Exhibit 10.41
COLONIAL CENTER AT MANSELL OVERLOOK
LEASE AGREEMENT
WITH
COMPBENEFITS CORPORATION
DATED: JANUARY 1, 2005
TABLE OF CONTENTS
PAGE
----
1. PREMISES........................................................... 2
2. TERM............................................................... 2
3. COMPLETION OF IMPROVEMENTS......................................... 2
4. POSSESSION......................................................... 2
5. BASE RENTAL; SECURITY DEPOSIT...................................... 2
6. BASE RENTAL INCREASES.............................................. 3
7. ADDITIONAL RENT.................................................... 3
8. BROKERAGE DISCLOSURE............................................... 4
9. USE................................................................ 4
10. TENANT'S ACCEPTANCE................................................ 4
11. ASSIGNMENT AND SUBLETTING.......................................... 5
12. HOLDING OVER....................................................... 6
13. ALTERATIONS AND IMPROVEMENTS....................................... 6
14. REPAIRS TO THE PREMISES............................................ 7
15. ENTRY BY LANDLORD.................................................. 7
16. DEFAULT AND REMEDIES............................................... 7
17. LANDLORD'S SERVICES................................................ 9
18. DESTRUCTION OF PREMISES............................................ 11
19. CONDEMNATION OF PREMISES........................................... 11
20. INSURANCE.......................................................... 12
21. INDEMNIFICATION AND HOLD HARMLESS.................................. 12
22. USUFRUCT ONLY...................................................... 13
23. WAIVER............................................................. 13
24. ENTIRE AGREEMENT................................................... 13
25. LANDLORD'S CONSENT................................................. 13
26. NOTICES............................................................ 13
27. TRANSFER OF TENANT................................................. 14
28. SUCCESSORS AND ASSIGNS; ATTORNMENT................................. 14
29. TIME IS OF THE ESSENCE............................................. 14
30. CAPTIONS: GOVERNING LAW............................................ 14
31. SEVERABILITY....................................................... 14
32. SUBORDINATION; ESTOPPEL CERTIFICATES............................... 15
33. ATTORNEYS' FEES.................................................... 15
34. LIMITATION OF LIABILITY............................................ 15
35. RULES AND REGULATIONS.............................................. 15
36. PARKING............................................................ 16
37. HAZARDOUS SUBSTANCES............................................... 16
38. FINANCIAL STATEMENTS............................................... 17
39. JOINT AND SEVERAL LIABILITY........................................ 17
40. QUIET ENJOYMENT.................................................... 17
41. TENANT TAXES....................................................... 17
42. DAMAGE OR THEFT OF PERSONAL PROPERTY............................... 17
43. FORCE MAJEURE...................................................... 18
44. HEADINGS........................................................... 18
45. SUBMISSION OF LEASE................................................ 18
46. SPECIAL STIPULATIONS............................................... 18
Exhibit "A" -- Premises
Exhibit "B" -- Rules and Regulations
Exhibit "C" -- Operating Expenses
Exhibit "D" -- Work Agreement
Exhibit "E" -- Special Stipulations
i
COLONIAL PROPERTIES TRUST
LEASE AGREEMENT
This Lease Agreement ("LEASE") is made as of the 1st day of January, 2005
(the "Effective Date"), by and between COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (the "LANDLORD"); and COMPBENEFITS CORPORATION, a
Delaware corporation (the "TENANT").
WITNESSETH:
1. PREMISES.
Landlord does hereby rent and lease to Tenant the following described space
in the office complex known as Colonial Center at Mansell Overlook (the "PARK")
in the office building designated as Colonial Center 100, 100 Xxxxxxx Court East
(the "BUILDING"): known as Suite 400, as shown on Exhibit "A" (the "PREMISES").
For all purposes under this Lease, the Premises shall be deemed to include
58,807 rentable square feet (including both Tenant's usable area and common
areas attributable to Tenant's usable area), and Landlord and Tenant acknowledge
and agree that said figure is accurate for all purposes used herein. No easement
for light, air or view is granted or implied hereunder, however, Tenant shall
have, as an appurtenance to the Premises, the non-exclusive right to use the
common lobbies, corridors, stairways, elevators and loading platform (if any) of
the Building in common with others together with the common walkways, parking
areas and driveways in the Park necessary for common ingress and egress to the
Building and the Premises (collectively, the "COMMON AREAS").
2. TERM.
The term of this Lease shall be for a period commencing at 12:01 a.m. on
the 1st day of January, 2005 (the "COMMENCEMENT DATE"), and expiring at 11:59
p.m. on December 31, 2014 (the "TERM").
3. COMPLETION OF IMPROVEMENTS.
Landlord agrees to promptly proceed to prepare the Premises for Tenant's
occupancy in accordance with the terms of this Lease and in accordance with the
work schedule attached hereto as Exhibit "D".
4. POSSESSION.
Tenant shall be entitled to possession of the Premises as of the Effective
Date.
5. BASE RENTAL; SECURITY DEPOSIT.
(a) Tenant shall pay in advance to Landlord at Landlord's address for
rental payments set out in Paragraph 26 hereof, or at such other place as
Landlord shall designate in writing, promptly, without demand, deduction or
offset, on the first day of each month during the Term a Base Rental beginning
on the Commencement Date (which date is also referred to herein as the Rental
Commencement Date), which shall be as follows:
Monthly
Months Base Rental Installment
----------------------------------- ----------- -----------
January 1, 2005 - December 31, 2005 $13.00 $ 63,707.58
January 1, 2006 - December 31, 2006 $13.00 $ 63,707.58
January 1, 2007 - December 31, 2007 $19.00 $ 93,111.08
January 1, 2008 - December 31, 2008 $21.00 $102,912.25
January 1, 2009 - December 31, 2009 $21.50 $105,362.54
January 1, 2010 - December 31, 2010 $22.00 $107,812.83
January 1, 2011 - December 31, 2011 $22.50 $110,263.12
January 1, 2012 - December 31, 2012 $23.00 $112,713.41
January 1, 2013 - December 31, 2013 $23.50 $115,163.70
January 1, 2014 - December 31, 2014 $24.00 $117,614.00
(b) "LEASE YEAR", as used herein, means a period of twelve (12) consecutive
calendar months, or a portion thereof falling within the Term, with the first
Lease Year commencing with the first day of the first calendar month beginning
on or after the Commencement Date and each subsequent Lease Year commencing on
each anniversary during the Term of the first day of the first Lease Year. The
period, if any, from the Commencement Date to the beginning of the first Lease
Year shall be treated as if it were part of the first Lease Year under this
Lease for all purposes.
6. BASE RENTAL INCREASES. [Intentionally Deleted].
7. ADDITIONAL RENT.
(a) The following terms, as used in this Lease, shall have the following
meanings:
"ESCALATION YEAR" means each calendar year, commencing with the first full
calendar year following the calendar year in which the Commencement Date occurs,
falling, in whole or in part, within the Term.
"BASE YEAR" means calendar year 2005.
"OPERATING EXPENSES" are defined in Exhibit "C".
"EXCESS EXPENSES" means the amount by which the annual Operating Expenses
incurred by Landlord during each successive Escalation Year exceed Operating
Expenses incurred by Landlord for the Base Year.
"TENANT'S SHARE" means 34.90%.
(b) Tenant shall pay to Landlord as additional rent (the "ADDITIONAL
RENT"), for each Escalation Year during the Term, Tenant's Share for such
Escalation Year.
(c) As soon as practicable prior to the beginning of each Escalation Year
(including during any extension or renewal of the Term), Landlord shall deliver
to Tenant a statement setting forth (i) Landlord's projection of the Operating
Expenses for the upcoming Escalation Year, (ii) Tenant's Share for the upcoming
Escalation Year and (iii) a computation of the monthly installments to be paid
by Tenant toward Tenant's Share for the upcoming Escalation Year, which amount
shall be one-twelfth (1/12) of the amount determined pursuant to (ii) above. In
the event such statement is not delivered until after the commencement of the
Escalation Year, Tenant shall continue to pay Tenant's Share based on the prior
year's statement until the statement for the then-current Escalation Year is
delivered, and when such statement is delivered, Tenant shall pay to Landlord
the amount by which the monthly installments of Tenant's Share shown on such
statement exceed the installments of Tenant's Share actually paid by Tenant for
the expired months in the then-current Escalation Year within thirty (30) days
after the rendering of such statement by Landlord, and from and after the
delivery of such statement Tenant shall pay to Landlord in advance on the first
day of each calendar month following the rendering of such statement the monthly
installments provided for in such statement, such payments to continue until
another statement is rendered. If at any time it appears to Landlord that
Tenant's Share for such Escalation Year will exceed Landlord's prior estimate of
Tenant's Share for such Escalation Year by more than five percent (5%), Landlord
shall have the right to revise, by notice to Tenant, its estimate for such
Escalation Year, and subsequent payments by Tenant for such Escalation Year
shall be based upon the revised estimate of Tenant's Share for such Escalation
Year.
(d) Commencing with Landlord's statement delivered following the beginning
of the second full Escalation Year occurring during the Term, Landlord shall
also set forth (i) the actual amount of the Operating Expenses incurred during
the preceding Escalation Year, and (ii) any underpayment or overpayment by
Tenant based on Tenant's monthly payment(s) (if any) of Tenant's Share made
during the preceding Escalation Year. In the event of any underpayment by
Tenant, Tenant shall pay the full amount of such deficiency to Landlord within
thirty (30) days of receipt of Landlord's statement. Any overpayment by Tenant
shall, at Landlord's option, either be (i) paid to Tenant within thirty (30)
days of delivery of Landlord's statement, or (ii) applied to Tenant's Share as
projected for the ensuing calendar year.
(e) For the Escalation Year in which the Term expires, Landlord shall
deliver to Tenant, as soon as practicable after the expiration of the Term, a
statement setting forth (i) Tenant's Share determined by annualizing Operating
Expenses actually incurred or accrued during the portion of the Escalation Year
falling within the Term and then prorating Tenant's Share thereby determined,
based on the number of days of such Escalation Year falling within the Term, and
(ii) any underpayment or overpayment of Tenant's Share made during that final
Escalation Year. In any underpayment, Tenant shall promptly pay the full amount
thereof to Landlord. If Tenant has overpaid, Landlord shall promptly reimburse
Tenant the full amount of such overpayment. The respective obligations of the
parties hereto pursuant to this Paragraph 7 shall survive the expiration or
earlier termination of the Lease.
(f) If the Building is not fully occupied during any calendar year of the
Term, including for purposes hereof the Base Year, the Operating Expenses and
the Excess Expenses for purposes of this Paragraph 7 shall be determined as if
the Building had been fully occupied during such calendar year (and fully
assessed for real estate tax purposes). For the purposes of this Paragraph 7,
"fully occupied" shall mean occupancy of 100% of the rentable area of the
Building.
(g) Landlord's books and records pertaining to the calculation of Operating
Expenses for the immediately preceding calendar year of the Lease Term may be
audited by Tenant or its representatives at Landlord's office where Operating
Expense records are kept, at Tenant's expense, at any time within one hundred
eighty (180) days after Landlord's annual statement is delivered to Tenant for
such calendar year; provided that Tenant shall give Landlord not less than
fifteen (15)) days' prior written notice of any such audit. The audit may only
be conducted by the public accounting firm that performs Tenant's general audit
or a public accounting firm approved by Landlord, which approval shall not be
unreasonably withheld. If Landlord's calculations of Tenant's Additional Rental
for the audited calendar year was incorrect, then Tenant shall be entitled to a
prompt refund of any overpayment or Tenant shall promptly pay to Landlord the
amount of any underpayment, as the case may be. If Landlord's estimate was
incorrect by more than four percent (4%) of the actual Operating Expenses for a
calendar year, Landlord shall reimburse Tenant for its actual audit costs, not
to exceed $4,000.00 for any audit.
8. BROKERAGE DISCLOSURE.
COLONIAL PROPERTIES SERVICES, INC. ("CPSI") HAS REPRESENTED LANDLORD IN
THIS LEASE. ICON COMMERCIAL INTERESTS, LLC ("ICON") HAS REPRESENTED TENANT IN
THIS LEASE. EACH OF CPSI AND ICON SHALL BE PAID A COMMISSION BY LANDLORD
PURSUANT TO THE TERMS OF A SEPARATE AGREEMENT. Tenant warrants that there are no
other claims for brokers' commissions or finders' fees in connection with its
execution of this Lease. Tenant hereby indemnifies and holds Landlord and
Landlord's agents harmless from and against any and all loss, cost, damage or
expense incurred by Landlord or Landlord's agents as a result of or in
connection with a claim of any real estate agent or broker, if made by, through
or under Tenant. Landlord hereby indemnifies and holds Tenant and Tenant's
agents harmless from and against any and all loss, cost, damage or expense
incurred by Tenant or Tenant's agents as a result of or in connection with a
claim of any real estate agent or broker, if made by, through or under Landlord.
Tenant shall, upon Landlord's request, cause the party representing Tenant as
set forth above to provide to Landlord a broker's lien waiver, sufficient to
waive such broker's lien rights to the Building and Park.
9. USE.
The Premises shall be used for business office and related ancillary
purposes and for no other purposes. The occupancy rate of the Premises shall in
no event be more than one (1) person per one hundred eighty (180) rentable
square feet. The Premises shall not be used for any illegal purposes, nor in
violation of any regulation of any governmental body, 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 or the Building. Tenant shall, at
its own expense, promptly comply with any and all municipal, county, state and
federal statutes, regulations and/or requirements applicable or relating to the
use, occupancy or condition of the Premises.
10. TENANT'S ACCEPTANCE.
Tenant acknowledges that it has been afforded an opportunity to inspect the
Premises and accepts the Premises "as is" and as suited for Tenant's intended
use thereof.
11. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, whether by operation of law or otherwise, assign,
transfer, hypothecate or otherwise encumber this Lease or any interest herein
and shall not sublet or permit the use by others of the Premises or any portion
thereof without obtaining in each instance Landlord's prior written consent,
which consent Landlord shall not unreasonably withhold or delay. Without
limiting the foregoing prohibition, in no event shall Tenant assign this Lease
or any interest herein, or sublet the Premises or any part thereof or permit the
use of the Premises or any part thereof by any party, and Landlord may withhold
its consent to any requested assignment or subletting (and the withholding of
consent shall be conclusively deemed to be reasonable), (i) if the proposed
assignee or subtenant is a party who would (or whose use would) detract from the
character of the Building as a first-class office building, (ii) if the proposed
assignment or subletting shall be to a governmental subdivision or agency or any
person or entity who enjoys diplomatic or sovereign immunity, or (iii) if such
proposed assignment, subletting or use would contravene any restrictive covenant
affecting the Building (including any exclusive use) granted to any other tenant
of the Building). Landlord's consent to one assignment, sublease, transfer or
hypothecation shall not be deemed as a consent to any other or further
assignment, sublease, transfer or hypothecation. Any such assignment, sublease,
transfer or hypothecation without Landlord's prior written consent shall be void
and shall, at Landlord's option, constitute a default under this Lease. 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 hereunder or be deemed to constitute Landlord's consent to any
assignment, sublease, transfer or hypothecation, and in any event, Tenant shall
remain primarily liable on this Lease for the entire Term hereof and shall in no
way be released from the full and complete performance of all the terms,
conditions, covenants and agreements contained herein. Notwithstanding the
above, in no event shall Tenant install, paint, affix or place any sign(s) on or
about the Premises, Building or Park advertising or giving notice that the
Premises are available "for lease", "for sublease", "for rent" or the like.
(b) If Tenant should desire to assign this Lease or sublet the Premises or
any part thereof, Tenant shall give Landlord prior written notice, which notice
shall specify (i) the name and business of the proposed assignee or sublessee,
(ii) the amount and location of the space affected, (iii) the proposed effective
date and duration of the subletting or assignment, and (iv) the proposed rental
or other consideration to be paid to Tenant by such sublessee or assignee.
Landlord shall then have a period of fifteen (15) days following receipt of such
notice within which to notify Tenant in writing that Landlord elects (1) to
terminate this Lease as to the space so affected as of the date so specified by
Tenant, in which event Tenant will on that date be relieved of all further
obligations to pay rent hereunder as to such space, (2) to permit Tenant to
assign or sublet such space, in which event if the proposed rental between
Tenant and sublessee for the space affected is greater than the Base Rental as
adjusted under this Lease applicable to the space affected, or if consideration
other than rental is paid to Tenant by such assignee or sublessee with respect
to the affected space, then fifty percent (50%) of such excess rental and other
consideration, minus all reasonable sublease costs (including tenant
improvements, free rent and commissions) shall be deemed additional rent owed by
Tenant to Landlord under this Lease, and the amount of such excess shall be paid
by Tenant to Landlord in the same manner that Tenant pays the Base Rental
hereunder and in addition thereto, (3) to withhold consent to Tenant's assigning
or subleasing such space and to continue this Lease in full force and effect as
to the entire Premises, or (4) to consent to Tenant assigning or subleasing
such space, subject to Landlord's approval of the assignment or sublease
document. If Landlord should fail to notify Tenant in writing of such election
within said fifteen (15) day period, Landlord shall be deemed to have elected
option (3) above. Tenant agrees to reimburse Landlord in an amount of $500.00
for Landlord's attorneys' fees and costs incurred in connection with the
processing and documentation of each request made pursuant to this Paragraph.
Notwithstanding the giving by Landlord of its consent to any assignment or
sublease with respect to the Premises, no such assignee or sublessee may
exercise any expansion option, right of first refusal option, or renewal option
under this Lease except in accordance with a separate written agreement entered
into directly between such assignee or sublessee and Landlord, and, absent
Landlord's written agreement to the contrary, all option rights of Tenant, and
all lease rights of Tenant created pursuant to the exercise of any option
rights, with respect to any space so assigned or subleased shall be
extinguished.
(c) 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 without requiring the prior written consent of Landlord, provided that
such transferee, successor or assignee is of equal or greater financial strength
to Tenant.
12. HOLDING OVER.
If Tenant remains in possession after the expiration of the Term, or the
termination of this Lease, it shall be a tenant at sufferance only and there
shall be no renewal hereof by operation of law. In such event, such occupancy
shall be at an amount equal to one hundred twenty-five percent (125%) of the
Base Rental for the first two (2) months, then one hundred fifty percent (150%)
of the Base Rental (the "Holdover Rent") in effect immediately prior to the
expiration or termination of this Lease and shall otherwise be subject to all of
the covenants and provisions of this Lease. The Holdover Rent shall be paid in
advance in monthly increments and shall not be prorated for a period of less
than one month. Tenant shall be liable to Landlord for all damages (excluding
consequential damages) incurred by Landlord as a result,(1) in whole or in part,
of Tenant's failure to deliver possession of the Premises to Landlord upon
expiration or termination of the Term.
13. ALTERATIONS AND IMPROVEMENTS.
(a) Subject to the terms of the following sentence, no alteration in, or
addition to, the Premises will be made without first obtaining Landlord's prior
written consent, which Landlord may grant or withhold for any reason or for no
reason, and any such work consented to, although paid for by Tenant, will be
done by Landlord with Landlord reserving the right to charge Tenant a fee equal
to ten percent (10%) of the cost of the work for supervision of such alterations
or additions. With respect to any alteration, addition or improvement which does
not affect the structure of the Building, does not affect any of the Building's
systems (e.g., mechanical, electrical or plumbing), does not diminish the
capacity of such Building's systems available to other portions of the Building,
is not visible from the common areas or exterior of the Building, and is in full
compliance with all laws, orders, ordinances, directions, requirements, rules
and regulations of all governmental authorities, Landlord's consent shall
not be unreasonably withheld. Notwithstanding the foregoing provisions of this
paragraph, Landlord's consent shall not be required for alterations, additions
or improvements of a non-structural nature in an amount less than $25,000.00
provided Tenant gives Landlord advance notice of the work and coordinates
scheduling with Landlord, uses contractors approved by Landlord, provides
Landlord a description of the Work and requires the contractors to abide by
Landlord's rules for construction.
(b) If Tenant's actions, omissions or occupancy of the Premises shall cause
the rate of fire or other insurance either on the Building or the Premises to be
increased, Tenant shall pay, as additional rent, the amount of any such increase
promptly upon request by Landlord.
(c) All erections, additions, fixtures and improvements, whether temporary
or permanent in character (except only the trade fixtures and movable office
furniture of Tenant) made in or upon the Premises, shall be and remain
Landlord's property and shall remain upon the Premises at the expiration or
earlier termination of this Lease, with no compensation to Tenant. Landlord
reserves the right to require Tenant to remove any such improvements or
additions at the termination hereof or within fifteen (15) days thereafter.
Landlord may, at its election, repair any damage to the Premises caused by or in
connection with the removal of any articles of personal property, business or
trade fixtures, alterations, improvements and installations, and all costs for
such repairs shall be at Tenant's expense.
(d) Tenant will not install a wireless fidelity network ("WIFI Network")
within the Premises without first obtaining Landlord's prior written consent,
which Landlord will not unreasonably withhold provided Tenant executes an
amendment to the Lease regulating the installation and use of the WIFI Network.
14. REPAIRS TO THE PREMISES.
Landlord shall not be required to make any repairs or improvements to the
Premises, except structural repairs necessary for safety and tenantability.
Tenant shall, at its own cost and expense, keep in good repair all portions of
the Premises, including but not limited to windows, glass and plate glass,
doors, interior walls and finish work, floors and floor coverings, and
supplemental or special heating and air conditioning system, and shall take good
care of the Premises and its fixtures and permit no waste, except normal wear
and tear with due consideration for the purpose for which the Premises are
leased. Landlord shall maintain and replace, at its cost and expense, all
Building standard light bulbs and lighting fixtures in the Premises. Tenant
shall maintain and replace, at its cost and expense, all light bulbs and
fixtures in the Premises that are not the Building's standard light fixtures and
bulbs. Any repairs required under this Paragraph, although paid for by Tenant,
will be performed by Landlord, with Landlord reserving the right to charge
Tenant a fee equal to two percent (2%) of the cost of the work.
15. ENTRY BY LANDLORD.
Landlord or its agents may enter the Premises at reasonable hours and upon
reasonable notice (except in cases of emergency) to exhibit same to prospective
purchasers or tenants, to inspect the Premises to see that Tenant is complying
with a11 of its obligations hereunder, and to make repairs, improvements,
alterations or additions which Landlord shall deem necessary for the safety,
preservation or improvement of the Building or to make repairs or modifications
to any adjoining space. Landlord shall be allowed to take all material into and
upon the Premises that may be required to make such repairs, improvements,
alterations or additions for the benefit of Tenant without in any way being
deemed or held guilty of an eviction of Tenant, and the Base Rental, Additional
Rent and other charges hereunder shall in no wise xxxxx while said repairs,
improvements, alterations or additions are being made. All such repairs,
improvements, alterations and additions shall be done during ordinary business
hours, provided that Landlord shall make reasonable efforts to conduct such
repairs, improvements, alterations or additions in a manner which will not
interfere with the conduct of Tenant's business.
16. DEFAULT AND REMEDIES.
(a) In addition to the circumstances hereinbefore set forth, the occurrence
of any of the following shall constitute a default of this Lease by Tenant:
(i) the filing of any voluntary petition or similar pleading under any
section or sections of any bankruptcy or insolvency act by or against Tenant or
the institution of any voluntary or involuntary proceeding in any court or
tribunal to declare Tenant insolvent or unable to pay Tenant's debts as they
mature and, in the case of an involuntary petition or proceeding, the petition
or proceeding is not dismissed within forty-five (45) days from the date it is
filed, or the making of an assignment for the benefit of its creditors by
Tenant, or the appointment of a trustee or receiver for Tenant or for the major
part of Tenant's property;
(ii) Tenant's failure to pay the monthly Base Rental, Additional Rent
or any other sum due hereunder, if such nonpayment continues for five (5) or
more days after the date notice of such late payment is provided to Tenant;
provided, however, if more than one (1) payment due of Tenant hereunder in any
twelve (12) month period during the Term is not made until after notice of such
late payment is received by Tenant, then it shall be a default hereunder by
Tenant if any subsequent payment due of Tenant hereunder in the same twelve (12)
month period is not made within five (5) days after the date the same is due;
(iii) Tenant's default in the prompt and full performance of any other
provision of this Lease and Tenant does not cure the default within twenty (20)
days after written demand by Landlord that the default be cured (unless the
default involves a condition dangerous to person or property, or which will
become worse if no immediate action is taken to cure such default, in which
event such default shall be cured forthwith upon Landlord's demand); provided,
however, if Tenant has commenced efforts to cure the default during such period
and diligently prosecutes such efforts to completion, Tenant shall have
additional time (not to exceed ninety (90) days) to complete such cure as is
reasonably necessary under the circumstances in question.
(iv) the levy, execution or attachment against assets of Tenant
located in the Premises;
(v) Tenant's failure to take possession or occupancy of the Premises;
(vi) Tenant shall do or permit to be done anything that creates a lien
upon the Premises or the Building and such lien is not removed or discharged
within thirty (30) days of the filing thereof;
(vii) Tenant shall fail to return a properly executed instrument to
Landlord in accordance with the provisions of Paragraph 32 hereof within the
time period provided for such return following Landlord's request for the same
as provided in Paragraph 32, which failure is not cured within ten (10) days
after written notice thereof is given by Landlord to Tenant.
(b) Upon the occurrence of any default by Tenant as aforesaid, Landlord, in
addition to any and all other rights or remedies it may have at law or in
equity, shall have the option of pursuing any one or more of the following
remedies:
(i) Landlord shall have the immediate right of reentry and may remove
all property from the Premises to a warehouse or elsewhere at the cost of, and
for the account of Tenant, all without being deemed guilty of trespass or
becoming liable for any loss, damage or damages which may be occasioned thereby;
(ii) Landlord may terminate this Lease by giving notice of
termination, in which event this Lease shall expire and terminate on the date
specified in such notice of termination, with the same force and effect as
though the date so specified were the date herein originally fixed as the
expiration date of the Term of this Lease, and all rights of Tenant under this
Lease and in and to the Premises shall expire and terminate, and Tenant shall
remain liable for all obligations under this Lease arising up to the date of
such termination, and Tenant shall surrender the Premises to Landlord on the
date specified in such notice;
(iii) Landlord may terminate this Lease as provided in subparagraph
16(b)(ii) hereof and recover from Tenant all damages Landlord may incur by
reason of Tenant's default, including, without limitation, a sum which, at the
date of such termination, represents the then present value (calculated at the
rate of twelve percent (12%) interest per annum) of the excess, if any, of (A)
the Base Rental (including without limitation, increases in Base Rental pursuant
to Paragraph 6 hereof), Additional Rent, and all other sums which would have
been payable hereunder by Tenant for the period commencing with the day
following the date of such termination and ending with the date hereinbefore set
for the expiration of the full term hereby granted, over (B) the aggregate
reasonable rental value of the Premises (less reasonable brokerage commissions,
attorneys' fees and other costs relating to the reletting of the Premises) for
the same period, all of which excess sum shall be deemed immediately due and
payable;
(iv) Landlord may, without terminating this Lease, declare immediately
due and payable all Base Rental, Additional Rent, and other rents and amounts
due and coming due under this Lease for the entire remaining Term hereof,
together with all other amounts previously due, at once; provided, however, that
such payment shall not be deemed a penalty or liquidated damages but shall
merely constitute payment in advance of rent for the remainder of said Term;
upon making such payment, Tenant shall be entitled to receive from Landlord all
rents received by Landlord from other assignees, tenants and subtenants on
account of said Premises during the Term of this Lease, provided that the monies
to which Tenant shall so become entitled shall in no event exceed the entire
amount actually paid by Tenant to Landlord pursuant to this clause (iv) less all
costs, expenses and attorneys' fees of Landlord incurred in connection with the
reletting of the Premises; or
(v) Landlord may, from time to time without terminating this Lease,
and without releasing Tenant in whole or in part from Tenant's obligation to pay
Base Rental, Additional Rent and all other amounts due under this Lease and
perform all of the covenants, conditions and agreements to be performed by
Tenant provided in this Lease, make such alterations and repairs as necessary to
relet the Premises, and, after making such alterations and repairs, Landlord
may, but shall not be obligated to, relet the Premises or any part thereof for
such term (which may be for a term extending beyond the Term of this Lease) at
such rental and upon such other terms and conditions as Landlord in its
reasonable discretion may deem advisable or acceptable; upon each reletting, all
rentals received by Landlord from such reletting shall be applied first, to the
payment of any indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any costs and expenses of such reletting,
including brokerage fees and attorneys' fees, and of costs of such alterations
and repairs; third, to the payment of the Base Rental, Additional Rent and other
charges due and unpaid hereunder; and the residue, if any,
shall be held by Landlord and applied against payments of future Base Rental,
Additional Rent or other charges as the same may become due and payable
hereunder. In no event shall Tenant be entitled to any excess rental received by
Landlord over and above charges that Tenant is obligated to pay hereunder,
including Base Rental, Additional Rent and all other charges; if such rentals
received from such reletting during any month are less than those to be paid
during the month by Tenant hereunder, including Base Rental, Additional Rent and
all other charges, Tenant shall pay any such deficiency to Landlord, which
deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord
as soon as ascertained and upon demand all costs and expenses incurred by
Landlord in connection with such reletting and in making any alterations and
repairs which are not covered by the rentals received from such reletting;
notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach.
(c) Landlord's reentry, demand for possession, notice that the tenancy
hereby created will be terminated on the date therein named, institution of an
action of forcible 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 Tenant's right to possession of the Premises shall not relieve Tenant from
Tenant's obligation to pay all sums due hereunder, except as herein expressly
provided. Landlord may collect and receive any Base Rental, Additional Rent or
other 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 or by virtue of this
Lease.
(d) If Landlord commences any proceedings for nonpayment of Base Rental,
Additional Rent or other sums due hereunder, Tenant win 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 Tenant. Any action brought under or with respect to this Lease must
be brought in a court located in Atlanta, Georgia, and having jurisdiction
therein.
(e) All sums past due from Tenant under this Lease shall bear interest at
twelve percent (12%) per annum, but in no event in excess of the maximum lawful
rate, from due date until paid in full.
(f) 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 Paragraph, demand for payment of any rent, or demand for
possession.
(g) All rights and remedies of Landlord created or otherwise existing at
law 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.
(h) Tenant shall and hereby agrees to pay all costs and expenses incurred
by Landlord in enforcing any of the covenants and agreements of this Lease, or
as a result of an action brought by Landlord against Tenant for an unlawful
detainer of the Premises, and all such costs, expenses and attorneys' fees
shall, if paid by Landlord, be paid by Tenant to Landlord within fifteen (15)
days of Landlord's written demand therefor, together with interest at eighteen
percent (18%) per annum, but in no event in excess of the maximum lawful rate,
from the date of Landlord's payment thereof.
(i) In the event of a default hereunder beyond applicable periods of notice
and cure, Landlord may declare Tenant in default under any or all other
agreements between Landlord and Tenant or any affiliate of Tenant, whether in
effect now or following the date of this Lease.
17. LANDLORD'S SERVICES.
(a) Landlord shall render certain services and supplies in accordance with
and as described in this Paragraph 17, as follows:
(i) Landlord shall cause the Premises to be cleaned at least five (5)
nights weekly.
(ii) Landlord shall furnish electric current for Building standard
tenant lighting and small business machinery only from electric circuits
designated by Landlord for Tenant's use. Such circuits will be fed
into one or more of the existing electrical panel(s) in the electrical closets
located on the same Building floor as the Premises. Tenant's usage of said
panels on any given floor shall not exceed Tenant's pro rata share (based on
rentable square footage) of the panels' capacity. Tenant will not use any
electrical equipment which in Landlord's opinion will overload the wiring
installations or interfere with the reasonable use thereof by other users in the
Building. Tenant will not, without Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed in each instance, connect
any items such as non-Building standard tenant lighting, vending equipment,
printing or duplicating machines, computers (other than desktop word processors
and personal computers), auxiliary air conditioners, and other computer-related
equipment to the Building's electrical system, or make any alteration or
addition to the system. If Tenant desires any such items, additional 208/120
volt electrical power beyond that supplied by Landlord as provided above,
electric current in excess of 208/120 volts for purposes other than Building
standard tenant lighting, or other special power requirements or circuits, then
Tenant may request Landlord to provide such supplemental power or circuits to
the Premises, which request Landlord may grant or withhold in its reasonable
discretion. If Landlord furnishes such power or circuits, Tenant shall pay
Landlord the cost of the design, installation and maintenance of the facilities
required to provide such additional or special electric power or circuits and
the cost of all electric current so provided at such rates as may be determined
from time to time by Landlord. Landlord require separate electrical metering of
such supplemental electrical power or circuits to the Premises, and Tenant shall
pay, on demand, the cost of the design, installation and maintenance of such
metering facilities. Tenant shall not have access to any electrical closets in
the Building; any electrical engineering design or contract work shall be
performed at Tenant's expense by Landlord or an electrical engineer and/or
electrical contractor designated by Landlord. All invoices respecting the
design, installation and maintenance of the facilities requested by Tenant shall
be paid within thirty (30) days of Tenant's receipt thereof. Landlord's charge
to Tenant for the cost of electric current so provided shall be paid within
thirty (30) days of receipt of invoice by Tenant.
(iii) Landlord shall furnish seasonable air conditioning and heating
during normal business hours (8:00 A.M. to 6:00 P.M. Monday through Friday and
8:30 A.M. until 1:00 P.M. Saturday), said heat or air conditioning not being
furnished Sunday or holidays observed by Landlord. Holidays which are observed
by Landlord are New Years Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and the following Friday, and Christmas Day. Should Tenant
desire either heating or air conditioning at other times, Landlord agrees to
provide same, but at Tenant's expense at such hourly rates as may be determined
from time to time by Landlord, which charge Tenant shall pay promptly upon being
billed therefor. The current charge for after hours heating or air-conditioning
is $15.00 per hour which charge shall not increase by more than five percent
(5%) annually, however if Landlord's cost of electricity increases by more than
five percent (5%) annually, Landlord may increase this charge by a like amount.
If Tenant installs equipment which in Landlord's opinion produces enough heat to
cause comfort problems in the Building or any part thereof, or if Tenant desires
a supplemental air conditioning system and Landlord has approved same, then
Landlord may, at its option, either cause to be designed or permit Tenant to
design a supplemental air conditioning system, subject to Landlord's approval,
and Landlord shall install such system at Tenant's expense substantially in
accordance with such design. If Tenant has requested such supplemental system,
Tenant shall be responsible for determining that the design of such system is
adequate for its needs. Tenant agrees to pay Landlord for such equipment,
design, installation, metering and consumption of electricity for supplemental
air conditioning and to maintain such equipment at Tenant's expense. If such
supplemental air conditioning is installed at the request of either Tenant or
Landlord in a manner that utilizes the Building condenser water loop, Tenant
shall pay a one-time tap fee, payable within thirty (30) days of invoicing from
Landlord, at Landlord's then established rate for such. Tenant shall also pay
for the necessary pump and piping to connect the supplemental air conditioning
equipment to the Building condenser water risers. Regardless of whether such
supplemental air conditioning is tapped into the Building condenser water loop.
Tenant shall pay (in addition to the one-time tap fee, if applicable) each
calendar quarter in advance, as additional rent, a usage charge determined by
Landlord based upon the tonnage of the cooling equipment installed. Such usage
charge as determined by Landlord may be increased at any time and from time to
time, provided, however, that in no event will such usage charge, as increased
hereunder, ever be decreased. All systems and/or equipment installed, as
provided hereinabove, shall become part and parcel with the Building and forever
remain Landlord's property.
(iv) Landlord shall maintain the landscaping for the Building to the
same level as similar Class A buildings in the North Xxxxxx market of Atlanta,
Georgia.
(b) Except in cases of its gross negligence, Landlord shall not be liable
for any damages directly or indirectly resulting from the installation, use or
interruption of use of any equipment in connection with the furnishing of
services referred to in this Paragraph, and particularly any interruption in
services by any cause beyond the immediate control of Landlord, provided
Landlord shall use reasonable diligence in the restoration of such services.
Notwithstanding anything contained herein to the contrary, if any essential
services (such as HVAC, passenger elevators if necessary for reasonable access,
electricity, water), supplied by Landlord are interrupted, and the interruption
does not result from the negligence or willful misconduct of Tenant, its
employees, invitees, or agents, Tenant shall be entitled to an abatement of Base
Rental and Additional Rent. The abatement shall begin on the fourth (4th)
consecutive business day of the interruption or when Tenant stops using the
Premises because of the interruption, whichever is later. The abatement shall
end when the services are restored. Excluding the destruction of Premises
covered by Paragraph 18 below, Tenant shall have the option to cancel the Lease
if the interruption unreasonably and materially interferes with Tenant's use of
or access to the Premises for at least one hundred twenty (120) consecutive
days. To exercise this option Tenant must give Landlord notice of the
cancellation within ten (10) days from the end of the one hundred twenty (120)
day period. During any such interruption, Landlord shall use commercially
reasonable efforts to restore the services.
18. DESTRUCTION OF PREMISES.
Should the Premises be so damaged by fire or other cause that rebuilding or
repairs cannot, in the opinion of Landlord's architect, be completed within one
hundred eighty (180) days from the date of the fire, or other cause of damage,
then either Landlord or Tenant may terminate this Lease by written notice to the
other given within thirty (30) days of the date of such damage or destruction,
in which event rent shall be abated from the date of such damage or destruction.
However, if the damage or destruction is such that rebuilding or repairs can be
completed within one hundred eighty (180) days, Landlord covenants and agrees,
subject to the provisions of this Paragraph 18, to make such repairs with
reasonable promptness and dispatch and to allow Tenant an abatement in the rent
for such time as the Premises are untenantable or proportionately for such
portion of the Premises as shall be untenantable, and Tenant covenants and
agrees that the terms of this Lease shall not be otherwise affected. Such
repairs and restoration relating to Tenant's initial leasehold improvements or
improvements otherwise made by or for Tenant shall be made at Tenant's expense
in accordance with plans and specifications approved by Landlord and Tenant.
Repairs and restoration to base Building improvements required by this Lease to
be furnished by Landlord at its expense (other than Tenant's initial leasehold
improvements) shall be made at Landlord's expense. In no event shall Landlord be
required to repair or replace any trade fixtures, furniture, equipment or other
property belonging to Tenant; nor shall Landlord have any obligation to incur
any cost to repair, reconstruct or restore the Premises or the Building in
excess of insurance proceeds from the casualty necessitating such work that are
made available to Landlord, under its sole control, for such work.
Notwithstanding anything to the contrary contained in this Paragraph, Landlord
shall not have any obligation whatsoever to repair, reconstruct or restore the
Premises when the damage resulting from any casualty occurs during the last
twelve (12) months of the Term.
19. CONDEMNATION OF PREMISES.
(a) If any part of the Premises shall be taken or appropriated by any
public or quasi-public authority under the power of eminent domain, Landlord
shall have the right, at its option, to terminate this Lease effective as of the
date possession is taken by said authority (unless all of the Premises are so
taken in which case this Lease shall terminate), and shall be entitled to any
and all income, rent or award and any interest thereon whatsoever which may be
paid or made in connection with such public or quasi-public use or purpose.
Tenant hereby assigns to Landlord its entire interest in any and all such
awards, and shall have no claim against Landlord for the value of any portion of
the unexpired Term. If a part of the Premises shall be so taken or appropriated,
and Landlord does not elect to terminate this Lease, the Base Rental thereafter
to be paid shall be reduced by an amount bearing the same ratio to the total
amount of Base Rental as the rentable area of the Premises so taken bears to the
entire Premises.
(b) If any part of the Building other than the Premises shall he so taken
or appropriated, Landlord shall have the sole right, at its option, to terminate
this Lease and shall he entitled to the entire award as above . provided, and in
such case Tenant shall likewise have no claim against Landlord for the value of
any unexpired Term of this Lease.
(c) Nothing hereinbefore contained shall be deemed to deny to Tenant its
right to claim from the condemning authority compensation or damages for its
trade fixtures and personal property, provided the condemning authority makes a
separate award therefor.
20. INSURANCE.
(a) Tenant shall carry special form/all risk insurance insuring Tenant's
interest in the improvements and betterments to the Premises, including initial
improvements installed by Landlord, and any and all furniture, equipment,
supplies and other property owned, leased, held or possessed by it and contained
therein, in an amount equal to the full replacement cost thereof, subject to
deductible amounts reasonably satisfactory to Landlord, plus business
interruption insurance respecting Tenant's business conducted from the Premises
in an amount reasonably satisfactory to Landlord. Tenant shall also procure and
maintain throughout the Term a policy or policies of commercial general
liability insurance, insuring Tenant, Landlord, any manager of the Building, the
asset manager of the Building, and any mortgagee which has an interest in or
lien upon the Building, as additional insureds, against liabilities for injury
to or death of a person or persons and for damage to property occasioned by or a
rising out of any construction work being done on the Premises, or a rising out
of the condition, use or occupancy of the Premises, or in any way occasioned by
or arising out of the negligence of Tenant or its agents, employees or licensees
in the Premises, or other portions of the Building, Building site and adjacent
parking areas in amounts not less than $5,000,000.00 with respect to any one
casualty or occurrence and $1,000,000.00 with respect to property damage,
including fire legal liability.
(b) All insurance policies procured and maintained by Tenant pursuant to
this Paragraph 20 shall be carried with companies licensed to do business in the
State of Georgia with a Best policyholder rating of not less than A-, and a Best
financial size rating of not less than VIII, and shall be noncancelable or
subject to material change except after thirty (30) days written notice to
Landlord and any designees of Landlord. Such policies or duly executed
certificates of insurance with respect thereto shall be delivered to Landlord
prior to the date that Tenant takes possession of the Premises, and renewals
thereof as required shall be delivered to Landlord at least thirty (30) days
prior to the expiration of each respective policy term.
(c) Landlord and Tenant shall each have included in all policies of
insurance maintained hereunder, a waiver by the insurer of all right of
subrogation in connection with any loss or damage thereby insured against. Any
additional premium for such waiver shall be paid by the party obtaining the
insurance. To the full extent permitted by law, Landlord and Tenant each waive
all right of recovery against the other for, and agree to release the other from
liability for, loss or damage to the extent such loss or damage is covered by
valid and collectible insurance in effect at the time of such loss or damage or
would be covered by the insurance required to be maintained under this Lease by
Landlord or Tenant.
21. INDEMNIFICATION AND HOLD HARMLESS.
(a) Tenant hereby indemnifies and holds Landlord and its agents and
employees, harmless from and against any injury, expense, damage, liability or
claim, imposed on Landlord and its agents and employees, 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 Building or Park or of any other
person in or about the Building, or administrative or criminal action by a
governmental authority, whether such injury, expense, damage, liability or claim
results from the act, omission, negligence, misconduct or breach of any
provisions of this Lease by Tenant, the agents, servants, invitees or
employees of Tenant or from any accident or incident occurring within the
Premises, by Tenant, the agents, servants, contractors, invitees or employees of
Tenant. Tenant further agrees to reimburse Landlord and its agents and employees
for any costs or expenses, including, but not limited to, court costs and
reasonable attorneys' fees, which Landlord and its agents and employees may
incur in investigating, handling or litigating any such claim or any action by a
governmental authority. Notwithstanding the terms of the above, an exception to
Tenant's assumption of and liability for any and all claims whatsoever by their
very nature, cause of origin, which relate to the Premises, the Building and
equipment and apparatus located thereon and walks and entry thereto shall be
claims resulting from Landlord's default or upon acts of negligence or willful
misconduct committed by Landlord, its agents, contractors or employees.
Notwithstanding the terms of the above, Landlord hereby agrees to indemnify and
hold harmless Tenant, its agents, contractors and employees from any and all
loss, damage, liability, costs and expenses (including, without limitation,
attorney fees and court costs) incurred by
Tenant, its agents, contractors, employees, invitees or licensees resulting from
Landlord's default or from acts of negligence or willful misconduct committed by
Landlord, its agents, contractors or employees.
(b) Tenant shall give notice to Landlord of any defective condition in or
about the Premises known to Tenant, and further agrees to attempt to contact
Landlord by telephone immediately in such instance.
22. USUFRUCT ONLY.
This contract shall create the relationship of landlord and tenant between
Landlord and Tenant; no estate shall pass out of Landlord. Tenant has only a
usufruct, not subject to levy and sale.
23. WAIVER.
The waiver by Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of any other term, covenant
or any subsequent breach of the same or any other term, covenant or condition
herein contained. The subsequent acceptance of Base Rental, Additional Rent or
other sums due hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to pay the particular payment so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such payment. No covenant, term or condition of this Lease shall
be deemed to have been waived by Landlord, unless such waiver is in writing
signed by Landlord.
24. ENTIRE AGREEMENT.
This Lease sets forth all the covenants, promises, agreements, conditions
and undertakings between Landlord and Tenant concerning the Premises, and there
are no covenants, promises, agreements, conditions or undertakings other than as
herein set forth. No subsequent alteration, amendment, change or addition to
this Lease, except as to changes or additions to the Rules and Regulations
described in Paragraph 35, shall be binding upon Landlord or Tenant unless
reduced to writing and signed by authorized representatives of each of them.
This Lease is not in recordable form, and Tenant agrees not to record or cause
to be recorded this Lease or any short form or memorandum thereof.
25. LANDLORD'S CONSENT.
In every instance herein in which Landlord is called up on to give its
consent, and the standards for granting such consent are not expressly set
forth, such consent may be withheld for any reason or for no reason, or if
granted, may be subject to those conditions which Landlord deems appropriate. No
such consent shall be binding upon Landlord unless made expressly in writing
signed by Landlord.
26. NOTICES.
(a) Every notice, demand or request hereunder shall be in writing and shall
be deemed to have been properly given on the date delivered personally or by
courier (including a nationally recognized overnight delivery service), with a
signed receipt, or two (2) business days following deposit with the United
States Postal Service (or any official successor thereto) designated certified
mail, return receipt requested, bearing adequate postage and addressed as
follows:
If to Tenant: COMPBENEFITS CORPORATION
000 Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
ATTN: Facilities Manager
If to Landlord: COLONIAL REALTY LIMITED PARTNERSHIP
c/o Colonial Properties Services, Inc.
000 Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
ATTN: Vice President
Landlord's address
for rental payments: COLONIAL PROPERTIES LIMITED PARTNERSHIP
X.X. Xxx 00000, Xxxx. Xx. 0000
Xxxxxxxxxx, Xxxxxxx 00000
The foregoing addresses may be changed by thirty (30) days prior written
notice from time to time.
(b) Tenant hereby appoints as his agent to receive the service of all
dispossessory or distraint proceedings and notices thereunder, the person in
charge of or occupying the Premises at the time; and if no person is in charge
or occupying same, then such service or notice may be made by attaching the same
on the main entrance to the Premises. A copy of all notices under this Lease
shall also be sent to Tenant's last address of which notice was given to
Landlord in accordance with this Paragraph 26, if different from the Premises.
27. TRANSFER OF TENANT. [Intentionally Deleted].
28. SUCCESSORS AND ASSIGNS; ATTORNMENT.
The covenants, conditions and agreements herein contained shall inure to
the benefit of and be binding upon Landlord, its successors and assigns, and
shall be binding upon Tenant, its heirs, executors, administrators, successors
and assigns, and shall inure to the benefit of Tenant and only such assigns of
Tenant to whom the assignment by Tenant has been consented to by Landlord.
Nothing contained in this Lease shall in any manner restrict Landlord's right to
assign or encumber this Lease in its sole discretion. Should Landlord assign
this Lease as provided for above, or should Landlord enter into a security deed
or other mortgage affecting the Premises and should the holder of such deed or
mortgage 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 Term hereof remaining after such succession,
and Tenant shall attorn to such succeeding party as its Landlord under this
Lease promptly under any such succession. Tenant 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 any such "attornment agreement," provided the same does not modify any of
the provisions of this Lease and has no adverse effect upon Tenant's continued
occupancy of the Premises.
29. TIME IS OF THE ESSENCE.
Time is of the essence with respect to the performance of each of the
covenants and agreements of this Lease; provided, however, that failure of
Landlord to provide Tenant with any notification regarding adjustments in Base
Rental, Additional Rent, or any other charges provided for hereunder, within the
time periods prescribed in this Lease shall not relieve Tenant of its obligation
to make such payments, which payments shall be made by Tenant at such time as
notice is subsequently given.
30. CAPTIONS: GOVERNING LAW.
The captions of this Lease are for convenience of reference only and in no
way define, limit or describe the scope or intent of this Lease. The laws of the
State of Georgia shall govern the validity, performance and enforcement of this
Lease.
31. SEVERABILITY.
Landlord and Tenant intend and believe that each provision in this Lease is
in accordance with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Lease is or are ultimately determined by a
court of law to be in
violation of any local, state or federal ordinance, statute, law, administrative
or judicial decision, or public policy, and if such court shall declare such
portion, provision or provisions of this Lease to be illegal, invalid, unlawful,
void or unenforceable as written, then it is the intent both of Landlord and
Tenant that such portion, provision or provisions shall be given force to the
fullest possible extent that they are legal, valid and enforceable, that the
remainder of this Lease shall be construed as if such illegal, invalid,
unlawful, void or unenforceable portion, provision or provisions were not
contained herein, and that the rights, obligations and interests of Landlord and
Tenant under the remainder of this Lease shall continue in full force and
effect, unless the amount of Base Rental, Additional Rent or other charges
payable hereunder is thereby decreased, in which event Landlord may terminate
this Lease.
32. SUBORDINATION; ESTOPPEL CERTIFICATES.
Landlord represents to Tenant that the Building and Premises are not
encumbered by any mortgage or deed to secure debt as of the Effective Date.
Tenant agrees that this Lease shall be subject and subordinate to all future
mortgages, deeds to secure debt or other security instruments, including all
advances, amendments, modifications, renewals, consolidations and extensions
thereof (the "SECURITY DEEDS") affecting the Building or the Premises provided
Landlord, Tenant and the lender execute a subordination, non-disturbance and
attornment agreement reasonably satisfactory to Landlord and Tenant. The terms
of this provision shall be self-operative and no further instrument or
subordination shall be required. In addition, Tenant shall, within ten (10)
business days after written request, at any time and from time to time execute,
acknowledge and deliver to Landlord a written statement addressed to Landlord,
any mortgagee or assignee of Landlord's interest in, or purchaser of, the
Building or any portion thereof, certifying as follows: (i) that this Lease is
unmodified and in full force and effect (or if there has been modification
thereof, that the same is in full force and effect as modified and stating the
nature thereof); (ii) that to the best of its knowledge there are no uncured
defaults on the part of Landlord (or if any such default exists, the specific
nature and extent thereof); (iii) that there are no defenses or offsets against
the enforcement of the Lease (or stating those claimed by Tenant); (iv) the date
to which any rents and other charges have been paid in advance, if any; and (v)
such other matters as Landlord or such mortgagee, assignee or purchaser may
reasonably request. Any such certificate or statement shall, at Landlord's
request, be in recordable form and be recorded in the public records, and may be
relied upon by Landlord, any mortgagee, proposed mortgagee, assignee, purchaser
and any other party to whom such certificate or statement is addressed.
33. ATTORNEYS' FEES.
In any law suit or court action between Landlord and Tenant arising out of
or under this Lease, the prevailing party in such law suit or court action shall
be entitled to and shall collect from the non-prevailing party the reasonable
attorneys' fees and court costs actually incurred by the prevailing party with
respect to said lawsuit or court action.
34. LIMITATION OF LIABILITY.
Landlord's obligations and liability to Tenant with respect to this Lease
shall be limited solely to Landlord's interest in the Building. Neither Landlord
nor any joint venturers of Landlord, nor any officer, director, partner,
shareholder or agent of Landlord or any joint venturers of Landlord, shall have
any personal liability whatsoever with respect to this Lease.
35. RULES AND REGULATIONS.
Tenant will observe and comply with the "RULES AND REGULATIONS" attached
hereto as Exhibit "B" and made a part hereof and such further reasonable rules
and regulations as Landlord may prescribe, on written notice to Tenant, for the
safety, care and cleanliness of the Building, and the comfort, quietness and
convenience of other occupants of the Building.
36. PARKING.
Landlord shall have the exclusive right to regulate and control parking
areas and Tenant hereby agrees to conform to such rules and regulations as
Landlord may establish. Tenant shall have the non-exclusive use of 276
automobile spaces for free parking on the Property shown in Exhibit "A-l" for
its employees, vendors and business invitees. Tenant shall not allow more than
276 cars to be parked on the Property for employees. Landlord shall make
available to Tenant on a non-exclusive basis within sixty (60) days after prior
written notice from Tenant, twenty (20) extra parking spaces in an area no more
than 450 feet from any door of the Building, so Tenant shall have access and
non-exclusive use of a total of 376 automobile parking spaces (276 on the
Property, 80 on Extra Parking, plus 20 undesignated). Notwithstanding anything
to the contrary, Landlord shall have the right to relocate the Extra Parking
within an area 450 feet from any door of the Building in connection with the
dedication of all or any part of Xxxxxxx Court East to the City of Alpharetta.
In no event shall Landlord adopt any rule or regulation which does not apply to
all tenants, including rules and regulations providing for reserved parking
except for the Extra Parking. Landlord shall not provide reserved parking on the
Property except that up to 150 parking spaces may be reserved for tenants if
such spaces are no closer than 200 feet from the Building, provide a prorata
share of such spaces are provided to Tenant. Landlord shall not enforce any of
the rules and regulations in a manner which is discriminatory against Tenant.
37. HAZARDOUS SUBSTANCES.
(a) Tenant hereby covenants and agrees that Tenant shall not cause or
permit any "Hazardous Substances" (as hereinafter defined) to be generated,
placed, held, stored, used, located or disposed of in the Building or any part
thereof, except for Hazardous Substances as are commonly and legally used or
stored as a consequence of using the Premises for general office and
administrative purposes, but only so long as the quantities thereof do not pose
a threat to public health or to the environment or would necessitate a "response
action", as that term is defined in CERCLA (as hereinafter defined), and so long
as Tenant strictly complies or causes compliance with all applicable
governmental rules and regulations concerning the use or production of such
Hazardous Substances. For purposes of this Article 43, "Hazardous Substances"
shall mean and include those elements or compounds which are contained in the
list of Hazardous Substances adopted by the United States Environmental
Protection Agency (EPA) or the list of toxic pollutants designated by Congress
or the EPA which are defined as hazardous, toxic, pollutant, infectious or
radioactive by any other federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to or imposing liability
(including, without limitation, strict liability) or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material, as
now or at any time hereinafter in effect (collectively "Environmental Laws").
Tenant hereby agrees to indemnify Landlord and hold Landlord harmless from and
against any and all losses, liabilities, including strict liability, damages,
injuries, expenses, including reasonable attorneys' fees, costs of settlement or
judgment and claims of any and every kind whatsoever paid, incurred or suffered
by, or asserted against, Landlord by any person, entity or governmental agency
for, with respect to, or as a direct or indirect result of, the presence in, or
the escape, leakage, spillage, discharge, emission or release from, the Premises
of any Hazardous Substances (including, without limitation, any losses,
liabilities, including strict liability, damages, injuries, expenses, including
reasonable attorneys' fees, costs of any settlement or judgment or claims
asserted or arising under the Comprehensive Environmental Response, Compensation
and Liability Act ["CERCLA"], any so-called federal, state or local "Superfund"
or "Superlien" laws or any other Environmental Law); provided, however, that the
foregoing indemnity is limited to matters arising solely from Tenant's violation
of the covenant contained in this Article. The obligations of Tenant under this
Article shall survive any expiration or termination of this Lease.
(b) Landlord hereby agrees that it shall not cause any Hazardous Substances
to be released, generated, placed, held, located, stored, used or disposed of in
the Land, the Building, the Project or the Premises or any part thereof, in a
manner or quantity prohibited by federal or State of Georgia laws or regulations
at the time such materials are placed in the Building or in the Premises.
Landlord further agrees that it shall contractually prohibit its contractors
from installing, or requiring the installation of, in the Building or the
Premises and Hazardous Substances in a manner or quantity prohibited by federal
or State of Georgia laws or regulations. In the event, during the term of this
Lease, (i) the Premises is determined to contain any Hazardous Substances in a
manner or quantity prohibited by such federal or State or Georgia laws or
regulations including any Hazardous Substances which were not in violation of
such laws or regulations at the time they were placed in the Demised Premises,
(ii) the federal government or the State of Georgia requires the removal or
encapsulation of
such Hazardous Substances during the term of this Lease, and (iii) such
Hazardous Substances were not installed by Tenant or its agents, employees,
contractors or suppliers, Landlord agrees that it shall, at its sole cost and
expense, cause such remedial measures to be taken as are necessary either to
remove or (if permitted by applicable law) encapsulate such Hazardous
Substances, and that Landlord shall indemnify, defend and hold Tenant harmless
from and against any and all claims, demands, actions, causes of action or
litigation brought by any governmental agency, private party, or other entity
arising out of the conditions described in this paragraph and that the costs
related to such action shall not be considered an Operating Expense.
(c) Landlord represents and warrants that the Landlord's Property and its
existing and, to its actual knowledge, prior uses and activities thereon,
including but not limited to the use, maintenance and operation of the Premises
and all activities and conduct of business related to it, have complied with all
federal, state and local environmental laws, ordinances and regulations. The
Landlord has never received, nor to the Landlord's actual knowledge has any
prior owner or occupant ever received any notice or other communications
concerning any alleged material violation of any environmental laws or
regulations affecting the Landlord's Property. Landlord represents and warrants
that there are no underground storage tanks on the Landlord's Property.
38. FINANCIAL STATEMENTS.
Upon Landlord's written request therefor, but not more often than once per
year, Tenant shall promptly furnish to Landlord a financial statement with
respect to Tenant for its most recent fiscal year prepared in accordance with
generally accepted accounting principles and certified to be true and correct by
Tenant, which statement Landlord agrees to keep confidential and not use
except in connection with proposed sale or 1oan transactions.
39. JOINT AND SEVERAL LIABILITY.
If Tenant comprises more than one person, corporation, partnership or other
entity, the liability hereunder of all such persons, corporations, partnerships
or other entities shall be joint and several.
40. 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.
41. TENANT TAXES.
Tenant shall pay promptly when due all taxes directly or indirectly imposed
or assessed upon Tenant's gross sales, business operations, machinery,
equipment, trade fixtures and other personal property or assets, whether such
taxes are assessed against Tenant, Landlord or the Building. In the event that
such taxes are imposed or assessed against Landlord or the Building, Landlord
shall furnish Tenant with all applicable tax bills, public charges and other
assessments or impositions and Tenant shall forthwith pay the same either
directly to the taxing authority or, at Landlord's option, to Landlord.
42. DAMAGE OR THEFT OF PERSONAL PROPERTY.
All personal property brought into the Premises by Tenant, or Tenant's
employees, agents, or business visitors, shall be at the risk of Tenant only,
and Landlord shall not the liable for theft thereof or any damage thereto
occasioned by any act of co-tenants, occupants, invitees or other users of the
Building or any other person. Landlord shall not at any time be liable for
damage to any property in or upon the Premises, which results from gas, smoke,
water, rain, ice or snow which issues or leaks from or forms upon any part of
the Building or from the pipes or plumbing work of the same, or from any other
place whatsoever, except to the extent such damage is attributable to Landlord's
gross negligence or willful misconduct. Landlord shall be responsible for
repairing any damage to the common areas of the Building which results from gas,
smoke, water, rain, ice or snow which issues or leaks from or forms upon any
part of the Building or from the pipes or plumbing work of the same or from any
other place whatsoever except to the extent such damage is attributable to
Tenant's gross negligence or willful misconduct. Landlord's cost for repair of
such damage shall be submitted by Landlord to its property and casualty
insurance company for payment, provided however if payment is rejected by the
insurance company, such costs shall be included in Operating Expenses for the
Building.
43. FORCE MAJEURE.
In the event of strike, lockout, labor trouble, civil commotion, act of
God, or any other cause beyond a party's control (collectively "force majeure")
resulting in Landlord's inability to supply the services or perform the other
obligations required of Landlord hereunder, this Lease shall not terminate and
Tenant's obligation to pay Rent and all other charges and sums due and payable
by Tenant shall not be affected or excused and Landlord shall not be considered
to be in default under this Lease. If, as a result of force majeure, Tenant is
delayed in performing any of its obligations under this Lease, other than
Tenant's obligation to take possession of the Premises on or before the
Commencement Date and to pay Rent and all other charges and sums payable by
Tenant hereunder, Tenant's performance shall be excused for a period equal to
such delay and Tenant shall not during such period be considered to be in
default under this Lease with respect to the obligation, performance of which
has thus been delayed.
44. HEADINGS.
The use of headings herein is solely for the convenience of indexing the
various paragraphs hereof and shall in no event be considered in construing or
interpreting any provision of this Lease.
45. SUBMISSION OF LEASE.
The submission of this Lease does not constitute an offer to lease and this
Lease shall be effective only upon the due execution and delivery hereof by
Landlord and Tenant.
46. SPECIAL STIPULATIONS.
If the special stipulations, if any, set forth in the special stipulations
attachment to this Lease as Exhibit "E" conflict with any of the foregoing
provisions, the special stipulations shall control. Such special stipulations
are expressly incorporated herein by this reference. Exhibits referenced in this
Lease are a part of the Lease.
IN WITNESS WHEREOF, the parties hereto have herein set their hands and
seals, the day and year set forth below, effective as of the date first above
written.
TENANT:
Signed, Sealed and delivered COMPBENEFITS CORPORATION, a Delaware corporation
in the presence of;
/s/ Xxxx X. Vichiales By: /s/ Xxxxxx Xxxxxxx
----------------------------- --------------------------------------------
Witness Name: Xxxxxx Xxxxxxx
Title: Executive Vice President & CFO
Attest: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President & Secreatary
(CORPORATE SEAL) (SEAL)
Date Executed: 1/6/05
LANDLORD:
COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership
Signed, Sealed and delivered By: Colonial Properties Trust
in the presence of: Its: General Partner
/s/ illegible By: /s/ illegible
----------------------------- --------------------------------------------
Witness Title:
-----------------------------------------
Date Executed: 1-7-05
17
EXHIBIT A
PREMISES
4TH Floor
(FLOOR PLAN)
(COLONIAL PROPERTIES TRUST LOGO)
EXHIBIT A
PREMISES
5TH Floor
(FLOOR PLAN)
(COLONIAL PROPERTIES TRUST LOGO)
EXHIBIT A
PREMISES
1st Floor
(FLOOR PLAN)
(COLONIAL PROPERTIES TRUST LOGO)
EXHIBIT M-1
(FLOOR PLAN)
(XXXXXXX OVERLOOK LOGO)
EXHIBIT "B"
RULES AND REGULATIONS
1. Sidewalks and public portions of the Building, such as entrances, passages,
courts, elevators, vestibules, stairways, corridors or halls, shall not be
obstructed or encumbered by Tenant or used for any purpose other than
ingress and egress to and from the Premises.
2. No curtains, blinds, shades, louvered openings or screens shall the
attached to or hung in, or used in connection with, any window or door of
the Premises, without the prior written consent of Landlord. The sashes,
sash doors, skylights, windows, heating, ventilating and air conditioning
vents and doors that reflect or admit light and air into the halls,
passageways or other public places in the Building shall not be covered or
obstructed by Tenant, nor shall any bottles, parcels or other articles be
placed on the window xxxxx.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
Premises or Building or on corridor walls. Signs on entrance door or doors
shall conform to Building standard signs. Signs on doors shall, at Tenant's
expense, be inscribed, painted or affixed by sign makers approved by
Landlord. Landlord may, if Tenant violates this provision, remove same
without any liability, and any expense incurred in such removal shall be
payable by Tenant.
4. Water closets and other plumbing fixtures shall be used in a proper and
safe manner. No sweepings, rubbish, rags or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures by,
through or under Tenant shall be borne by Tenant.
5. Tenant shall not deface the Premises or Building. Tenant shall lay
linoleum, or other similar floor covering, so that the same shall come in
direct contact with the floor of the Premises, and, if linoleum or other
similar floor covering is used, an interlining of builders deadening felt
shall be first affixed to the floor by a paste or other material, soluble
in water. The use of cement or other similar adhesive material for such
purpose is prohibited.
6. No bicycles, vehicles or animals (except seeing eye dogs) shall be brought
into or kept in or about the Premises. No cooking shall be done or
permitted by Tenant on the Premises except in conformity with law and then
only in the utility kitchen, if any, as set forth in Tenant's layout, which
is to be used by Tenant's employees and guests for heating beverages and
light snacks. Tenant shall not cause or permit any unusual or objectionable
odors to be produced upon or permeate from the Premises.
7. No portion of the Premises, Building or Park shall be used for
manufacturing or distribution, or for the sale of merchandise, goods or
property.
8. Tenant shall not make, or permit to be made, any disturbing noises or
disturb or interfere with occupants of the Building or neighboring
buildings or premises or those having business with them.
9. Neither Tenant, nor any of Tenant's agents, employees, contractors,
licensees or invitees, shall at any time put up or operate fans or
electrical heaters or bring or keep upon the Premises inflammable,
combustible or explosive fluid, or chemical substance, other than
reasonable amounts of cleaning fluids or solvents required in the normal
operation of Tenant's business offices. No offensive gases or liquids will
be permitted. Tenant may install fans in its computer room to cool
equipment in case of HVAC outages.
10. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by Tenant, nor shall any changes be made in existing locks
or the mechanism thereof, without the prior written approval of Landlord
and unless and until a duplicate key is delivered to Landlord. Tenant
shall, upon termination of its tenancy, restore to Landlord all keys of
stores, offices and toilet rooms, either furnished to, or otherwise
procured by, Tenant. Tenant shall pay to Landlord the cost of any
replacement keys. The equivalent of one key for each approximately 2,000
square feet will be furnished to tenants without charge. Tenants shall not,
under any circumstances, have any duplicate keys made.
11. All moves in or out of the Premises, or the carrying in or out of any
safes, freight, furniture or bulky matter of any description, must take
place during the hours which Landlord determines for such activity from
time to time. Only the Building freight elevator shall be used for such
purposes. Tenant will ensure that movers take necessary measures required
by Landlord to protect the Building (e.g., windows, carpets, Walls, doors
and elevator cabs) from damage. Landlord reserves the right to inspect all
freight to be brought into the Building and to exclude from the Building
all freight which violates these Rules or the Lease.
12. Tenant shall not place any furniture, accessories or other materials on any
balconies located within or adjacent to the Premises without having
obtained Landlord's express written approval thereof in each instance.
13. Landlord shall have the right to prohibit advertising by Tenant which in
Landlord's opinion tends to impair the reputation of the Building or its
desirability as a building for offices. Upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
14. Landlord reserves the right to exclude from the Building at all times other
than business hours all persons who do not present a pass to the Building
signed by Tenant. Tenant shall be responsible for all persons to whom it
issues such a pass and shall be liable to Landlord for all acts of such
persons.
15. The Premises shall not be used for lodging or sleeping.
16. Landlord shall respond to Tenant service requests only after application at
the management office for the Building.
17. Canvassing, soliciting and peddling in the Building are prohibited, and
Tenant shall cooperate to prevent the same.
18. There shall not be used in any space, or in the public halls of the
Building, either by Tenant or by its jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards. No hand trucks, mail carts or mail bags shall be
used in passenger elevators.
19. All paneling or other wood products not considered furniture shall be of
fire retardant materials. Before installation of such materials,
certification of the materials' fire retardant characteristics shall be
submitted to Landlord, in a manner satisfactory to Landlord.
20. Tenant shall not employ any persons other than the janitors retained by
Landlord (who will be provided with pass-keys into the offices) for the
purpose of cleaning the Premises. Landlord shall not be responsible to
Tenant for any loss of property from the Premises, or for any damage done
to furniture or other effects of Tenant by the janitor or any of its
employees. Landlord agrees to cooperate with Tenant in its pursuit of any
claim resulting from damages due to theft or negligence of any janitor or
its employees.
21. No painting shall be done, nor shall any alterations be made, to any part
of the Building by putting up or changing any partitions, doors or windows,
nor shall there be any nailing, boring or screwing into the woodwork or
walls, nor shall any connection be made to the electric wires or electric
fixtures, without the consent in writing on each occasion of Landlord. No
sunscreen or other films shall be applied to the interior surface of any
window glass. All glass, locks and trimmings in or upon the doors and
windows of the Building shall be kept whole, and when any part thereof
shall be broken, the same shall be immediately replaced or repaired and put
in order at Tenant's expense under the direction and to the satisfaction
of Landlord, and shall be left whole and in good repair.
22. Landlord will post on the Building directories one name only for Tenant at
no charge. All additional names which Tenant shall desire put upon said
directories must be first consented to by Landlord, and if so approved, a
charge to Tenant will be made for each additional listing as prescribed by
Landlord to be paid to Landlord by Tenant.
23. Landlord reserves all vending rights, and in no event shall any vending
machines be visible from the exterior of the Premises. Request for such
service will be made to Landlord.
24. Parking facilities for the Building, if any, shall be used by vehicles that
may occupy a standard parking area only. The use of such parking facilities
shall be limited to normal business parking and shall not be used for
overnight parking. Landlord's reserved, visitor and handicap parking policy
is as follows:
Colonial Properties is continuously striving to create an excellent
work environment for all of its clients and their employees. In an
effort to decrease the misuse of the reserved, visitor and handicap
spaces, we will be implementing a system wherein our day time security
officer will be monitoring these spaces closely and tagging them
should they be in violation. We have found that repeated offenders are
parking in these areas on a daily basis. This causes an inconvenience
to true Colonial Center visitors, who might need to park for only 1 or
2 hours at a time. I am enclosing a copy of the tags that will be
used. They will list the automobile's information as well as time,
date, location and will strictly serve as a reminder to not violate
the, designated parking spaces. Please note that the tag will not
cause damage to the window nor will it be placed in an area that will
block the driver's view of the road. It can be easily removed and has
been chosen to get its point across without offending. We hope that
you will help us in trying to make the visitor parking areas
friendlier for your visitors. We understand that this is a joint
effort and would appreciate your feedback and help in implementing
this new procedure.
Should you have any questions or concerns, please feel free to contact
our office at 000-000-0000.
25. Smoking shall only be permitted in such areas as Landlord may from time to
time designate. Landlord shall have the right, but not the obligation, to
designate an area or areas inside or outside buildings in the Park as
"Designated Smoking Areas." Landlord shall have the right 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.
Tenant 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 Premises or the Park. 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 Rule in
the amount of $25.00 for the first violation, $50.00 for the second
violation, and $100.00 for each subsequent violation. 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.
26. Landlord reserves the right to modify or delete any of the foregoing Rules
and 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 Premises and Property, and for the preservation of good
order therein. Landlord shall not be responsible to any tenant for the
non-observance, or violation, of any of these Rules by other tenants.
27. Landlord shall enforce all above rules and regulations in a
non-discriminatory basis.
EXHIBIT "C"
OPERATING EXPENSES
"Operating Expenses" shall mean tie operating costs and expenses
attributable to Landlord's Property, as hereinafter defined, and delineated as
follows:
1. Costs and expenses paid or incurred by Landlord for the maintenance and
repair of the Building, its grounds, and parking areas and facilities
(hereinafter called "LANDLORD'S PROPERTY") and the personal property used in
connection therewith, including but not limited to (i) the heating, ventilating
and air-conditioning equipment, (ii) plumbing, electrical and mechanical systems
and equipment, (iii) light bulbs and broken glass, including replacement
thereof, (iv) all supplies, tools, equipment and materials used in the
operation, management, maintenance and access control of Landlord's Property,
and (v) elevators and escalators;
2. Cost of all maintenance and service agreements for Landlord's property
and the equipment therein, including, but not limited to, security service,
garage operators, window cleaning, elevator maintenance, HVAC maintenance,
janitorial service, landscaping maintenance and customary landscaping
replacement;
3. Utility costs and expenses including, but not limited to, those for
electricity, gas, steam, other fuels and forms of power or energy, water
charges, sewer and waste disposal, heating and air conditioning;
4. Costs and expenses of redecorating, painting and carpeting the common
areas;
5. Costs of all repairs, alterations, additions, changes, replacements and
other items required by any law or governmental regulation, or by any insurance
carrier, imposed or arising out of an interpretation made or issued after the
date of this Lease, regardless of whether such costs, when incurred, are
classified as capital expenditures, provided that such costs will be amortized
by Landlord over their useful life;
6. Costs of wages and salaries of all persons at the level of Market
Officer and below engaged in the operation, maintenance, repair and security of
Landlord's Property, and so-called fringe benefits, including social security
taxes, unemployment insurance taxes, costs for providing coverage for disability
benefits, costs of any pensions, hospitalization, welfare or retirement plans,
or any other similar or like expense, costs of uniforms, and all other costs or
expenses that Landlord pays to or on behalf of employees engaged in the
operation, maintenance, repair and security of Landlord's Property;
7. Legal and accounting expenses incurred by Landlord in connection with
the management, maintenance, operation and repair of Landlord's property,
including, but not limited to, such expenses as relate to seeking or obtaining
reductions in and/or refunds of real estate taxes;
8. Amortization, with interest, of capital expenditures for capital
improvements made by Landlord after completion of the Building where such
capital improvements are for the purpose of reducing Operating Expenses,
promoting safety, or complying with governmental requirements;
9. Landlord's insurance costs and expenses for all types of insurance
carried by Landlord applicable to Landlord's Property;
10. Security service costs and expenses;
11. Management fees and expenses;
12. Taxes, which shall mean (i) personal property taxes (attributable to
the year in which paid) imposed upon the furniture, fixtures, machinery,
equipment, apparatus, systems and appurtenances used in connection with
Landlord's Property for the operation thereof, and (ii) real estate taxes,
assessments, community improvement district taxes and fees, sewer rents, rates
and charges, transit taxes, taxes based upon the receipt of rent and any other
federal, state or local governmental charge, general, special, ordinary or
extraordinary (but not including income or franchise taxes or any other taxes
imposed upon or measured by Landlord's income or profits,
unless the same shall be imposed in lieu of real estate taxes) which may now or
hereafter be levied or assessed against Landlord's Property, any other
improvements hereinafter constructed on Landlord's Property, or the rents
derived from Landlord's Property and such other improvements (in case of special
taxes or assessments which may be payable in installments, only the amount of
each installment paid during a calendar year shall be included in Operating
Expenses for that year);
13. The Building's pro rata share of expenses incurred for the operation
and maintenance of, and taxes and assessments assessed against, the common areas
of Landlord's Property and the Park; or any portion thereof;
14. Such other expenses paid by Landlord, from time to time, in connection
with the operation and maintenance of Landlord's Property as would be expected
to be paid by a reasonable and prudent operator and manager of a building and
site comparable to Landlord's Property;
15. The cost of conducting air quality audits, and any costs incurred
arising out of or in connection with any recommendations made in any such
audits;
16. The reasonable cost of operating the management office for the Building
(and if such management office also serves any other building, such costs shall
be allocated among such buildings on a per square foot basis), including the
cost of office supplies, bulletins or newsletters distributed to tenants,
postage, telephone expenses, maintenance and repair of office equipment,
non-capital investment equipment, amortization (and reasonable financing
charges) of the cost of capital investment equipment, and rent; and
17. The cost of any bus shuttle or other transportation system or equipment
operated for the benefit of users of the Park.
Tenant acknowledges that the Building is part of a development, which will
or may include other improvements and that certain of the cost of management,
operation and maintenance of the development shall, from time to time, be
allocated among and shared by two (2) or more of the improvements in the
development (including the Building). The termination of such cost and their
allocation shall be made by Landlord in its sole but reasonable discretion.
Accordingly, the term "Operating Expenses" as used in this Lease shall, from
time to time, include some cost, expenses and taxes enumerated above which were
incurred with respect to other improvements in the development but which were
allocated to and shared by the Building in accordance with the foregoing.
Notwithstanding the foregoing, Tenant understands and agrees that its right to
use other portions of the development of which the Building is a part are those
available to the general public and that this Lease does not grant Tenant
additional rights of use.
EXHIBIT "D"
WORK AGREEMENT
1. THE WORK. Under the Lease, Tenant has agreed to accept the Premises "as is",
without any obligations for the performance of improvements or other work by
Landlord, and Tenant desires to perform certain improvements thereto (the
"Work"). Such Work shall be in accordance with the provisions of this Work
Agreement, and to the extent not expressly inconsistent herewith, in accordance
with the provisions of the Lease, including without limitation, Paragraph 13
thereof. Performance of the Work shall not serve to xxxxx or extend the time for
the commencement of Rent under the Lease, except to the extent Landlord delays
approvals beyond the times permitted below.
2. COST OF THE WORK. Except as provided hereinafter, Tenant shall pay all costs
(the "Costs of Work") associated with the Work whatsoever, including without
limitation, all permits, inspection fees, fees of space planners, architects,
engineers, and contractors, utility connections, the cost of labor and
materials, bonds, insurance, and any structural or mechanical work, additional
HVAC equipment or sprinkler heads, or modifications to any building mechanical,
electrical, plumbing or other systems and equipment or relocation of any
existing sprinkler heads, either within or outside the Premises required as a
result of the layout, design, or construction of the Work.
Of the Costs of the Work, Landlord shall reimburse Tenant in the amount of
$13.77 per square foot of rentable area of the Premises (the "Improvement
Allowance"). Landlord shall fund the Improvement Allowance in installments, not
more frequently than monthly, based on applications (as approved by Tenant's
architect) for payment and releases of lien rights, submitted by Tenant on an
AIA standard form for use by contractors requesting progress payments, together
with such lien releases and affidavits of payments by Tenant's general
contractor and subcontractors contemplated therein, and such other documentation
as Landlord may reasonably require. Within fifteen (15) Working Days following
Landlord's receipt of the aforedescibed application for payment and all
affidavits, lien releases and other documentation required by this paragraph,
Landlord will pay Tenant the amount of the installment of the Improvement
Allowance requested.
Any unused allowance may be used by Tenant only for voice data cabling,
supplemental HVAC equipment costs, custom signage, retractable screens,
generator equipment upgrades, vinyl "wall talker" wall covering, and any other
actual fixed improvements to the Premises.
Xxxxxx Management Services, on behalf of Landlord, shall provide
construction management services to Tenant to assure maximum efficiency in the
design, minimum build-out costs and timely move-in of the Premises for a fee of
two percent (2%) of the cost to complete the improvements. The construction
management service will include the coordination of the design, bidding and
build-out (including punchlist administration) of the Premises. All work shall
be competitively bid to at least three (3) general contractors.
3. SPACE PLAN AND SPECIFICATIONS. Landlord shall, within ten (10) Working Days
(as described in Section 15 hereof) after receipt of Tenant's Space Plan, either
approve said Space Plan, or disapprove the same advising Tenant of the reasons
for such disapproval in specific detail. In the event Landlord disapproves said
Space Plan, Tenant shall modify the same, taking into account the reasons given
by Landlord for said disapproval, and shall submit two sets of the revised Space
Plan to Landlord as soon as reasonably practical after receipt of Landlord's
initial disapproval. This process shall continue until Landlord has approved the
Space Plan.
4. WORKING DRAWINGS AND ENGINEERING REPORT.
(a) No later than twenty (20) Working Days after receipt of Landlord's
approval of the Space Plan, Tenant shall submit to Landlord for approval two (2)
sets of "Working Drawings" (as defined in Section 15), and a report (the
"Engineering Report") from Tenant's mechanical, structural and electrical
engineers indicating any special heating, cooling, ventilation, electrical,
heavy load or other special or unusual requirements of Tenant.
(b) Landlord shall, within twenty (20) Working Days after receipt thereof,
either approve the Working Drawings and Engineering Report, or disapprove the
same specifically advising Tenant of the reasons for disapproval. If Landlord
disapproves of the Working Drawings or Engineering Report, Tenant shall modify
and submit revised Working Drawings, and a revised Engineering Report, taking
into account the reasons given by Landlord for disapproval, as soon as
reasonably practical after receipt of Landlord's initial disapproval. This
process shall continue until Landlord has approved the Working Drawings and
Engineering Report.
5. LANDLORD'S APPROVAL. Landlord shall not unreasonably withhold approval of any
Space Plans, Working Drawings, or Engineering Report submitted hereunder if they
provide for a customary office layout, with finishes and materials generally
conforming to building standard finishes and materials currently being used by
Landlord at the Building, are compatible with the Building's shell and core
construction, and if no material modifications will be required for the
Building's electrical, heating, air conditioning, ventilation, plumbing, fire
protection, life safety, or other systems or equipment, and will not require any
structural modifications to the Building, whether required by heavy loads or
otherwise. Landlord will not object to Tenant's use of a ceiling grid without
ceiling tiles or Building standard lighting fixtures.
6. SPACE PLANNERS, ARCHITECTS, ENGINEERS, AND CONTRACTORS. The Space Plan,
Working Drawings, Engineering Report and the Work, shall be prepared by
Xxxxxxxxx Xxxxxx, Inc., who will work in harmony with each other and those
advisors of Landlord so as to ensure proper maintenance of good labor
relationships, and in compliance with all applicable labor agreements existing
between trade unions and the relevant chapter of the Association of General
Contractors of America.
7. CHANGE ORDERS. No material changes, modifications, alterations or additions
to the approved Space Plan or Working Drawings may be made without the prior
written consent of the Landlord after written request therefor by Tenant.
Landlord will approve (or disapprove with detailed explanation) any change order
submitted in writing by Tenant within two (2) Working Days following receipt.
For the purpose of this Paragraph, the term "material" shall mean any change
with an associated cost in excess of $5,000.00. In the event that the Premises
are not constructed in accordance with said approved Space Plan and Working
Drawings, then Tenant shall not be permitted to occupy the Premises until the
Premises reasonably comply in all respects with said approved Space Plan and
Working Drawings; in such case, the rental shall nevertheless commence to accrue
and be payable as otherwise provided in the Lease.
8. COMPLIANCE. The Work shall comply in all respects with the following: (a) the
Building Code of the City and State in which the Building is located and State,
County, City or other laws, codes, ordinances and regulations, as each may apply
according to the rulings of the controlling public official, agent or other such
person, (b) applicable standards of the National Board of Fire Underwriters and
National Electrical Code, and (c) building material manufacturer's
specifications. Landlord represents and warrants that as of the date hereof, the
Premises and the Building comply in all respects with (a), (b) and (c) of the
previous sentence, provided however Landlord's representation and warranty does
not include the Work.
9. GUARANTEES. Each contractor, subcontractor and supplier participating in the
Work shall guarantee that the portion thereof for which he is responsible shall
be free from any defects in workmanship and materials for a period of not less
than one (1) year from the date of completion thereof. Every such contractor,
subcontractor, and supplier shall be responsible for the replacement of repair,
without additional charge, of all work done or furnished in accordance with its
contract which shall become defective within one (1) year after completion
thereof. The correction of such work shall include, without additional charge,
all additional expenses and damages in connection with such removal or
replacement of a11 or any part of the Work, and/or Landlord's Property and/or
common areas, or work, which may be damaged or disturbed thereby. All such
warranties or guarantees as to materials or workmanship of or with respect to
the Work shall be contained in the contract or subcontract which shall be
written such that said warranties or guarantees shall inure to the benefit of
both Landlord and Tenant, as their respective interests may appear, and can be
directly enforced by either. Tenant covenants to give Landlord any assignment or
other assurances necessary to affect such right of direct enforcement. Copies of
all contracts and subcontracts shall be furnished to Landlord promptly after the
same are entered.
10. PERFORMANCE. (Intentionally Deleted)
11. INSURANCE. All contractors and sub-contractors shall carry Worker's
Compensation Insurance covering all of their respective employees in the
statutory amounts, Employer's Liability Insurance in the amount of $500,000 per
occurrence, and comprehensive general liability insurance in the amount of at
least $3,000,000 combined single limit for bodily injury, death, or property
damage; and the policies therefore shall cover Landlord and Tenant, as
additional insureds, as well as the contractor or subcontractor. Tenant shall
carry builder's risk insurance coverage respecting the construction and
improvements to be made by Tenant, in the amount of the anticipated cost of
construction of the Work (or any guaranteed maximum price). All insurance
carriers shall be rated at least A and X in Best's Insurance Guide. Certificates
for all such insurance shall be delivered to Landlord before the construction is
commenced or contractor's equipment is moved onto Landlord's Property. All
policies of insurance must require that the carrier give Landlord twenty (20)
days' advance written notice of any cancellation or reduction in the amounts of
insurance. In the event that during the course of Tenant's Work any damage shall
occur to the construction and improvements being made by Tenant, then Tenant
shall repair the same at tenant's cost.
12. SIGNAGE. Tenant shall continue to have the use of the monument sign on
Xxxxxxx Road for the Building as it exists on the Effective Date.
13. LIENS. Tenant shall keep the Building and Premises free from any mechanic's,
materialmen's or similar liens or other such encumbrances in connection with the
Work, and shall indemnify and hold Landlord harmless from and against any
claims, liabilities, judgments, or costs (including reasonable attorney's fees)
arising in connection therewith. Tenant shall give Landlord notice at least
twenty (20) days prior to the commencement of the Work (or such additional time
as may be necessary under applicable laws), to afford Landlord the opportunity
of posting and recording appropriate notices of non-responsibility. Tenant shall
remove any such lien or encumbrance by bond or otherwise within thirty (30) days
after written notice by Landlord, and if Tenant shall fail to do so, Landlord
may pay the amount necessary to remove such lien or encumbrance by bond or
otherwise, without being responsible for investigating the validity thereof, but
in no event shall Landlord pay the lien claimant. The amount paid shall be
deemed additional rent under the Lease payable upon demand, without limitation
as to other remedies available to Landlord under the Lease. Nothing contained
herein shall authorize Tenant to do any act which shall subject Landlord's title
to Landlord's Property or Premises to any liens or encumbrances whether claimed
by operation of 1aw or express or implied contract. Any claim to a lien or
encumbrance upon Landlord's Property or Premises arising in connection with the
Work shall be null and void, or at Landlord's option shall attach only against
Tenant's interest in the Premises and shall in all respects be subordinate to
Landlord's title to Landlord's Property and Premises.
14. INDEMNITY. (Intentionally Deleted)
15. CERTAIN DEFINITIONS.
(a) "Space Plan" herein means a floor plan, drawn to scale, showing: (1)
demising wall, corridor doors, interior partition walls and interior doors,
including any special walls, glass partitions or special corridor doors, (2) any
restrooms, kitchens, computer rooms, file rooms, and other special purpose
rooms, and any sinks or other plumbing facilities, or other special facilities
or equipment, (3) any communications system, indicating telephone and computer
outlet locations, and (4) any other details or features required to reasonably
delineate the Work to be performed.
(b) "Working Drawings" herein means fully dimensioned architectural
construction drawings and specifications, and any required engineering drawings
(including mechanical, electrical, plumbing, air-conditioning, ventilation and
heating), and shall include any applicable items described above for the Space
Plan, and if applicable: (1) electrical outlet locations, circuits and
anticipated usage therefore, (2) reflected ceiling plan, including lighting,
switching, and any special ceiling specifications, (3) duct locations for
heating, ventilating and air-conditioning equipment, (4) details of all
millwork, (5) dimensions of all equipment and cabinets to be built in, (6)
furniture plan showing details of space occupancy, (7) keying schedule, (8)
lighting arrangement, (9) location of print machines, equipment in lunch rooms,
concentrated file and library loadings and any other equipment or systems (with
brand names wherever possible) which require special consideration relative to
air-conditioning, ventilation, electrical, plumbing, structural, fire
protection, life -fire-safety system, or mechanical systems, (10) special
heating, ventilating and air-conditioning equipment and requirements, (11)
weight and location of heavy equipment, and anticipated loads for special usage
rooms, (12) demolition plan, (13) partition construction plan,
(14) type and color of floor and wall coverings, wall paint and other finishes,
and any other details or features required to completely delineate the Work to
be performed.
(c) "Working Days" stall mean the period from 9:00 A.M. until 5:00 P.M. on
any Monday through Friday, excluding federal and Georgia state holidays. By way
of illustration, any period described in this Agreement as expiring at the end
of the third (3rd) Working Day after receipt of a document, then: (i) if receipt
occurs at 9:01 A.M. on Monday, said period shall expire at 5:00 P.M. on the
following Thursday; and (ii) if receipt occurs at 4:59 P.M. on Wednesday, the
period shall expire at 5:00 P.M. on the following Monday.
16. TAXES. Tenant shall pay prior to delinquency all taxes, charges or other
governmental impositions (including without limitation, any real estate taxes or
assessments, sales tax or value added tax) assessed against or levied upon
Tenant's fixtures, furnishings, equipment and personal property located in the
Premises. Whenever possible, Tenant shall cause all such items to be assessed
and billed separately from the property of Landlord. In the event any such items
shall be assessed and billed with the property of Landlord, Tenant shall pay its
share of taxes, charges or other governmental impositions to Landlord within
thirty (30) days after Landlord delivers a statement and a copy of the
assessment or other documentation showing the amount of such impositions
applicable to Tenant.
17. INCORPORATED INTO THE LEASE; DEFAULT. THE PARTIES AGREE THAT THE PROVISIONS
OF THIS WORK AGREEMENT ARE HEREBY INCORPORATED BY THIS REFERENCE INTO THE LEASE
FULLY AS THOUGH SET FORTH THEREIN. In the event of any express inconsistencies
between the Lease and this Work Agreement, the Work Agreement shall govern and
control. If the Tenant shall default under this Work Agreement, Landlord may
order that all Work being performed in the Premises he stopped immediately, and
that no further deliveries to the Premises be made, until such default is cured,
without limitation as to Landlord's other remedies. Any amounts payable by
Tenant to Landlord hereunder shall be paid as additional rent under the Lease.
Any default by the other party hereunder shall constitute a default under the
Lease and shall be subject to the remedies and other provisions applicable
thereto under the Lease. If Tenant shall default under the Lease or this Work
Agreement and fail to cure the same within the time permitted for cure under the
Lease, at Landlord's option, all amounts paid or incurred by Landlord towards
the Improvement Allowance shall become immediately due and payable as additional
Rent under the Lease.
EXHIBIT "E"
SPECIAL STIPULATIONS
1. Termination of Existing Lease.
All rights and obligations of Landlord and Tenant under the Lease Agreement
dated December 22,1995, as subsequently amended (the "Prior Lease"), shall
terminate as of the Effective Date.
2. Right of First Refusal.
(a) Landlord and Tenant acknowledge that there is currently approximately
9,338 rentable square feet of office space adjacent to the Premises in the
Building (hereinafter the "First Refusal Space"), as demarcated on Exhibit "G"
to this Lease as the "First Refusal Space". Landlord acknowledges that Tenant
may wish to expand the Premises and lease a portion or portions of the First
Refusal Space. Tenant, however, acknowledges that Landlord must be in a position
to lease the First Refusal Space to other tenants. In order to accommodate
Tenant's desires regarding the First Refusal Space and Landlord's requirement
for future leasing of the First Refusal Space, provided Tenant has not assigned
or subleased any portion of the Premises, Landlord grants to Tenant the right of
first refusal to lease the First Refusal Space in accordance with the terms and
conditions contained herein. If Tenant has not assigned or subleased any portion
of Premises and Landlord provides a written offer to a prospective tenant to
lease all or any portion of the First Refusal Space, then Landlord shall submit
to Tenant in writing all of the material terms and conditions of such offer to
lease (hereinafter referred to as the "Offer") and Tenant shall have the right
and option to lease the First Refusal Space covered by the Offer upon the same
monetary terms and conditions, including any offer of free rent and leasehold
improvement allowances, as embodied in the copy of such Offer submitted to
Tenant by Landlord, but upon the same terms and conditions as this Lease and for
a term expiring as of the date of the expiration of this Lease. In the event the
remaining months in the Term or any extension thereof, are less than the number
of months in the term embodied in the Offer, then such free rent and leasehold
improvement allowances shall be reduced to the amounts that bear the same ratio
to the free rent and leasehold improvement allowances embodied in the Offer as
the remaining months in the Lease Term bears to the number of months of the term
embodied in the Offer. If Tenant shall elect to exercise its right to lease the
First Refusal Space covered by the Offer, written notice of such election shall
be given to Landlord within seven (7) business days from the time that Tenant
first received a copy of the Offer from Landlord (hereinafter referred to as the
"Offer Period"), which notice by Tenant shall specify a date that Tenant shall
lease the space covered by the Offer, which date shall be not less than thirty
(30) nor more than ninety (90) days after the giving of notice thereof.
(b) Upon the exercise of its right to lease the First Refusal Space covered
by the Offer, Landlord and Tenant shall enter into a written agreement modifying
and supplementing this Lease and specifying that the First Refusal Space is a
part of the Premises and under this Lease and containing other appropriate terms
and provisions relating to the addition of such area to this Lease, including,
without limitation, increasing, adjusting or augmenting Rent as a result of the
addition of such space.
(c) If a right to lease pursuant to this Section shall not be exercised
within the Offer Period or shall be waived (no notice is deemed to be a waiver
of such right), then Landlord shall have the right to offer such space to the
prospective tenant, and if such transaction is consummated, Tenant's rights
under this Section shall automatically terminate and be of no further force or
effect. If a right to lease pursuant to this Section shall not be exercised
within the Offer Period or shall be waived (no notice is deemed to be a waiver
of such right), and Landlord fails to lease the space covered by the Offer
within six (6) months after Landlord's submission of a copy of the Offer to
Tenant, then this Section shall be applicable to any subsequent offer to lease
the First Refusal Space or any portion thereof.
(d) Notwithstanding the foregoing right of first refusal and any other
provision of this Lease to the contrary, such right of first refusal is
conditioned upon (i) this Lease being in full force and effect and there being
no default under this Lease and no previous default hereunder by Tenant on more
than two (2) occasions for which Landlord has provided notice to Tenant, and
(ii) some portion of the First Refusal Space covered by the
Offer being adjacent to the Premises. If Tenant fails to exercise the foregoing
right of first refusal as provided in and in strict accordance with the terms of
this Section, or if conditions (i) and (ii) in this subsection (d) are not
entirely satisfied, the foregoing right of first refusal shall automatically
terminate and be of no further force or effect, or if exercised, shall be null
and void.
(e) Tenant shall not have the right to assign its right of first refusal to
any sublessee of the Premises or any portion thereof or to any assignee of this
Lease, nor may any such sublessee or assignee exercise or enjoy the benefit of
such right of first refusal.
(f) Notwithstanding any other term or provision of this Section or
elsewhere in this Lease, expressed or implied, it is understood and agreed by
Tenant that (i) one or more existing tenants of the Project (together with their
respective assignees, successors or assigns, hereinafter collectively referred
to as the "Existing Tenants") may elect to renew or have certain expansion
options, rights to lease and rights of first refusal with respect to space in
the Building, including, without limitation, the First Refusal Space, (ii) the
rights and interests in and to the First Refusal Space and all portions thereof
granted by Landlord to Tenant in this Section are, in all respects, subject and
subordinate to all such elections, options and rights of the Existing Tenants
and may be wholly or partially rendered void and of no effect by such elections,
options and rights, (iii) Landlord shall not be liable for the failure or
inability of Tenant to exercise or benefit from any or all rights granted in
this Section with respect to said First Refusal Space or any portion thereof by
reason of such superior elections, rights and options of the Existing Tenants,
and (iv) Tenant shall not be entitled to any compensation, consolation,
consideration, replacement of such space, or any other remedy from or against
Landlord by reason of such failure or inability.
3. Renewal Option.
(a) As long as Tenant is not in default in the performance of its covenants
under this Lease, Landlord shall grant Tenant the option to renew (the "Renewal
Option") the term of this Lease for a period of sixty (60) additional months
(the "Renewal Term"). Tenant shall exercise the Renewal Option by delivering
written notice of such election to Landlord at least nine (9) months prior to
the expiration of the initial term of this Lease. The renewal of this Lease
shall be upon the same terms and conditions of this Lease, except (i) the Base
Rental Rate during the Renewal Term shall be the then current market rental rate
for renewals of similar Class "A" buildings in the Alpharetta area, taking into
account tenant improvements and concessions, (ii) Tenant shall have no option to
renew this Lease beyond the expiration of the Renewal Term, and (iii) Tenant
shall not have the right to assign its renewal rights to any sublessee of fhe
Premises or any portion thereof or to any assignee of the Lease, nor may any
such sublessee or assignee exercise or enjoy the benefit of such renewal rights.
Notwithstanding the foregoing, Tenant shall have no right to exercise such
option to renew, and Landlord shall have no obligation to renew this Lease,
unless (A) this Lease shall be in full force and effect upon the date of the
exercise of the Renewal Option and upon the date of the expiration of the
original term, and (B) on the date of the exercise of the Renewal Option and on
the date of the expiration of the original term there shall exist no current
default on the part of Tenant under this Lease. If Tenant shall fail to exercise
the Renewal Option within the time permitted or conditions (A) and (B) set forth
above are not entirely satisfied, the Renewal Option shall automatically
terminate, this Lease shall expire at the expiration of the original term and
Tenant shall have no further right thereafter to renew this Lease or to acquire
any interest whatsoever in the Premises. If Tenant shall remain in possession of
the Premises after the expiration of the original term without there having been
executed between Landlord and Tenant an amendment to this Lease as contemplated
by the terms of this Section, then Tenant shall be a Tenant holding over as
provided in this Lease.
(b) Whenever used in this Renewal Option, the term "Market Base Rental
Rate" shall mean the annual amount per rentable square foot that Landlord is
then quoting as base rent to existing third party tenants who are renewing
leases within the Building, for space comparable to the space for which the
Market Base Rental Rate is being determined (taking into consideration use,
location and/or floor level within the applicable building, leasehold
improvements provided, remodeling credits or allowances granted, quality, age
and location of the applicable building, rental concessions [such as abatements
or lease assumptions], the provision of free or paid unassigned parking, the
time the particular rate under consideration became effective, size of tenant,
relative operating expenses, relative services provided, etc.). It is agreed
that written offers to lease comparable space located elsewhere in the Building
may be used by Landlord as an indication of Market Base Rental Rate.
(c) In the event Tenant disagrees with Landlord's determination of such
Market Base Rental Rate, then within no more than fifteen (15) days after Tenant
receives Landlord's written determination of such rate Tenant shall give
Landlord notice of its desire to arbitrate such rate, which notice shall be
accompanied by the identity of an arbitrator appointed by Tenant. Thereafter,
Landlord shall have fifteen (15) days in which to appoint its arbitrator, and
within fifteen (15) days after the appointment of Landlord's arbitrator the two
arbitrators theretofore appointed shall appoint a third arbitrator. If the two
arbitrators cannot agree on the appointment of a third arbitrator within fifteen
(15) days, then either party shall have the right to apply to the presiding
judge of the Superior Court of Xxxxxx County, Georgia for the selection of the
third arbitrator. After the appointment of such third arbitrator, the
arbitration board thus elected shall have thirty (30) days in which to reach a
majority agreement on the Market Base Rental Rate as defined above, which
determination shall be final and binding upon the parties hereto. If the
arbitrators are unable to reach a majority agreement within such thirty (30) day
period, then each of the arbitrators shall render his or her separate appraisal
within such stipulated time, and the three appraisals shall be averaged in order
to establish such rate; provided, however, that if the low appraisal and/or the
high appraisal are more than ten percent (10%) lower and/or higher than the
middle appraisal, the low appraisal and/or the higher appraisal shall be
disregarded. If only one appraisal is disregarded, the remaining two appraisals
shall be averaged in order to establish such rate. If both the low appraisal and
the high appraisal are disregarded, the middle appraisal shall establish such
rate. After the Market Base Rental Rate has been established, the arbitrators
shall immediately notify the parties in writing. Each arbitrator appointed
hereunder shall be a member of the American Institute of Real Estate Appraisers
(MAI) with at least five (5) years of full-time commercial appraisal experience
in the Atlanta area, and no such arbitrator shall have any other existing
contractual relationship with either party hereto. Landlord and Tenant shall pay
the fees of their respectively appointed arbitrators and the fee of the third
arbitrator shall be shared equally by Landlord and Tenant. In the event Base
Rental is to be paid in accordance with the Market Base Rental Rate and such
Market Base Rental Rate is then subject to dispute or arbitration as provided
herein, Tenant shall nevertheless pay an amount of Base Rental equal to the
Market Base Rental Rate as determined by Landlord during the pendency of any
such dispute or arbitration; provided that Landlord shall promptly refund any
amounts subsequently determined to have been overpaid by Tenant.
4. Expansion Right.
(a) Subject to an existing lease which expires September 30, 2005, Landlord
hereby grants to Tenant an option to expand (the "Expansion Option"), the
Premises to include the Expansion Space (hereinafter defined; the "Expansion
Space") upon and subject to the terms and conditions set forth in this Section.
"Expansion Space", as used in this Lease, shall mean approximately three
thousand five hundred ninety-three (3,593) square feet of Rentable Floor Area on
the first (1st) floor of the Building, as more particularly shown on Exhibit
"G".
(b) If Tenant elects to exercise the Expansion Option, Tenant must give
Landlord written notice of its exercise of the Expansion Option with regard to
all of the Expansion Space on or before March 31, 2005.
(c) Tenant improvements shall be constructed by Landlord in the Expansion
Space at Tenant's sole cost and expense, provided, however, Landlord shall make
available to Tenant a Tenant Improvement Allowance in a prorata amount as
provided to Tenant per the Work Letter attached hereto. In the event that the
tenant improvement costs for the Expansion Space in question exceed the
applicable Tenant Improvement Allowance for such Expansion Space, Tenant agrees
to pay such entire excess cost to Landlord as Rent on the commencement date for
the applicable Expansion Space.
(d) The Expansion Space shall become part of the Premises and Tenant agrees
to commence paying Rent for such Expansion Space on the commencement date
applicable to the Expansion Space, established as hereinafter provided in
subsection (e) below, and shall be leased to Tenant for the remaining unexpired
initial term of this Lease upon the terms and conditions of this Lease then, and
from time to time thereafter, in effect including, without limitation, at the
scheduled Base Rental Rate as provided in this Lease then, and from time to time
thereafter, in effect; provided, however, except as otherwise expressly provided
in subsection (c) above, Tenant shall receive no concessions or allowances on
account of leasing any Expansion Space.
(e) The commencement date for the Expansion Space shall be the date the
tenant improvements in the Expansion Space are substantially complete but not
later than December 1, 2005. If the commencement date
for an Expansion Space is delayed by reason of Tenant's default under this Lease
or delays primarily caused by Tenant, commencement of Rent with respect to the
Expansion Space in question shall be accelerated by the number of such days of
delay.
(f) Within thirty (30) days after the commencement date for the Expansion
Space, Landlord and Tenant agree to enter into an amendment to this Lease to
document the expansion of the Premises pursuant to this Section.
(g) Tenant's Expansion Option to lease Expansion Space are personal to
Tenant and Tenant shall not have the right to assign the Expansion Option to any
sublessee of the Premises or any portion thereof or to any assignee of this
Lease, nor may any such sublessee or assignee exercise or enjoy the benefit of
the Expansion Option.
(h) Notwithstanding the foregoing Expansion Option and any other provision
of this Lease to the contrary, such Expansion Option is conditioned upon this
Lease being in full force and effect and there being no default under this Lease
and no previous default hereunder by Tenant on more than two (2) occasions for
which Landlord has provided notice to Tenant. If Tenant fails to exercise the
Expansion Option by March 31, 2005, and as provided in and in strict accordance
with the terms of this Section, or if the condition in the immediately preceding
sentence is not entirely satisfied, the Expansion Option shall automatically
terminate and be of no further force or effect, or if exercised, shall be null
and void.
5. Cap on Controllable Operating Expenses.
For purposes of calculating Tenant's Additional Rental pursuant to Section
8 of the Lease, Landlord and Tenant hereby agree that, commencing with the first
full calendar year of the Lease Term, Operating Expenses (except for
Uncontrollable Costs, as hereinafter defined) shall be deemed not to increase by
more than four percent (4%); the applicable percentage cap is herein referred to
as the "Operating Expense Cap" from one calendar year to the next calendar year,
regardless of any actual increases in Operating Expenses; provided, however, in
the event that in any calendar year any such increase in Operating Expenses is
in fact greater than the Operating Expense Cap (any such increase in excess of
the Operating Expense Cap being hereinafter collectively referred to as the
"Carryover Percentage"), Landlord shall have the right to add all of the
Carryover Percentage (or such portion thereof as will not produce a total
increase in Operating Expenses in excess of the Operating Expense Cap) to the
increases in Operating Expenses occurring over any of the following years of the
Lease Term in which such increases in Operating Expenses are less than the
Operating Expense Cap, on a cumulative basis until all such Carryover
Percentages have been used to increase Operating Expenses for purposes of
calculating Tenant's Additional Rental payable pursuant to paragraph 7 of the
Lease. For example, if the actual increase in Operating Expenses during the
second calendar year of the Lease Term is six percent (6%) and if, for purposes
of this example, the Operating Expense Cap is five percent (5%) (thus creating a
Carryover Percentage of one percent (1%), which may be carried forward to future
years by Landlord), and if in the third calendar year of the Lease Term the
actual increase in the Operating Expenses is four percent (4%), then during the
third calendar year of the Lease Term Operating Expenses shall be deemed to
increase by five percent (5%), such five percent (5%) increase arising from
adding the four percent (4%) increase in Operating Expenses which occurred in
the third calendar year to the one percent (1%) Carryover Percentage from the
second calendar year. The foregoing provisions of this Section notwithstanding,
Taxes, all utility costs and expenses, including, without limitation, those for
electricity and other feels and forms of power or energy, water charges, sewer
and waste disposal, and the cost of all casualty, liability and other insurance
applicable to the Project and Landlord's personal property used in connection
with the Project (all of the foregoing are herein collectively referred to as
"Uncontrollable Costs") shall not be subject to any limitation or cap, and,
accordingly, the total dollar increase in Operating Expenses, and Tenant's
Additional Rental payable pursuant to paragraph 7 of the Lease, for any and each
calendar year during the Lease Term shall be calculated without any limitation
or cap on Uncontrollable Costs.
6. Generator.
Tenant may continue to operate and maintain its existing generator as
located in the Building as of the Effective Date.
EXHIBIT G
(FLOOR PLAN)
(COLONIAL PROPERTIES TRUST LOGO)
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (the "Amendment"), made this 23rd
day of February, 2005, by and between COLONIAL REALTY LIMITED PARTNERSHIP, a
Delaware limited partnership (hereinafter referred to as "Landlord") and
COMPBENEFITS CORPORATION, a Delaware corporation (hereinafter referred to as
"Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated January 1, 2005 (hereinafter referred to as the "Lease") for space located
in Suite 400 consisting of 58,807 rentable square feet of Xxxxxxxx Xxxxxx 000,
Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as the "Premises"); and
WHEREAS, Landlord and Tenant desire to enter into this Amendment for the
purpose of evidencing their mutual understanding and agreement regarding the
expansion of the Premises, extension of the Term and certain other matters
relating thereto as set forth hereinbelow.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants contained herein and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Late Payments. The Lease is hereby amended to add as Paragraph 5(c) the
following:
5(c). In the event the Base Rental to be paid hereunder is not
received by Landlord by the fifth (5th) day of the month due, Landlord
shall have the right to impose a late charge of five percent (5%) of all
amounts past due, provided that the late charge shall be waived by Landlord
for the initial three (3) late payments in any twenty-four (24) month
period during the Term.
2. Improvement Allowance. The third (3rd) grammatical paragraph of
Paragraph 2 of Exhibit "D" Work Agreement is hereby amended to add "UPS battery
back up upgrades" as a use for any unused Improvement Allowance.
3. Construction Management Fee. The fee for construction management
services described in the fourth (4th) grammatical paragraph of Paragraph 2 of
Exhibit "D" Work Agreement shall not apply to the work completed in 2005 to
replace the water-source heat pump piping, upgrade the UPS battery back up
system, or upgrade the supplemental HVAC system.
4. Binding Effect. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia, and shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors, representatives and assigns. In the event of any inconsistency or
conflict between the terms of this Amendment and of the
Lease, the terms hereof shall control. Time is of the essence of all of the
terms of this Amendment.
5. Continued Validity. Except as hereinabove provided, all other terms and
conditions of the Lease shall remain unchanged and in full force and effect, and
are hereby ratified and confirmed by Landlord and Tenant.
6. Modifications. This Amendment may not be changed, modified, discharged
or terminated orally in any manner other than by an agreement in writing signed
by Landlord and Tenant or their respective heirs, representatives, successors
and permitted assigns.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed under seal as of the date and year first above written.
"TENANT":
COMPBENEFITS CORPORATION, a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: CFO
Attest: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Title: SEC
"LANDLORD":
COLONIAL REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Colonial Properties Trust, an
Alabama real estate investment
trust, its general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx, Executive
Vice President
