Exhibit 10.114
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LEASING AGREEMENT
By and Between
ONE NINETY ONE PEACHTREE ASSOCIATES
and
C-H LEASING ASSOCIATES
dated
as of
February 1, 1988
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TABLE OF CONTENTS
Page
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ARTICLE I ESTABLISHMENT OF LEASING RESPONSIBILITY....................... 2
Section 1.1 Appointment of Leasing Agent.............................. 2
ARTICLE II LEASING SERVICES TO BE PERFORMED BY LEASING AGENT............. .2
Section 2.1 Locate Tenants............................................ 2
Section 2.2 Consulting................................................ 2
Section 2.3 Executing Leases.......................................... 3
Section 2.4 Advertising............................................... 5
Section 2.5 Reports................................................... 5
Section 2.6 Cooperation............................................... 6
ARTICLE III TERM.......................................................... 6
Section 3.1 Term...................................................... 6
Section 3.2 Early Termination......................................... 7
Section 3.3 Payments on Termination................................... 9
ARTICLE IV COMPENSATION.................................................. 11
Section 4.1 Leasing Fee............................................... 11
Section 4.2 Payment of Leasing Commissions............................ 11
Section 4.3 Definition of "Effective Gross Rental".................... 12
ARTICLE V MISCELLANEOUS................................................. 14
Section 5.1 Expenses of Leasing Agent................................. 14
Section 5.2 Notices................................................... 15
Section 5.3 Entire Agreement.......................................... 16
Section 5.4 Governing Law............................................. 16
Section 5.5 Severability.............................................. 16
Section 5.6 Binding Effect............................................ 16
Section 5.7 Assignment by Leasing Agent............................... 16
Section 5.8 Subordination............................................. 17
Section 5.9 Exculpation............................................... 18
Section 5.10 Indemnity................................................. 19
Section 5.11 Waivers................................................... 19
Section 5.12 Representatives........................................... 20
Section 5.13 Other Activities.......................................... 20
TABLE OF CONTENTS (cont.)
Section 5.14 Employees................................................. 20
ARTICLE VI ARBITRATION................................................... 21
Section 6.1 Appointment of Arbitrators................................ 21
Section 6.2 Rules; Fees and Expenses; Qualifications of Arbitrators... 21
Section 6.3 Applicability of Article.................................. 22
LEASING AGREEMENT
THIS AGREEMENT made and entered into as of the 1st day of February,
1988, by and among ONE NINETY ONE PEACHTREE ASSOCIATES (the "Venture"), a
Georgia general partnership consisting of C-H Associates, Ltd., a Georgia
limited partnership ("CHV") and DIHC Peachtree Associates, a Georgia general
partnership ("DIHC") (CHV and DIHC being sometimes referred to separately as a
"Venturer" and collectively as the "Venturers"), and C-H LEASING ASSOCIATES, a
Georgia general partnership (the "Leasing Agent"), consisting of Cousins Real
Estate Corporation, a Georgia corporation and Hines Atlanta Realty, Inc., a
Georgia corporation.
W I T N E S S E T H :
WHEREAS, the Venture proposes to acquire fee simple or leasehold
title to certain parcels of real property (and improvements situated thereon) on
Peachtree Street in Atlanta, Georgia (the "Property"), and to construct thereon
a multi story building containing approximately 1,181,700 square feet of office
and retail/commercial space together with a related parking garage (the
"Building"; the Property and the Building being herein sometimes collectively
referred to as the "Premises"); and
WHEREAS, the parties acknowledge that Leasing Agent is affiliated
with CHV; and
WHEREAS, the Venture has agreed to appoint Leasing Agent as the sole
and exclusive leasing agent for the Building and Leasing Agent has agreed to
serve as such, all subject to the terms and conditions hereinafter set forth.
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NOW, THEREFORE, Leasing Agent and the Venture hereby agree as
follows:
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ARTICLE I
ESTABLISHMENT OF LEASING RESPONSIBILITY
Section 1.1 Appointment of Leasing Agent. The Venture hereby
appoints Leasing Agent, and Leasing Agent hereby accepts appointment, as sole
and exclusive leasing agent of the Premises (for the respective periods provided
herein) with the responsibilities and upon the terms and conditions set forth
herein. In order to facilitate Leasing Agent's responsibilities to lease space
in the Building, the Venture shall provide Leasing Agent with a prototype lease,
rental schedule and program and fit up cost schedule. The Venture shall have the
right at any time and from time to time to modify or substitute such lease form
and schedules.
ARTICLE II
LEASING SERVICES TO BE PERFORMED BY LEASING AGENT Section
2.1 Locate Tenants. Commencing on the date hereof, Leasing Agent
shall use its best efforts to locate suitable tenants and negotiate acceptable
leases for the Building, subject to the limitations hereinafter set forth.
Leasing Agent's duties as to its leasing services shall be those customarily
performed by leasing agents for comparable buildings. All leases shall be
subject to the approval of and shall be executed by the Venture, and all
prospective tenants shall be subject to the prior approval of the Venture.
Leasing Agent shall not, for any reason, have the authority to commit to or
otherwise bind the Venture with respect to any lease proposals or to execute
leases on behalf of the Venture.
Section 2.2 Consulting. Leasing Agent shall, upon reasonable
request(s) by the Venture, act as a consultant to the Venture and/or the Manager
appointed pursuant to that
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certain Construction Management and Development Agreement of even date between
the Venture and C-H Management Associates (the "Construction Manager"), and
shall provide the Venture, as and when deemed reasonably necessary by the
Venture, with the benefit of Leasing Agent's experience as to the planning and
leasing of the tenant space to be leased. Leasing Agent shall, once per year,
subject to amendment as necessary in light of market conditions, as to the
tenant space, prepare for the Venture's approval, (i) a detailed marketing and
leasing plan which shall specify the range of suggested minimum acceptable
rentals for individual spaces, the anticipated concessions for major and minor
tenants, the recommended minimum and maximum acceptable terms (including renewal
options) for individual spaces and estimated "tenant fit-up" costs per square
foot, and (ii) a detailed public relations plan which shall specify the
suggested advertising and public relations activities and actions which the
Venture should undertake. The plans specified in clauses (i) and (ii) above
shall be in sufficient detail to enable the Managing Partner in the Venture to
comply with its obligations to provide the Venturers with the marketing and
leasing plan and the public relations plan specified in the Joint Venture
Agreement of the Venture.
Section 2.3 Executing Leases. In connection with all marketing and
lease negotiation activities, the Leasing Agent shall adhere to the following
procedures:
(i) Upon identification of a lease prospect, the Leasing Agent shall
submit to the prospect a proposal conforming to the guidelines and parameters of
the approved marketing and leasing plan;
(ii) The Leasing Agent shall follow-up with the prospect as
necessary or appropriate and shall negotiate the terms and conditions of the
proposal with the prospect. Any
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modifications or amendments to the proposal as are warranted from time to time
shall be prepared by the Leasing Agent and shall be submitted to the prospect;
(iii) The Leasing Agent shall confer with the managing general
partner of the Venture to the extent the negotiations described in subparagraph
2.3(ii) warrant, and shall disclose to and discuss with the managing general
partner of the Venture any such negotiations which the Leasing Agent reasonably
expects to result in a modification to the proposal such that the proposal would
no longer conform to the approved marketing and leasing plan;
(iv) Upon substantial completion of the negotiations described in
the preceding provisions of this Section 2.3, the Leasing Agent will submit to
the prospect a proposed lease document on the lease form approved by the
Venture, modified only as necessary to conform with the proposal as of the date
the lease was prepared. A copy of the proposed lease shall be delivered to the
Venture simultaneously with the delivery to the prospect;
(v) After submission of the lease to the prospect, the Leasing Agent
shall follow up with the prospect as necessary or appropriate and shall
negotiate the terms and conditions of the proposed lease with the prospect.
(vi) The Leasing Agent shall confer with the managing general
partner of Venture to the extent the negotiations described in subparagraph
2.3(b) warrant, and shall disclose to and discuss with the managing general
partner of Venture any such negotiations which the Leasing Agent reasonably
expects to result in a modification to the proposed lease such that the proposed
lease would no longer conform to the approved marketing and leasing plan;
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(vii) Upon conclusion of the negotiations described in the foregoing
paragraphs, if the Leasing Agent has reached an agreement with the prospect,
subject only to the approval by the Venture, the Leasing Agent shall obtain a
duly executed lease from the prospect and shall promptly submit the same to the
Venture for its review and approval. In no event shall the Leasing Agent commit
to or execute any lease on behalf of the Venture. The Venture shall respond (by
acceptance, rejection, counteroffer or other appropriate action) to all proposed
leases, proposed commitments or other communications submitted by Leasing Agent
regarding the leasing of the tenant space within fifteen (15) business days
after receipt by both the Venturer and any lenders having approval rights with
respect thereto. Approval or disapproval of any and all terms and conditions of
any lease (including any work letters or other documents) shall be within the
sole discretion of the Venture. A failure to notify the Leasing Agent of
disapproval within fifteen (15) days after receipt by the Venture of all
information requested by the Venture shall be deemed approval.
Section 2.4 Advertising. Leasing Agent, when requested by the
Venture, shall be responsible for the promotion and advertising of available
tenant space in the Building subject to and in accordance with the public
relations plan referred to in Section 2.2 as approved by the Venture. All
promotional and advertising costs incurred in accordance with such public
relations plan shall be paid by the Venture.
Section 2.5 Reports. At reasonable times and in any event not less
than once each thirty (30) day period, and at such other times as the Venture
may reasonably request, Leasing Agent shall inform the Venture in writing as to
the progress of leasing operations and as to circumstances which might from time
to time require decisions by the Venture regarding such
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leasing operations. Each of Leasing Agent's periodic reports shall include but
not necessarily be limited to, the identity of each prospect to whom space in
the Building was offered by Leasing Agent during the period covered by such
report, the date of each such offering, and if reasonably requested by the
Venture, a copy of any written submission made to any prospect identified in the
report, the status of negotiations of proposals or leases submitted to prospects
by Leasing Agent and such additional data as shall be reasonably required by the
Venture.
Section 2.6 Cooperation. Should any claims, demands, suits or other
legal proceedings be made or instituted by any third party against the Venture
or any Venturer (as a partner in the Venture) which arise out of any matter
relating to the Premises or this Agreement or the Leasing Agent's performance
hereunder, the Leasing Agent shall give the Venture all pertinent information
and reasonable assistance in the defense or disposition thereof. The obligation
of Leasing Agent set forth herein shall survive the termination of this
Agreement.
ARTICLE III
TERM
Section 3.1 Term. The term of this Agreement shall commence on the
date hereof and shall expire on the earlier to occur of (i) the winding up of
the Venture in accordance with the Venture Agreement (ii) the sale of the
Premises (or all of the percentage interests in the Venture) to a third party or
(iii) the fifteenth (15th) anniversary of the date of this Agreement, unless
this Agreement is sooner terminated pursuant to Section 3.2 hereof or otherwise.
Upon the expiration or earlier termination of this Agreement, Leasing Agent
shall: (1) surrender and deliver to the Venture all deposits, rents and income
of the Premises in the possession of Leasing Agent; (2) deliver to the Venture
as received any monies collected or received by
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Leasing Agent in connection with the Premises after termination hereof; (3)
deliver to the Venture all books, records, materials, supplies, keys, contracts
and other documents and statements in its possession relating to the Premises
and the leasing thereof; and (4) generally cooperate with the Venture in
accordance with Section 2.7.
Section 3.2 Early Termination. (i) During the term of this
Agreement, this Agreement shall automatically be terminated for cause, as
"cause" is hereafter defined, upon five (5) days' written notice to Leasing
Agent. "Cause" for termination by the Venture shall mean the continuance, for
more than thirty (30) days (or, if such curable event cannot be cured in such
period of time, then such additional period of time as is reasonably necessary
to cure same, provided Leasing Agent commences such cure within such thirty (30)
day period and thereafter diligently prosecutes to completion such cure) after
delivery of written notice by the Venture to Leasing Agent of one or more of the
following events, specifying in reasonable detail the nature of the default:
(a) Leasing Agent shall fail to perform or observe any
material covenant, condition or term in this Agreement;
(b) Leasing Agent shall engage in conduct under this Agreement
which constitutes fraud or breach of trust;
(c) Leasing Agent shall institute proceedings to be
adjudicated a voluntary bankrupt, or shall commence a case under the bankruptcy
code, or shall file a petition or answer or consent seeking reorganization,
readjustment, arrangement, composition or similar relief under the federal
bankruptcy laws, or any other similar applicable federal or state law, or shall
consent to or fail reasonably to oppose any such proceeding, or shall consent to
the
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appointment of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of it or of a substantial part of its property, or shall make a
general assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or corporate action
shall be taken by Leasing Agent in furtherance of any of the aforesaid purposes;
or
(d) A decree or order by a court of competent jurisdiction
shall have been entered adjudging Leasing Agent bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, readjustment,
arrangement, composition or similar relief for Leasing Agent under the federal
bankruptcy laws, or any other similar applicable federal or state law, and such
decree or order shall have continued undischarged or unstayed for a period of
sixty (60) days; or a decree or order of a court having jurisdiction for the
appointment of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of Leasing Agent or a substantial part of its property, or the
winding up or liquidation of its affairs, shall have been entered, and such
decree or order shall have remained in force, undischarged and unstayed for a
period of sixty (60) days. In the event of any dispute between DIHC and CHV or
between DIHC and Leasing Agent as to whether or not the Venture has "cause" to
terminate this Agreement pursuant to the provisions of this Section 3.2, such
dispute shall be determined by arbitration pursuant to Article VI hereof.
(ii) In addition to any and all other termination rights contained
herein, either Leasing Agent or the Venture may elect to terminate this
Agreement (i) upon five (5) days written notice to the other party, if all or
substantially all of the Building is destroyed or condemned and the same is not
rebuilt, or (ii) upon twelve months notice to the other if CHV
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(or its "Affiliate" as defined in that certain Joint Venture Agreement of the
Venture, dated of even date herewith (the "Venture Agreement")) shall no longer
be a Venturer in the Venture or if neither a "Hines Affiliate" nor a "Cousins
Affiliate" (as such terms are defined in the Venture Agreement) owns any
interest in CHV (or such Affiliate of CHV who is then a Venturer).
Section 3.3 Payments on Termination. In the event this agreement
expires pursuant to Section 3.1 or is terminated under Section 3.2 hereof,
Leasing Agent shall thereafter continue to be entitled to certain compensation,
but only in those instances as follows:
(i) With respect to any lease entered into prior to the earlier of:
(a) the date Leasing Agent actually ceases the performance of services
hereunder, or (b) the effective date of any termination hereof, Leasing Agent
shall be entitled to the Leasing Fee (as hereinafter defined).
(ii) With respect to any lease entered into with a prospect
previously dealt with by Leasing Agent and within one year after the effective
date of the termination hereof, Leasing Agent shall be entitled to the Leasing
Fee (as hereinafter defined) but only if, prior to such effective termination,
the Leasing Agent (a) either had significant dealings with or submitted a bona
fide proposal to the lessee under such lease and (b) the lessee had been
specifically identified as a bona fide lease prospect in a monthly report
provided to the Venture or in a report provided upon such termination.
(iii) With respect to any lease entered into with a prospect
previously dealt with by Leasing Agent and within two years after the effective
date of the termination hereof, Leasing Agent shall be entitled to the Leasing
Fee (as hereinafter defined), but only if the lessee under the lease and the
Venture had, prior to such effective termination, entered into a letter of
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intent or other written agreement or commitment (even though not legally binding
on the lessee) by which the lessee stated an agreement, commitment, or intent to
enter into a lease.
(iv) In the event of any renewal or expansion of a lease for which
Leasing Agent has received a Leasing Fee applicable to the initial term thereof,
Leasing Agent shall continue to be entitled to the Leasing Fee (as hereinafter
defined), attributable thereto, except that:
(a) If the Leasing Agent was paid its Leasing Fee (as
hereinafter defined) for the initial term of said lease pursuant to the
provisions of paragraph 2, 3(b), or 4(b) of Schedule A, Leasing Agent shall not
be entitled to receive a Leasing Fee (as hereinafter defined) in connection with
a renewal or expansion of the lease from and after the earlier to occur of (i)
the payment of a comparable fee to a new, unaffiliated third-party broker in
connection with such renewal or expansion, or (ii) the fifteenth anniversary of
the commencement date of said lease; provided, however, if the payment made to
the unaffiliated third-party broker, as described in the preceding clause (i) is
less than the amount which would have otherwise been paid to Leasing Agent, then
the difference shall be paid to Leasing Agent.
(b) If the Leasing Agent was paid its Leasing Fee (as
hereinafter defined) for the initial term of said lease pursuant to the
provisions of Paragraph 3(a) or 4(a) or Schedule A, and if the tenant recognizes
a new unaffiliated third party broker in connection with such renewal or
expansion, such new broker shall be recognized by the Venture and the Leasing
Agent's Leasing Fee (as hereinafter defined) shall be calculated under Paragraph
3(b) or 4(b) of Schedule A attached hereto, as the case may be; provided,
however, if the amount paid to such new broker is less than the amount which
would have otherwise been paid to Leasing Agent,
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then the difference shall be paid to Leasing Agent. For the purposes of this
Section 3.3, "lessee" includes any entity that is the business organization
through which the individuals with whom the Leasing Agent dealt operate the
business for which the leased space was intended by such individuals to be used.
ARTICLE IV
COMPENSATION
Section 4.1 Leasing Fee. Commencing on the date hereof and
continuing until the date this Agreement expires or is terminated as provided
herein, the Venture shall be obligated to pay Leasing Agent (or such affiliate
of Leasing Agent as Leasing Agent may direct) a leasing commission (the "Leasing
Fee") with respect to each tenant lease entered into by the Venture during such
period for space in the Premises in accordance with Schedule A attached hereto
and made a part hereof.
Section 4.2 Payment of Leasing Commissions. All leasing commissions
payable to Leasing Agent (or to persons or entities designated by Leasing Agent)
shall be paid in cash, one-half (50%) when the lease is fully executed (or with
respect to a renewal or expansion option, when the tenant formally exercises
such option) and one-half (50%) when the lease term commences for the specific
space which is covered by the lease (or with respect to a renewal or expansion
option, when the renewal term commences or the lease commences with respect to
the expansion space). In the event the tenant is in default under its lease so
that it never pays any scheduled rent and never occupies its space under its
lease for the space covered by such lease (or by such expansion as the case may
be) (except in the case of the Tenant's failure to pay based solely on a default
by the Venture under the lease), and if the Venture terminates such
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lease or such tenant's right to possession of its space as a result of such
default, Leasing Agent (or its designee) shall refund any previously paid
Leasing Fee relating to such lease in default to the Venture and shall use its
best efforts to cause any third-party broker to refund its commission relating
to such lease in default to the Venture. Leasing Agent shall use best efforts to
include a requirement for such refund in all brokerage agreements with its
affiliates and third parties. In no event shall Leasing Agent or its affiliates
be required to personally refund to the Venture an amount equal to any
commission paid to a third-party broker.
Section 4.3 Definition of "Effective Gross Rental". As used herein
the term "Effective Gross Rental" shall be equal to the gross rental specified
in the lease less (i) increases in any expense stop or base year operating
expenses, (ii) the value of any concessions, rental abatements, lease
assumptions or other inducements (whether set forth in the lease or in any side
letter or collateral agreement to the lease) granted to the tenant in connection
with the lease, (iii) the cost of standard leasehold improvements to be paid by
the landlord in excess of: (a) Fifteen Dollars ($15.00) per square foot of
usable area if the space is to be delivered to the tenant in shell condition
without a finished ceiling or (b) Ten Dollars ($10.00) per square foot of usable
area if a finished ceiling will be provided by landlord, in each case escalated
from February 28, 1993 through the date of lease execution by the Consumer Price
Index-All Urban Consumers-U.S. Average, or such comparable index as mutually
agreed to by the parties, (iv) miscellaneous leasehold improvement or relocation
expenses (or the financing thereof) provided by the landlord and reimbursed by
tenant by way of additional rental or other amortization, (v) late payment
charges, (vi) percentage rentals (on retail leases) over and above base rental,
(vii) payments for parking on a month-to-month basis (other than as the tenant
has contractually
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agreed to pay in its lease), and (vii) rentals credited to the tenant by reason
of lease takeover(s) and/or the landlord takeback(s) or subleasing(s). If the
tenant rental in the lease is stipulated as net rental plus an expense stop or
estimated expense pass through (rather than being stipulated as gross rental),
an amount equal to the greater of (a) $7.50 per square foot of net leasable area
per year or (b) the expense stop or pass through actually stipulated in the
lease will be added to the stipulated base rental rate for purposes of
calculating Effective Gross Rental. In the case of a bona fide "net lease," the
expense stop or pass through shall be imputed as the estimate thereof for the
first year of the Lease. The term "net lease" means a lease with respect to
which the tenant pays all operating expenses incurred in connection with the
operation and ownership of the leased premises including, without limitation,
real estate taxes, utilities and insurance.
ARTICLE V
MISCELLANEOUS
Section 5.1 Expenses of Leasing Agent. The Venture shall build and
furnish a leasing and marketing center at a location or locations, and in
accordance with a leasing and marketing plan approved by the Venture, as more
particularly described in the Joint Venture Agreement of the Venture. To the
extent incurred, the Venture shall reimburse Leasing Agent for all reasonable
direct expenses of Leasing Agent in maintaining and operating such marketing
center in connection with such leasing and marketing plan. Such leasing and
marketing plan will provide for, and such reimbursement shall include, among
other things, employment costs of one full-time secretary and one full-time
marketing assistant, all reasonable entertainment and travel expenses (both
within and outside of Atlanta) stationery, supplies, and telephone costs, and
the employment costs of all other personnel of Leasing Agent except the primary
broker
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from each partner of the Leasing Agent (who, as of the date hereof, are Xxxxx
Xxxxx and Xxxx X. Xxxxxxxx) all to the extent reasonably approved by the Venture
and contemplated in the applicable project budget or annual budget approved by
the Venture and in effect from time to time. Such on-site marketing center shall
be maintained through the earlier of Project Completion (as defined in the Joint
Venture Agreement) or January 1, 1995, unless the Venture shall decide in its
reasonable discretion upon an earlier closing or curtailment of the operation of
the marketing center is appropriate. Thereafter, the Venture shall arrange for
minor secretarial assistance, supplies and telephone services to be made
available to Leasing Agent from the project management office to be maintained
in the Premises.
Section 5.2 Notices. All notices, demands, requests or other similar
communications required or permitted hereunder must be in writing, and shall be
deemed delivered and received when personally delivered (which may include
delivery by commercial courier service) or upon deposit in the United States
mail, certified or registered mail, return receipt requested, postage prepaid,
and addressed to the respective parties at the addresses specified below, or at
such other address as they shall each specify in a notice addressed and mailed
as hereinabove set forth:
To the Venture: C-H Leasing Associates
c/o Xxxxxx X. Xxxxx Interests
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: X. X. Xxxxxxxx, III
DIHC Peachtree Associates
000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
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Attn: Xxxxxxx X. Xxxxxxxx, Xx.
With a copy to: Cousins Real Estate Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
To Leasing Agent: C-H Leasing Associates
c/o Xxxxxx X. Xxxxx Interests
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: X. X. Xxxxxxxx, III
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With a copy to: Cousins Real Estate Corporation
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
Section 5.3 Entire Agreement. This Agreement constitutes the entire
agreement between the Venture and Leasing Agent relating in any manner to the
subject matter of this Agreement. No prior agreement or understanding pertaining
to the same shall be valid or of any force or effect, and the covenants and
agreements herein cannot be altered, changed or supplemented except in writing
signed by the Venture and Leasing Agent.
Section 5.4 Governing Law. This Agreement shall be construed in
accordance with and governed by, the laws of the State of Georgia.
Section 5.5 Severability. If any clause or provision of this
Agreement is illegal, invalid or unenforceable under present or future laws
effective during the term hereof, then the remainder of this Agreement shall not
be affected thereby, and in lieu of each clause or provision of this Agreement
which is illegal, invalid or unenforceable, there shall be added, as part of
this Agreement, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and as may be
legal, valid and enforceable.
Section 5.6 Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, heirs and assigns.
Section 5.7 Assignment by Leasing Agent. The rights and obligations
of Leasing Agent hereunder shall not be assignable without the prior written
consent of the Venture except that the rights and obligations of Leasing Agent
may be assigned by Leasing Agent to a
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"Hines Affiliate", a "Cousins Affiliate" or an "Affiliate" of CHV (as such terms
are defined in the Venture Agreement).
Section 5.8 Subordination. This Agreement and all fees due from the
Venture to Leasing Agent pursuant hereto shall be subject and subordinate in all
respects to (i) that certain Deed to Secure Debt, Security Agreement and
Assignment of Leases and Rents of even date herewith from the Venture to DIHC
Finance Corporation ("DIHC Finance") securing, among other things, the repayment
of that certain "A" Note (the ""A" Note") of even date herewith from the Venture
payable to the order of DIHC Finance in the amount of $145,000,000.00, together
with any and all extensions, modifications, amendments or replacements thereof
hereafter made or entered into (the ""A" Mortgage"), (ii) that certain Deed to
Secure Debt, Security Agreement and Assignment of Leases and Rents of even date
herewith from the Venture to DIHC Finance securing, among other things, the
repayment of that certain "B" Construction Note (the ""B" Note") of even date
herewith from the Venture payable to the order of DIHC Finance in the amount of
$145,000,000 together with any and all extensions, modifications, amendments or
replacements thereof hereafter made or entered into (the ""B" Mortgage") (the
"A" Mortgage and the "B" Mortgage are sometimes herein referred to collectively
as the "Original Mortgages"), (iii) any other mortgage or deed to secure debt
upon the Premises or any portion thereof now or hereafter executed by the
Venture, together with any and all extensions, modifications, amendments or
replacements thereof, and (iv) any collateral assignment of rents due under the
leases of space in any improvements on the Premises. This provision shall be
self-executing but Leasing Agent shall, upon request, execute such
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instruments as may reasonably be requested by the Venture, or any such mortgagee
or lender to evidence such subordination.
Section 5.9 Exculpation. Notwithstanding anything in this Agreement
to the contrary, Leasing Agent and the Venture accept and agree that each of the
covenants, undertakings and agreements herein made on the part of the Venture or
the Leasing Agent, while in the form purporting to be covenants, undertakings
and agreements of the Venture or the Leasing Agent, are, nevertheless, made and
intended not as personal covenants, undertakings and agreements by the Leasing
Agent's or Venture's partners or for the purpose of binding their respective
partners personally or the assets of such partners but are made and intended for
the purpose of binding only the interests of the partners of the Venture in the
assets of the Venture and, as to Leasing Agent, the compensation payable to it
under Article IV hereof; and that no other personal liability or personal
responsibility is assumed by, nor shall at any time be asserted or enforceable
against the partners of the Venture or the Leasing Agent and their respective
heirs, legal representatives, successors and assigns on account of this
Agreement or on account of any covenant, undertaking or agreement of the Leasing
Agent or the Venture and their respective partners in this document contained,
all such personal liability and personal responsibility, if any, being expressly
waived and released, and each party hereto further agrees not to seek or enforce
any judgments (including but not limited to specific performance, deficiency
judgments, and any and all other judgments) obtained against the Leasing Agent
or the Venture, or against their respective partners (direct or indirect) beyond
the interests set forth above.
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The parties further acknowledge and agree that no officer, director,
stockholder or agent of any corporate Venturer or corporate partner (direct or
indirect) of the Leasing Agent or any Venturer shall have any personal liability
for Leasing Agent's or any Venturer's obligations hereunder.
Section 5.10 Indemnity. (a) The Venture shall indemnify the Leasing
Agent and save it harmless from and against all third party claims, losses and
liabilities arising out of or in connection with the performance by Leasing
Agent of its duties and obligations hereunder and all costs, fees and reasonable
attorneys' expenses in connection therewith unless such claims, losses or
liability result from Leasing Agent's fraud, gross negligence or willful
misconduct.
(b) Leasing Agent shall defend, indemnify and hold the Venture (and
the Venture's partners) harmless from and against any and all third party
claims, demands, losses, damages or liabilities (including, but not limited to,
all costs and reasonable attorneys' fees in connection therewith) incurred by
the Venture or its partners arising out of or by reason of the fraud, gross
negligence or willful misconduct of Leasing Agent hereunder.
Section 5.11 Waivers. No delay or omission by either party in
exercising any right or power accruing upon the non-compliance or failure or
performance by the other party hereto of any provisions of this Agreement shall
impair any such right or power or be construed to be a waiver thereof. A waiver
by either party of any of the covenants, conditions or agreements hereof to be
performed by the other must be in writing and signed by the party who is waiving
such covenants, conditions or agreements.
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Section 5.12 Representatives. Leasing Agent may act through any one
of its representatives it appoints to oversee and make decisions for Leasing
Agent. Upon notice, Leasing Agent may at any time and for any reason substitute
one or more authorized representatives. If a particular representative shall
die, retire, withdraw for any reason or become disabled, Leasing Agent shall
designate a replacement representative within the following ten business days.
The Leasing Agent initially designates as its authorized representatives Xxxxxxx
X. Xxxxxxxx, III and Xxxxx X. Xxxxx.
Section 5.13 Other Activities. Notwithstanding any other provisions
of this Agreement to the contrary, Leasing Agent may engage in or possess an
interest in other business ventures of every nature and description and in any
vicinity whatsoever, including without limitation the leasing, ownership,
operation, management and development of real property, and the Venture shall
have no rights in or to such independent ventures or to any profits therefrom.
Any of such activities may be undertaken with or without notice to or
participation therein by the Venture, and the Venture hereby waives any right or
claim that it may have against the Leasing Agent with respect to the income or
profits therefrom or the effect of such activity on the Premises; provided,
however, that Leasing Agent shall act as a reasonably prudent Leasing Agent in
not allowing the foregoing activities to interfere with its obligations under
this Agreement. Furthermore, nothing contained herein shall be deemed to require
the personal services of Xxxxxx X. Xxxxx or Xxxxxx Xxxxxxx, individually.
Section 5.14 Employees. Leasing Agent has no employees and intends
to have no employees. Accordingly, the Venture agrees that Leasing Agent shall
perform its duties hereunder by delegating the same to the partners of Leasing
Agent and/or their affiliates.
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ARTICLE VI
ARBITRATION
Section 6.1 Appointment of Arbitrators. Whenever in this Agreement
it is provided that a dispute shall be determined by arbitration, the
arbitration shall be conducted as provided in this Article. The party desiring
such arbitration shall give written notice to that effect to the other,
specifying the dispute to be arbitrated and the name and address of the person
designated to act as the arbitrator in its behalf. Within ten (10) days after
said notice is given, the other party shall give written notice to the first
party, specifying the name and address of the person designated to act as
arbitrator on its behalf. If the second party fails to notify the first party of
the appointment of its arbitrator as aforesaid by the time above specified, then
the first arbitrator shall determine the dispute. The arbitrators so chosen
shall, within ten (10) days after the second arbitrator is appointed, appoint a
third arbitrator and if they cannot agree upon said appointment, the third
arbitrator shall be appointed by the presiding judge of the Xxxxxx County
Superior Court, or his designee. The three arbitrators shall meet and decide the
dispute and tender a written decision to the parties within 30 days after the
appointment of the third arbitrator. A decision in which two of the three
arbitrators concur shall be binding and conclusive upon the parties and shall
not be subject to appeal, and judgment thereon may be entered in any court
having jurisdiction thereof.
Section 6.2 Rules; Fees and Expenses; Qualifications of Arbitrators.
In designating arbitrators and in deciding the dispute, the arbitrators shall
act in accordance with the commercial arbitration rules then in force of the
American Arbitration Association (or any successor thereto), subject, however,
to such limitations or directions as may be placed upon
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them by the provisions of this Agreement. Each party shall pay the fees and
expenses of its respective attorney and arbitrator and both shall share equally
the fee and expenses of the third arbitrator, if any, as well as any fees
payable to the American Arbitration Association or its successor. No arbitrator
shall be a person who is or has been at any time a partner, officer, director or
employee of either party or any Affiliated Entity thereof (as defined in the
Venture Agreement), and each such arbitrator shall have had at least seven (7)
years experience in the leasing of office buildings in the City of Atlanta,
Georgia. The arbitrators shall consider all testimony and documentary evidence
which may be presented at any hearing as well as relevant facts and data which
they may discover by investigation and inquiry outside of such hearings. Each
party shall have the right to be represented by counsel and to cross examine
witnesses.
Section 6.3 Applicability of Article. The obligation of the parties
to submit a dispute to arbitration is limited to disputes arising under those
provisions of this Agreement which specifically provide for arbitration.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
under seal as of date first above written.
VENTURE: ONE NINETY ONE PEACHTREE ASSOCIATES,
a Georgia general partnership, by its two general partners
By: C-H Associates, Ltd., a Georgia limited partnership,
by all of its general partners
By: Hines Peachtree I Limited Partnership, a Georgia
limited partnership, by its two general partners
By: /s/ Xxxxxx X. Xxxxx (SEAL)
----------------------------------------
Xxxxxx X. Xxxxx
By: Hines Atlanta Corporation, a Georgia
corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx,
President
Attest: /s/ Xxxxx XxXxxxxx
--------------------------------------
Xxxxx XxXxxxxx,
Assistant Secretary
[CORPORATE SEAL]
(Signatures continued on next page)
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(Signatures continued from previous page)
By: Cousins Real Estate Corporation,
a Georgia corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx,
Executive Vice President
Attest: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------------
Xxxxxx X. Xxxxxx, Xx.,
Secretary
[CORPORATE SEAL]
By: DIHC Peachtree Associates,
a Georgia general partnership, by
its two general partners
By: DIHC Peachtree, Inc., a
Georgia corporation
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Xxxxxx X. Xxxxxx, President
Attest: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
--------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.,
Vice President
[CORPORATE SEAL]
(Signatures continued on next page)
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(Signatures continued from previous page)
By: DIHC Atlanta, Inc., a
Georgia corporation
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, President
Attest: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.,
Vice President
[CORPORATE SEAL]
LEASING AGENT: C-H LEASING ASSOCIATES, a Georgia general
partnership, by its two general partners
By: Cousins Real Estate Corporation,
a Georgia corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Xxxxx X. Xxxxx,
Executive Vice President
Attest: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------------
Xxxxxx X. Xxxxxx, Xx.,
Secretary
[CORPORATE SEAL]
(Signatures continued on next page)
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(Signatures continued from previous page)
By: Hines Atlanta Realty, Inc.
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Xxxxxx X. Xxxxx, President
Attest: /s/ Xxxxx XxXxxxxx
--------------------------------
Xxxxx XxXxxxxx,
Assistant Secretary
[CORPORATE SEAL]
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SCHEDULE A
TO
LEASING AGREEMENT
[All references to square feet refer to net leasable space]
1. With respect to any lease entered into with the law firm of King &
Spalding, no commission or leasing fee shall be due or payable to Leasing Agent.
2. With respect to any lease entered into with the law firm of Powell,
Goldstein, Xxxxxx & Xxxxxx, Leasing Agent will receive a one-time Leasing Fee in
an amount equal to $2.00 per square foot of net leasable space covered by the
lease for the initial term and $1.00 per square foot for any renewals or
expansions thereof exercised during the term of the lease.
3. With respect to any lease entered into with any of the following:
Troutman, Sanders, Xxxxxxxxx & Xxxxxxx (law firm)
Xxxxxxxxxx & Cody (law firm)
Xxxxxx & Bird (law firm)
The First National Bank of Atlanta (or any affiliate thereof)
Powell, Goldstein, Xxxxxxx & Xxxxxx (but only if said firm ceases to
be represented by LaSalle Partners or any other broker)
then (a) if no unaffiliated third-party Broker is owed a commission or fee in
connection therewith, Leasing Agent will receive a one-time Leasing Fee in an
amount equal to $4.00 per square foot of net leasable space covered by the lease
for the initial term thereof and $2.00 per square foot for any renewals or
expansions thereof exercised during the term hereof, or (b) if an unaffiliated
third-party Broker is owed a commission or fee in connection therewith, Leasing
Agent will receive a one-time Leasing Fee in an amount equal to $2.00 per square
foot of net leasable space covered by the lease for the initial term thereof and
$1.00 per square foot for any renewals or expansions thereof exercised during
the term of the lease.
4. With respect to all other leases, then (a) if no unaffiliated
third-party Broker is owed a commission or fee in connection therewith, Leasing
Agent will receive a Leasing Fee in an amount equal to 4% of the total Effective
Gross Rental payable over the initial term of such lease (not to exceed 10
years) and 2% of the total Effective Gross Rental payable with respect to any
renewals or expansions thereof exercised during the term hereof, or (b) if an
unaffiliated third-party Broker is owed a commission or fee in connection with
such lease, Leasing Agent
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will receive a Leasing Fee in an amount equal to 2% of the total Effective Gross
Rental payable over the initial term of such lease (not to exceed 10 years) and
1% of the total Effective Gross Rental payable with respect to any renewals or
expansions thereof exercised during the term of the lease.
5. As used herein the term "renewal" includes the extension of the
original term of the lease, however and whenever the same may occur (even after
the termination or expiration of this Agreement), and "expansion" includes all
additional space leased by a tenant in the Building, whether by expansion
option, right of refusal or otherwise, however and whenever the same may occur
(even after the termination or expiration of this Agreement).
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