to the Complex.
(b) Subject to curtailment as required by governmental laws, rules or
mandatory regulations and subject to the design conditions hereinafter provided,
central heat and air conditioning in season, at such temperatures and in such
amounts as are reasonably deemed by Landlord to be in keeping with comparable
office buildings to the Complex. In order to enable the central heating and air
conditioning system to operate efficiently, Xxxxxx agrees that it will not place
within the Premises more than one (1) person per 175 square feet of rentable
area. Such heating and air conditioning shall be furnished between 8:00 a.m. and
6:00 p.m. on weekdays (from Monday through Friday, inclusive) and between 8:00
a.m. and 1:00 p.m. on Saturdays, all exclusive of Holidays, as defined below
(the "Building Operating Hours").
(c) Electric lighting service for all public areas and special service
areas of the Complex in the manner and to the extent reasonably deemed by
Landlord to be in keeping with the first-class standards of the Complex.
(d) Janitor service shall be provided five (5) days per week, exclusive
of Holidays (as hereinbelow defined), in a manner that Landlord reasonably deems
to be consistent with the firstclass standards of the Complex.
(e) Sufficient electrical capacity to operate (i) incandescent lights,
typewriters, calculating machines, photocopying machines and other machines of
the same low voltage electrical consumption (120 volts), provided that the total
rated electrical design load for said lighting and machines of low electrical
voltage shall not exceed 1.25 xxxxx per square foot of rentable area; and (ii)
lighting (277 volts), provided that the total rated electrical design load for
said lighting shall not exceed 1.40 xxxxx per square foot of rentable area (each
such rated electrical design load to be hereinafter referred to as the "Building
Standard rated electrical design load").
Should Tenant's total rated electrical design load exceed the Building
Standard rated electrical design load for either low or high voltage electrical
consumption, or if Tenant's electrical design requires low voltage or high
voltage circuits in excess of Tenant's share of the Building Standard circuits,
Landlord will (at Tenant's expense) install such additional circuits and
associated high voltage panels and/or additional low voltage panels with
associated transformers shall be hereinafter referred to as the "additional
electrical equipment"). If the additional electrical equipment is installed
because Tenant's low or high voltage rated electrical design load exceeds the
applicable Building Standard rated electrical design load, then a meter shall
also be added (at Tenant's expense) to measure the electricity used through the
additional electrical equipment.
The design and installation of any additional electrical equipment (or
any related meter) required by Tenant shall be subject to the prior approval of
Landlord (which approval shall not be unreasonably withheld). All expenses
incurred by Landlord in connection with the review and approval of any
additional electrical equipment shall also be reimbursed to Landlord by Xxxxxx.
Tenant shall also pay on demand the actual metered cost of electricity consumed
through the additional electrical equipment (if applicable), plus any expenses
incurred by Landlord in connection with the metering thereof.
If any of Tenant's electrical equipment requires conditioned air in
excess of Building Standard air conditioning, the same shall be installed by
Landlord (on Tenant's behalf), and Tenant shall pay all design, installation,
metering and operating costs relating thereto.
69
If Tenant requires that certain areas within Tenant's Premises must
operate in excess of the normal Building Operating Hours (as hereinabove
defined), the electrical service to such areas shall be separately circuited and
metered (at Tenant's expense) such that Tenant shall be billed the costs
associated with electricity consumed during hours other than Building Operating
Hours.
(f) All Building Standard fluorescent bulb replacement in all areas and
all incandescent bulb replacement in public areas, toilet and restroom areas,
and stairwells.
(g) Non-exclusive multiple elevator cab passenger service to the
Premises during Building Operating Hours (as hereinabove defined) and at least
one (1) elevator cab passenger service to the floors) on which the Premises are
located twenty-four (24) hours per day during Building Operating Hours (all
subject to temporary cessation for ordinary repair and maintenance and during
times when life safety systems override normal building operating systems) with
such freight elevator service available at other times upon reasonable prior
notice and the payment by Tenant to Landlord of any additional expense actually
incurred by Landlord in connection therewith.
To the extent the services described above require electricity and water
supplied by public utilities, Landlord's covenants thereunder shall only impose
on Landlord the obligation to use its best efforts to cause the applicable
public utilities to furnish same. Except for deliberate and willful act of
Landlord, failure by Landlord to furnish the services described herein, or any
cessation thereof, shall not render Landlord liable for damages to either person
or property, not be construed as an eviction of Tenant, nor work an abatement of
rent, nor relieve Xxxxxx from fulfillment of any covenant or agreement hereof.
In addition to the foregoing, should any of the equipment or machinery, for any
cause, fail to operate, or function properly, Tenant shall have no claim for
rebate of rent or damages on account of an interruption in service occasioned
thereby or resulting therefrom; provided, however, Xxxxxxxx agrees to use
reasonable efforts to promptly repair said equipment or machinery and to restore
said services during normal business hours.
The following dates shall constitute "Holidays" as that term is used in
this Lease Agreement: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Friday following Thanksgiving Day, Christmas, and any other
holiday generally recognized as such by landlords of office space in the
metropolitan Atlanta office market, as determined by Landlord in good faith. If
in the case of any specific holiday mentioned in the preceding sentence, a
different day shall be observed than the respective day mentioned, then that day
which constitutes the day observed by national banks in Atlanta, Georgia on
account of said holiday shall constitute the Holiday under this Lease Agreement.
70
EXHIBIT "H"
GUARANTY
71
TERMS OF LEASE
Exactium, Ltd.
The original Lease agreement for the Exactium, Ltd offce is in Hebrew.
Therefore, we have provided this summary of the terms of the agreement:
Planned Disposition: The landlord is terminating this lease effective May 1,
2000 because another party wishes to lease the space. Instead of subleasing, the
new tenant will contract directly with the landlord and terminate Exactium's
remaining obligation.
Rent Period: 5 years
Start Date: 10/1/97
Payment Dates: Every three months, in advance
Payment Amount: NIS 6,645 per month
Exchange rate for 2/29/00 was 4.032 NIS/$
Therefore, this is about $1,648.07 per month
The lease payment is linked to the Israeli pricing index.
The lease payment includes 3 parking places.
Management fees: $1.75 per square meter per month
Square meters: 136
City tax: NIS 648 per month (About 160.71 USD)
Offce cleaning: NIS 261 per month (About 64.73 USD)
Electricity: Average of NIS 200 per month (About 49.60 USD)
Agreement may be canceled with six months' advance notice but not before three
years have elapsed.
If the agreement is canceled, a fine will be due. If the agreement is canceled
before four years have elapsed, the fine will be one month for each two months
that have been canceled. If the agreement is canceled after four years have
elapsed, the fine will be one month for each three months that have been
canceled.
72
Long-Term Loans / Capital Lease Obligations
Exactium Inc.
12/31/99
Loan Balance 2000 2001 2002 Total Total ST Total LT Total
---- ------- ---- ---- ---- ----- -------- -------- -----
Dolphin Capital 1,889 1,210 679 0 1,889 1,210 679 1,889
Dell Financing 797 797 0 0 797 797 0 797
PM Group Life 24,508 24,508 0 0 24,508 24,508 0 24,508
Great America 17,636 6,740 7,155 3,741 17,636 6,740 10,897 17,636
Total 44,830 33,254 7,834 3,741 44,830 33,254 11,575 44,830
73
Exactium, Inc.
Capital Lease Schedules
Laptop Computers - 2
Lessor: Dolphin Capital
Payments: Monthly
Term: 36 $1 Buy out
Monthly Payment: $ 118.28
Fair Market Value: $3,389.00
Interest Rate 15.48%
Interest Principal Balance
-------- --------- -------
Jul-98 43.72 74.56 3,314.44
Aug-98 42.76 75.52 3,238.91
Sep-98 41.78 76.50 3,162.42
Oct-98 40.80 77.48 3,084.93
Nov-98 39.80 78.48 3,006.45
Dec-98 38.78 79.50 2,926.95
Jan-99 37.76 80.52 2,846.43
Feb-99 36.72 81.56 2,764.87
Mar-99 35.67 82.61 2,682.25
Apr-99 34.60 83.68 2,598.57
May-99 33.52 84.76 2,513.82
Jun-99 32.43 85.85 2,427.96
Jul-99 31.32 86.96 2,341.01
Aug-99 30.20 88.08 2,252.92
Sep-99 29.06 89.22 2,163.71
Oct-99 27.91 90.37 2,073.34
Nov-99 26.75 91.53 1,981.80
Dec-99 25.57 92.71 1,889.09
Jan-00 24.37 93.91 1,795.18
Feb-00 23.16 95.12 1,700.06
Mar-00 21.93 96.35 1,603.74
Apr-00 20.69 97.59 1,506.12
May-00 19.43 98.85 1,407.26
Jun-00 18.15 100.13 1,307.14
Jul-00 16.86 101.42 1,205.72
Aug-00 15.55 102.73 1,102.99
Sep-00 14.23 104.05 998.94
Oct-00 12.89 105.39 893.55
Nov-00 11.53 106.75 786.80
Dec-00 10.15 108.13 678.67
Jan-01 8.75 109.53 569.14
Feb-01 7.34 110.94 458.20
Mar-01 5.91 112.37 345.83
Apr-01 4.46 113.82 232.01
May-01 2.99 115.29 116.73
Jun-01 1.51 116.77 (0.05)
74
Exactium, Inc.
Capital Lease Schedules
DESKTOP WORKSTATION
LESSOR: Dell Financial
PAYMENTS: Monthly
TERM: 24 $1 Buy Out
MONTHLY PAYMENT: $ 118.75
FAIR MARKET VALUE: $2,500.00
INTEREST RATE: 12.91%
Interest Principal Balance
Aug-98 26.90 91.85 2,408.15
Sep-98 25.91 92.84 2,315.30
Oct-98 24.91 93.84 2,221.46
Nov-98 23.90 94.85 2,126.61
Dec-98 22.88 95.87 2,030.74
Jan-99 21.85 96.90 1,933.84
Feb-99 20.80 97.95 1,835.89
Mar-99 19.75 99.00 1,736.89
Apr-99 18.69 100.06 1,636.83
May-99 17.61 101.14 1,535.69
Jun-99 16.52 102.23 1,433.46
Jul-99 15.42 103.33 1,330.13
Aug-99 14.31 104.44 1,225.69
Sep-99 13.19 105.56 1,120.13
Oct-99 12.05 106.70 1,013.43
Nov-99 10.90 107.85 905.58
Dec-99 9.74 109.01 796.57
Jan-00 8.57 110.18 686.39
Feb-00 7.38 111.37 575.03
Mar-00 6.19 112.56 462.47
Apr-00 4.98 113.77 348.69
May-00 3.75 115.00 233.69
Jun-00 2.51 116.24 117.46
Jul-00 1.26 117.49 (0.03)
75
PM GROUP -- VARIOUS COMPUTER EQUIPMENT
Exactium, Inc.
Capital Lease Schedules
Payment Amount $5,000.00
Number of Payments 12
Annual Interest 8%
Present Value $57,478.91
PAYMENT PAYMENT PAYMENT INTEREST PRINCIPAL INTEREST REMAINING
NUMBER DATE AMOUNT RATE AMOUNT AMOUNT PRINCIPAL
1 6/1/99 $5,000.00 0.67% $4,616.81 $383.19 $52,862.10
2 7/1/99 $5,000.00 0.67% $4,647.59 $352.41 $48,214.52
3 8/1/99 $5,000.00 0.67% $4,678.57 $321.43 $43,535.95
4 9/1/99 $5,000.00 0.67% $4,709.76 $290.24 $38,826.49
5 10/1/99 $5,000.00 0.67% $4,741.16 $258.84 $34,085.03
6 11/1/99 $5,000.00 0.67% $4,772.77 $227.23 $29,312.26
7 12/1/99 $5,000.00 0.67% $4,804.58 $195.42 $24,507.68
8 1/1/00 $5,000.00 0.67% $4,836.62 $163.38 $19,671.06
9 2/1/00 $5,000.00 0.67% $4,868.86 $131.14 $14,802.20
10 3/1/00 $5,000.00 0.67% $4,901.32 $98.68 $9,900.88
11 4/1/00 $5,000.00 0.67% $4,933.99 $66.01 $4,966.89
12 5/1/00 $5,000.00 0.67% $4,966.89 $33.11 ($0.00)
Totals $60,000.00 $57,478.91 $2,521.09
76
Phone system (Great America Leasing)
3/17/00 12:16
Payment Amount $634.53
Number of Payments 36
Annual Interest 6%
Present Value $20,857.65
Payment Invoice Payment Interest Principal Interest Remaining
Number Date Amount Rate Amount Amount Principal
1 7/12/99 $634.53 0.50% $530.24 $104.29 $20,327.40
2 8/12/99 $634.53 0.50% $532.89 $101.64 $19,794.51
3 9/12/99 $634.53 0.50% $535.56 $98.97 $19,258.95
4 10/12/99 $634.53 0.50% $538.24 $96.29 $18,720.72
5 11/12/99 $634.53 0.50% $540.93 $93.60 $18,179.79
6 12/12/99 $634.53 0.50% $543.63 $90.90 $17,636.16
7 1/12/00 $634.53 0.50% $546.35 $88.18 $17,089.81
8 2/12/00 $634.53 0.50% $549.45 $85.45 $16,540.73
9 3/12/00 $634.53 0.50% $551.83 $82.70 $15,988.90
10 4/12/00 $634.53 0.50% $554.59 $79.94 $15,434.32
11 5/12/00 $634.53 0.50% $557.36 $77.17 $14,876.96
12 6/12/00 $634.53 0.50% $560.15 $74.38 $14,316.82
13 7/12/00 $634.53 0.50% $562.95 $71.58 $13,753.87
14 8/12/00 $634.53 0.50% $565.76 $68.77 $13,188.11
15 9/12/00 $634.53 0.50% $568.59 $65.94 $12,619.52
16 10/12/00 $634.53 0.50% $571.43 $63.10 $12,048.09
17 11/12/00 $634.53 0.50% $574.29 $60.24 $11,473.80
18 12/12/00 $634.53 0.50% $577.16 $57.37 $10,896.64
19 1/12/01 $634.53 0.50% $580.05 $54.48 $10,316.59
20 2/12/01 $634.53 0.50% $582.95 $51.58 $9,733.64
21 3/12/01 $634.53 0.50% $585.86 $48.67 $9,147.78
22 4/12/01 $634.53 0.50% $588.79 $45.74 $8,558.99
23 5/12/01 $634.53 0.50% $591.74 $42.79 $7,967.25
24 6/12/01 $634.53 0.50% $594.69 $39.84 $7,372.56
25 7/12/01 $634.53 0.50% $597.67 $36.86 $6,774.89
26 8/12/01 $634.53 0.50% $600.66 $33.87 $6,174.24
27 9/12/01 $634.53 0.50% $603.66 $30.87 $5,570.58
28 10/12/01 $634.53 0.50% $606.68 $27.85 $4,963.90
29 11/12/01 $634.53 0.50% $609.71 $24.82 $4,354.19
30 12/12/01 $634.53 0.50% $612.76 $21.77 $3,741.43
31 1/12/02 $634.53 0.50% $615.82 $18.71 $3,125.61
32 2/12/02 $634.53 0.50% $618.90 $15.63 $2,506.71
33 3/12/02 $634.53 0.50% $622.00 $12.53 $1,884.71
34 4/12/02 $634.53 0.50% $625.11 $9.42 $1,259.61
35 5/12/02 $634.53 0.50% $628.23 $6.30 $631.37
36 6/12/02 $634.53 0.50% $631.37 $3.16 ($0.00)
Totals $22,843.08 $20,857.65 $1,985.43
77
APPENDIX K
TENANT\CONTRACTOR ASBESTOS NOTICE
TO:
FROM:
DATE:
We are committed to making Lakeside Office Park a safe and comfortable place to
work. This facility was constricted at a time when asbestos (a naturally
occurring mineral) was extensively used.
When in good condition, and not disturbed, asbestos-containing materials (ACM)
should not pose a health hazard,. There are no regulations requiring removal of
intact ACM in good condition unless disturbed by repair or renovation activity.
Do not disturb materials on the attached list, which identifies ACM locations in
this facility.
To reduce future risk, we have had an Operations and Maintenance Manual prepared
to provide guidance for those working on repair, renovation or installation
within our building until the asbestos is removed. To examine the Operations and
Maintenance Manual, contact Xxxx Xxxx/Xxxxxxx Xxxxxx, the "Asbestos
Coordinator".
Under the facility's Asbestos Operations and Maintenance Plan, contractor and
tenant employees must comply with the following general
1. Personnel of tenants and contractors performing any abatement,
maintenance, renovation or cleaning activity in or near areas
where ACM are present and may be disturbed must refer to the
Operations and Maintenance Plan for appropriate guidance before
beginning work. Such work shall only be performed by personnel
who have been specially trained and authorized.
2. If ACM have been damaged or disturbed, do not try to sweep them
up or otherwise further disturb them. Disturbing the materials
may spread the asbestos fibers and make them airborne. Disturbed
ACM must be cleaned by trained personnel according to approved
procedures.
3. Any incidents involving damage to or significant changes in the
condition of ACM must be reported immediately to the Asbestos
Coordinator.
I have read and understand this notice. I will ensure that my company's
employees will follow the procedures and requirements as outlined above and in
the Operations and Maintenance Plan.
Signature /s/ XXXXXX X. XXXXXX
-----------------------------------
Print Name XXXXXX X. XXXXXX
----------------------------------
Print Company Name Exactium, Inc.
--------------------------
K-1
