Exhibit 10.16
LEASE AGREEMENT
by and between
EAGLE TRADE CENTER, L.L.C.,
A Delaware Limited Liability Company
as Landlord
and
THE XXXXXXX XXXXXX COMPANY,
A Massachusetts Corporation
as Tenant
Dated as of January 17, 2003
TABLE OF CONTENTS
Page
1. Premises, Term and Termination Option...............................................1
2. Base Rent and Security Deposit......................................................5
3. Use and Compliance with Laws........................................................6
4. Operating Expenses..................................................................8
5. Landlord's Repairs.................................................................13
6. Tenant's Repairs...................................................................13
7. Alterations .......................................................................15
8. Signs .............................................................................17
9. Inspection .......................................................................19
10. Utilities .........................................................................19
11. Assignment and Subletting .........................................................20
12. Insurance, Fire and Casualty Damage; Waiver of Subrogation ........................23
13. Liability .........................................................................25
14. Condemnation.......................................................................27
15. Relocation.........................................................................27
16. Surrender and Holding Over.........................................................27
17. Quiet Enjoyment....................................................................28
18. Events of Default .................................................................28
19. Remedies...........................................................................29
20. Subordination .....................................................................33
21. Waiver of Jury Trial...............................................................34
22. Mechanic's Liens ..................................................................34
23. Rent Payments and Notices..........................................................34
24. Environmental Requirements.........................................................36
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25. Rules and Regulations..............................................................38
26. Courtesy Patrols...................................................................38
27. Parking............................................................................38
28. Miscellaneous .....................................................................40
29. Leasing Options....................................................................42
30. Purchase Option....................................................................49
31. Zoning.............................................................................50
32. Confidentiality....................................................................50
33. Satellite..........................................................................50
34. Backup Generator and Fuel Tank.....................................................51
35. Usury..............................................................................52
36. Exhibits and Attachments.......................................................... 52
37. Fax Counterparts...................................................................53
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LEASE AGREEMENT
STATE OF GEORGIA
COUNTY OF XXXXX
This
Lease Agreement (this "LEASE") is made as of the 17th day of January,
2003, by and between Eagle Trade Center, L.L.C., a Delaware limited liability
company, hereinafter referred to as "LANDLORD," and The Xxxxxxx Xxxxxx Company,
a Massachusetts corporation, hereinafter referred to as "TENANT".
1. PREMISES, TERM, AND TERMINATION OPTION.
a. PREMISES. In consideration of the obligation of Tenant to pay rent as
herein provided, and in consideration of the other terms, provisions
and covenants hereof, Landlord hereby demises and leases to Tenant,
and Tenant hereby takes from Landlord that portion of the building
located at Eagle's Landing Trade Center 3, Xxxxxxxxxxx, Xxxxx County,
Georgia (the "BUILDING"), known as Suite 100, containing approximately
505,000 square feet, as determined by Landlord and as shown on EXHIBIT
A attached hereto (the "PREMISES"), which square footage includes a
pro rata share of the Building's electrical and sprinkler room for the
amount of square footage leased. The Building is situated on the land
described in EXHIBIT B attached hereto (the "LAND"), and the Land, the
Building and all other structures, improvements, fixtures and
appurtenances now or hereafter placed, constructed or included on or
appurtenant to the Land, unless otherwise defined in the Lease, is
hereinafter called the "PROJECT". The Project is currently known as
Eagle's Landing Trade Center 3, and is more particularly described on
EXHIBIT C attached hereto. This contract shall create the relationship
of landlord and tenant between Landlord and Tenant; no estate shall
pass tout of Landlord; Tenant has a usufruct, not subject to levy and
sale, and not assignable by Tenant except as expressly set forth
herein.
In addition to the Premises, Landlord hereby grants to Tenant and its
agents, employees, customers and invitees a non-exclusive right and
easement to the use of those areas provided for the common use or
benefit of all tenants of the Building and the public such as
corridors, foyers, entryways, driveways, parking areas, all access and
egress roads, and any and all other similar facilities (the "COMMON
AREAS"). All Common Areas described above shall at all times be
subject to the exclusive control and management of Landlord. Landlord
shall have the right and responsibility to construct, operate and
maintain the Common Areas in good condition and repair and to monitor
and provide safe and secure ingress and egress in a manner and to the
extent that is standard for buildings of similar class, size, and
location.
b. TERM. To have and to hold the same for a term (the "TERM") commencing
on the later of April 1, 2003 or as such date the Premises are
substantially complete pursuant to EXHIBIT D attached hereto (the
"COMMENCEMENT DATE") and ending eighty-four (84) months thereafter
plus the number of days in any partial calendar month at the beginning
of the Term of this
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Lease. Tenant acknowledges that it has inspected the Premises and the
Building, and subject to Landlord's obligations under EXHIBIT D
attached hereto, accepts the Premises the Building, and the Project in
their present condition as suitable for the purpose for which the
Premises are leased. Taking of possession of the Premises by Tenant
shall establish that the Premises, the Building and the Project are in
good and satisfactory condition on the date possession was taken,
subject to punchlist items (to be completed by the Landlord within
sixty 60 days of agreement by Landlord and Tenant of the punchlist
items), latent defects and warranties provided by the Contractor, as
defined on EXHIBIT D. Tenant further acknowledges that no
representations as to the repair of the Premises, nor promises to
alter, remodel or improve the Premises have been made by Landlord,
unless such are expressly set forth in this Lease. Further, Landlord
has made no representation or warranty as to the suitability of the
Premises for the conduct of Tenant's business and Tenant hereby waives
any implied warranty that the Premises are suitable for Tenant's
intended purposes. After the Commencement Date Tenant shall, upon
demand, execute and deliver to Landlord an Acceptance of Premises
Memorandum in the form of EXHIBIT E attached hereto. If the
Commencement Date of this Lease is delayed pursuant to EXHIBIT D
attached hereto, Landlord shall not be deemed to be in default
hereunder, and Tenant agrees to accept possession of the Premises at
such time as Landlord is able to tender the same, which date shall
thenceforth be deemed the "Commencement Date". The foregoing
adjustment in the Commencement Date shall be Tenant's sole and
exclusive remedy in the event possession of the Premises is not
tendered to Tenant on the Commencement Date set forth above.
c. TERMINATION OPTION. Tenant shall have the right to terminate this
Lease as of the last day of the 48th, 60th and 72nd months of the Term
of this Lease if:
(i) TENANT Gives no less than nine (9) months prior written
notice to Landlord (the "TERMINATION NOTICE");
(ii) Tenant is not in default under the Lease beyond any
applicable notice and cure period at the time Tenant
provides the Termination Notice to Landlord;
(iii) Except for a Permitted Transfer, as defined below in
Section 11.b., No part of the Premises has been
subleased or assigned for a period beyond the
termination date (except in the event that Tenant has
the right to terminate such sublease as of the
applicable terminate date) at the time Tenant provides
the Termination Notice to Landlord and as of the
termination date;
(iv) Tenant's termination notice includes the following
termination fee (with Base Rent calculated based upon
the Base Rent for the month in which the termination
will occur):
End of 48th month: three (3) months Base Rent plus
Unamortized Expenses
End of 60th month: two (2) months Base Rent plus
Unamortized Expenses
End of 72nd month: one (1) month's Base Rent plus
Unamortized Expenses
"UNAMORTIZED EXPENSES" means the unamortized portion of each of
the following if paid for by Landlord in connection with this
Lease: (i) brokerage commissions, (ii) the costs for the
Additional Improvements, as defined in Section 1.d.(i)(D),
(iii) Excess Costs (as defined in EXHIBIT D) that are amortized
as provided in EXHIBIT D to this Lease all of
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which shall be fully and evenly amortized on a straight line
basis over a period equal to 120 months MINUS the number of
days from the Commencement Date until the date of the execution
by Landlord and Tenant of the amendment to this Lease that
documents the addition of such amounts to the Base Rent
payments. The amount of the foregoing costs shall be set forth
on the Acceptance of Premises Memorandum to be executed by
Landlord and Tenant, the form of which is attached hereto as
EXHIBIT E. The parties acknowledge and agree that the
termination fee is being paid in consideration for Tenant's
right to accelerate the acceleration of the termination date
and not as a penalty. Tenant shall remain liable for all Base
Rent and other sums due under the Lease up to and including the
effective date of the termination even though xxxxxxxx for such
may occur subsequent to the effective date of the termination.
In the event Tenant leases additional space in the Building,
the termination fee shall be adjusted to include similar
unamortized costs and expenses incurred by Landlord as
illustrated above in connection with such additional space,
amortized over the initial Term of this Lease and First
Extension Term applicable to such space on the date Tenant
commences payment of Base Rent for such space. If Tenant fails
to timely pay the termination fee as provided above, the
Termination Option shall terminate and shall be of no further
force or effect and this Lease shall continue in full force and
effect.
d. CONTRACTION OPTION. Provided that no event of default then
exists after expiration of all applicable notice and cure
periods, THEN Tenant (but not any assignee or sublessee) shall
have the one time right and option (the "CONTRACTION OPTION")
to reduce the square footage under this Lease, by written
notice delivered to Landlord prior to the expiration of the
fifteenth (15th) calendar month of the initial Term.
(i) TERMS OF CONTRACTION OPTION. Tenant may reduce the size
of the Premises in increments of 50,000 square feet (or
such similar amounts as may be required in order to
maintain the integrity of the space plan for the
Building), provided that if Tenant elects to so reduce
the size of the Premises:
(A) the space which may be removed from the Premises
must be taken from the approximately 250,000
square foot space in the back half of the Premises
and representing the half of the Building that is
not adjacent to the Tenant's office space (the
"CONTRACTION SPACE");
(B) the remaining space in the Premises after
reduction by removal of the Contraction Space
shall be no less than 255,000 square feet and no
more than 405,000 square feet;
(C) any Contraction Space that remains a part of the
Premises after the expiration of the Contraction
Option shall continue to be a part of the Premises
and Tenant accepts same in its "as-is, where-is"
condition;
(D) Upon Tenant's written request delivered to
Landlord concurrently with Tenant's notice
regarding its exercise or waiver of the
Contraction Option and no later than the
expiration of the fifteenth month of the Term of
this Lease, Landlord shall complete tenant
improvements requested by Tenant, subject to the
terms of this paragraph 2. Without limiting the
scope of the improvements that may
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be requested by Tenant at the time, the
improvements for the Contraction Space that
remains a part of the Premises (or, alternatively,
if the Tenant does not elect to exercise the
Contraction Option, then the improvements for the
entire Contraction Premises) shall, if requested
by Tenant include the improvements described on
EXHIBIT D-1.C. attached hereto (the improvements
listed on EXHIBIT D-1.C. and any other
improvements requested by Tenant are collectively
referred to as the "ADDITIONAL IMPROVEMENTS");
(E) Landlord will use commercially reasonable efforts
to complete the Additional Improvements within 120
days of the approval of the construction working
drawings by Landlord and Tenant, which time will
be extended as commercially reasonable to
accommodate the scope of the Additional
Improvements and which time will be extended for
Tenant Delays and force majeure, both as defined
on EXHIBIT D;
(F) The Cost of the tenant improvements listed in
EXHIBIT D-1.D. shall be paid by Landlord and shall
not be added to Tenant's Base Rent.
Notwithstanding the foregoing, the then
unamortized value of such costs shall be included
in amounts due to Landlord following a default by
Tenant under this Lease (after expiration of all
applicable notice and cure periods).
(G) The cost of the Additional Improvements listed in
EXHIBIT D-1.C. shall be paid by Tenant to Landlord
upon the substantial completion thereof or, upon
request by Tenant, Landlord will add the cost of
such Additional Improvements (not to exceed
$2,000,000.00) to the Tenant's Base Rent payments
so that the cost of such Additional Improvements
will be fully amortized over the then remaining
term of the initial Term of the Lease and the term
of the First Renewal Option (approximately 105
months) at an interest rate of ten percent (10%).
If the Tenant does not exercise the First
Extension Option, or if this Lease is terminated
at any time prior to the scheduled expiration of
the First Extension term the Tenant shall
immediately upon the earlier of the expiration of
the initial 84-month Term of this Lease or such
earlier termination of this Lease, pay to Landlord
the remaining principal for such amortized
Additional Improvements that would have been due
and payable absent such expiration or termination
(excluding interest that would have accrued after
such accelerated payment);
(H) All other improvements not listed in EXHIBIT D-1
or beyond the scope of EXHIBIT D-1 shall be paid
for by Tenant prior to the construction thereof.
(I) Landlord, at its sole cost and expense, shall have
the right to approve the configuration of the
remaining Premises which approval shall not be
unreasonably withheld. All space remaining in the
Premises shall be contiguous and shall be
configured in a manner that maximizes Landlord's
leasing potential for the remainder of the space
in the Building (including, without limitation
consideration of the effect of the configuration
upon automobile parking, trailer parking, access,
security and guard shack access for Tenant and
other potential tenants of the Building). Without
limitation, Landlord may require the increase or
decrease of the size of the Contraction Space (not
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to exceed 10% of the applicable space) in order to
properly fit the applicable space into the design
of the Building. For example, and without
limitation, the configuration of the Contraction
Space shall not reduce the dock capacity of or
access to the Building or unreasonably reduce the
marketability of the Building so long as Landlord
does not reduce Tenant's ability to secure its
truck court on one side of the Building with
fencing and a guard shack.
(J) Tenant shall have no option to reduce the space
covered by this Lease after the expiration of the
Contraction Option; and
(K) Failure of Tenant to deliver a notice of its
election to reduce the size of the Premises within
the required time period shall be deemed a
termination by Tenant of the Contraction Option in
which case the Lease shall continue to cover the
505,000 square feet as set forth in this Lease. If
Tenant does not so elect to reduce the size of the
Premises, then beginning on the first days of the
sixteenth (16th) month of the Term of this Lease,
all calculations under this Lease (including
Tenant's Proportionate Share, Tenant's Base Rent
and Tenant's additional rent) shall be calculated
using 505,000 square feet In the Premises.
(L) Within thirty (30) days of the exercise,
expiration or termination of the Contraction
Option and prior to the commencement of the
construction of the Additional Improvements,
Landlord and Tenant will execute an amendment to
this Lease and a work letter to document the
foregoing.
e. OTHER OPTIONS. Extension, Expansion and Purchase options are granted
to Tenant under Section 30 of this Lease.
2. BASE RENT AND SECURITY DEPOSIT.
a. BASE RENT. Tenant agrees to pay to Landlord rent (the "BASE RENT") for
the Premises in advance, without demand, deduction or set off, as
follows:
Months 1 through 15: $2.05 per square foot per year based upon 255,000
rsf for a total annual base rental of $522,750.00 payable in monthly
installments of $43,562.50 each (provided Base Rent for months 1
through 3 shall be abated so long as no Event of Default then exists
under this Lease
Months 16 through 24: The following amounts per square foot per year
based upon the square footage in the Premises after the Contraction
Date, which amounts shall be payable on a monthly basis:
PRICE PER SQUARE
SQUARE FEET FOOT PER YEAR
----------- -------------
505,000 $ 1.75
405,000 $ 1.85
355,000 $ 1.90
305,000 $ 2.00
255,000 $ 2.05
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Months 25-84: On the first day of months 25, 37, 49, 61 and 73 the
Base Rent shall be increased by $0.10 per square foot per year, which
amounts shall be payable on a monthly basis.
A monthly installment of $43,562.50 shall be due and payable on the
date hereof and the remainder of the monthly installments set forth
above shall be due and payable on or before the first day of each
calendar month succeeding the Commencement Date during the Term of
this Lease. The rental payment for any fractional calendar month at
the commencement or end of the Term of this Lease shall be prorated
and shall be payable on the first day of such partial month. The Base
Rent is a "net" rental rate and does not include property taxes,
insurance or building and Common Areas maintenance charges, all of
which shall be paid by Tenant as more particularly set forth below in
Section 4 of this Lease.
b. SECURITY DEPOSIT. Tenant shall not be required to provide a security
deposit for this Lease.
3. USE AND COMPLIANCE WITH LAWS.
a. Use. The Premises may be used only for the purpose of receiving,
storing, shipping and selling (other than retail) products, materials
and merchandise made and or distributed by Tenant and for such other
lawful purposes in accordance with the applicable zoning requirements
and ordinances. Notwithstanding the foregoing, Tenant may use the
premises for limited and occasional retail purposes provided (a) such
use may not violate any applicable laws, zoning ordinances or other
rules or regulations and (b) Tenant must be the only tenant in the
Building. If there is ever another tenant in the Building, retail use
of any type must be approved in writing by Landlord using commercially
reasonable judgment. Outside storage, including without limitation,
trucks and other vehicles, is prohibited without Landlord's prior
written consent, provided Tenant may park trucks, trailers, and other
vehicles in the truck court or other areas designated by Landlord for
trailer storage, subject to the fooling requirements: (i) all trucks,
trailers and other vehicles shall be parked in an organized manner
with a neat appearance; (ii) no vehicle shall remain parked at the
Premises for more than one week; (iii) Tenant shall comply with all
applicable rules, regulations and laws, including all local zoning
ordinances that relate to the parking of vehicles at the Premises;
(iv) Tenant shall not permit the parking of vehicles, trucks or
trailers on any streets or access routes to the Premises; and (v)
Tenant shall comply with the reasonable rules and regulations of
Landlord relating to parking and ingress and egress to the Premises.
Tenant shall at its own cost and expense obtain any and all licenses
and permits necessary for Tenant's operations.
Tenant shall, at Tenant's sole expense, promptly comply with all
governmental orders and directives for the correction, prevention and
abatement of nuisances in or upon, or connected with, the Premises and
related to Tenant's use or occupancy thereof. Tenant shall not permit
any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises, nor allow pests or vermin in
the Premises nor take any other action which would constitute a
nuisance or would disturb or endanger any other tenants of the Project
or unreasonably interfere with their use of their respective
6
premises. Without Landlord's prior written consent, Tenant shall not
receive, store or otherwise handle any product, material or
merchandise which is explosive or highly inflammable. Tenant will not
permit the Premises to be used for any purpose or in any manner
(including without limitation any method of storage) which would
render the insurance thereon void or the insurance risk more hazardous
or cause the State Board of Insurance or other insurance authority to
disallow any sprinkler credits. Upon obtaining actual knowledge,
Tenant shall immediately notify Landlord of the presence of any
prohibited items on or around the Premises.
b. COMPLIANCE WITH LAWS. Tenant, at Tenant's sole cost and expense, shall
comply with all current and future federal, state, municipal and other
laws and ordinances applicable to the use of the Premises, the
employees, agents, visitors and invitees of Tenant, and the business
conducted in the Premises by Tenant, including, without limitation,
all environmental laws and regulations applicable to Tenant's use of
the Premises; will not engage in any activity which would cause
Landlord's fire and extended coverage insurance to be canceled or the
rate increased and will not commit any act which is a nuisance or
annoyance to Landlord or to other tenants in the Building or which
would appreciably damage Landlord's goodwill or reputation, or injure
or depreciate the value of the Building. Notwithstanding the
foregoing, nothing in this Section 3.b. shall be construed as
requiring Tenant to be responsible for any legal requirements
applicable to the structural portions of the Premises, unless the
failure to comply with any such legal requirements is caused by Tenant
or anyone acting for Tenant. Landlord, at Landlord's sole cost and
expense, shall comply with all current and future federal, state,
municipal and other laws and ordinances applicable to the Building and
the parcel of which the Building is a part (except to the extent such
compliance is the responsibility of Tenant under the terms of this
paragraph), the employees, agents, visitors and invitees of Landlord,
including, without limitation, all environmental laws and regulations.
c. DISABILITY LAWS. Tenant, at its sole cost, shall be responsible for
compliance with Disability Laws with respect to (1) the Premises
(excluding the initial Tenant Improvements and the Additional
Improvements), (2) any improvements required for the Building that are
required due to Tenant's use of the Premises, (3) all Alterations made
to the Premises or any other acts of Tenant after the Commencement
Date, and (4) all requirements of Disability Laws that relate to the
employer-employee relationship or that are necessitated by the special
needs of any employee, agent, visitor or invitee of Tenant and that
are not required to be provided generally, including, without
limitation, requirements related to auxiliary aids and graphics
installed by or on behalf of Tenant. Landlord, at its sole cost, shall
be responsible for compliance with Disability Laws with respect to the
Building (except to the extent such compliance is Tenant's
responsibility under the terms of this paragraph). Neither party shall
be in default under this SECTION 3.c. for its failure to comply with
Disability Laws so long as the responsible party is either contesting
in good faith, and by legal means, the enforcement of Disability Laws,
or is undertaking diligent efforts to comply with Disability Laws and
such contest or compliance effort could not result in the imposition
of fines or penalties against the other party. As used herein,
"DISABILITY LAWS" means Title III of The Americans With Disabilities
Act of 1990 and all other similar local laws, ordinances and
regulations, all as amended from time to time.
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4. OPERATING EXPENSES.
a. TENANT'S PROPORTIONATE SHARE. During the Term, Tenant agrees to pay as
additional rental Tenant's Proportionate Share (hereinafter defined)
of all Operating Expenses (hereinafter defined) for the Project.
"TENANT'S PROPORTIONATE SHARE" as used in this Lease shall mean a
fraction, the numerator which is the square feet of space contained in
the Premises and the denominator of which is the square feet of space
contained in the Building, which fraction shall be adjusted from time
to time based upon changes in the square footage in the Premises
leased by Tenant. Notwithstanding the foregoing, (i) prior to the
expiration of the Contraction Option, as defined in Section 30 of this
Lease, the numerator shall be the 255,000 and (ii) on and after the
first day of the sixteenth full calendar month of the term of this
Lease, the numerator shall be the total square feet then leased by
Tenant.. Landlord shall fairly allocate expenses throughout the
Project so that expenses that unequally benefit one or more tenants
shall be appropriately allocated among the appropriate parties.
b. OPERATING EXPENSES. The term "OPERATING EXPENSES" shall mean all
expenses incurred by Landlord with respect to the ownership,
maintenance and operation of the Project, including but not limited
to:
(i) maintenance and repair costs;
(ii) management fees not to exceed 2.5% of the annual gross rental;
(iii) wages and fringe benefits payable to employees of Landlord
whose duties are connected with the operation and maintenance
of the Project;
(iv) all services, supplies, repairs, or other expenses for
maintaining and operating all portions of the Project,
including without limitation, repairs to paving and parking
areas, roads, roofs, alleys and driveways, mowing, landscaping,
exterior painting, utility lines, skylights, lighting,
electrical systems and other mechanical and building systems
from the property line to the point of connection into the
Premises (but expressly excluding any capital improvements or
replacements except to the extent permitted in subsection
4.b.(x) below);
(v) insurance premiums and commercially reasonable deductibles;
(vi) utilities for the Building that are not separately metered;
(vii) Taxes (hereinafter defined),
(viii) insurance deductibles, security services (without implying any
duty for Landlord to provide any security services), if any;
(ix) trash collection; upgrades, changes in, or additions to water
and sewage; assessments due to deed restrictions or restrictive
covenants, paving assessments, owners' associations, and other
similar assessments that accrue against the Project, whether
the same are now or hereafter applicable to the Project; and
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(x) additions or alterations made by Landlord to the Project in
order to comply with applicable laws or that are intended to
reduce the operating costs of the Project; provided that the
cost of such additions or alterations that are required to be
capitalized for federal income tax purposes shall be amortized
over the estimated useful life of the item, as reasonably
determined by Landlord in accordance with sound management
practices, consistently applied ("CAPITAL EXPENSES").
The foregoing list does not in any way relieve Tenant of its repair
obligations under paragraph 6. Operating Expenses shall NOT include:
(i) repairs, restoration or other work occasioned by fire,
windstorm or other casualty to the extent covered by insurance
maintained by Landlord or required to be maintained by
Landlord;
(ii) expenses incurred in leasing to or procuring of tenants;
(iii) leasing commissions;
(iv) advertising expenses;
(v) expenses for the renovating of space for new tenants;
(vi) interest, principal, loan fees, penalties or other payments on
any mortgage on the Project;
(vii) compensation paid to any employee of Landlord above the grade
of building superintendent;
(viii) any depreciation allowance or capital expenses except to the
extent permitted above in Section 4.b.(x);
(ix) costs to correct defects in the initial construction of the
Building, including any repair or correction of latent defects
or any structural repairs (as opposed to the cost of normal
repair, maintenance and replacement expected with the
construction materials and equipment installed in light of
their specifications);
(x) any cost or expenditure for which Landlord is reimbursed by
sources other than tenants of the Project, by insurance
proceeds or otherwise;
(xi) the cost of any service furnished to any tenant of the Project
which Landlord does not make available to Tenant;
(xii) franchise or income taxes imposed upon Landlord, except to the
extent imposed in lieu of all or any part of Taxes;
(xiii) legal and accounting fees associated with the creation and
operation of the entity which constitutes Landlord or that are
solely for the benefit of Landlord (as
9
opposed to generally for the benefit of the Project) such as
for collecting delinquent rents, preparing tax returns for the
entity constituting Landlord (as opposed to accounting for the
Project);
(xiv) the wages or fringe benefits payable to any employee of
Landlord other than engineers who provide services related
directly to the management, maintenance, operation or repair of
the Project; and
(xv) Any other expenses that under Generally Accepted Accounting
Practices, consistently applied, would be required to be
treated as capital items (except to the extent such items are
permitted by Section 4.b.(x).
c. TAXES. "TAXES" shall mean (i) all real estate taxes and other taxes or
assessments which are levied by a taxing authority with respect to the
Project or any portion thereof, (ii) any tax, surcharge or assessment
which shall be levied as a supplement to or in lieu of real estate
taxes, (iii) the costs and expenses of a consultant, if any, or of
contesting the validity or amount of such real estate or other taxes,
and (iv) any rental, excise, sales, transaction, privilege or other
tax or levy, however denominated, imposed upon or measured by the
rental reserved hereunder or on Landlord's business of leasing the
Premises or the Project. Taxes shall not include Landlord's net income
taxes, capital, stock, succession, transfer, franchise, gift, estate
or inheritance tax, except to the extent that such tax is imposed in
lieu of any portion of Taxes, or any interest or charges due to
Landlord's failure to timely pay Taxes.
d. OPERATING EXPENSE PAYMENTS. Beginning with the fourth calendar month
following the Commencement Date of this Lease (which payment shall
also include payment for any partial month at the beginning of the
Term of this Lease) and on the first day of each following month of
the Term of this Lease, Tenant shall pay to Landlord an amount equal
to 1/12 of the estimated annual cost of Tenant's Proportionate Share
of Operating Expenses (the "OPERATING EXPENSE PAYMENTS"). Tenant shall
not be required to pay Tenant's Proportionate Share of Operating
Expenses during the first three calendar months after the Commencement
Date. In the event the Building is not one hundred percent (100%)
occupied during any year of the Lease Term (including the calendar
year in which the Lease Term commences), the Basic Operating Costs
shall be "grossed up" by increasing the variable components of Basic
Operating Costs to the amount which Landlord projects would have been
incurred had the Building been one hundred percent (100%) occupied
during such year, such amount to be annualized for any partial year.
The foregoing "gross-up" provision shall not apply to electrical costs
or to Taxes or to any other items that do not vary with occupancy. For
the first fifteen months of the Lease, the Building shall be deemed to
be fifty-one percent (51%) occupied.
e. CAP ON CONTROLLABLE OPERATING EXPENSES. The initial Operating Expense
Payments for 2003 are currently estimated to be $0.53 per square foot
per year, including an estimate of $0.07 per square foot per year for
Controllable Operating Expenses, and shall be increased or decreased
annually to reflect the projected actual cost of all such items. For
purposes of calculating Operating Expenses, the aggregate Operating
Expenses (exclusive of Non-Controllable Operating Expenses as defined
below) for a calendar year shall not increase by more than eight
percent (8%) on a cumulative basis per year from
10
the greater of (i) $35,350.00 or (ii) the actual costs for
Controllable Items for calendar year 2004.. For example, if aggregate
Controllable Operating Expenses are $100 for the year 2004, the
maximum Controllable Operating Expenses for the years 2005 through
2007 would be as follows: 2005 - $108; 2006 - $116.64; 2007 - $125.97.
f. "CONTROLLABLE OPERATING EXPENSES" means all Operating Expenses for the
Building except (i) building insurance premiums, (ii) Common Area
electricity and other utility costs, (iii) Taxes, (iv) unforeseen
assessments included in Operating Expenses or (v) repairs required
under Section 6 of this Lease that are performed by Landlord either at
Tenant's request or after failure of Tenant to make such repair.
Landlord shall not receive reimbursement of more than one hundred
percent (100%) of Operating Expenses and shall not recover any type of
cost more than once.
g. ESTIMATE OF COSTS. Landlord shall estimate the Operating Expenses of
the Property and advise Tenant of Tenant's Proportionate Share thereof
by December 31 of each calendar year, or as soon as practicable
thereafter. If Landlord does not provide Tenant with an estimate of
Tenant's Proportionate Share of Operating Expenses by January 1 of any
calendar year, Tenant shall continue to pay a monthly installment
based on the previous year's estimate until such time as Landlord
provides Tenant with an estimate of Tenant's Proportionate Share of
Operating Expenses for the current year. Upon receipt of such current
year's estimate, an adjustment shall be made for any month during the
current year with respect to which Tenant paid monthly installments of
Operating Expenses based on the previous year's estimate. Tenant shall
pay Landlord for any underpayment within forty-five (45) days after
receipt of an invoice therefor. Any overpayment shall be credited
against the installment(s) of rent (including Base Rent and Tenant's
Proportionate Share of Operating Expenses) next coming due under the
Lease. Landlord may revise such estimates if it obtains more accurate
information, such as the final real estate tax assessment or tax rate
for the Project
h. REPORT. Landlord shall deliver to Tenant a report for the previous
calendar year by April 30 of each year or as soon as practicable
thereafter, setting forth the actual Operating Expenses incurred and a
statement of Tenant's Proportionate Share ("OPERATING EXPENSE
REPORT"). If Tenant's total Operating Expense Payments for any
calendar year are less than Tenant's Proportionate Share of Operating
Expenses for such calendar year, then Tenant shall pay the difference
to Landlord within forty-five (45) days after receipt of the Operating
Expense Report. If Tenant's total Operating Expense Payments for any
year are greater than Tenant's Proportionate Share of Operating
Expenses for such year, then Landlord shall retain such excess and
credit it against Tenant's next installments of rent (including Base
Rent and Tenant's Proportionate Share of Operating Expenses), except
during the last year of the Term of this Lease, in which event,
Landlord shall, within thirty (30) days after delivery of the
Operating Expense Report, refund any excess to Tenant provided that
Tenant is not in default under this Lease. The obligations set forth
in this Paragraph shall survive the termination of this Lease.
i. AUDIT. Landlord shall maintain books and records so that they fairly
and accurately reflect the Operating Expenses on a consistent basis
and in accordance with sound management practices. Tenant, at Tenant's
expense, shall have the right, no more frequently than once per
calendar year, following thirty (30) days' prior written notice (such
written notice to be
11
given within ninety (90) days following Tenant's receipt of Landlord's
Operating Expense Report delivered in accordance with SECTION 4.e. to
Landlord, to audit Landlord's books and records relating to Operating
Expenses for the immediately preceding calendar year only. Without
limitation upon the foregoing, Tenant's right to audit Landlord's
books and records shall be subject to the following conditions:
1. The audit must be concluded within one hundred twenty (120)
days after Tenant's receipt of Landlord's Operating Expense
Report for the year to which such audit relates;
2. The conduct of such audit must not unreasonably interfere with
the conduct of Landlord's business;
3. Except for one audit during the first two years of the term of
this Lease, no audit shall be allowed unless Basic Operating
Costs for the calendar year in question have increased by more
than eight percent (8%) over Basic Operating Costs for the
immediately preceding calendar year;
4. Such audit shall be conducted during Normal Business Hours and
at the location where Landlord maintains its books and records;
5. Tenant shall deliver to Landlord a copy of the results of such
audit within ten (10) business days after its receipt by
Tenant;
6. No audit shall be permitted if an Event of Default by Tenant
has occurred and is continuing under this Lease, including any
failure by Tenant to pay an amount in Dispute;
7. Tenant shall reimburse Landlord for the reasonable cost of all
copies requested by Tenant's auditor within ten (10) days
following written demand for same by Landlord;
8. Such audit must be conducted by an independent,
nationally-recognized accounting firm or a local accounting
firm reasonably acceptable to Landlord that is not being
compensated by Tenant on a contingency fee basis and which has
agreed with Landlord in writing to keep the results of such
audit confidential by executing and delivering to Landlord a
confidentiality agreement in the form of EXHIBIT I attached to
this Lease, such confidentiality agreement to also be signed
and delivered to Landlord by Tenant;
9. No subtenant shall have the right to audit;
10. If, for any calendar year, an assignee of Tenant (if permitted
by this Lease) has audited or given notice of an audit, Tenant
will be prohibited from auditing such calendar year, unless in
the case of an audit having been noticed but not yet performed
by such assignee, the assignee withdraws its audit notice, and,
similarly, if Tenant has audited such calendar year or given
such notice, the foregoing restrictions of this SECTION 6(g)(8)
will apply to the assignee's right to audit; and
11. Any assignee's audit right will be limited to the period after
the effective date of the assignment.
Unless Landlord in good faith disputes the results of such audit, an
appropriate adjustment shall be made between Landlord and Tenant to
reflect any overpayment or underpayment of Tenant's Proportionate
Share of Operating Expenses within forty-five
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(45) days after delivery of such audit to Landlord. In the event of
an overpayment by Tenant, within forty-five (45) days following the
delivery of such audit, Landlord shall, if no Event of Default
exists hereunder, pay Tenant the amount of such overpayment, or, if
an Event of Default exists hereunder, credit such overpayment
against delinquent Rent and pay Tenant any balance. The cost of such
certified public accountant shall be paid by Tenant if the Tenant's
Share of Operating Expenses are overstated by less than 10%, and
shall be paid by Landlord in the event the amount of Tenant's Share
of Operating Expenses are determined to have been overstated by 10%
or more. In the event Landlord in good faith disputes the results of
any such audit, the parties shall in good faith attempt to resolve
any disputed items. If Landlord and Tenant are able to resolve such
dispute, final settlement shall be made within thirty (30) days
after resolution of the dispute. If the parties are unable to
resolve any such dispute, any sum on which there is no longer
dispute shall be paid and any remaining disputed items shall be
referred to a mutually satisfactory third party certified public
accountant for final resolution. The cost of such certified public
accountant shall be paid by the party found to be least accurate (in
terms of dollars in dispute). The determination of such certified
public accountant shall be final and binding and final settlement
shall be made within thirty (30) days after receipt of such
accountant's decision.
5. LANDLORD'S REPAIRS. Landlord shall keep and maintain in a good commercially
reasonable condition, similar to the condition of Comparable Buildings (as
defined in Section 8.b. of this Lease), promptly making all necessary repairs
and replacements to, the parking areas and other Common Areas of the Project,
including but not limited to the truck courts, designated trailer areas,
driveways, alleys, landscape and grounds surrounding the Project, the utility
lines, sub-foundation or underground utilities, roof, downspouts and gutters,
skylights, foundation, concrete floors (but excluding floor coverings and
non-structural damage to the floors) and the structural soundness of the
exterior walls of the building in good repair, reasonable wear and tear
excepted. The term "walls" as used herein shall not include windows, glass or
plate glass, doors, special store fronts, dock bumpers, dock plates or dock
levelers or office entries. Notwithstanding the foregoing, Landlord shall not be
required to repair or maintain those items for which Tenant is expressly
responsible under the terms of this Lease. The cost of such maintenance and
repair shall be included in Operating Expenses to the extent permitted by
Paragraph 4 above. Landlord, at its own cost and expense, shall prior to the
Commencement Date, exterminate the exterior of the Premises for pests. Tenant
shall immediately give Landlord written notice of defect or need for repairs for
which Landlord is responsible, after which Landlord shall have reasonable
opportunity to repair same or cure such defect. Landlord's liability with
respect to any defects, repairs or maintenance for which Landlord is responsible
under any of the provisions of this Lease shall be limited to the cost of such
repairs or maintenance or the curing of such defect. Notwithstanding the
foregoing, Tenant shall repair and pay for any damage to any of the foregoing or
any other portion of the Project caused by Tenant, or Tenant's employees, agents
or invitees, or caused by Tenant's default hereunder. The repair provisions of
this Lease supercedes the effect of O.C.G.A. 44-7-13.
6. TENANT'S REPAIRS.
a. Tenant shall at its own cost and expense keep and maintain all parts
of the Premises (except those for which Landlord is expressly
responsible under the terms of this Lease) in good condition, promptly
making all necessary repairs and replacements, including but not
limited to, windows, glass and plate glass, doors, any special office
entry, interior walls and finish work, floors and floor covering,
heating and air conditioning and
13
ventilation systems, dock boards, truck doors, dock bumpers, plumbing
work from the point of connection into the Premises and fixtures,
termite and pest extermination, regular removal of trash and debris.
Such repairs and replacements may include capital expenditures and
repairs whose benefit may extend beyond the Term of this Lease. Tenant
shall not be obligated to repair any damage caused by fire, tornado or
other casualty covered by the insurance to be maintained by Landlord
pursuant to subparagraph 12(a) below, except that Tenant shall be
obligated to repair all wind damage to glass except with respect to
tornado or hurricane damage. Notwithstanding the foregoing, Landlord
shall repair and pay for any damage to any of the foregoing or any
other portion of the Project caused by Landlord, or Landlord's
employees or agents, or caused by Landlord's default hereunder.
b. Tenant shall not damage any structural support, columns, foundation or
any demising wall or disturb the integrity and support provided by any
demising wall and shall, at its sole cost and expense, promptly repair
any damage or injury to any of the foregoing caused by Tenant or its
employees, agents or invitees.
c. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all hot water, heating and air conditioning
systems and equipment within the Premises. Landlord must approve the
maintenance contractor and the contract, which approval shall not be
unreasonably withheld or delayed. If Landlord has provided
operation/maintenance manuals to Tenant, the service contract must
include all routine services suggested by the equipment manufacturer
within the operation/maintenance manual and must become effective (and
a copy thereof delivered to Landlord) within fifteen (15) days after
the Commencement Date of this Lease.
d. Tenant shall operate the Premises in a manner that causes only normal
wear and tear on the Premises and all corresponding hot water, heating
and air conditioning systems and equipment.
e. Landlord shall require that the Contractor (as defined in EXHIBIT D
attached hereto) provide all construction warranties for the benefit
of both Landlord and Tenant, as their interests may appear. Tenant
shall provide Landlord with notice simultaneously with Tenant's demand
to the company or individual that issued the warranty of any claim
made by Tenant relating to any construction warranty. Tenant may,
after ten (10) days prior written notice to Landlord, enforce any such
warranty directly against the contractor, provided (i) such action
shall relieve Landlord of any responsibility for the repair to the
extent same is covered by such warranty or for any worsened condition
that arises due to Tenant's acts or omissions and (ii) Tenant may only
enforce warranties that cover items for which Tenant is responsible
under this Lease (for example and without limitation, Tenant shall not
be permitted to enforce the roof warranty but shall be permitted to
enforce the HVAC warranty).
f. The repairs required by this Section 6 are not Operating Expenses
under this Lease and, accordingly, the cost of same shall never be
included in Controllable Operating Expenses and shall not be subject
to the cap on Controllable Operating Expenses. If Landlord performs
any of the repairs required by this Section 6 at the request of Tenant
or upon
14
the failure of Tenant to do so, Tenant shall reimburse Landlord for
such costs within forth-five (45) days of Tenant's receipt of
Landlord's statement of the costs thereof.
7. ALTERATIONS.
a. Tenant shall not make any alterations, additions or improvements (the
"TENANT ALTERATIONS") to the Premises (including but not limited to
roof and wall penetrations) without the prior written consent of
Landlord not to be unreasonably withheld. The Additional Improvements
and all other improvements required at the time of the exercise or
termination of the Contraction Option shall not be covered by this
section and shall be covered by a separate Work Letter to be executed
by Landlord and Tenant. In addition to any additional requirements
that may be imposed by Landlord in its reasonable discretion, all
Tenant Improvements shall comply with the following requirements:
(i) The proposed Tenant Alterations must be non-structural and
shall not (A) include modifications to the Building or alter
the basic character of the Building, (B) require any core
drillings through the walls or roof of the Premises, (C)
overload or damage the Building, (D) affect the sprinkler or
electrical system of the Building. (E) affect the exterior of
the Building, and (E);
(ii) All Tenant Alterations shall be made in a good and workmanlike
manner and shall be constructed by Tenant at Tenant's sole cost
and expense (including, without limitation, reimbursement of
Landlord's reasonable third party costs in connection with
Landlord's review of the Tenant Improvements not to exceed
$2,500 for Tenant Alterations up to $250,000 in cost and to be
reasonable for Tenant Alterations valued in excess of $250,000)
in accordance with the plans and specifications approved by
Landlord (if such approval is required by subsection (iv)
below);
(iii) Tenant shall provide the names of its proposed contractors to
Landlord for approval prior to beginning construction. Tenant's
contractors shall be acceptable to Landlord in its reasonable
discretion. Landlord shall have the right to reject any of
Tenant's contractors who Landlord has barred from performing
work within the Project;
(iv) Prior to the commencement of construction, Tenant or its
contractor or architect shall deliver to Landlord for review
and approval a copy of the final plans for the construction,
provided Landlord's approval is not required for cosmetic work
or non-structural improvements with a total value of less than
$25,000.00 (excluding the value of Tenant's personal property
that will not be attached to the Premises) so long as Tenant
provides a copy of all plans and specifications for such work
prior to the commencement of same;
(v) The proposed Tenant Alterations shall comply with all
applicable laws including, without limitation, the Disabilities
Laws, as defined in Section 3.c. of this Lease;
(vi) If the Tenant Alterations require the employment of an
architect by Tenant, Tenant's architect shall certify to
Landlord that the plans for the proposed Tenant
15
Alterations comply with applicable laws, including, but not
limited to the Disability Acts, with the understandings that
such certificate shall not be binding on Landlord, but Landlord
shall have the right to rely on same;
(vii) Tenant shall provide Landlord with notice prior to commencing
such improvements or alterations;
(viii) Tenant shall provide Landlord with "as built" drawings for any
improvements or alterations made by Tenant;
(ix) Tenant and its contractors shall comply with all commercially
reasonable rules and regulations pertaining to the delivery of
construction materials, equipments and supplies and the
delivery of any other materials, supplies and equipment in
connection with the construction;
(x) Tenant and its contractors shall provide commercially
reasonable insurance to appropriately reflect the scope of the
Tenant Alterations;
(xi) Landlord shall not charge Tenant a construction management fee
in connection with the Tenant Alterations so long as Tenant
reimburses Landlord for all of its actual out-of-pocket costs
associated with the review of the Tenant Alterations up to the
cap set forth in item (ii) above; and
(xii) Tenant agrees to obtain, at its cost, building permits and
other applicable permits from applicable local municipal
authorities, state and federal agencies necessary to install,
construct, use, maintain, repair, or modify the Tenant
Alterations.
b. OTHER ASSURANCES. Tenant shall reimburse Landlord for its reasonable
costs in reviewing plans and specifications for Tenant's alterations
up to the cap set forth in item a.(ii) above. Landlord's right to
review plans and specifications and to approve the contractor(s) shall
be solely for its own benefit, and Landlord shall have no duty to see
that such plans and specifications or the Tenant Alterations
constructed pursuant thereto comply with applicable laws, codes, rules
or regulations. Landlord's approval of any such plans shall not in any
way relieve Tenant from any of its obligations under this Section 7 or
any other provision of this Lease. Landlord may post on and about the
Premises notices of non-responsibility pursuant to applicable law.
Tenant shall furnish security or make other arrangements satisfactory
to Landlord to assure payment for the completion of all work in
connection with the Tenant Alterations free and clear of liens and
shall provide certificates of insurance for worker's compensation and
other coverage in amounts and from an insurance company satisfactory
to Landlord protecting Landlord against liability for personal injury
or property damage during construction of any Tenant Alterations. Upon
completion of any Tenant Alterations, Tenant shall deliver to Landlord
sworn statements setting forth the names of all contractors and
subcontractors who performed work on the Tenant Alterations and final
lien waivers from all such contractors and subcontractors. Tenant
Alterations shall also include improvements made by Tenant without the
requirement of Landlord's approval.
16
c. ALLOCATION OF RISK. Subject to the waiver of subrogation in Section 12
of this Lease, and subject to the provisions regarding casualty and
condemnation, and other terms and conditions of this Lease:
(i) Tenant shall bear all risks associated with the construction
and installation of Tenant Alterations and the delivery and
receipt of any materials, supplies, equipment and other
installation pertaining to the Tenant Alterations, except to
the extent of any damage or injury caused solely by Landlord or
its employees or agents.
(ii) Tenant shall require its contractors to repair any damage
caused to the Premises, the Building or any other portion of
the Complex in connection with the delivery, receipt,
installation or construction of all Tenant Alterations, and
(iii) Tenant shall require its contractors to indemnify and hold
harmless Landlord from any claims arising out of or in
connection with the delivery, receipt, installation,
construction, demolition and/or removal of all Tenant
Alterations and the work pertaining thereto.
d. REMOVAL OF ALTERATIONS. Tenant shall not be required to remove any of
the Tenant Improvements or Additional Improvements upon the expiration
of termination of this lease, all of which shall belong to Landlord.
All Tenant Alterations shall be and remain the property of Tenant
during the Term of this Lease and Tenant shall remove all Tenant
Alterations and restore the Premises to its original condition by the
date of termination of this Lease or upon earlier vacating of the
Premises. All shelves, bins, machinery and trade fixtures installed by
Tenant may be removed by Tenant prior to the termination of this Lease
if Tenant so elects, and shall be removed by the date of termination
of this Lease or upon earlier vacating of the Premises. Upon any such
removal Tenant shall restore the Premises to its original condition,
normal wear and tear, casualty and condemnation excepted. All such
removals and restoration shall be accomplished in a good and
workmanlike manner so as not to damage the primary structure or
structural qualities of the Building and the improvements situated in
the Premises. All items not removed by Tenant by the expiration or
termination of this Lease shall be deemed abandoned by Tenant and may
be removed, sold or otherwise disposed of by Landlord.
8. SIGNS.
a. GENERAL PROHIBITION. Tenant shall not make any changes to the exterior
of the Premises, install any exterior lights, decorations, balloons,
flags, pennants, banners, or painting, or erect or install any signs,
windows or door lettering, placards, decorations or advertising media
of any type which can be viewed from the exterior of the Premises,
without Landlord's prior written consent not to be unreasonably
withheld. Upon surrender or vacation of the Premises, Tenant shall
remove all signs and repair, paint, and/or replace the Building facia
surface to which its signs are attached. Tenant shall obtain all
applicable governmental permits and approvals for sign and exterior
treatments and shall indemnify Landlord from and against all claims
arising in connection with any sign or other exterior treatment
installed by Tenant. Any signs shall be commercially reasonable in
design and installation method and shall be comparable to signs for
Comparable Buildings.
17
b. BUILDING SIGN. Notwithstanding the foregoing, so long as (i) Tenant is
not in default under the terms of this Lease beyond the expiration of
any applicable notice and cure periods; (ii) Tenant is in occupancy of
the Premises; and (iii) Tenant has not assigned the Lease or any part
of the Premises (except for Permitted Transfers and unless Landlord
specifically approved in writing the transfer of such sign to an
assignee or sublessee), Tenant shall have the right, at Tenant's
expense, to install one corporate identification sign on the exterior
facade of the Building (such sign, the "BUILDING SIGN"); provided that
(i) the Building Sign shall be in a location approved by Landlord,
which approval shall not be unreasonably withheld, delayed or
conditioned, (ii) Tenant obtains all necessary approvals from the City
of Stockbridge and all other governmental authorities (including any
applicable airport having jurisdiction over Tenant, the Project, or
the Building Sign), (iii) the Building Sign conforms to all applicable
laws, rules and regulations of any governmental authorities having
jurisdiction over the Building Sign or the Project and all restrictive
covenants applicable to the Project, and (iv) Tenant obtains
Landlord's written consent to any proposed signage specifications
(including, without limitation the size and location of the signage)
and lettering prior to its fabrication and installation. Landlord
reserves the right to withhold consent to any sign that, in the sole
judgment of Landlord, is not harmonious with the design standards of
the Project. To obtain Landlord's consent, Tenant shall submit design
drawings to Landlord showing the type and sizes of all lettering; the
colors, finishes and types of materials used. Tenant shall pay all
costs associated with the Building Sign, including without limitation,
installation expenses, maintenance and repair costs, utilities and
insurance. Tenant agrees that, subject to inclusion in Operating
Expenses, Landlord shall have the right, after notice to Tenant, to
temporarily remove and replace the Building Sign in connection with
and during the course of any repairs, changes, alterations,
modifications, renovations or additions to the Building. Tenant shall
maintain the Building Sign in good condition. Upon expiration or
earlier termination of the Lease, Tenant shall, at its sole cost and
expense, remove the Building Sign and repair all damage caused by such
removal. If during the Term (and any extensions thereof) (a) Tenant is
in default under the terms of the Lease after the expiration of
applicable cure periods; or (b) Tenant vacates the Premises for a
period of 90 or more consecutive days; or (c) Tenant assigns the Lease
or subleases any part of the Premises, then Tenant's rights granted
herein with respect to the Building Sign will terminate and Landlord
may remove the Building Sign at Tenant's sole cost and expense.
Notwithstanding the foregoing, Landlord shall have the right to
approve (which approval shall not be unreasonably withheld) the name
and logo located on any such sign (even if the transfer that resulted
in the need to change the sign was expressly permitted by this Lease)
to verify that same are consistent with the image and standard of
other Comparable Buildings in the South Atlanta submarket. "COMPARABLE
BUILDINGS" means the Building and other industrial buildings which are
comparable to the Building in terms of quality and desirability of
location, age (based on the date of completion of construction),
quality of construction, level of services, amenities, height, size
and appearance that are located within a five mile radius of the
Building.
c. MONUMENT SIGN. Further, so long as (i) Tenant is not in default under
the terms of this Lease beyond the expiration of any applicable notice
and cure periods; (ii) Tenant is in occupancy of the Premises; and
(iii) Tenant has not assigned or sublet any part of the Premises
(except for Permitted Transfers and unless Landlord specifically
approved in writing the transfer of such sign to an assignee or
sublease), Tenant may, at Tenant's
18
sole cost and expense, construct a multi-tenant Building monument sign
(the "MONUMENT SIGN") located at the front of the Building and place
Tenant's name in Landlord's standard graphics for the Building on the
top portion of the sign (and subject to all requirements regarding
Tenant Alterations even if the Monument Sign costs less than
$25,000.00). Following installation of the Monument Sign, Tenant shall
remain liable for all costs related to the maintenance of the Monument
Sign. Tenant must obtain Landlord's written consent to any proposed
fabrication, installation or lettering such sign, which approval shall
not be unreasonably delayed or withheld. Landlord agrees that it will
not unreasonably delay notification to Tenant of its approval or
disapproval of any proposed signage. Landlord reserves the right to
withhold consent to any Monument Sign or lettering that, in the
judgment of Landlord, is not harmonious with the design standards of
the Building. If during the Term (and any extensions thereof) (a)
Tenant is in default under the terms of the Lease after the expiration
of applicable notice and cure periods; or (b) Tenant vacates the
Premises for a period of 90 or more consecutive days; or (c) Tenant
assigns the Lease (unless Landlord specifically approved in writing
the transfer of such sign to an assignee or sublessee), then Tenant's
rights granted herein with respect to the Monument Sign will terminate
and Landlord may remove the Tenant's signage at Tenant's sole cost and
expense. If during the term of this Lease or any extension hereof,
Landlord constructs a Monument Sign for the Building, Tenant shall be
permitted, at Tenant's cost, to place Tenant's name in Landlord's
standard graphics for the Building on the sign. Notwithstanding
anything herein to the contrary, Landlord may remove any or all of
Tenant's signs if Tenant is in default under the terms of this Lease
(after expiration of all applicable notice and cure periods) and
Tenant shall have no further signage rights.
9. INSPECTION. Landlord and Landlord's agents and representatives shall have
the right, after twenty-four (24) hours advance notice, which notice may be oral
(provided that notice shall not be provided by voice mail) (except in the case
of an emergency, in which event no notice shall be required), to enter and
inspect the Premises at any reasonable time, for the purpose of ascertaining the
condition of the Premises, in order to make such repairs as may be required or
permitted to be made by Landlord under the terms of this Lease, or for any other
business purpose. During the period that is six (6) months prior to the end of
the Term hereof, Landlord and Landlord's agents and representatives shall have
the right to enter the Premises at any reasonable time upon reasonable advance
notice during business hours for the purpose of showing the Premises and shall
have the right to erect on the Premises a suitable sign indicating the Premises
are available. Except in an emergency, Landlord shall not unreasonably interfere
with Tenant's business during any entry permitted by this paragraph. Tenant
shall give written notice to Landlord at least thirty (30) days prior to
vacating the Premises and shall arrange to meet with Landlord for a joint
inspection of the Premises immediately following Tenant's removal of its
property from the Premises. In the event of Tenant's failure to give such notice
or arrange such joint inspection. Landlord's inspection at or after Tenant's
vacating the Premises shall be conclusively deemed correct for purposes of
determining Tenant's responsibility for repairs and restoration.
10. UTILITIES. Landlord agrees to provide at its cost water, electricity and
telephone service connections to the Premises; provided that Tenant shall pay
the actual cost for all water, electricity, gas, heat, light, power, telephone,
sewer and other utilities and services used on or for the Premises and directly
billed to Tenant or included in the Operating Expenses as described above in
Section 4 of this Lease, together with any taxes, penalties, surcharges or the
like pertaining thereto and any maintenance charges for utilities. Tenant shall
furnish all electric light bulbs and tubes used in connection with the Premises.
If any such services are not separately metered to Tenant, Tenant shall pay a
reasonable
19
proportion as determined by Landlord of all charges jointly metered with other
premises in the Project, subject to the exclusion from Operating Expenses in
Section 4.b. Landlord shall in no event be liable for any interruption or
failure of utility services on the Premises and no interruption or failure of
any utilities shall result in the termination of this Lease or the abatement of
rent hereunder. Notwithstanding anything to the contrary contained in this
Paragraph 10, if: (i) in the event of a cessation of water or electricity to the
Premises for a period in excess of five (5) consecutive business days after
Tenant notifies Landlord of such cessation; (ii) such cessation is caused solely
and directly by Landlord or Landlord's agents or contractors; (iii) such
cessation is not caused by a fire or other casualty (in which case Paragraphs 12
and 14 hereof shall control); and (iv) as a result of such cessation, the
Premises or a portion thereof, is rendered untenantable (meaning that Tenant is
unable to use all or a portion of the Premises in the normal course of its
business) and Tenant in fact ceases to use the Premises, or portion thereof,
then Tenant, as its sole remedy, shall be entitled to receive an abatement of
monthly rent payable hereunder during the period beginning on the sixth (6th)
consecutive business day of such cessation and ending on the day when the
service in question has been restored. In the event the entire Premises has not
been rendered untenantable by the cessation in service, the amount of abatement
that Tenant is entitled to receive shall be prorated based upon the percentage
of the Premises so rendered untenantable and not used by Tenant.
11. ASSIGNMENT AND SUBLETTING.
a. ASSIGNMENT AND SUBLETTING BY TENANT PROHIBITED. Tenant will not assign
this Lease, or allow same to be assigned by operation of law or
otherwise, or sublet the Premises or any part thereof, or mortgage or
transfer its interest under this Lease or grant any concession or
license within the Premises, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, delayed or
conditioned. Notwithstanding any permitted assignment or subletting,
including any assignment or sublease to an affiliate of Tenant, Tenant
shall at all times remain directly, primarily and fully responsible
and liable for the payment of the rent herein specified and for
compliance with all of its other obligations under the terms,
provisions and covenants of this Lease. Tenant shall deliver to
Landlord a copy of each assignment or sublease entered into by Tenant
promptly after the execution thereof. No assignee or sublessee of the
Premises or any portion thereof may assign or sublet the Premises or
any portion thereof. Consent by Landlord to one or more assignments or
sublettings shall not operate as a waiver of Landlord's rights as to
any subsequent assignments and/or sublettings. All reasonable legal
fees and expenses incurred by Landlord in connection with any
assignment or sublease proposed by Tenant will be the responsibility
of Tenant and will be paid by Tenant within forty-five (45) days after
receipt of an invoice from Landlord. Upon the occurrence of an "event
of default" (hereinafter defined), if the Premises or any part thereof
are then sublet, Landlord, in addition to any other remedies herein
provided or provided by law, may at its option collect directly from
such subtenant all rents becoming due to Tenant under such sublease
and apply such rent against any sums due to Landlord from Tenant
hereunder, and no such collection shall be construed to constitute a
novation or a release of Tenant from the further performance of
Tenant's obligations hereunder. A collateral assignment of this Lease
in connection with the collateral assignment of all assets of Tenant
(including, without limitation the collateral assignment of all other
leases then held by Tenant as tenant thereunder) to an institutional
lender or lenders that are not in any way related to Tenant shall not
be a violation of this Section 11.a. provided (i) Tenant shall not be
released from liability under
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this Lease following any foreclosure or transfer in lieu of
foreclosure of this Lease to such lender or any purchaser of same and
(ii) such collateral assignment must secure a loan that directly
relates to the operations of Tenant and not solely to any of its
affiliates or subsidiaries.
b. ASSIGNMENT AND SUBLETTING TO AFFILIATES. Tenant may assign its entire
interest under this Lease, without the consent of Landlord, to (i) an
affiliate, subsidiary, or parent of Tenant, or a corporation,
partnership or other legal entity wholly owned by Tenant
(collectively, an "AFFILIATED PARTY"), or (ii) a successor to Tenant
by purchase, merger, consolidation or reorganization, provided that
all of the following conditions are satisfied (each such Transfer a
"PERMITTED TRANSFER"):
(i) Tenant is not in default under this Lease beyond any applicable
notice and cure period;
(ii) the permitted use does not allow the Premises to be used for
retail purposes except to the limited extent set forth in
Section 3.a. of this Lease;
(iii) Tenant shall give Landlord written notice at least 10 days
prior to the effective date of the proposed Permitted Transfer;
(iv) with respect to a proposed Permitted Transfer to an Affiliated
Party, the proposed transferee will have a net worth equal to
or greater than Tenant's net worth at the date of this Lease;
and
(v) with respect to a purchase, merger, consolidation or
reorganization or any Permitted Transfer which results in
Tenant ceasing to exist as a separate legal entity, (a)
Tenant's successor shall own all or substantially all of the
assets of Tenant, and (b) Tenant's successor shall have a net
worth which is at least to Tenant's net worth on the date of
this Lease.
Tenant's notice to Landlord shall include information and
documentation showing that each of the above conditions has been
satisfied. If requested by Landlord, Tenant's successor shall sign a
commercially reasonable form of assumption agreement. As used herein,
(A) "parent" shall mean a company which owns a majority of Tenant's
voting equity; (B) "subsidiary" shall mean an entity wholly owned by
Tenant or at least 51% of whose voting equity is owned by Tenant; and
(C) "affiliate" shall mean an entity controlled by, controlling or
under common control with Tenant. Notwithstanding the foregoing, if
any parent, affiliate or subsidiary to which this Lease has been
assigned or transferred subsequently sells or transfers its voting
equity or its interest under this Lease OTHER THAN to a parent,
subsidiary or affiliate of the selling/transferring entity, such sale
or transfer shall be deemed to be a Transfer requiring the consent of
Landlord hereunder.
c. NOTICE OF PROPOSED SUBLEASE OR ASSIGNMENT. If Tenant shall propose to
sublet or assign this Lease, it shall so notify Landlord in writing
not less than thirty (30) days prior to the date of the proposed
assignment or subletting, such notice setting forth the name of the
proposed subtenant or assignee, the term, use, rental rate and other
particulars of the proposed subletting or assignment, including
without limitation, proof satisfactory to
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Landlord that the proposed subtenant or assignee is financially
responsible and will immediately occupy and thereafter use the entire
Premises (or any sublet portion thereof) for the remaining Term of
this Lease (or for the entire term of the sublease, if shorter).
d. LANDLORD'S CANCELLATION OPTION. Landlord shall have the option, in the
event of any proposed assignment or subletting (except a Permitted
Transfer or a proposed sublease of the entire Premises to a party that
will operate Tenant's business in the Premises (provided the exclusion
of such operators from Landlord's termination right does not in any
way change the requirement that Tenant obtain Landlord's prior written
consent to the sublease of the entire Premises to such entity)), to
cancel this Lease (or in Landlord's sole discretion, only the portion
of the Lease covered by the proposed sublease or assignment) as of the
date the subletting or assignment described in Tenant's notice is to
be effective. The option shall be exercised, if at all, by Landlord's
giving Tenant written notice thereof within twenty (20) days following
Landlord's receipt of Tenant's written request for Landlord's approval
of a sublease or assignment. Tenant may, for ten (10) business days
following receipt of Landlord's termination notice, withdraw its
request for Landlord's approval of the sublease or assignment and if
Landlord receives Tenant's written withdrawal notice within ten (10)
business days after Tenant's receipt of Landlord's termination notice,
the termination shall be void and of no further effect and the request
for Landlord approval of the assignment or sublease shall be void and
shall not proceed with such assignment or sublease. Upon any such
cancellation Tenant shall pay to Landlord all costs or charges which
are the responsibility of Tenant hereunder, and Tenant shall, at
Tenant's own cost and expense, reimburse Landlord for all then
unamortized commissions, Additional Improvements costs and Excess
Costs (the calculation of which is more particularly set forth in
Section 1 regarding Tenant's termination options under this Lease).
Further, upon any such cancellation Landlord and Tenant shall have no
further obligations or liabilities to each other under this Lease,
except with respect to obligations or liabilities which accrue
hereunder, as of such cancellation date in the same manner as if such
cancellation date were the date originally fixed for the expiration of
the Term hereof. Without limitation, Landlord may lease the Premises
to the prospective subtenant or assignee, without liability to the
Tenant. Landlord's failure to exercise any right hereunder shall not
waive Landlord's right as to any subsequent proposed sublease or
assignment, nor shall any such failure be deemed to constitute
Landlord's approval of the proposed sublease or assignment. Regardless
of whether Landlord terminates this Lease, Landlord may negotiate
directly with any proposed assignee or subtenant regarding available
space in the Building or in other buildings.
e. LANDLORD'S APPROVAL. If Landlord does not cancel this Lease, Landlord
shall, within ten (10) business days after Landlord's receipt of
Tenant's written request to the proposed assignment or sublease,
notify Tenant whether Landlord consents or withholds its consent to
the proposed sublease or assignment, which consent may be withheld in
Landlord's reasonable discretion. If Landlord fails to so notify
Tenant within such ten (10) business day period, Landlord shall be
deemed not to have consented to such assignment or sublease.
f. RENTALS FROM SUBLEASE OR ASSIGNMENT. To the extent the rentals or
income derived from any sublease or assignment exceed the rentals due
hereunder, fifty percent (50%) of
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such excess rentals and income (after payment of reasonable and
customary third party out of pocket costs actually paid by Tenant in
connection with such assignment or sublease, evidence of which shall
be provided to Landlord) shall be the property of and paid over to
Landlord in consideration for Landlord's consent to the applicable
assignment or sublease and shall be considered to be additional Base
Rent due hereunder.
g. ASSIGNMENT BY LANDLORD PERMITTED. Landlord shall have the right to
transfer and assign, in whole or in part, any of its rights under this
Lease, and in the Building and the Project, and Landlord shall by
virtue of such transfer or assignment be released from such
obligations accruing after the date of such transfer or assignment.
The successor to Landlord shall assume all obligations of Landlord to
the Broker, as defined below in Section 28, which obligations are
evidenced by separate written agreements with each of the Brokers and
some of the commissions relating to this Lease are payable at a later
date in connection with the Contraction Option.
12. INSURANCE; FIRE AND CASUALTY DAMAGE; WAIVER OF SUBROGATION.
a. LANDLORD'S INSURANCE. Landlord agrees to maintain standard all-risk
property insurance covering the Building in an amount not less than
the full replacement cost thereof. Such insurance shall be for the
sole benefit of Landlord and under its sole control. Any insurance
provided for in this subparagraph 12(a) may be affected by
self-insurance or by a policy or policies of blanket insurance
covering additional items or locations or assureds.
b. TENANT'S INSURANCE. Tenant, at its expense, shall procure and maintain
during the Term of this Lease special form all risk property insurance
covering the full replacement cost of all property and improvements
installed or placed in the Premises, including without limitation the
tenant improvements described in EXHIBIT D attached hereto; worker's
compensation insurance with no less that the minimum limits required
by law and employer's liability insurance with a minimum limit of One
Million and 00/100 Dollars ($1,000,000.00) per occurrence. Tenant
shall also, at Tenant's sole cost and expense, for the benefit of
Landlord, Landlord's manager and Tenant, maintain comprehensive
commercial general liability insurance with broad liability
endorsement against claims for personal injury, death or property
damage occurring upon, in or about the Premises. Such insurance shall
afford protection to Landlord, its managing agent and Tenant to the
limit of not less than Three Million and 00/100 Dollars
($3,000,000.00) per occurrence, and Three Million and 00/100 Dollars
($3,000,000.00) aggregate, combined single limit bodily injury and
property damage. Such policies of insurance shall insure on an
occurrence and not a claims-made basis, be written in companies
reasonably satisfactory to Landlord, name Landlord, Landlord's
directors, officers, members, shareholders, agents and employees as
additional insureds thereunder, not be cancelable unless 30 days prior
written notice shall have been given to Landlord, and such policies,
or a memorandum or certificate of such insurance, shall, prior to
Tenant taking possession of the Premises, be delivered to Landlord
endorsed "Premium Paid" by the company or agency issuing the same or
accompanied by other evidence satisfactory to Landlord that the
premium thereon has been paid. Further, the commercial liability,
shall be issued by insurance companies which are reasonably acceptable
to Landlord. At such time as
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insurance limits required of tenants in similar buildings in the area
in which the Building is located are generally increased to greater
amounts, Landlord shall have the right to require by written notice to
Tenant such greater limits as may then be customary. Tenant agrees to
include in such policy the contractual liability coverage insuring
Tenant's indemnification obligations provided for herein. Tenant's
liability coverage shall be deemed primary to any liability coverage
secured by Landlord.
c. CASUALTY. If the Premises or the Building (including machinery or
equipment used in its operation) shall be damaged by fire or other
casualty and if such damage does not render all or a substantial
portion of the Premises or the Building untenantable, then Landlord
shall repair and restore the same with reasonable promptness, subject
to reasonable delays for insurance adjustments and delays caused by
matters beyond Landlord's reasonable control, but Landlord shall not
be obligated to expend therefor an amount in excess of the proceeds of
insurance recovered with request thereto. If any such damage renders
all or a substantial portion of the Premises or the Building
untenantable, Landlord shall, within sixty (60) days of such damage or
destruction, deliver to Tenant an estimate of the duration of the
period in which the Premises will be untenantable, as reasonably
determined by Landlord. If such estimated period shall be for more
than one hundred eighty (180) days from the date of such damage, then
Landlord, or Tenant if in addition thereto at least fifty percent
(50%) of the Premises is untenantable, shall have the right to
terminate this Lease (with appropriate prorations of rent being made
for Tenant's possession subsequent to the date of such damage of those
tenantable portions of the Premises) upon giving written notice to the
other within fifteen (15) days after the delivery to Tenant of
Landlord's repair estimate. Unless this Lease is terminated as
provided in the preceding sentence and so long as such damage does not
result from Tenant's fault or neglect, Landlord shall proceed with
reasonable promptness to repair and restore the Premises, subject to
reasonable delays for insurance adjustments and delays caused by
matters beyond Landlord's reasonable control, but Landlord shall not
be obligated to expend therefor an amount in excess of the proceeds of
insurance recovered with request thereto. Landlord shall have no
liability to Tenant, and Tenant shall not be entitled to terminate
this Lease by virtue of any delays in completion of such repairs and
restoration, provided Tenant may terminate this Lease if the repairs
are not completed within one hundred eighty (180) days from the date
of the damage, provided the 180 days shall be extended for force
majeure and Tenant Delays. Rent, however, shall xxxxx on those
portions of the Premises as are, from time to time, untenantable as a
result of such damage (except fires or casualties resulting from
Tenant's fault or neglect). Notwithstanding anything to the contrary
herein set forth, Landlord shall have no duty pursuant to this
Paragraph 12(c) to repair or restore any portion of the alterations,
additions or improvements in the Premises or the decoration thereto
except to the extent that such alterations, additions, improvements
and decoration were installed by Landlord. Notwithstanding Landlord's
restoration obligation, in the event any mortgagee under a deed to
secure debt, security agreement or mortgage on the Building should
require that the insurance proceeds be used to retire or reduce the
mortgage debt or if the insurance company issuing Landlord's fire and
casualty insurance policy fails or refuses to pay Landlord the
proceeds under such policy, Landlord shall have no obligation to
rebuild and this Lease shall terminate as of the later of (i) the date
of such casualty or (ii) if a portion of the Premises is occupied by
Tenant upon thirty days (30) prior written notice by Landlord to
Tenant. Notwithstanding anything
24
herein to the contrary, Tenant shall be responsible for the repair and
replacement of the Tenant Alterations and all of Tenant's personal
property in the Premises.
d. WAIVER OF SUBROGATION. Notwithstanding anything to the contrary set
forth in this Lease, Landlord and Tenant hereby waive any rights they
may have against the other (including, but not limited to, a direct
action for damages) on account of any loss or damage occasioned to
Landlord or Tenant, as the case may be, TO THEIR RESPECTIVE PROPERTY,
THE PREMISES, ITS CONTENTS OR TO ANY OTHER PORTION OF THE BUILDING OR
THE PROJECT ARISING FROM ANY RISK (WITHOUT REGARD TO THE AMOUNT OF
COVERAGE OR THE AMOUNT OF DEDUCTIBLE) COVERED BY OR WHICH WOULD BE
COVERED BY THE ALL RISK REPLACEMENT COST PROPERTY INSURANCE REQUIRED
TO BE CARRIED BY TENANT AND LANDLORD, RESPECTIVELY, UNDER
SUBPARAGRAPHS 12(a) AND 12(b) ABOVE (EVEN IF (i) SUCH LOSS OR DAMAGE
IS CAUSED BY THE FAULT, NEGLIGENCE OR OTHER TORTIOUS CONDUCT, ACTS OR
OMISSIONS OF THE RELEASED PARTY OR THE RELEASED PARTY'S DIRECTORS,
MEMBERS, EMPLOYEES, AGENTS OR INVITEES, OR (ii) THE RELEASED PARTY IS
STRICTLY LIABLE FOR SUCH LOSS OR DAMAGE). The foregoing waiver shall
be effective even if either or both parties fail to carry the
insurance required by subparagraphs 12(a) and 12(b) above. Each party
to this Lease agrees immediately to give to each such insurance
company written notification of the terms of the mutual waivers
contained in this Paragraph and to have said insurance policies
properly endorsed, if necessary, to prevent the invalidation of said
insurance coverage by reason of said waivers.
13. LIABILITY.
a. TENANT'S INDEMNITY. SUBJECT TO LANDLORD'S EXPRESS WAIVERS UNDER
PARAGRAPH 12(d) ABOVE, TENANT AGREES TO INDEMNIFY AND SAVE LANDLORD
AND LANDLORD'S DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, AGENTS AND
EMPLOYEES HARMLESS AGAINST AND FROM ANY AND ALL CLAIMS BY OR ON BEHALF
OF ANY PERSON OR PERSONS, FIRM OR FIRMS, CORPORATION OR CORPORATIONS,
ARISING FROM ANY BREACH OR DEFAULT ON THE PART OF TENANT IN THE
PERFORMANCE OF ANY COVENANT OR AGREEMENT ON THE PART OF TENANT TO BE
PERFORMED, PURSUANT TO THE TERMS OF THIS LEASE, OR ARISING FROM THE
USE OF THE PREMISES OR ANY ACT OR NEGLIGENCE ON THE PART OF TENANT OR
ITS AGENTS, CONTRACTORS, SERVANTS, EMPLOYEES, INVITEES OR LICENSEES,
OR ARISING FROM ANY ACCIDENT, INJURY OR DAMAGE TO THE EXTENT CAUSED BY
TENANT, ITS AGENTS, AND EMPLOYEES TO ANY PERSON, FIRM OR CORPORATION
OCCURRING DURING THE TERM OF THIS LEASE OR ANY RENEWAL THEREOF, IN OR
ABOUT THE PREMISES AND PROJECT, AND FROM AND AGAINST ALL COSTS,
REASONABLE COUNSEL FEES, EXPENSES AND LIABILITIES INCURRED IN OR ABOUT
ANY SUCH CLAIM OR ACTION OR PROCEEDING BROUGHT THEREON. Tenant, upon
request from Landlord, covenants to resist or defend such action or
proceeding by counsel reasonably satisfactory to Landlord.
Notwithstanding the foregoing, Tenant shall not be required to
indemnify Landlord for, and does not waive, claims to the extent
caused by the gross negligence or willful misconduct of Landlord.
25
b. LANDLORD'S INDEMNITY. SUBJECT TO TENANT'S EXPRESS WAIVERS UNDER
PARAGRAPH 12(d) ABOVE, LANDLORD AGREES TO INDEMNIFY AND SAVE TENANT
AND TENANT'S DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, AGENTS AND
EMPLOYEES HARMLESS AGAINST AND FROM ANY AND ALL CLAIMS BY OR ON BEHALF
OF ANY PERSON OR PERSONS, FIRM OR FIRMS, CORPORATION OR CORPORATIONS,
ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR
ITS AGENTS, AND ARISING IN OR ABOUT THE BUILDING (EXCLUDING THE
PREMISES), AND FROM AND AGAINST ALL COSTS, REASONABLE COUNSEL FEES,
EXPENSES AND LIABILITIES INCURRED IN OR ABOUT ANY SUCH CLAIM OR ACTION
OR PROCEEDING BROUGHT THEREON. Landlord, upon request from Tenant,
covenants to resist or defend such action or proceeding by counsel
reasonably satisfactory to Tenant. Notwithstanding the foregoing,
Landlord shall not be required to indemnify Tenant for, and does not
waive, claims to the extent caused by the negligence or willful
misconduct of Tenant.
c. WAIVER. TENANT AGREES, TO THE EXTENT NOT EXPRESSLY PROHIBITED BY LAW,
THAT LANDLORD AND LANDLORD'S DIRECTORS, OFFICERS, MEMBERS,
SHAREHOLDERS, AGENTS, EMPLOYEES AND SERVANTS SHALL NOT BE LIABLE, AND
TENANT WAIVES ALL CLAIMS FOR DAMAGE TO PROPERTY AND BUSINESS SUSTAINED
DURING THE TERM OF THIS LEASE BY TENANT OCCURRING IN OR ABOUT THE
PROJECT, RESULTING DIRECTLY OR INDIRECTLY FROM ANY EXISTING OR FUTURE
CONDITION, DEFECT, MATTER OR THING IN THE PREMISES, THE PROJECT, OR
ANY PART THEREOF, OR FROM EQUIPMENT OR APPURTENANCES BECOMING OUT OF
REPAIR OR FROM ACCIDENT, OR FROM ANY OCCURRENCE OR ACT OR OMISSION OF
LANDLORD AND LANDLORD'S DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS,
AGENTS, EMPLOYEES OR SERVANTS, OR ANY TENANT OR OCCUPANT OF THE
PROJECT OR ANY OTHER PERSON. THIS PARAGRAPH SHALL APPLY ESPECIALLY,
BUT NOT EXCLUSIVELY, TO DAMAGE CAUSED AS AFORESAID OR BY THE FLOODING
OF SUBSURFACE AREAS, OR BY REFRIGERATORS, SPRINKLING DEVICES, AIR
CONDITIONING APPARATUS, WATER, SNOW, FROST, STEAM, EXCESSIVE HEAT OR
COLD, FALLING PLASTER, BROKEN GLASS, SEWAGE, GAS, ODORS OR NOISE, OR
THE BURSTING OR LEAKING OF PIPES OR PLUMBING FIXTURES, AND SHALL APPLY
EQUALLY, WHETHER ANY SUCH DAMAGE RESULTS FROM THE ACT OR OMISSION OF
OTHER TENANTS OR OCCUPANTS IN THE BUILDING OR ANY OTHER PERSONS, AND
WHETHER SUCH DAMAGE BE CAUSED BY OR RESULT FROM ANY OF THE AFORESAID,
OR SHALL BE CAUSED BY OR RESULT FROM OTHER CIRCUMSTANCES OF A SIMILAR
OR DISSIMILAR NATURE, NOR SHALL LANDLORD BE LIABLE TO TENANT FOR ANY
LOSS OR DAMAGE THAT MAY BE OCCASIONED BY OR THROUGH THE ACTS OR
OMISSIONS OF OTHER TENANTS OF THE BUILDING OR OF ANY OTHER PERSONS
WHOMSOEVER, INCLUDING, BUT NOT LIMITED TO RIOT, STRIKE, INSURRECTION,
WAR, COURT ORDER, REQUISITION, ORDER OF ANY GOVERNMENTAL BODY OR
AUTHORITY, ACTS OF GOD, FIRE OR THEFT. NOTWITHSTANDING THE FOREGOING,
TENANT DOES NOT WAIVE CLAIMS TO THE EXTENT CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD.
d. SURVIVAL. The provisions of this Paragraph 13 shall survive the
expiration or sooner termination of this Lease.
e. LIMITATION OF LANDLORD'S LIABILITY. If Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out
of the right, title and interest of Landlord in the Project (including
insurance proceeds) as the same may then be encumbered and Landlord
shall not be liable for any deficiency. If Landlord is found to be in
default hereunder by reason of its failure to give a consent that it
is required to give hereunder, Tenant's sole remedy will be an action
for specific performance or injunction.
26
The foregoing sentence shall in no event be construed as mandatorily
requiring Landlord to give consents under this Lease. In no event
shall Landlord be liable to Tenant for consequential or special
damages by reason of a failure to perform (or a default) by Landlord
hereunder or otherwise. In no event shall Tenant have the right to
levy execution against any property of Landlord other than its
interest in the Project as hereinbefore expressly provided.
14. CONDEMNATION.
a. TERMINATION FOR TAKING. If sixty percent (60%) or more of the Premises
should be taken for any public or quasi-public use under governmental
law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof (a "TAKING") or if the Taking would
prevent or materially interfere with the use of the Premises for the
purpose for which they are being used, either Landlord or Tenant shall
be entitled to terminate this Lease effective when the physical taking
of said Premises shall occur by delivering written notice of such
termination to the other party within ninety (90) days after the date
of the Taking.
b. RENT ADJUSTMENT. If part of the Premises shall be subject to a Taking,
and this Lease is not terminated as provided in the subparagraph
above, this Lease shall not terminate but the rent payable hereunder
during the unexpired portion of the Lease Term shall be reduced to
such extent as may be fair and reasonable under all of the
circumstances.
c. LANDLORD'S TERMINATION RIGHT. If the Project or any portion thereof
that, in Landlord's reasonable opinion, is necessary to the continued
efficient and/or economically feasible use of the Project shall be
subject to a Taking, then this Lease shall, at the option of Landlord,
terminate, effective when the physical taking of the Premises shall
occur.
d. AWARD. Landlord shall receive the entire award (which shall include
sales proceeds) payable as a result of a condemnation, taking or sale
in lieu thereof. Tenant hereby expressly assigns to Landlord any and
all right, title and interest of Tenant now or hereafter arising in
and to any such award. Tenant shall, however, have the right to
recover from such authority through a separate award which does not
reduce Landlord's award, any compensation as may be awarded to Tenant
on account of moving and relocation expenses and depreciation to and
removal of Tenant's physical property.
15. RELOCATION. Landlord shall not have the right to relocate Tenant.
16. SURRENDER AND HOLDING OVER.
a. SURRENDER AND HOLDOVER. At the termination of this Lease by lapse of
time or otherwise, Tenant will deliver immediate possession to
Landlord. In the event Tenant or any party under Tenant claiming
rights to this Lease, retains possession of the Premises after the
expiration or earlier termination of this Lease, Tenant (or such other
party) shall be a tenant at sufferance and not a tenant at will and
shall be entitled to receive no notice of the termination of its
tenancy pursuant to OFFICIAL CODE OF GEORGIA ANNOTATED Section 44-7-7;
such parties shall be subject to immediate eviction and removal and
Tenant or any such party shall pay Landlord as rent for the period of
such holdover an amount equal to 1.5 times the
27
Base Rent in effect immediately preceding expiration or termination,
as applicable, prorated on a daily basis, plus Tenant's Proportionate
Share of the Operating Expenses. In such event, Tenant shall also be
liable to Landlord for its actual, direct or consequential damages
suffered or incurred by Landlord, including any claim made by any
succeeding tenant of the Premises on account of such holdover by
Tenant. The rent during such holdover period shall be payable to
Landlord from time to time on demand; provided, however, if no demand
is made during a particular month, holdover rent accruing during such
month shall be paid in accordance with the provisions of Paragraphs 2
and 4 above. Tenant will vacate the Premises and deliver same to
Landlord immediately upon Tenant's receipt of notice from Landlord to
so vacate. No holding over by Tenant, whether with or without consent
of Landlord, shall operate to extend the Term of this Lease; no
payments of money by Tenant to Landlord after the expiration or
earlier termination of this Lease shall reinstate, continue or extend
the Term of this Lease; and no extension of this Lease after the
expiration or earlier termination thereof shall be valid unless and
until the same shall be reduced to writing and signed by both Landlord
and Tenant. If Landlord elects to cause Tenant to be ejected from the
Premises through judicial process, Tenant agrees that Landlord will
not be required to deliver Tenant more than one (1) days' notice to
vacate prior to Landlord's filing of a "dispossessory proceeding"
suit. In addition, Tenant agrees that Landlord shall be entitled to
the payment of its reasonable legal fees in the event that Landlord
prevails in a dispossessory proceeding action brought by Landlord.
b. ABANDONED PROPERTY. All personal property of Tenant (including,
without limitation, the Installed Equipment, as defined in EXHIBIT D
attached hereto) remaining in the Premises after the termination or
expiration of the Lease Term or after the abandonment of the Premises
by Tenant may be treated by Landlord as having been abandoned by
Tenant and Landlord may, at its option, thereafter take possession of
such property and either (a) declare same to be the property of
Landlord, in which event Tenant shall have no right to reclaim such
property and Landlord shall have no liability to Tenant with respect
to such property, or (b) at the cost and expense of Tenant, store
and/or dispose of such property in any manner and for whatever
consideration, Landlord, in its sole discretion, shall deem advisable.
Tenant shall be presumed conclusively to have abandoned the Premises
if Tenant has failed to make rental payments as due. The rights
granted to Landlord under this Section 16b. shall be in addition to
any rights it may now or hereafter have as a lien holder and secured
party.
17. QUIET ENJOYMENT. Provided Tenant timely pays rent hereunder and observes
and performs all of the covenants, conditions and provisions on Tenant's part to
be observed and performed hereunder, Tenant shall have the quiet possession of
the Premises for the entire Term hereof, subject to all of the provisions of
this Lease and all laws to which the Project is subject and subject to all
restrictive covenants and other exceptions listed in the Policy of Title
Insurance Number FA-33-218950 issued to Landlord by First American Title
Insurance Company on February 25, 2000, (the "TITLE POLICY") a copy of which has
been provided to Tenant and a copy of which is attached hereto as EXHIBIT L..
18. EVENTS OF DEFAULT. The following events shall be events of default by
Tenant under this Lease:
a. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any payment with respect to operating expenses hereunder
when due, or any other payment or reimbursement to Landlord required
herein when, due, and such failure shall continue
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for a period of five (5) days from the date of Landlord's notice of
same to Tenant, provided only two such grace periods shall be given in
any twelve month period and no notice of the delinquent payment shall
be required.
b. Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
c. Tenant shall file a petition under any section or chapter of the
Federal Bankruptcy Code, as amended, or under any similar law or
statute of the United States or any State thereof: or Tenant shall be
adjudged bankrupt or insolvent in proceedings filed against Tenant
thereunder.
d. A receiver or trustee shall be appointed for all or substantially all
of the assets of Tenant.
e. A petition described in Sections 18b. or 18.c. is filed against Tenant
on an involuntary basis and is not dismissed within sixty (60) days.
f. Tenant shall desert or vacate any substantial portion of the Premises
unless Tenant otherwise complies with all of the other requirements in
this Lease (including, without limitation, all maintenance and repair
obligations) and Tenant provides a guard for the Premises on a 24 hour
per day, seven (7) day per week basis.
g. Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than the foregoing in this Paragraph 18), and shall
not cure such failure within thirty (30) days after written notice
thereof to Tenant, provided it such failure is not capable of being
cured using diligent efforts, Tenant shall fail to diligently pursue
the cure of such failure and, in any event, should fail to cure such
item within a total of 120 days.
19. REMEDIES. Upon the occurrence of any such events of default described in
Paragraph 18 hereof, Landlord shall have the option to pursue any remedies
available under this Lease or available at law or in equity, including without
limitation, one or more of the following remedies without any notice or demand
whatsoever except as expressly provided in this Section:
a. TERMINATION OF LEASE. Terminate this Lease by giving Tenant notice of
such termination, in which event, Tenant shall immediately surrender
the Premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession
or arrearages in rent, enter upon and take possession of the Premises
and expel or remove Tenant and any other person who may be occupying
such Premises or any part thereof, by force if necessary, without
being liable for prosecution or any claim of damages therefor. Tenant
shall remain liable for all obligations under this Lease to the
maximum extent permitted by applicable law.
b. COLLECTION OF DAMAGES. Landlord shall be entitled to recover all loss
and damage Landlord may suffer by reason of such default whether or
not the Lease is terminated by Landlord, whether through inability to
relet the Premises on satisfactory terms or otherwise, recognizing
that the following and any other damages set forth in this Lease shall
not be deemed to be a penalty but shall merely constitute payment of
liquidated damages, it being difficult, if not impossible, to
determine the actual damages to Landlord
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for such breach, including without limitation, the following (without
duplication of any element of damages):
(i) accrued rent then due and payable and late charges, brokers'
fees and commissions, attorneys' fees, moving allowances and
any other costs incurred by Landlord in connection with making
or executing this Lease, the cost of recovering the Premises
and the costs of reletting the Premises (including, without
limitation, advertising costs, brokerage fees, leasing
commissions, reasonable attorneys' fees and refurbishing costs
and other costs in readying the Premises for a new tenant). The
foregoing shall not be discounted to present value or reduced
by the present value of the reasonable market rental value of
the Premises for the balance of the Lease Term; and
(ii) the present value of the rent (excluding the portion of the
rent that represents amortized cost of any tenant improvements
and commissions) (discounted at a rate of interest equal to
eight percent [8%] per annum [the "DISCOUNT RATE"]) that would
have accrued under this Lease for the balance of the Lease Term
but for such termination, reduced by the present value of the
reasonable fair market rental value of the Premises for such
balance of the Lease Term (discounted at the Discount Rate) (in
calculating the fair market rental value, all relevant factors
shall be considered, including, without limitation, (A) the
length of the term remaining in the Term, (B) the then current
market conditions in the South Atlanta industrial submarket,
(C) the likelihood of reletting the Premises for a period of
time equal to or exceeding the remaining term of the Lease, (D)
the net effective rental rates then being obtained by landlords
for similar type space in Comparable Buildings (E) the vacancy
levels in the South Atlanta industrial submarket, (F) current
levels of construction that will be completed during the
remainder of the Term and how the construction will likely
affect the vacancy and rental rates, and (G) inflation.
Notwithstanding the foregoing, following such default, if
Landlord elects not to terminate this Lease, Landlord may elect
not to reduce the amounts set forth in this subsection by the
present value of the reasonable fair market rental value of the
Premises for such balance of the Lease Term but shall instead
deliver to Tenant all base rents received by Landlord from
other tenants or subtenants for the Premises during the
remainder of the Term, less all costs, expenses and incurred by
Landlord in connection with Tenant's default hereunder but not
yet reimbursed by Tenant (provided the sums paid to Tenant
shall never exceed the actually paid by Tenant to Landlord
pursuant to this subparagraph (ii); and
(iii) the present value of the portion of the rent that represents
the amortized cost of any tenant improvements and commissions
(excluding the portion of the rent that does not represent
amortized cost of any tenant improvements and commissions)
(discounted at a rate of interest equal to eight percent [8%]
per annum [the "DISCOUNT RATE"]) that would have accrued under
this Lease for the balance of the Lease Term but for such
termination. The foregoing items shall not be reduced by the
present value of the reasonable fair market rental value of the
Premises for such balance of the Lease Term.
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c. TERMINATION OF POSSESSION. Without judicial process, immediately
terminate Tenant's right of possession of the Premises (whereupon all
obligations and liability of Landlord hereunder shall terminate), but
not terminate this Lease, and, without notice, demand or liability,
enter upon the Premises or any part thereof, take absolute possession
of the same, expel or remove Tenant and any other person or entity who
may be occupying the Premises and change the locks. If Landlord
terminates Tenant's possession of the Premises under this subparagraph
19(b), (i) Landlord shall have no obligation whatsoever to tender to
Tenant a key for new locks installed in the Premises, (ii) Tenant
shall have no further right to possession of the Premises and (iii)
Landlord will have the right to relet the Premises or any part thereof
on such terms as Landlord deems advisable, taking into account the
factors described in subparagraph 19(d). Any rent received by Landlord
from reletting the Premises or a part thereof shall be applied first,
to the payment of any amounts other than rent due hereunder from
Tenant to Landlord (in such order as Landlord shall designate),
second, to the payment of the reletting expenses (which shall mean the
product of the expenses of reletting, including, without limitation,
refurbishing costs, reasonable attorneys' fees, advertising costs,
brokerage fees, leasing commissions and other reasonably necessary
expenses, multiplied by a fraction, the numerator of which is the
number of months then remaining in the Term of this Lease at the time
of the default and the denominator of which is the total number of
months in the new tenant's lease) and third, to the payment of rent
due and unpaid hereunder (in such order as Landlord shall designate),
and Tenant shall satisfy and pay to Landlord any deficiency upon
demand therefor from time to time. Landlord shall not be responsible
or liable for any failure to relet the Premises or any part thereof or
for any failure to collect any rent due upon any such reletting. No
such re-entry or taking of possession of the Premises by Landlord
shall be construed as an election on Landlord's part to terminate this
Lease unless a written notice of such termination is given to Tenant
pursuant to subparagraph 19(a) above. If Landlord relets the Premises
after the termination of this Lease, all such rentals received from
such lease shall be and remain the exclusive property of Landlord and
Tenant shall not be, at any time, entitled to recover any such rental.
Landlord may at any time after a reletting elect to terminate this
Lease.
d. ENTER UPON PREMISES. Without judicial process and without having any
liability therefor, enter upon the Premises and do whatever Tenant is
obligated to do under the terms of this Lease and Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur
in effecting compliance with Tenant's obligations under this Lease.
e. RELETTING THE PREMISES. For purposes of determining any recovery of
rent or damages by Landlord that depends upon what Landlord could
collect by using reasonable efforts to relet the Premises, whether the
determination is required under subparagraph 19(b) or otherwise, it is
understood and agreed that:
(i) Landlord may reasonably elect to lease other comparable,
available space in the Building, if any, before reletting the
Premises.
(ii) Landlord may reasonably decline to incur out-of-pocket costs to
relet the Premises, other than customary leasing commissions
and legal fees for the negotiation of a lease with a new
tenant.
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(iii) Landlord may reasonably decline to relet the Premises at rental
rates below then prevailing market rental rates, because of the
negative impact lower rental rates would have on the value of
the Building and because of the uncertainty of actually
receiving from Tenant the greater damages that Landlord would
suffer from and after reletting at the lower rates.
(iv) Before reletting the Premises to a prospective tenant, Landlord
may reasonably require the prospective tenant to demonstrate
the same financial condition that Landlord would require as a
condition to leasing other space in the Project to the
prospective tenant.
(v) Listing the Premises with a broker in a manner consistent with
parts (i) through (iv) above shall constitute prima facie
evidence of reasonable efforts on the part of Landlord to relet
the Premises.
f. LATE CHARGE AND INTEREST. In the event Tenant fails to pay any
installment of Base Rent, Operating Expense Payments, or any
reimbursement, additional rental, or any other payment hereunder as
and when such payment is due, to help defray the additional cost to
Landlord for processing such late payments Tenant shall pay to
Landlord on demand a late charge in an amount equal to five percent
(5%) of such installment, reimbursement, additional rental or any
other payment and the failure to pay such late charge within ten (10)
days after demand therefor shall be an event of default hereunder. The
late charge and/or interest shall only be assessed after expiration of
all applicable notice and cure periods, provided, if assessed, such
charge shall be calculated form the due date until the date paid. The
provision for such late charge shall be in addition to all of
Landlord's other rights and remedies hereunder or at law and shall not
be construed as liquidated damages or as limiting Landlord's remedies
in any manner. In addition to the foregoing, or in lieu of the
foregoing (in Landlord's sole discretion) any such amounts Tenant
fails to pay when due shall bear interest at the lesser of the maximum
rate permitted by applicable law or the rate of one percent (1%) per
month from the date due until paid and shall be immediately due and
payable to Landlord by Tenant.
g. NO WAIVER. Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies herein provided or any other
remedies provided by law, nor shall pursuit of any remedy herein
provided constitute a forfeiture or waiver of any rent due to Landlord
hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein
contained. No act or thing done by the Landlord or its agents during
the Term hereby granted shall be deemed a termination of this Lease or
an acceptance of the surrender of the Premises, and no agreement to
terminate this Lease or accept a surrender of said Premises shall be
valid unless in writing signed by Landlord. No waiver by Landlord of
any violation or breach of any of the terms, provisions and covenants
herein contained shall be deemed or construed to constitute a waiver
of any other violation or breach of any of the terms, provisions and
covenants herein contained. Landlord's acceptance of the payment of
rental or other payments hereunder after the occurrence of an event of
default shall not be construed as a waiver of such default, unless
Landlord so notifies Tenant in writing. Forbearance by Landlord to
enforce one or more of the remedies herein provided upon an event of
32
default shall not be deemed or construed to constitute a waiver of
such default or of Landlord's right to enforce any such remedies with
respect to such default or any subsequent default. Landlord may elect
to allow the Premises to remain vacant and collect all sums due from
Tenant under this Lease as they become due and payable.
h. ATTORNEY'S FEES. Tenant must pay to Landlord on demand all attorney's
fees, costs and expenses incurred by Landlord in recovery of any Rent
or successful enforcement of Landlord's rights under this Lease.
Furthermore, if Landlord or Tenant employs an attorney to assert or
defend any action arising out of the breach of any term, covenant or
provision of this Lease, or to bring legal action for the unlawful
detainer of the Premises, the prevailing party shall be entitled to
recover from the non-prevailing party reasonable attorney's fees and
costs of suit incurred in connection therewith. For purposes of this
SECTION 19.g, a party shall be considered to be the "prevailing party"
to the extent that (a) such party initiated the litigation and
substantially obtained the relief which it sought (whether by
judgment, voluntary agreement or action of the other party, trial, or
alternative dispute resolution process), (b) such party did not
initiate the litigation and either (1) received a judgment in its
favor, or (2) did not receive judgment in its favor, but the party
receiving the judgment did not substantially obtain the relief which
it sought, or (c) the other party to the litigation withdrew its claim
or action without having substantially received the relief which it
was seeking.
20. SUBORDINATION.
a. SUBORDINATION. This Lease and all rights of Tenant hereunder are
subject and subordinate (i) to any mortgage or deed to secure debt,
blanket or otherwise, which does now or may hereafter affect the
Building (and which may also affect other properties) and (ii) to any
and all increases, renewals, modifications, consolidations,
replacements and extensions of any such mortgage or deed to secure
debt. Tenant covenants and agrees, in the event any proceedings are
brought for the foreclosure of any such mortgage or if the Building be
sold pursuant to any such deed to secure debt, to attorn to the
purchaser, upon any such foreclosure sale if so requested by such
purchaser and to recognize such purchaser as the landlord under this
Lease, subject to the condition that, so long as Tenant is not in
default under this Lease (after expiration of all applicable notice
and cure periods), Tenant's possession of the Premises under this
Lease shall not be disturbed. As of the date of this Lease, Landlord
represents to Tenant that there is no mortgage or deed to secure debt
covering the Building. In the event a mortgage or deed to secure debt
is placed on the Building subsequent to the date of this Lease, upon
written request by Tenant, Landlord will use reasonable efforts to
obtain a non-disturbance, subordination and attornment agreement (the
"SNDA") from the holder of such future mortgage or deed to secure debt
on such mortgage holder's then current standard form of agreement.
"Reasonable efforts" of Landlord shall not require Landlord to incur
any cost, expense or liability to obtain such agreement, it being
agreed that Tenant shall be responsible for any fee or review costs
charged by such mortgage holder. Notwithstanding the foregoing in this
Paragraph 21(a) to the contrary, Tenant's agreement to subordinate
this Lease to a future mortgage or deed to secure debt, is conditioned
upon Tenant's receipt of an SNDA in favor of Tenant from any mortgagee
who comes into existence after the Commencement Date. Such SNDA in
favor of Tenant shall be on a commercially reasonable form and shall
provide that, so long as
33
Tenant is paying the Rent due under the Lease and is not otherwise in
default under the Lease beyond any applicable cure period, its right
to possession and the other terms of the Lease shall remain in full
force and effect. Such SNDA may also include other commercially
reasonable provisions in favor of the mortgagee. Tenant shall execute
and return to Landlord, as SNDA (in the commercially reasonable form
described above) within ten (10) business days following Landlord's
written request therefor.
b. ESTOPPEL CERTIFICATES. Tenant agrees to execute and deliver at any
time and from time to time, within ten (10) days following the request
of Landlord or of any holder(s) of any of the indebtedness or other
obligations secured by any of the mortgages or deeds to secure debt
referred to in this Paragraph, any instruments or certificates which,
in the reasonable judgment of the Landlord or of such holder(s), may
be necessary or appropriate to evidence such attornment.
21. WAIVER OF TRIAL BY JURY.
LANDLORD AND TENANT WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS LEASE.
THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY TENANT,
AND TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY PERSON ACTING ON
BEHALF OF LANDLORD HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS
WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT.
22. MECHANIC'S LIENS. Tenant shall have no authority, express or implied, to
create or place any lien or encumbrance of any kind or nature whatsoever upon,
or in any manner to bind, the interest of Landlord in the Premises or to charge
the rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs, and each such claim shall affect and each such lien
shall attach to, if at all, only the interest granted to Tenant by this
instrument. Tenant covenants and agrees that it will pay or cause to be paid all
sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the Premises on
which any lien is or can be asserted and that it will save and hold Landlord
harmless from any and all loss, cost or expense based on or arising out of
asserted claims or liens against the Tenant's interests under this Lease or
against the right, title and interest of the Landlord in the Premises or under
the terms of this Lease. In the event a lien is filed against the Building, the
Project or the Premises as a result of work performed by or on behalf of Tenant,
Tenant shall within ten (10) days of receiving such notice of lien or claim
cause such lien to be released of record (by payment or bond).
23. RENT PAYMENTS AND NOTICES.
a. PLACE FOR PAYMENTS. All rent and other payments required to be made by
Tenant to Landlord hereunder shall be payable to Landlord, c/o The
Xxxxxx Company, 1 Parkway 400, 00000 Xxxxxxxxx Xx., Xxxxx 000,
Xxxxxxxxxx, XX 00000 or at such other address as Landlord may specify
from time to time by written notice delivered in accordance herewith.
Tenant's obligation to pay rent and any other amounts to Landlord
under the terms of this Lease shall not be deemed satisfied until such
rent and other amounts have been actually received by Landlord.
34
b. NOTICES. Any notice or communication (other than payments to Landlord
required hereunder) required or permitted in this Lease shall be given
in writing, sent by (a) personal delivery, with proof of delivery, (b)
expedited delivery service, with proof of delivery, or (c) United
States mail, postage prepaid, registered or certified mail, return
receipt requested or, addressed as provided below or to such other
address or to the attention of such other person as shall be
designated from time to time in writing by the applicable party and
sent in accordance herewith. Any such notice or communication shall be
deemed to have been given either at the time of personal delivery or,
in the case of delivery service or mail, as of the date of first
attempted delivery at the address and in the manner provided herein.
LANDLORD:
Eagle Trade Center, L.L.C.
c/o The Xxxxxx Company
1 Parkway 400
00000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
WITH COPY TO:
Eagle Trade Center, L.L.C.
Xxx Xxxxx Xxxx Xxxxx X-0
Xxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
WITH ADDITIONAL COPY TO:
Eagle Trade Center, L.L.C.
Xxx Xxxxx Xxxx Xxxxx X-0
Xxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
TENANT
The Xxxxxxx Xxxxxx Company
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxx
WITH COPY TO:
The Xxxxxxx Xxxxxx Company
One Xxxxxxx Place
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xx Xxxxx
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WITH ADDITIONAL COPY TO:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxx
c. EFFECT OF NOTICES. All parties included within the terms "Landlord"
and "Tenant", respectively, shall be bound by notices given in
accordance with the provisions of this Paragraph to the same effect as
if each had received such notice.
24. ENVIRONMENTAL REQUIREMENTS.
a. ENVIRONMENTAL REQUIREMENTS. Tenant shall not permit or cause any party
to bring any Hazardous Material upon the Premises or transport, store,
use, generate, manufacture or release any Hazardous Material in or
about the Premises or the Project without Landlord's prior written
consent. Tenant, at its sole cost and expense, shall operate its
business in the Premises in strict compliance with all Environmental
Requirements (hereinafter defined) and shall remediate in a manner
satisfactory to Landlord any Hazardous Materials released on or from
the Project by Tenant, its agents, employees, contractors, subtenants
or invitees. Without limiting the foregoing, Tenant shall use, store,
maintain and dispose of the batteries for Tenant's fork lifts in
compliance with all applicable laws, rules and regulations and shall
use sound business practices regarding same. Tenant shall complete and
certify (to the best of Tenant's actual knowledge) to disclosure
statements as requested by Landlord from time to time (but not more
than one time per year unless Landlord is investigating the possible
relocation of Environmental Requirements by Tenant or the possible
presence of Hazardous Materials in, under or about the Premises)
relating to Tenant's transportation, storage, use, generation,
manufacture or release of Hazardous Materials on the Premises or the
Project. The term "ENVIRONMENTAL REQUIREMENTS" means all applicable
present and future statutes, regulations, ordinances, rules, codes,
judgments, orders or other similar enactments of any governmental
authority or agency regulating or relating to health, safety, or
environmental conditions on, under, or about the Premises or the
environment, including without limitation, the following: the
Comprehensive Environmental Response, Compensation and Liability Act;
the Resource Conservation and Recovery Act; and all state and local
counterparts thereto, and any regulations or policies promulgated or
issued thereunder. The term "HAZARDOUS MATERIALS" means and includes
any substance, material, waste, pollutant, or contaminant listed or
defined as hazardous or toxic under any Environmental Requirements,
asbestos and petroleum, including crude oil or any fraction thereof,
natural gas, synthetic gas usable for fuel (or mixtures of natural gas
and such synthetic gas) and toxic mold except for Hazardous Material
contained in products used and stored by Tenant (in quantities
permitted by applicable law and in quantities recommended by the
manufacturer) for ordinary cleaning and office and warehouse
purposes,. As defined in Environmental Requirements, Tenant is and
shall be deemed the "operator" of Tenant's "facility" and the "owner"
of all Hazardous Materials brought on the Premises by Tenant, its
agents, employees, contractors or invitees, and the wastes,
by-products or residues generated, resulting or produced therefrom.
36
b. TENANT INDEMNITY. TENANT SHALL INDEMNIFY, DEFEND AND HOLD LANDLORD
HARMLESS FROM AND AGAINST ANY AND ALL LOSSES (INCLUDING WITHOUT
LIMITATION, DIMINUTION IN VALUE OF THE PREMISES OR THE PROJECT AND
LOSS OF RENTAL INCOME FROM THE PROJECT), CLAIMS, DEMANDS, ACTIONS,
SUITS, DAMAGES (INCLUDING WITHOUT LIMITATION, PUNITIVE DAMAGES),
EXPENSES (INCLUDING WITHOUT LIMITATION, REMEDIATION, REMOVAL, REPAIR,
CORRECTIVE ACTION, OR CLEANUP EXPENSES) AND COSTS (INCLUDING WITHOUT
LIMITATION, ACTUAL ATTORNEYS' FEES, CONSULTANT FEES OR EXPERT FEES AND
FURTHER INCLUDING WITHOUT LIMITATION, REMOVAL OR MANAGEMENT OF ANY
ASBESTOS BROUGHT INTO THE PREMISES OR DISTURBED IN BREACH OF THE
REQUIREMENTS OF THIS PARAGRAPH 25, REGARDLESS OF WHETHER SUCH REMOVAL
OR MANAGEMENT IS REQUIRED BY LAW) WHICH ARE BOUGHT OR RECOVERABLE
AGAINST, OR SUFFERED OR INCURRED BY LANDLORD AS A RESULT OF ANY
RELEASE OF HAZARDOUS MATERIALS FOR WHICH TENANT IS OBLIGATED TO
REMEDIATE AS PROVIDED ABOVE OR ANY OTHER BREACH OF THE REQUIREMENTS
UNDER THIS PARAGRAPH 25 BY TENANT, ITS AGENTS, EMPLOYEES, CONTRACTORS,
SUBTENANTS, ASSIGNEES OR INVITEES, REGARDLESS OF WHETHER TENANT HAD
KNOWLEDGE OF SUCH NONCOMPLIANCE. THE OBLIGATIONS OF TENANT UNDER THIS
PARAGRAPH 25 SHALL SURVIVE ANY TERMINATION OF THIS LEASE. FURTHER, IN
THE EVENT A LAWSUIT IS FILED AGAINST LANDLORD AS A RESULT OF ANY
RELEASE OF HAZARDOUS MATERIALS FOR WHICH TENANT IS OBLIGATED TO
REMEDIATE AS PROVIDED ABOVE OR ANY OTHER BREACH OF THE REQUIREMENTS
UNDER THIS PARAGRAPH 25 BY TENANT, ITS AGENTS, EMPLOYEES, CONTRACTORS,
SUBTENANTS, ASSIGNEES OR INVITEES, AND SUCH LAWSUIT CONTAINS
ALLEGATIONS AGAINST LANDLORD BASED ON LANDLORD'S NEGLIGENCE OR
ALLEGING LANDLORD IS STRICTLY LIABLE AND LANDLORD IS NOT FOUND TO BE
NEGLIGENT OR STRICTLY LIABLE, TENANT SHALL INDEMNIFY LANDLORD FROM AND
AGAINST ALL COSTS ASSOCIATED WITH SUCH LAWSUIT, INCLUDING ATTORNEYS'
FEES AND COURT COSTS.
c. LANDLORD INDEMNITY. LANDLORD SHALL INDEMNIFY, DEFEND AND HOLD TENANT
HARMLESS FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DEMANDS,
ACTIONS, SUITS, DAMAGES, EXPENSES (INCLUDING WITHOUT LIMITATION,
REMEDIATION, REMOVAL, REPAIR, CORRECTIVE ACTION, OR CLEANUP EXPENSES)
AND COSTS (INCLUDING WITHOUT LIMITATION, ACTUAL ATTORNEYS' FEES,
CONSULTANT FEES OR EXPERT FEES AND FURTHER INCLUDING WITHOUT
LIMITATION, REMOVAL OR MANAGEMENT OF ANY ASBESTOS BROUGHT INTO THE
PREMISES OR DISTURBED IN BREACH OF THE REQUIREMENTS OF THIS PARAGRAPH
24, REGARDLESS OF WHETHER SUCH REMOVAL OR MANAGEMENT IS REQUIRED BY
LAW) WHICH ARE BOUGHT OR RECOVERABLE AGAINST, OR SUFFERED OR INCURRED
BY TENANT AS A RESULT OF ANY RELEASE OF HAZARDOUS MATERIALS CAUSED
SOLELY BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD OR ITS
EMPLOYEES OR AGENTS.
37
d. QUESTIONNAIRE. Concurrently with the execution of this Lease, Tenant
shall complete the Environmental Questionnaire attached hereto as
EXHIBIT F (the "QUESTIONNAIRE"). Tenant represents and warrants to
Landlord, with the understanding that Landlord will rely on same, that
to the best of Tenant's actual current knowledge, the Questionnaire is
true and correct in all material respects. "TENANT'S ACTUAL CURRENT
KNOWLEDGE" or similar phrase shall mean the actual current knowledge
of the signatory of the Questionnaire, provided such person shall have
no personal liability in connection therewith. Tenant represents that
the signatory of the Questionnaire is the officer of The Xxxxxxx
Xxxxxx Company most likely to have knowledge of the facts represented
in this Paragraph 24. Landlord's obligations hereunder are subject to
Landlord's receipt and approval of the Questionnaire.
e. LANDLORD REPRESENTATION. To Landlord's actual current knowledge, there
are no Hazardous Materials present on or in the Project that would
have an adverse effect on any occupants of the Project. As used
herein, the phrase "LANDLORD'S ACTUAL CURRENT KNOWLEDGE" or similar
phrase shall mean the actual current knowledge of Xxxx Xxxxxxx, Vice
President of AmberJack, Ltd., managing member of Landlord, without
duty of inquiry, provided such person shall have no personal liability
in connection therewith. Landlord represents that Xxxx Xxxxxxx is the
representative of AmberJack, Ltd. most likely to have knowledge of the
facts represented in this Paragraph 24.
f. LANDLORD OBLIGATIONS. Except for Hazardous Material contained in
products used and stored by Landlord in de minimis quantities for
ordinary cleaning and office purposes and except for the acts or
omissions of third parties (including other tenants), Landlord shall
not bring any Hazardous Material upon the Premises or transport,
store, use, generate, manufacture or release any Hazardous Material in
or about the Premises or the Project. Landlord, at its sole cost and
expense, shall operate the Premises in strict compliance with all
Environmental Requirements (hereinafter defined) and shall remediate
any Hazardous Materials released on or from the Project by Landlord or
its employees in compliance with Environmental Requirements. The
foregoing shall never obligate Landlord to remediate a condition that
is caused by the acts or omission of any third parties (including,
without limitation Tenant or any other tenants unless such remediation
is required by applicable law).
25. RULES AND REGULATIONS. Tenant shall, at all times during the Term of this
Lease, comply with all rules and regulations at any time or from time to time
established by Landlord covering the use of the Premises and the Project. The
current rules and regulations applicable to the Project are attached as EXHIBIT
H to this Lease. Landlord shall enforce the rules and regulations in a uniform
and non-discriminatory manner for all tenants. In the event of any conflict
between said rules and regulations and other provisions of this Lease, the other
terms and provisions of this Lease shall control. Landlord shall not have any
liability or obligation to Tenant for the breach of any rules or regulations by
other tenants in the Project.
26. COURTESY PATROLS. TENANT ACKNOWLEDGES AND AGREES THAT, WHILE LANDLORD MAY
(BUT SHALL NOT BE OBLIGATED TO) PATROL THE PROJECT, LANDLORD IS NOT PROVIDING
ANY SECURITY SERVICES WITH RESPECT TO THE PREMISES AND THAT LANDLORD SHALL NOT
BE LIABLE TO TENANT FOR, AND TENANT WAIVES ANY CLAIMS AGAINST LANDLORD WITH
RESPECT TO, ANY LOSS BY THEFT OR ANY OTHER DAMAGE SUFFERED BY TENANT IN
CONNECTION WITH ANY UNAUTHORIZED ENTRY INTO THE PREMISES OR ONTO THE PROJECT OR
ANY OTHER
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BREACH OF SECURITY WITH RESPECT TO THE PREMISES OR THE PROJECT, EVEN IF SUCH
LOSS OR DAMAGE IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF LANDLORD (EXCEPT
FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD). TENANT SHALL BE
RESPONSIBLE FOR THE SECURITY OF ITS EMPLOYEES AND OF THE PREMISES AND AGREES TO
PROVIDE SAME AT ITS EXPENSE.
27. PARKING. So long as Tenant is not in default under this Lease (after
expiration of all applicable notice and cure periods) Tenant shall be entitled
to use (a) up to 147 employee vehicle parking spaces in common with other
tenants of the Project in those areas designated for non-reserved employee
parking and (b) one trailer parking space in front of each dock door in the
Premises and (c) parking for vehicles, trucks and trailers in areas designated
by Landlord, subject to the conditions set forth in Section 3.a. of this Lease.
Landlord may allocate parking spaces between Tenant and other tenants in the
Project if Landlord determines that such parking facilities are becoming
crowded. Until such time as Landlord allocates the parking spaces, all employee
parking shall be adjacent to the space then leased by each tenant and all
trailer parking shall be at the docks in each tenant's respective premises.
Trailer parking shall not be permitted in any location other than the docks (one
trailer per dock), the truck court (subject to the conditions set forth in
Section 3.a. of this Lease) and in any other designated trailer storage areas.
Landlord shall not be responsible for enforcing Tenant's parking rights against
any third parties. If in the reasonable opinion of Landlord, Tenant and/or its
employees, agents, visitors or customers are using more parking spaces than
Tenant is entitled to, Tenant shall immediately upon written notice from
Landlord cause its employees, agents, visitors or customers to use only the
number of parking spaces allocated to Tenant, and in the event Tenant or its
employees, agents, visitors or customers continue to use more parking spaces
than Tenant is entitled to use after Tenant's receipt of such written notice, an
event of default shall be deemed to have occurred under this Lease and, without
limitation, Landlord may (but shall not be required to) enforce such parking
violations by use of towing or "booting" of vehicles.
In addition to the foregoing, after the fifteenth (15th) month of the Term of
this Lease, if Tenant is not in default under this Lease at the time of the
request, Landlord shall at Landlord's cost and expense, pave and stripe
additional employee and trailer parking spaces subject to the following
conditions:
a. The number, configuration and location of the additional spaces shall
be approved by Landlord in its reasonable discretion and shall be
similar to the configuration shown on EXHIBIT N attached hereto,
provided the number of spaces and amount of paved area will be
proportionately reduced to reflect any space removed from the premises
pursuant to the Contraction Option (and the fraction used to determine
the size of such area shall have a numerator equal to the portion of
the Construction Space leased by Tenant after the expiration,
termination or exercise of the Contraction Option and the denominator
shall be 250,000);
b. The additional spaces are subject to compliance with all applicable
laws, rules and regulations and shall comply with all local zoning and
other requirements;
c. The additional spaces shall not interfere with the rights or access of
existing tenants or potential tenants for portions of the Building
(including, without limitation the Contraction Space);
d. The Additional Spaces shall be unreserved and used in common with
other tenants in the Building; and
39
e. The cost of the Additional Spaces shall be amortized and added to the
Base Rent as more particularly described in EXHIBIT D attached hereto.
28. MISCELLANEOUS.
a. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
b. The terms, provisions and covenants and conditions contained in this
Lease shall apply to, inure to the benefit of, and be binding upon,
the parties hereto and upon their respective heirs, legal
representatives, successors and permitted assigns, except as otherwise
herein expressly provided. Landlord shall have the right to assign any
of its rights and obligations under this Lease. Tenant agrees to
furnish to Landlord, promptly upon demand, a corporate resolution,
proof of due authorization by partners, or other appropriate
documentation evidencing the due authorization of Tenant to enter into
this Lease. Tenant does hereby covenant and warrant that Tenant is
duly organized and validly existing under the laws of its state of
formation, and, if such entity is existing under the laws of a
jurisdiction other than Georgia, qualified to transact business in
Georgia, Tenant has full right and authority to enter into this Lease
and to perform all Tenant's obligations hereunder, and each person
signing this Lease on behalf of Tenant is duly and validly authorized
to do so. Landlord does hereby covenant and warrant that Landlord is
duly organized and validly existing under the laws of its state of
formation, and, is qualified to transact business in Georgia to the
extent required by Georgia law, Landlord has full right and authority
to enter into this Lease and to perform all Landlord's obligations
hereunder, and each person signing this Lease on behalf of Landlord is
duly and validly authorized to do so.
c. The captions inserted in this Lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this
Lease, or any provision hereof, or in any way affect the
interpretation of this Lease.
d. Tenant agrees from time to time within ten (10) business days after
request of Landlord, to deliver to Landlord, or Landlord's designee,
an estoppel certificate stating that this Lease is in full force and
effect, the date to which rent has been paid, the unexpired Term of
this Lease and such other matters pertaining to this Lease as may be
reasonably requested by Landlord. It is understood and agreed that
Tenant's obligation to furnish such estoppel certificates in a timely
fashion is a material inducement for Landlord's execution of this
Lease. Landlord agrees from time to time within ten (10) business days
after request of Tenant, to deliver to Tenant, or Tenant's designee,
an estoppel certificate stating that this Lease is in full force and
effect, the date to which rent has been paid, the unexpired Term of
this Lease and such other matters pertaining to this Lease as may be
reasonably requested by Tenant.
The requesting party shall reimburse the other party's reasonable
third party costs associated with the execution of more than two such
certificates in a twelve (12) month period.
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e. All obligations and indemnities of Tenant hereunder not fully
performed as of the expiration or earlier termination of the Term of
this Lease shall survive the expiration or earlier termination of the
Term hereof, including without limitation all payment obligations with
respect to Base Rent, Operating Expenses, taxes and insurance and all
obligations concerning the condition of the Premises. All such amounts
shall be used and held by Landlord for payment of such obligations of
Tenant hereunder, with Tenant being liable for any additional costs
therefor upon demand by Landlord, or with any excess to be returned to
Tenant after all such obligations have been determined and satisfied,
as the case may be.
f. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term
of this Lease, then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected
thereby, and it is also the intention of the parties to this Lease
that in lieu of each clause or provision of this Lease that is
illegal, invalid or unenforceable, there be added as a part of this
Lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be
possible and be legal, valid and enforceable.
g. THIS LEASE SHALL NOT BE VALID OR BINDING UNLESS AND UNTIL DULY
EXECUTED BY LANDLORD AND TENANT. THIS LEASE, INCLUDING THE EXHIBITS
AND ADDENDA, EMBODIES THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO
WITH RELATION TO THE TRANSACTION CONTEMPLATED HEREBY, AND THERE HAVE
BEEN AND ARE NO ORAL OR OTHER COVENANTS, AGREEMENTS, REPRESENTATIONS,
WARRANTIES OR RESTRICTIONS BETWEEN THE PARTIES HERETO, OTHER THAN
THOSE SPECIFICALLY SET FORTH HEREIN. TO BE EFFECTIVE, ANY AMENDMENT OR
MODIFICATION OF THIS LEASE MUST BE IN WRITING AND SIGNED BY LANDLORD
AND TENANT. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES
HERETO.
h. Tenant and Landlord warrant to each other that they have,
respectively, had no dealings with any real estate broker or agent in
connection with the negotiation of this Lease except The Staubach
Company, representing Tenant, and CB Xxxxxxx Xxxxx, representing
Landlord (collectively, the "BROKER") and that they, respectively,
know of no other real estate brokers or agents who are or might be
entitled to a commission in connection with this Lease. Tenant agrees
to indemnify and hold harmless Landlord from and against any liability
or claim, whether meritorious or not, arising in respect to brokers
and/or agents other than Broker who claim to represent Tenant with
regard to this Lease. Landlord agrees to indemnify and hold harmless
Tenant from and against any liability or claim, whether meritorious or
not, arising in respect to brokers and/or agents who claim to
represent Landlord with regard to this Lease. Landlord agrees to pay
the commission due to Broker in connection with this Lease pursuant to
the terms of separate written agreements with each such Brokers.
i. This Lease shall be governed by and construed in accordance with the
laws of the State of Georgia.
j. Time is of the essence in this Lease and in each and all of the
provisions hereof. Whenever a period of days is specified in this
Lease, such period shall refer to calendar days unless otherwise
expressly stated in this Lease.
41
k. Whenever a period of time is herein prescribed for action to be taken
by Landlord or Tenant, the party taking the action shall not be liable
or responsible for, and there shall be excluded from the computation
for any such period of time, any delays due to strikes, riots, acts of
God, shortages of labor or materials, war, terrorism, criminal acts by
third parties, governmental laws, regulations or restrictions or any
other causes of any kind whatsoever which are beyond the reasonable
control of such party; provided, however, in no event shall the
foregoing apply to the financial obligations of either Landlord or
Tenant to the other under this Lease, including Tenant's obligation to
pay rent or any other amount payable to Landlord hereunder.
l. The obligations of Tenant under each indemnity agreement and hold
harmless agreement contained herein shall survive the expiration or
termination of this Lease.
m. The Short Form Lease and Notice of Purchase Option attached hereto as
EXHIBIT O shall be executed by Landlord and Tenant and recorded by
Landlord at Tenant's cost in the real property records of Xxxxx
County, Georgia. Landlord and Tenant shall execute and record
amendments to the Short Form Lease at the time of any amendment to
this Lease (which amendments to the Short Form Lease shall be in form
and substance similar to the Short Form Lease). Failure to execute any
amendment to the Short Form Lease shall not affect the validity or
enforceability of this Lease.
n. This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease and no prior
agreement, understanding or representation pertaining to any such
matter shall be effective for any purpose. No provision of this Lease
may be amended or added to except by an agreement in writing signed by
the parties hereto or their respective successors in interest.
o. The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not constitute a merger of the Landlord's
fee estate in the Project and the interest in the Lease created
hereby; and upon such surrender or cancellation of this Lease,
Landlord shall have the option, in Landlord's sole discretion, to (a)
either terminate all or any existing subleases or subtenancies, or (b)
assume Tenant's interest in any or all subleases or subtenancies. The
acquisition by Landlord of Tenant's interests under this Lease shall
not result in the merger of Landlord's fee estate with Tenant's
interest under this Lease.
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29. LEASING OPTIONS.
a. EXTENSION OPTION:
(i) THREE EXTENSION OPTIONS. Provided that no event of default then
exists and no condition exists which with the passage of time
or the giving of notice or both would constitute an event of
default pursuant to this Lease and provided that Tenant has
continuously occupied all or a portion of the Premises for the
permitted uses during the Term, Tenant (but not any assignee or
sublessee) shall have the right and option (the "EXTENSION
OPTION") to renew this Lease, by written notice delivered to
Landlord no later than six (6) months and no earlier than
eighteen (18) months prior to the expiration of the initial
Term or the expiration of the applicable Extension Term, as the
case may be, for three (3) additional terms (each, an
"EXTENSION TERM").
(ii) TERMS OF EXTENSION OPTIONS. The first Extension Option shall be
for a term of three (3) years and the second and third
Extension Options shall each be for terms of five (5) years.
Each Extension Option shall be under the same terms, conditions
and covenants contained in the Lease and shall cover the same
space leased by Tenant at the time of Tenant's exercise of the
Extension Option, except that:
(A) no abatements or other concessions, if any, applicable to
the initial Term shall apply to the Extension Terms;
(B) the Base Rental for the First Extension Term shall be equal
to the Base Rent rate (per square foot of space in the Premises
per year) as of the last month of the Initial Term of the Lease
plus $0.10 per square foot of space in the Premises per year.
For example, if the Base Rent in the last month of the initial
term is $1.75 per square foot per year, the Base Rent for the
First Term Extension shall be as follows:
Months 85-96 $ 1.85
Months 97-108 $ 1.95
Months 109-120: $ 2.05
(C) the Base Rent for the Second and Third Extension Terms
shall be equal to ninety-five percent (95%) of the Market Rate
for comparable space located in the Building and in Comparable
Buildings in the south Atlanta industrial submarket including
the size, quality, utility, and location of such space as of
the end of the initial Term or the applicable Extension Term,
as applicable, as determined by Landlord. The "MARKET RATE"
shall mean the arms length fair market annual rental rate per
square foot under renewal leases and amendments entered into on
or about the date on which the market rate is being determined
for tenants of comparable size and location in the building
taking into account any material economic differences between
the terms of this Lease and any comparison lease, such as rent
abatements, construction costs and other concessions and the
manner, if any, in which the Landlord under any such lease is
reimbursed for operating expenses and taxes;
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(D) Tenant shall have no option to extend this Lease beyond the
expiration of the third Extension Term or beyond any date on
which the First or Second Extension Options either lapse
without being timely exercised by Tenant or terminate as
provided herein; and
(E) all leasehold improvements within the Premises shall be
provided in their then existing condition (on an "As Is" basis)
at the time the applicable Extension Term commences.
(iii) PROPOSED EXTENSION RENTAL. Failure by Tenant to notify Landlord
in writing of Tenant's election to exercise the applicable
Extension Option herein granted within the time limits set
forth for such exercise shall constitute a waiver of such
Extension Option. In the event Tenant elects to exercise an
Extension Option as set forth above, (A) Tenant shall be
irrevocably bound to exercise the applicable Extension Option,
subject only to determination of the rental rate (if
applicable) and (B) Landlord shall, within fifteen (15) days
thereafter, notify Tenant in writing of the proposed rental for
the applicable Extension Term (the "PROPOSED EXTENSION
RENTAL"). Tenant shall within thirty (30) days following
delivery of the Proposed Extension Rental by Landlord notify
Landlord in writing of the acceptance or rejection of the
Proposed Extension Rental. If Tenant accepts Landlord's
proposal, then the Proposed Extension Rental shall be the
rental rate in effect during the Extension Term.
(iv) NEGOTIATION OF RATE. Failure of Tenant to respond in writing
during the aforementioned thirty (30) day period shall be
deemed a rejection by Tenant of the Proposed Extension Rental.
Should Tenant reject Landlord's Proposed Extension Rental
during or at the expiration of such thirty (30) day period,
then Landlord and Tenant shall negotiate during the thirty (30)
day period commencing upon Tenant's rejection of Landlord's
Proposed Extension Rental to determine the rental for the
applicable Extension Term. In the event Landlord and Tenant are
unable to agree to a rental for the Extension Term during said
thirty (30) day period, then the Proposed Extension Rental
shall be determined by the arbitration procedure set forth in
Exhibit J attached hereto.
(v) LEASE EXTENSION. Upon exercise of the Extension Option by
Tenant and subject to the conditions set forth hereinabove, the
Lease shall be extended for the period of such Extension Term
without the necessity of the execution of any further
instrument or document, although if requested by either party,
Landlord and Tenant shall enter into a written agreement
modifying and supplementing the Lease in accordance with the
provisions hereof. Any termination of the Lease during the
initial Term or any Extension Term shall terminate all
remaining extension rights hereunder. The extension rights of
Tenant hereunder shall not be severable from the Lease, nor may
such rights be assigned or otherwise conveyed in connection
with any permitted assignment of the Lease. Landlord's consent
to any assignment of the Lease shall not be construed as
allowing an assignment of such extension rights to any
assignee.
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b. RIGHT OF FIRST REFUSAL.
(i) REFUSAL SPACE. On and after the expiration of the Contraction
Option and through the Term of this Lease, Tenant shall have an
ongoing right of first refusal with respect to all or any
portion of the remaining space in the Building not included in
the Premises (the "REFUSAL SPACE"), which right of first
refusal shall be exercised as follows: when Landlord has a
prospective tenant ("PROSPECT") interested in leasing all or
any portion of the Refusal Space, Landlord shall advise Tenant
in writing (the "REFUSAL NOTICE") of the terms under which
Landlord is prepared to lease the Refusal Space to such
Prospect and Tenant may lease all but not less than all of the
Refusal Space identified in the Refusal Notice, under the terms
set forth in the Refusal Notice, by providing Landlord with
written notice of exercise ("NOTICE OF EXERCISE") within two
(2) calendar weeks after the date of the Refusal Notice, except
that Tenant shall have no such Right of First Refusal and
Landlord need not provide Tenant with a Refusal Notice if:
1. Tenant is in default under the Lease beyond the
expiration of any applicable notice and cure periods at
the time Landlord would otherwise deliver the Refusal
Notice; or
2. the Lease has been assigned prior to the date Landlord
would otherwise deliver the Refusal Notice; or
3. the entire Premises is sublet at the time Landlord
would otherwise deliver the Refusal Notice; or
4. Tenant is not occupying the Premises on the date
Landlord would otherwise deliver the Refusal Notice.
(ii) TERMS FOR REFUSAL SPACE. Except as provided below, the term for
the Refusal Space shall commence upon the commencement date
stated in the Refusal Notice and thereupon such Refusal Space
shall be considered a part of the Premises, provided that all
of the business terms stated in the Refusal Notice (except for
the termination date as described below) shall govern Tenant's
leasing of the Refusal Space and only to the extent that they
do not conflict with the Refusal Notice, the terms and
conditions of this Lease shall apply to the Refusal Space. The
term of the Refusal Space shall be the greater of (A) the term
set forth in the Refusal Notice or (B) the term of this Lease
(as extended by the exercise of any or all of the Extension
Options by Tenant) unless earlier terminated pursuant to the
provisions of this Lease. The tenant finish allowance, if any,
and all other concessions set forth in the Refusal Notice, if
any, shall not be prorated if the term of the Refused Notice is
different than the Term of this Lease. If the remaining term of
this Lease is greater than the term set forth in the Refusal
Notice, Landlord shall include in the Refusal Notice Landlord's
designation of the market rent for the Refusal Space during the
period between the expiration date of the proposed lease and
the expiration date of this Lease (and such rate shall be
appropriately adjusted to reflect that no allowances are
provided for any term in excess of the term in the Refusal
Notice). The Refusal
45
Space shall be accepted by Tenant in its condition and as-built
configuration existing on the earlier of the date Tenant takes
possession of the Refusal Space or the date the term for such
Refusal Space commences, unless the parties determine that work
will be performed by Landlord in the Refusal Space, in which
case Landlord shall perform such work in the Refusal Space. The
Refusal Space shall have a configuration reasonably acceptable
to Landlord and Tenant and shall be contiguous to the Premises.
(iii) If the term of the Refusal Space is longer than the remaining
term of the Lease, Tenant may (by written notice to Landlord
concurrently with its Notice of Exercise) elect to extend the
term of the Lease to be co-terminous with the term for the
Refusal Space at a rate equal to the rate set forth in the
Extension Option section of this Lease for the applicable time
period. The documentation of such election shall also adjust
the Extension Option to correspond to the extended term for the
Lease and/or the Refusal Space so that the Extension Option
shall be available to Tenant for the same periods set forth in
Section 29.a. of this Lease (provided the Extension Terms shall
have the same expiration dates set forth in Section 29.a.
(iv) TERMINATION OF OPTION. The rights of Tenant hereunder with
respect to the Refusal Space identified in the Refusal Notice
shall terminate on the earlier to occur of (A) Tenant's failure
to exercise its Right of First Refusal within the ten (10)
business day period provided in subparagraph (i) above, and (B)
the date Landlord would have provided Tenant a Refusal Notice
if Tenant had not been in violation of one or more of the
conditions set forth in paragraph (i) above. Notwithstanding
the foregoing, if (A) Tenant was entitled to exercise its Right
of First Refusal, but failed to provide Landlord with a Notice
of Exercise within the ten (10) business day period provided in
paragraph (i) above, and (B) Landlord does not enter into a
lease for the Refusal Space with the Prospect or any other
prospect within a period of six (6) months following the date
of the Refusal Notice, Tenant shall once again have a Right of
First Refusal with respect to such Refusal Space. For purposes
hereof, the terms offered to a prospect shall be deemed to be
substantially the same as those set forth in the Refusal Notice
as long as there is no more than a ten percent (10%) increase
or decrease in size of the Refusal Space identified in the
Refusal Notice or no more than a ten percent (10%) reduction in
the "bottom line" cost per square foot of the Refusal Space to
the Prospect when compared with the "bottom line" cost per
square foot under the Refusal Notice, considering all of the
economic terms of the both deals, respectively, including,
without limitation, the net rent and any financial concessions.
The "bottom line" cost shall determined by subtracting all cash
allowances, excluding any allowances to be repaid as an
increase in rent, annualized on a per square foot basis from
the net effective rent payable per square foot.
c. PREFERENTIAL LEASING RIGHT. On and after the expiration of the
Contraction Option and through the Term of this Lease, Tenant shall
have an ongoing right to notify Landlord that it desires to lease some
or all of the remainder of the space in the Building that is then
available for lease (the "OPTION SPACE") and if Landlord decides to
place on the market
46
for lease all or any of the Option Space, Landlord shall first notify
Tenant of the portion of such space it intends to place on the market
for lease (such notice by either party is hereinafter referred to as
an "OPTION NOTICE").
(i) OPTION NOTICES GIVEN BY TENANT. Tenant's Option Notice to
Landlord shall include the Option Space which it proposes to
lease or a request that Landlord identify the Option Space
which is available for Lease. Landlord shall, within five
business (5) days after receipt of Tenant's Option Notice,
deliver to Tenant a written notice ("LANDLORD'S RESPONSE"),
which shall (A) identify whether the specific Option Space
identified by Tenant is available or, if requested by Tenant,
shall identify all of the Option Space that is then available
for Lease (including the configuration thereof) and (B) include
the basic business terms upon which Landlord will lease the
space to Tenant as illustrated in subparagraph 29.c.(v),
including, but not limited to the allowances, credits and other
inducements that Landlord is willing to offer, the date on
which Landlord will make the applicable Option Space available
to Tenant, and the location(s) of the applicable Option Space.
(ii) OPTION NOTICES GIVEN BY LANDLORD. Landlord's Option Notice to
Tenant shall (A) identify the Option Space which Landlord
intends to place on the open market for lease and the location
and configuration thereof (including space plans showing the
furniture layout, if available) and (B) include the basic
business terms upon which Landlord will lease the space to
Tenant, including, but not limited to, the allowances, credits
and other inducements that Landlord is willing to offer, the
usable and area of the applicable Option Space, the date on
which Landlord will make the applicable Option Space available
to Tenant, and the location(s) of the applicable Option Space.
(iii) TENANT'S RESPONSE. Tenant shall, within ten (10) business days
after receipt of Landlord's Option Notice or Landlord's
Response, as applicable, deliver to Landlord written notice
("TENANT'S RESPONSE") in which Tenant (A) accepts all terms in
the Option Notice and Landlord and Tenant shall enter into an
amendment to this Lease pursuant to and in accordance with this
Section 30, (B) accepts the terms in the Option Notice, subject
to the condition that the space configuration be further
negotiated by the parties for a period of up to ten (10)
additional days, at which time Tenant shall be deemed to have
rejected the terms in Landlord's Option Notice or Landlord's
Response, as applicable, or (c) rejects the terms set forth in
the Option Notice.
(iv) REJECTION OF OPTION NOTICE/FAILURE TO RESPOND. If Tenant's
Response rejects the terms and conditions of Landlord's Option
Notice or Landlord's Response within the required ten (10)
business day period and Tenant's failure to respond to the
reminder notice shall be deemed to be a rejection by Tenant of
the terms on Landlord's Response, (A) Landlord shall have the
right, during the six (6) month period immediately following
the expiration of such ten (10) business day period (the
"LEASING PERIOD"), to lease to another person or entity all or
a portion of the Option Space covered by Landlord's Option
Notice on substantially the same or worse economic terms as
those contained in Landlord's Option Notice and (B) Tenant's
preferential right shall be subordinate to such lease except
that any options, expansion rights, preferential leasing rights
or similar options for expansion shall be subordinate to
Tenant's rights under this Lease. For purposes hereof, the
terms offered to a prospect shall be deemed to be substantially
the same as those set forth in the Option Notice as long as
there is no more than a ten percent (10%) increase or decrease
in size of the Option Space identified in the Option Notice or
no more than a ten percent (10%)
47
reduction in the "bottom line" cost per square foot of the
Option Space to the Prospect when compared with the "bottom
line" cost per square foot under the Option Notice, considering
all of the economic terms of the both deals, respectively,
including, without limitation, the net rent and any financial
concessions. The "bottom line" cost shall determined by
subtracting all cash allowances, excluding any allowances to be
repaid as an increase in rent, annualized on a per square foot
basis from the net effective rent payable per square foot. If
Landlord is unable to lease the Option Space within the Leasing
Period, then Landlord shall once again have to comply with the
provisions of this paragraph as to such portion of the Option
Space.
(v) TERMS AND CONDITIONS FOR OPTION SPACE. The Option Space shall
be leased to on the same terms and conditions of this Lease,
except as follows:
(A) BASE RENT. The Base Rent shall be the Base Rent rate
then being paid by Tenant for the Premises covered by
the Lease at the time of Tenant's delivery of the
Option Notice to Landlord.
(B) COMMENCEMENT OF RENT. Rent shall commence on the date
of the delivery of the Option Space to Tenant, in its
as is, where is condition.
(C) TERM. The term of Option Space shall commence on the
date the amendment to this Lease is executed by each of
Landlord and Tenant and shall continue until the
expiration of the Lease Term, as extended pursuant to
the Extension Options, unless earlier terminated
pursuant to the provisions of this Lease.
(D) TENANT IMPROVEMENTS. All leasehold improvements shall
be performed by the party identified in Landlord's
Response (it being agreed that the terms offered by
Landlord for the Option Space will vary depending upon
the extent of tenant improvements required for the
Option Space).
d. LEASE AMENDMENT. If an amendment to this Lease is required pursuant to
the foregoing subsections of this Section 30, Landlord shall prepare a
lease amendment (i) adding the applicable space to the Premises, (ii)
amending the Rent for the Premises to include the base rent and
additional rent for the applicable space, as determined pursuant to
this Section, (iii) adding the tenant improvements and allowances, and
corresponding work letter(s), if any, and (iv) making such other
amendments as are necessary to properly reflect terms regarding the
applicable space. Tenant shall execute such amendment within twenty
(20) days after receipt of such amendment. However, Tenant's failure
to execute the amendment shall not affect an otherwise valid exercise
of the applicable option and Tenant's exercise of the applicable
option shall be fully effective whether or not the amendment is
executed.
e. CONFIGURATION. Notwithstanding anything to the contrary herein, the
Option Space and the Refusal Space, as applicable, shall have a
configuration reasonably acceptable to Landlord and Tenant and shall,
for space leased by Tenant be contiguous to the Premises. Landlord
may, but shall not be required to, relocate space offered to Tenant to
a non-contiguous part of the Building if the space is leased to a
third party so that any remaining space is contiguous to the Premises.
In addition, the size of any Option Space or Refusal Space is subject
to an increase or decrease in size (not to exceed ten percent (10%) of
the originally identified size of the space) in order to properly fit
the applicable space into the design of the Building. For example, and
without limitation, the configuration of the Option Space or Refusal
Space shall not reduce the dock capacity of
48
the Building or unreasonably reduce the marketability of the Building.
f. PERMITTED ASSIGNMENT AND SUBLEASING. Notwithstanding anything in this
Section 29 to the contrary, the prohibition of the exercise of any of
the options or rights granted in Section 29 shall not apply to:
(i) the assignee or sublessee pursuant to a Permitted Transfer , or
(ii) an assignee or sublessee for whom Landlord specifically grants
written consent for the transfer of all or part of the rights
and options of Tenant in this Section 29; provided a general
consent or non-specific or ambiguous consent shall never
authorize such assignee or sublessee to exercise any of the
rights or options in this Section 29.
30. PURCHASE OPTION.
a. RIGHT OF FIRST REFUSAL SPACE. On and after the expiration of the
Contraction Option and through the forty-eighth (48th) month of the
Term of this Lease, Tenant shall have a right of first refusal for the
purchase of the Building (the "ROFR"), which right of first refusal
shall be exercised as follows: when Landlord receives a bona fide
offer to purchase the Property (the "PURCHASE OFFER"), which Purchase
Offer may be evidenced by a non-binding letter of intent executed in
good faith by Landlord and an unrelated third party, Landlord shall
advise Tenant in writing (the "ROFR NOTICE") of the terms under which
Landlord is prepared to sell the Building to such Prospect and Tenant
may purchase the Building under the terms set forth in the ROFR
Notice, by providing Landlord with written notice of exercise ("NOTICE
OF PURCHASE") within ten (10) business days after the date of the ROFR
Notice, except that Tenant shall have no such Right of First Refusal
and Landlord need not provide Tenant with a ROFR Notice if:
1. Tenant is in default under the Lease beyond the
expiration of any applicable notice and cure periods at
the time Landlord would otherwise deliver the ROFR
Notice; or
2. the Lease has been assigned prior to the date Landlord
would otherwise deliver the ROFR Notice; or
3. the entire Premises is sublet at the time Landlord
would otherwise deliver the ROFR Notice; or
4. Tenant is not occupying the Premises on the date
Landlord would otherwise deliver the ROFR Notice.
b. TERMS FOR ROFR. Except as provided below, all of the business terms
stated in the ROFR Notice shall govern Tenant's purchase of the
Building and only to the extent that they do not conflict with the
ROFR Notice, Landlord and Tenant shall mutually negotiate the
remaining terms of the purchase and sale agreement so that a binding
contract is executed by Landlord and Tenant within twenty (20) days of
Tenant's election to purchase the Building.
49
c. TERMINATION OF ROFR. The rights of Tenant hereunder with respect to
the ROFR Space identified in the ROFR Notice shall terminate on the
earlier to occur of (A) Tenant's failure to exercise its Right of
First Refusal within the ten (10) business day period provided in
subparagraph (i) above, and (B) the date Landlord would have provided
Tenant a ROFR Notice if Tenant had not been in violation of one or
more of the conditions set forth in paragraph (i) above. Upon such
termination, but subject to the following sentence, Landlord may sell
the Building to a third party upon the terms set forth in the ROFR
Notice or upon terms that are substantially the same as the terms set
forth in the ROFR Notice. Notwithstanding the foregoing, if (A) Tenant
was entitled to exercise its Right of First Refusal, but failed to
provide Landlord with a Notice of Purchase within the ten (10)
business day period provided in paragraph (i) above, and (B) Landlord
does not sell the Building within a period of six (6) months following
the date of the ROFR Notice, Tenant shall once again have a Right of
First Refusal with respect to such ROFR Space. For purposes hereof,
the terms offered to a prospect shall be deemed to be substantially
the same as those set forth in the ROFR Notice as long as there is no
more than a ten percent (10%) increase or decrease in the "bottom
line" cost per square foot of the ROFR Space to the purchaser when
compared with the "bottom line" cost per square foot under the ROFR
Notice, considering all of the economic terms of the both deals,
respectively, including, without limitation, any financial
concessions.
d. EXCEPTIONS TO PURCHASE OPTION. This Purchase Option does not apply to
(but shall survive) any transfer of the Building (i) in connection
with the exercise of any rights and remedies by a mortgagee that has a
loan that is secured by a lien on the Property (including, without
limitation, a foreclosure or a deed in lieu of foreclosure or any
other transfer by or to such mortgagee) or (ii) any transfer to any
affiliate or subsidiary of Landlord or any such mortgagee at any time
prior to or following a foreclosure or transfer in lieu of
foreclosure.
e. PERMITTED ASSIGNMENT AND SUBLETTING. Notwithstanding anything in this
Section 30 to the contrary, the prohibition of the exercise of any of
the option or right granted in Section 30 shall not apply to:
(i) the assignee or sublessee pursuant to a Permitted Transfer , or
(ii) an assignee or sublessee for whom Landlord specifically grants
written consent for the transfer of all or part of the rights
and options of Tenant in this Section 30; provided a general
consent or non-specific or ambiguous consent shall never
authorize such assignee or sublessee to exercise any the right
or option in this Section 30.
31. ZONING. Based upon and in reliance on the Title Policy, a copy of which
Title Policy is attached hereto as EXHIBIT L, Landlord represents to Tenant
that, as of March 16, 2000, the land on which the Building is located was
classified "M-1" by the applicable zoning ordinances and that such
classification allows the following use or uses, subject to compliance with any
conditions, restrictions, or requirements contained in said zoning ordinances
and amendments thereto, including, but not limited to the securing of necessary
consents or authorizations as a prerequisite to such use or uses: light
manufacturing which is nuisance free and which does not generate hazardous
waste. Without additional investigation, Landlord has no actual current
knowledge (as defined in Section 25.e. above in this Lease) of any changes to
such zoning classification.
50
32. CONFIDENTIALITY. Landlord and Tenant covenant and agree that they will not
issue any press releases or make similar disclosures to any reporting
publication disclosing the monetary terms of this Lease, except as may be
required by law and as mutually agreed upon by Landlord and Tenant and except
for disclosures to attorneys, accountants and other professionals who are
similarly bound to obligations of confidentiality, and to regulators and
prospective lenders. Notwithstanding the foregoing, (a) a general press release
regarding the general nature of the project shall be permitted if approved by
Landlord and Tenant and (b) Tenant shall not use the name "State Farm" in any of
its announcements or materials without the prior written approval of Landlord.
33. SATELLITE. Subject to Tenant's compliance with all applicable laws and if
Tenant is not in default under this Lease (after expiration of all applicable
notice and cure periods) at the time of Tenant's request, and at the time of
installation, Tenant (but not any assignee or subtenant except pursuant to a
Permitted Transfer) will be allowed to install a Satellite dish of a customary
size on the roof of the Building within screened areas to be constructed by
Tenant. Landlord has the right to approve all installations on the roof,
including, without limitation, the size, type, height and weight of antenna
equipment, aesthetic appearance, compliance with governmental regulations and
roof and/or structural effects. This satellite dish will be installed at
Tenant's expense, subject to Landlord's prior approval of the design and
installation of same. Tenant shall protect the integrity of the roof, structure
and all building systems from damage in connection with the installation or
existence of the satellite dish. The dish shall not be visible from the street
and surrounding areas and must meet all codes and laws. Prior to commencement of
any work in or about the Building by the Tenant's installer, the installer shall
supply Landlord with such customary written indemnities and/or insurance as
Landlord deems necessary in its commercially reasonable discretion and, after
the installation, shall provide as-built plans. Landlord shall incur no expense
whatsoever with respect to any aspect of the installer's provision of its
services to Tenant, including without limitation, the costs of installation,
materials and services, it being understood and agreed that Tenant shall be
fully responsible for all such costs. Except for Landlord's gross negligence and
willful misconduct, Landlord shall have no responsibility whatsoever for the
delivery, installation, use, operation, demolition or removal of any
communications equipment installed by or on behalf of Tenant. Tenant and its
installer shall abide by such commercially reasonable rules and regulations,
building and other codes, job site rules and such other requirements as are
reasonably determined by Landlord to be necessary to protect the interests of
the Building and Landlord. Tenant shall repair any damage to the Building or
rooftop of the Building caused by the installation, use or removal of any
telecommunications equipment. Tenant shall be required to remove all of its dish
and antennae equipment (excluding wiring) immediately upon the expiration or
earlier termination of the Lease. Landlord's approvals required under this
paragraph shall not be unreasonably withheld, delayed or conditioned.
34. BACK-UP GENERATOR AND FUEL TANK. Tenant shall be permitted to install and
operate a generator and fuel tank upon Tenant's satisfaction of the following
conditions:
(a.) Landlord shall have the right to review and approve the brand, design,
proposed installation method and contractor for the proposed generator
and tank;
(b.) Tenant shall execute such additional documentation and indemnities
regarding the installation, maintenance, operation and removal of the
fuel tank and generator that may be required by Landlord in its
reasonable discretion and setting forth commercially reasonable
requirements for Tenant's insurance regarding the proposed generator
and tank;
(c.) Tenant shall be responsible for all costs associated in any way with
the generator and fuel tank, including, without limitation Landlord's
costs of professionals (including without
51
limitation, engineers and attorneys) to review and document the
addition of the generator and fuel tank;
(d.) Tenant shall comply with all applicable laws regarding the
installation, maintenance, operation and removal of the generator and
fuel tank;
(e.) Tenant shall remove the generator and fuel tank prior to the
expiration of the term of this Lease and restore the Complex to its
original condition, normal wear and tear and casualty and condemnation
excepted;
(f.) Tenant shall provide all environmental insurance reasonably required
by Landlord with regard to the generator and fuel tank and, except to
the extent of any applicable insurance carried by Tenant, the waiver
of subrogation shall not apply with regard to damage caused due to the
installation, maintenance, operation or removal of the generator and
fuel tank;
(g.) Landlord shall determine the location for the generator and fuel tank
and the location of the riser for the connection of the generator to
Tenant's Premises in its sole discretion; and
(h.) The location of the generator and tank and Tenant's right to install
the generator are subject to the rights of other tenants in the
Building at the time of Tenant's request for installation of the
generator and is subject to applicable law, and, without limitation,
if applicable law then requires payment of any additional fees or
taxes in order to operate a generator or fuel tank, Tenant shall be
responsible for same and for any increased costs associated with the
addition of the generator to the Complex.
35. USURY. If from any circumstances whatsoever, fulfillment of any provision
of this Lease at the time performance of such provision shall be due shall
involve transcending the limit of validity presently prescribed by any
applicable usury statute or any other applicable law with regard to obligations
of like character and amount, then, ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity, so that in no event shall any
exaction be possible under this Lease that is in excess of the current limit of
such validity. Without limiting the generality of the foregoing, in the event
that the circumstances of disbursement, repayment or collection, or any
circumstances affecting this Lease, are such that collection of any fee, default
charge, late charge or other interest or charge, together will all other
interest payable by Tenant should result in the charging of interest in excess
of five percent (5.0%) per month in violation of Section 7-4-18 of the Official
Code of Georgia Annotated ("O.C.G.A."), then such fee, default charge, late
charge or other interest or charge shall be automatically reduced (and if
collected, shall be rebated) to the extent necessary to comply with O.C.G.A.
Section 7-4-18. For purposes of determining whether the rate of interest exceeds
the highest lawful rate, all sums paid or to be paid with respect to the
indebtedness which are deemed interest for purposes of determine usury under
applicable law shall be deemed to accrue throughout the term of this Lease (or
such longer period of time permitted by applicable law) although the same may be
computed and paid at specified times.
36. EXHIBITS AND ATTACHMENTS. All exhibits, attachments, riders and addenda
referred to in this Lease are incorporated in this Lease and made a part hereof
for all intents and purposes.
Exhibit A Description of Premises
Exhibit B Legal Description of Land
Exhibit C Project Site Plan
Exhibit D Work Letter
Schedule D-1 Contractor Insurance Requirements
Exhibit D-1 Specifications for Tenant Improvements (including
Additional Improvements)
Exhibit E Acceptance of Premises Memorandum
52
Exhibit F Environmental Questionnaire
Exhibit G Intentionally Deleted
Exhibit H Rules and Regulations
Exhibit I Confidentiality Agreement
Exhibit J Arbitration Procedure
Exhibit K Intentionally Deleted.
Exhibit L Owner's Title Policy
Exhibit M Contact Information for Work Letter
Exhibit N Parking Spaces
Exhibit O Short Form Lease and Notice of Right of First Refusal
to Purchase
37. COUNTERPART AND FACSIMILE EXECUTION. This Lease may be executed by
facsimile in multiple counterparts, each of which shall constitute an original
instrument, but all of which shall constitute one and the same agreement.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
date first above written.
LANDLORD: TENANT:
Eagle Trade Center, L.L.C., a Delaware The Xxxxxxx Xxxxxx Company
limited liability company a Massachusetts corporation
By: AmberJack, Ltd., an Arizona corporation
Its managing Member By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
Date:
---------------------------
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Date: Attest:
--------------------------------- -------------------------
Name:
---------------------------
Title:
--------------------------
Attest: Date:
------------------------------- ---------------------------
Name:
---------------------------------
Title:
--------------------------------
Date:
----------------------------------
53
EXHIBIT A
PREMISES
This Exhibit is attached to and made a part of that certain
Lease Agreement
dated as of January 17, 2003 by and between Eagle Trade Center, L.L.C., a
Delaware limited liability company, as "LANDLORD", and The Xxxxxxx Xxxxxx
Company, a Massachusetts corporation, as "TENANT", for the Premises known as
Xxxxx 000, Xxxxx'x Xxxxxxxx Trade Center 3, Xxxxxxxxxxx, Xxxxx County, Georgia.
1
EXHIBIT B
LEGAL DESCRIPTION OF THE LAND
This Exhibit is attached to and made a part of that certain
Lease Agreement
dated January 17, 2003 by and between Eagle Trade Center, L.L.C., a Delaware
limited liability company, as "LANDLORD", and The Xxxxxxx Xxxxxx Company, a
Massachusetts corporation, as "TENANT", for the Premises known as Xxxxx 000,
Xxxxx'x Xxxxxxxx Trade Center 3, Xxxxxxxxxxx, Xxxxx County, Georgia.
TRACT I:
All that certain tract or parcel of land lying and being in Land Xxx 0, 00xx
Xxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx, being more particularly described as follows:
To find the true point of beginning, commence at the point of intersection of
the Northeasterly right of way line of Eagle's Landing Parkway (200' r/w) and
the Northwesterly right of way line of the Norfolk Southern Railroad (150' r/w);
thence, running with the aforesaid right of way line of Eagle's Landing Parkway
in a generally Northeasterly direction 440.71 feet to an 1/2" iron pin set at
the true point of beginning; thence, leaving the aforesaid true point of
beginning
1. 639.58 feet along the arc of a curve deflecting to the right
and having a radius of 1173.24 feet and a chord bearing and
distance of North 59 DEG. 33' 40" East 631.69 feet to a 1/2"
iron pin found; thence, leaving the aforesaid right of way line
of Eagle's Landing Parkway
2. South 35 DEG. 26' 53" East, 624.86 feet to a 1/2" iron pin
found; thence
3. South 51 DEG. 39' 00" West, 536.35 feet to a 1/2" iron pin
set; thence
4. North 42 DEG. 59' 19" West, 713.34 feet to a 1/2" iron pin set
at the point of beginning, containing 405,585 square feet or
9.31 acres of land.
TRACT II:
All that tract or parcel of land lying and being in Land Xxx 0, 00xx Xxxxxxxx
and Land Xxx 00, 0xx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx.
BEGINNING at a 1/2" rebar found on the Southerly r/w line of Eagle's Landing
Parkway (200' r/w) at a point which is 1080.45 feet Easterly along the Southerly
r/w line of Eagle's Landing Parkway from its intersection with the Northerly r/w
line of Norfolk and Southern Railroad (150' r/w at this point), and running
thence along a curve to the right having an Arc length of 308.12 feet along the
right of way of Eagle's Landing Parkway, said curve having a radius of 1173.24
feet with a chord distance of 307.24 feet with a chord bearing of North 82 DEG.
44' 42" East; thence South 89 DEG. 43' 59" East a distance of 841.61 feet along
the right of way of Eagle's Landing Parkway to an iron pin; thence leaving said
Road r/w South 67 DEG. 43' 46" East a distance of 334.78 feet to a point;
thence South 60 DEG. 44' 53" West a distance of 804.97 feet to an iron pin;
thence South 03 DEG. 20' 56" East a distance of 403.75 feet to an iron pin;
thence South 42 DEG. 33' 57" East a distance of 448.46 feet to a point; thence
South 45 DEG. 39' 03" West a distance of 492.64 feet to an iron pin located on
the Northeasterly r/w line of the Norfolk and Southern Railroad right of way
(250' r/w at this point); thence North 64 DEG. 24' 05" West a distance of
459.67 feet to an iron pin; thence South 25 DEG. 35' 55" West along the
Westerly r/w line of said Norfolk and Southern Railroad r/w line 50.00 feet to
an iron pin located on the Northerly r/w line of said Norfolk and Southern
Railroad r/w line (150' r/w at this point); thence along a curve to the right
having an Arc length of 351.34 feet in the Norfolk
1
and Southern right of way, with a radius of 2128.68 feet with a chord distance
of 350.95 feet with a chord bearing of North 59 DEG. 40' 23" West to an iron
pin; thence continuing along said r/w line North 54 DEG. 56' 40" West a
distance of 350.44 feet to a 1/2" rebar found; thence leaving said Railroad r/w
North 51 DEG. 39' 00" East a distance of 841.35 feet to an iron pin; thence
North 35 DEG. 26' 53" West a distance of 624.86 feet to a 1/2" rebar found and
the POINT OF BEGINNING, containing 30.61 Acres, more or less.
2
EXHIBIT C
PROJECT SITE PLAN
This Exhibit is attached to and made a part of that certain
Lease Agreement
dated January 17, 2003 by and between Eagle Trade Center, L.L.C., a Delaware
limited liability company, as "LANDLORD", and The Xxxxxxx Xxxxxx Company, a
Massachusetts corporation, as "TENANT", for the Premises known as Eagle's
Landing Trade Xxxxxx 0, Xxxxx 000.
1
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of that certain
Lease Agreement
dated January 17, 2003 by and between Eagle Trade Center, L.L.C., a Delaware
limited liability company, as "LANDLORD", and The Xxxxxxx Xxxxxx Company, a
Massachusetts corporation, as "TENANT", for the Premises known as Xxxxx 000,
Xxxxx'x Xxxxxxxx Trade Center 3, Xxxxxxxxxxx, Xxxxx County, Georgia.
1. APPLICATION OF EXHIBIT
Capitalized terms used and not otherwise defined herein shall have the same
definitions as set forth in the Lease. The provisions of this Work Letter
shall apply to the planning and completion of leasehold improvements
requested by Tenant (the "TENANT IMPROVEMENTS") as more particularly
described in Exhibit D-1 attached hereto::
Defined Term Approximate square footage Allowance
------------------------- ------------------------------------ --------------------
"Warehouse Premises" 487,200 See Exhibit D-1
"Maintenance Premises" 300 $ 35.00
"Shipping Premises" 2,500 $ 35.00
"Office Premises" 15,000 (including 5,000 sq. ft. $ 35.00
mezzanine and including the
computer room which may be located
outside of the office area)
Guard Shack N/A $ 15,000.00
Equipment Wash Station N/A $ 10,000.00
The Maintenance Premises, Shipping Premises and Office Premises are
collectively referred to herein as the "ALLOWANCE PREMISES."
2. LANDLORD AND TENANT PRE-CONSTRUCTION OBLIGATIONS
(a) WORKING DRAWINGS. The architect for the Tenant Improvements has been
selected by agreement of Landlord and Tenant and is Xxxxxxx Xxxxxxx
(the "ARCHITECT"). The Architect shall prepare working construction
drawings for the Tenant Improvements (the "WORKING DRAWINGS") which
shall include either in narrative or other form, information to
provide the Contractor with adequate detail to construct the Tenant
/Improvements, without limitation, architectural, engineering
(including mechanical, electrical and plumbing ("MEP")) and design
drawings
1
showing the locations and numbers of doors, partitioning, electrical
fixtures, outlets and switches, plumbing fixtures, floor loads and
other requirements, and a list of all specialized installations and
specifications required by Tenant for its use of the Office Premises,
the Shipping Premises and the Maintenance Premises. The Working
Drawings shall also include power, phone and data locations in the
Warehouse Premises. The Working Drawings (i) shall be subject to the
final approval of both Landlord and Tenant, which approval shall not
be unreasonably withheld, (ii) shall not be in conflict with building
codes for the City of Stockbridge or County of Xxxxx or with insurance
requirements for a comparable industrial building, and (iii) shall be
in a form satisfactory to appropriate governmental authorities
responsible for issuing permits and licenses required for
construction. The Working Drawings shall be prepared based upon the
Specifications for Tenant Improvements attached hereto as Exhibit D-1.
In the event an items is not addressed in sufficient detail on Exhibit
D-1, the Working Drawings shall reflect the commercially accepted base
building standard for Comparable Buildings (as defined in Section 8.b.
of the Lease.
(b) COST OF WORKING DRAWINGS. The costs associated with preparation of the
Working Drawings for the Allowance Premises and for the Warehouse
Premises shall be paid by Landlord and shall not be paid from the
Allowance.
(c) APPROVAL OF WORKING DRAWINGS. Within seven (7) business days after the
initial proposed Working Drawings are delivered to Tenant, Tenant
shall approve or disapprove same in writing and if disapproved, Tenant
shall provide the Architect specific reasons for disapproval; provided
that Tenant shall respond within five (5) business days after receipt
of any revised Working Drawings. The foregoing process shall continue
until the Working Drawings are approved by Landlord and Tenant;
provided that if Tenant fails to respond in the initial seven (7)
business day period or any subsequent five (5) business day period,
Tenant shall be deemed to have approved the last submitted Working
Drawings. For purposes of approval of any items required by this Work
Letter, the item will be considered delivered to Landlord or Tenant
upon delivery to any of the individuals listed on EXHIBIT M for
Tenant, Landlord or the Architects, respectively. All deliveries
required under this Work Letter shall be deemed delivered when sent by
any method of delivery (including email and facsimile) for which
receipt is either confirmed by the applicable party or by the delivery
service (including electronic verification if confirmed by telephone
contact with the recipients). Landlord is solely responsible for
determining that the Working Drawings comply with all applicable
building, fire, plumbing, electrical, health, and sanitary codes,
regulations, laws, ordinances, rules and regulations of any applicable
governmental authority. In order to expedite the construction
schedule, Landlord may submit Working Drawings to Tenant separately
for the Warehouse Premises, the computer room, the Office Premises,
the Shipping Premises and the Maintenance Area and for any other areas
for which separate Working Drawings are prepared by Architect. Each
set of Working Drawings shall be subject to the foregoing procedure
for the review and approval of same. Landlord shall be responsible for
verification that all such separate Working Drawings together
represent all of the Tenant Improvements contemplated by Tenant's
Space Plan.
(d) CONTRACTOR. Landlord's Contractor shall be Xxxxxx Construction
("CONTRACTOR"). Tenant hereby approves the Contractor.
(e) TENANT'S CONSULTANT. Tenant's construction consultant ("TENANT'S
CONSULTANT") shall be approved by Landlord in its reasonable
discretion and shall be selected by Tenant prior to the commencement
of construction. Subject to the terms of the Lease and this Work
Letter, Landlord will cooperate with commercially reasonable requests
by Tenant's Consultant.
2
3. BUILDING PERMIT
After the final approval of the Working Drawings by Landlord and
Tenant has occurred ("FINAL APPROVAL") and the Contractor has been selected, the
Contractor shall submit the Working Drawings to the appropriate governmental
body or bodies for final plan checking and a building permit. Landlord shall
cause to be made any change in the Working Drawings necessary to obtain the
building permit; provided, however, after the Final Approval, no changes shall
be made to the Working Drawings, without the prior written approval of both
Landlord and Tenant.
4. CONSTRUCTION OF TENANT IMPROVEMENTS
In the event the Working Drawings do not comply with any applicable laws,
codes or regulations, all costs resulting from such non-compliance shall be
paid by Landlord or paid from the Allowance to the extent the Allowance is
sufficient to pay for such costs. Landlord shall see that the construction
complies with any and all restrictive covenants and/or deed restrictions
applicable to the Premises.
Landlord shall use commercially reasonable efforts to cause the Contractor
to promptly complete the construction of the Tenant Improvements in
substantial conformance with the Working Drawings in a good and xxxxxxx
like manner using first-class materials. The Construction Contract shall
for the Allowance Premises only, at a minimum, require (i) the construction
of the Tenant Improvements for a stipulated sum contract, based on the
Working Drawings; (ii) Tenant's right to review and approve all Contractor
pay applications (which approval shall not be unreasonably withheld or
delayed by Tenant); and (iv) evidence of the insurance of the Contractor
set forth in SCHEDULE 1 attached hereto in the amounts set forth on
SCHEDULE 1 attached to this Exhibit and any other insurance required by
Landlord, and naming Landlord and Tenant as an additional insured on all
liability insurance policies. Such Construction Contract price for the
Allowance Premises shall be subject to adjustment based on any changes to
the Working Drawings required by Tenant in accordance with this Work
Letter. The Construction Contract price for the Allowance Premises may not
be increased by change order or otherwise, without Tenant's prior written
approval, which approval shall not be unreasonably withheld or delayed.
5. TENANT IMPROVEMENT COSTS
(a) TENANT IMPROVEMENTS PROVIDED BY LANDLORD. Landlord will initially
provide at no additional cost to Tenant, the improvements for the
Warehouse Premises described on EXHIBIT D-1 attached hereto. Any
changes to the scope of these described improvements shall be made at
Tenant's sole cost and expense. Except where specific materials are
listed on Exhibit D-1, the described improvements will be completed
using building standard materials that are consistent with the
building standard used for Comparable Buildings. Landlord shall not be
responsible for any above-building standard materials or methods that
are not specifically listed on Exhibit D-1, including, without
limitation, any such above Building standard items that may be
required by Tenant and changes in the base Building structure.
(b) ALLOWANCE. Landlord shall pay for the costs of the Tenant Improvements
for the Allowance Premises, provided such costs shall not exceed the
Tenant Improvement allowance (the "ALLOWANCE") set forth in the chart
in paragraph 1 of this Work Letter and more particularly described in
EXHIBIT D-1 attached hereto. The Allowance shall be applied toward the
cost of the purchase and construction of the Tenant Improvements for
the Allowance Premises, including without limitation the following:
(i) Construction work for completion of the Tenant Improvements for
the Allowance Premises as reflected in the Construction
Contract;
(ii) All contractors' charges, general condition, performance bond
premiums and construction fees relating to the Allowance
Premises;
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(iii) Tenant Improvements as shown on the approved Working Drawings
for the Allowance Premises;
(iv) Any modifications, alterations or changes to the Tenant
Improvements from the Working Drawings for the Allowance
Premises or for the remainder of the Premises, including,
without limitation any elevator that may be required by Tenant
or by applicable law for the mezzanine;
(v) any costs resulting from a Tenant Delay for any of the Tenant
Improvements (including without limitation the Warehouse
Premises);
(vi) Construction management fee for Landlord's construction manager
not to exceed 5%, if any, payable in connection with the work
for the Allowance Premises or for any changes to the work for
the Warehouse Premises (it being agreed that the Contractor may
also charge a commercially reasonable construction management
fee that will be included in the Allowance; and
(vii) Any design, engineering and consulting fees payable in
connection with the work for the Allowance Premises or for any
changes to the work for the Warehouse Premises.
(c) CONTRACTION SPACE IMPROVEMENTS. Except as specifically set forth on
Exhibit D-1, Landlord shall not provide any Tenant Improvements to the
Contraction Space. Any other improvements may be added at a later date at
Tenant's sole cost (subject to the requirements of this Lease for Tenant
Alterations).
6. COSTS IN EXCESS OF TENANT IMPROVEMENT ALLOWANCE AT TENANT'S EXPENSE
(a) COST APPROVAL. Tenant shall pay the excess of the cost of the Tenant
Improvements for the Allowance Premises over the amount of the Tenant
Improvement Allowance available to defray such costs.
(b) FINAL COSTS. Within sixty (60) days after completion by Landlord of
the Tenant Improvements, Landlord shall determine the actual final
costs of the Tenant Improvements for (i) the Allowance Premises, (ii)
any Tenant Delays for the Allowance Premises or for the Warehouse
Premises and (iii) costs of changes to the Working Drawings for the
Allowance Premises or for the Warehouse Premises (collectively, the
"FINAL COSTS") AND shall submit a written statement of such amount to
Tenant.
(c) PAYMENT OF EXCESS COSTS. In the event the Final Costs exceed the
Allowance (such amounts exceeding the Tenant Improvement Allowance
being herein referred to as the "EXCESS COSTS"), Tenant shall pay the
estimated Excess Costs to Landlord within forty five (45) days after
approval of the Tenant Improvement Costs. Landlord will provide Tenant
with the option to amortize these Excess Costs over an approximately
ten (10) year period at an interest rate of ten percent (10%) per
annum. Tenant may elect such option within thirty (30) days of receipt
of Landlord's invoice for Excess Costs (not to exceed $250,000.00) by
written notice to Landlord. Upon such election an amendment to this
Lease will be executed within thirty (30) days of Landlord's receipt
of Tenant's election to document the addition of such Excess Costs to
Tenant's Base Rent payments. The Excess Costs will be fully amortized
over a period equal to 120 months minus the number of months (and
partial months) between the Commencement Date and the date of the
execution by both parties of the amendment to this Lease that
documents the adjusted Base Rent payments.
4
(d) CREDIT OF UNUSED ALLOWANCE. In the event the Final Costs are less than
the Allowance, the unused portion of the Allowance may be used by
Tenant as a credit against Base Rent under the Lease.
(e) STATEMENTS FINAL. The statements of costs submitted to Landlord by
Landlord's contractors shall be conclusive for purposes of determining
the actual cost of the items described therein. The amounts payable
hereunder constitute additional rental payable pursuant to the Lease,
and the failure to timely pay same constitutes an event of default
under the Lease.
7. CHANGE ORDERS
(a) Tenant may from time to time request and obtain change orders during
the course of construction provided that: (i) each such request shall
be reasonable, shall be in writing and signed by or on behalf of
Tenant, and shall not result in any structural change in the Building,
as reasonably determined by Landlord, (ii) all additional charges and
costs, including without limitation architectural and engineering
costs, construction and material costs, and processing and permitting
costs of any governmental entity shall be the sole and exclusive
obligation of Tenant, and (iii) any resulting delay in the completion
of the Tenant Improvements shall be deemed a Tenant Delay and in no
event shall extend the Commencement Date of the Lease. Upon Tenant's
request for a change order, Landlord shall as soon as reasonably
possible submit to Tenant a written estimate of the increased or
decreased cost and anticipated delay, if any attributable to such
requested change. Within three (3) days of the date such estimated
cost adjustment and delay are delivered to Tenant, Tenant shall advise
Landlord whether it wishes to proceed with the change order. Unless
Tenant includes in its initial change order request that the work in
process at the time such request is made be halted pending approval
and execution of a change order, Landlord shall not be obligated to
stop construction of the Tenant Improvements, whether or not the
change order relates to the work then in process or about to be
started. Tenant shall pay the amount of the increased cost, if any,
attributable to such change order within forty-five (45) days of the
completion of such change order. Notwithstanding the foregoing, for
change orders for the Allowance Premises, (i) Tenant may include the
costs of such change orders in the Allowance and (ii) Tenant shall
have the option to treat such change orders costs as Excess Costs and
pay such costs as Base Rent using the procedure and terms set forth
above in Section 6.(c).
8. COMMENCEMENT DATE AND TENANT DELAYS
Notwithstanding anything to the contrary in Paragraph 1 of the Lease, the
Term of the Lease shall commence on the later to occur of (x) April 1, 2003
and (y) the earlier of substantial completion of the Tenant Improvements,
as adjusted for Tenant Delays and force majeure or commencement of business
operations in all or part of the Premises. For purposes of this subsection,
the "commencement of business operations" shall mean Tenant's commencement
of the distribution of products from the Premises, but shall not mean
Tenant's receipt of inventory and installation of the Installed Equipment,
as defined below in Section 12 of this Exhibit D. In no event shall the
Commencement Date of the Lease be extended or delayed due or attributable
to delays due to the fault of Tenant ("TENANT DELAYS"). Tenant Delays shall
include, but are not limited to delays caused by or resulting from any one
or more of the following:
(a) Tenant's failure to timely review and reasonably approve the Working
Drawings or to promptly cooperate with the Architect and furnish
information to Landlord for the preparation of the Preliminary Plans
and Working Drawings;
(b) Tenant's request for or use of special materials, finishes or
installations which are not readily available, provided that Landlord
shall notify Tenant in writing that the particular material, finish,
or installation is not readily available promptly upon Landlord's
discovery of same;
(c) Change orders requested by Tenant;
5
(d) Interference by Tenant or by Tenant's agents, employees or contractors
with Landlord's construction activities;
(e) Tenant's failure to reasonably approve any other item or perform any
other obligation in accordance with and by the dates specified herein
or in the Construction Contract;
(f) Tenant's requested changes in the Preliminary Plans, Working Drawings
or any other plans and specification after the approval thereof by
Tenant or submission thereof by Tenant to Landlord;
(g) Tenant's failure to reasonably approve written estimates of costs in
accordance with this Work Letter;
(h) Tenant's obtaining or failure to obtain any necessary governmental
approvals or permits for Tenant's intended use of the Premise; and
(i) Landlord's failure to obtain Certificate of Occupancy (or its
equivalent) due to the status or condition of Tenant's installation of
equipment.
If the Commencement Date of the Lease is delayed by any Tenant Delays, then
substantial completion of the Tenant Improvements shall be deemed to have
occurred on the date substantial completion would have occurred absent any
Tenant Delays and the Commencement Date of the Lease and the payment of
rent shall be accelerated by the number of days of such delay. Landlord
shall give Tenant written notice within a reasonable time of any
circumstance that Landlord believes constitutes a Tenant Delay.
The term "SUBSTANTIAL COMPLETION" shall mean when the Tenant
Improvements are sufficiently completed so that the Tenant can
reasonably use the Premises for the commencement of business,
including without limitation, each of the following events have
occurred:
(a) The Tenant Improvements have passed all governmental inspections and
all conditions have been met to allow for lawful occupancy of the
Premises; and
(b) The Tenant Improvements shall have been substantially completed
(except for punch-list items to be completed within sixty (60) days of
the date on which Landlord and Tenant agree upon the punch-list items)
in accordance with the Working Drawings and the Architect shall have
certified to Tenant that such substantial completion has occurred.
(c) As used herein, the term "FORCE MAJEURE" shall mean a delay which is
due to strikes, riots, acts of God, shortages of labor or materials
(as opposed to Tenant's selection of specific items that are not
available but alternative selections are available), war, terrorism,
governmental action or inaction beyond the control of Landlord, or
other similar causes beyond the reasonable control of Landlord or
Tenant, all which arise after the execution of the Construction
Contract, including without limitation, failure of the appropriate
governmental authorities to issue approvals and permits required for
the construction of the Tenant Improvements.
9. TRADE FIXTURES AND EQUIPMENT
Tenant acknowledges and agrees that Tenant is solely responsible for
obtaining, delivering and installing in the Premises all necessary and
desired furniture, trade fixtures, equipment and other similar items, and
that Landlord shall have no responsibility whatsoever with regard thereto.
Tenant further acknowledges and agrees that neither the Commencement Date
of the Lease nor the payment of rent shall be delayed for any period of
time whatsoever due to any delay in the furnishing of the Premises with
such items.
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10. CLOSE-OUT DOCUMENTATION
Notwithstanding anything to the contrary contained in this Exhibit, in
addition to any other requirements set forth herein, Landlord shall deliver
to Tenant all of the following as soon as possible following Substantial
Completion of the Tenant Improvements, but not later than forty-five (45)
days thereafter:
(a) The originals or copies of operation and maintenance manuals received
from the Contractor for all building systems serving the Premises.
(b) The originals or copies of all guarantees and warranties obtained by
Landlord in connection with the construction of the Tenant
Improvements.
(c) Copies of the final as-built plans and specifications for the Tenant
Improvements.
Landlord shall cause the Contractor provide to Tenant within
forty-five (45) days after Substantial Completion of the Tenant
Improvements, a list of the name, address and telephone number of all
contractors and subcontractors that have supplied labor or furnished a
major component of materials or equipment to the Premises on behalf of
Landlord. Landlord shall cause Contractor to complete all punch-list
items within sixty (60) days of the date on which Landlord and Tenant
agree upon the punch-list items.
11. WARRANTIES
Landlord shall assign to Tenant on a non-exclusive basis all guarantees and
warranties received by Landlord in connection with the Tenant Improvements.
Landlord shall obtain a customary warranty from the Contractor covering the
Tenant Improvements.
12. TENANT'S INSTALLATION OF EQUIPMENT AND INVENTORY.
(a) Installed Equipment. To the extent permitted by applicable laws
and zoning ordinances, commencing on or after the later of
March 1, 2003 or sixty (60) days following Landlord's approval
of the Working Drawings, Tenant may during normal business
hours, prior to the Commencement Date personally, or through
others, store inventory, install racks, conveyor equipment and
other personal property in the Premises (the "INSTALLED
EQUIPMENT"). Prior of the commencement of the installation of
the Installed Equipment, Tenant (a) will obtain all permits or
approvals required by any Governmental Authorities for the
installation of such Installed Equipment and (b) insurance
certificates and appropriate waivers of subrogation shall be
provided to Landlord as provided in the Lease. Tenant
acknowledges that the exact installation schedule for the
Installed Equipment will have to be determined as construction
progresses and Tenant and Landlord agree to work together to
determine an appropriate schedule for the installation. Without
limitation, Tenant shall provide to Landlord a detailed
description of the desired installation activities and timing,
which schedule and activities shall be subject to the
reasonable approval of Landlord and Contractor; provided the
foregoing is only intended to give Landlord and Contractor the
ability to impose reasonable requirements to protect the timing
of the completion of the Tenant Improvements and to
appropriately provide for the safety and cooperation of the
Contractor's and Tenant's contractors and mechanics. Tenant
shall install the Installed Equipment in a manner which will
not delay the anticipated completion of the Tenant Improvements
by the scheduled Commencement Date. Any delay attributable to
the installation of the Installed Equipment by Tenant shall be
a Tenant Delay. If applicable, Tenant shall be responsible for
the removal of the Installed Equipment in the event of any
casualty or condemnation affecting the Premises unless Tenant
elects not to remove the same in which case Landlord shall take
ownership thereof and the provisions in Section 16
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of the Lease relating to the transfer to Landlord of Abandoned
Installed Equipment shall apply.
(b) Access. Landlord shall give those persons who are installing
the Installed Equipment reasonable access to the Premises,
which access shall not unreasonably interfere with the
Contractor or any of its subcontractors. The obligations of
Tenant contained in this Section 11 shall survive the
termination of this Lease. Tenant will comply with the terms of
the Lease regarding the installation of the Installed Property,
including, without limitation, the terms regarding Alterations
in Section 7 and the terms regarding mechanic's liens in
Section 23 of the Lease.
(c) INDEMNITY. EXCEPT TO THE EXTENT ANY DAMAGES, ACTIONS,
LIABILITIES AND EXPENSES ARE COVERED BY PROPERTY INSURANCE
REQUIRED TO BE MAINTAINED BY EITHER PARTY HEREUNDER, TENANT
WILL INDEMNIFY, DEFEND AND HOLD LANDLORD AND ITS AFFILIATES AND
SUBSIDIARIES, AND ITS EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS,
OFFICERS, MEMBERS AND DIRECTORS HARMLESS FROM AND AGAINST ANY
AND ALL ACTIONS, DAMAGES, LIABILITY AND EXPENSE IN CONNECTION
WITH BODILY INJURY, DEATH, AND DAMAGES TO PROPERTY ARISING FROM
OR OUT OF THE USE AND OCCUPANCY BY THE TENANT OF THE PREMISES
OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION, ANY AND ALL
LIENS, LOSS, COSTS AND EXPENSE, INCLUDING REASONABLE ATTORNEYS'
FEES, RELATING TO THE INSTALLATION AND, IF APPLICABLE, REMOVAL
OF THE INSTALLED EQUIPMENT.
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SCHEDULE I
TO EXHIBIT D
CONTRACTOR INSURANCE REQUIREMENTS
The Contractor shall purchase and maintain commercial general liability
insurance as required to protect himself and the Owner from claims set forth
below which may arise out of or result from operations of the Contractor or any
subcontractor under the Contract, whether such claims arise during Contract
performance or subsequent to completion of operations under the Contract and
whether such operations be by himself or by any subcontractor or by anyone
directly or indirectly employed by any of them or by anyone for whose acts any
of them may be liable. Insurance shall be purchased from a company licensed to
do business in the state in which the Project is located.
Claims under Workers' Compensation, disability benefit and other
similar employee benefit acts.
Claims for damages because of bodily injury, occupational sickness or
disease, or death of its employees and claims insured by usual personal
injury liability coverage.
Claims for damages because of bodily injury, sickness or disease, or
death of any person other than its employees and claims insured by usual
personal injury liability coverage.
Claims for damages other than to the work itself, because of injury to
or destruction of tangible property, including loss of use resulting
therefrom.
Claims for damages insured by usual bodily injury liability coverage
which are sustained (1) by any person as a result of an offense directly or
indirectly related to the employment of such person by the Contractor, or
(2) by any other person.
Claims for damages because of bodily injury or death of any person or
property damage arising out of the ownership, maintenance or use of any
motor vehicle.
Contractor's liability insurance shall be written on commercial general
liability form with all coverages indicated. Coverage shall be on an
"occurrence" basis not an "accident" basis. The insurance specified shall be
considered as minimum requirements. The Contractor is responsible for providing
any additional insurance he deems necessary to protect his interest from other
hazards or claims in excess of the minimum coverage. Coverages shall include:
Products - Completed operations
Blanket Contractual - With exclusions relating to construction
operations deleted
Property Damage
Personal Injury
Blanket Explosion, Collapse and Underground Property Damage
Independent Contractors
Umbrella, Excess Liability
The insurance required shall be written for not less than any limits of
liability specified below or required by law, whichever is greater, and shall
include contractual liability insurance as applicable to the Contractor's
obligations. The Contractor's minimum limits of liability are as follows:
Worker's Compensation based on statutory requirements including employers
liability with a limit of $100,000 for each employee. All worker's
compensation policies shall carry the "all states" endorsement.
1
Contractors public liability, including bodily injury and death, and
property damage liability with a minimum combination single limit of
$1,000,000 with Eagle's Trade Center, L.L.C. and The Xxxxxxx Xxxxxx Company
as additional insureds. The insurance coverage can be provided under a
commercial general liability policy or under a combination of the
comprehensive general liability coverage and umbrella or excess liability
coverage. The above coverage or combination of coverage must provide a
minimum total annual aggregate limit of $5,000,000 for products liability
including completed operations, and a separate annual aggregate limit of
$5,000,000 for all other coverage.
Products Liability including completed operations with public liability and
property damage liability combined limit of $1,000,000 each occurrence and
$2,000,000 annual aggregate. This liability insurance shall be continued in
force for no less than two years after final acceptance of the work.
Independent Contractor's liability insurance with a public liability and
property damage liability combined limit of $1,000,000 for each occurrence
and $5,000,000 annual aggregate.
Blanket contractual liability with a public liability and property damage
liability combined limit of $1,000,000 each occurrence and $5,000,000
annual aggregate.
Comprehensive automobile liability insurance including owned, hired and
non-owned vehicles with minimum combination single limit of $1,000,000 each
occurrence for personal injury liability including without limitation
bodily injury and death and property damage liability. This insurance
coverage can be provided under a comprehensive automobile liability policy,
or under a combination of the comprehensive automobile liability coverage
and umbrella or excess liability coverage.
2
EXHIBIT D-1
SPECIFICATIONS FOR TENANT IMPROVEMENTS
(INCLUDING ADDITIONAL IMPROVEMENTS)
A. TENANT IMPROVEMENTS PROVIDED BY LANDLORD AT LANDLORD'S COST: Pursuant to
the Work Letter to which this Exhibit D-1 is attached, Landlord shall provide
the following Tenant Improvements at Landlord's cost (and not as part of the
Allowance):
1. SECURITY:
- Approximately 4,300 lineal feet of 8 foot high 9 gauge 2" mesh
metal chain link fencing at site perimeter with 20 foot wide
rolling gate with a 1hp electric operator with safety loops and
three (3) button station.
- 140 lineal feet of 8 foot high 9 gauge 2" mesh metal chain link
fence for the maintenance area with a 10 foot wide rolling gate
and a 3 foot wide X 7 foot high personnel gate.
- Note: Guard shack located at main entrance is not included on
Landlord's work and will be provided as separate Allowance item
of $15,000.00.
2. HEAT/VENTILATION/AIR CONDITIONING:
- Gas-fired unit heaters for the Warehouse Premises to maintain
45 degrees inside when 17 degrees outside.
- Ventilation system for the Warehouse Premises that will
accommodate a minimum of five (5) air changes per hour with all
doors closed when the space is 65% racked through roof mounted
exhaust fans and wall louvers.
- Roof mounted exhaust fan near the maintenance and lift truck
battery charging areas.
3. ELECTRIC:
- 3,000 amps, 277/480 volt, three phase, four wire electrical
service for the Warehouse and Office Premises, subject to value
engineering and the final equipment design.
- Distribution of the electrical power to the lift truck battery
charging station (including forty (40) 20 amp 3-phase 480 volt
non fused disconnects).
- Four (4) dedicated-isolated ground power outlets near the
maintenance area.
- Ten (10) dedicated-isolated ground power outlets near the
shipping area.
- Twenty (20) dedicated-isolated ground power outlets near the
packing area.
- Ten (10) outlets strategically located on the ceiling for RF
and PA systems
- Install service outlets at 56 dock doors.
1
- Standard electrical distribution in the Office Area included in
the Office Allowance.
- Forty (40) additional service outlets in miscellaneous
locations around the facility.
4. FLOOR:
- Caulking of interior floor joints in the loading bays for the
entire building with Xxxxxxx/XxXxxxx XX 80 semi rigid epoxy
joint filler.
- 4,000 SF of epoxy flooring at the battery charging and
maintenance areas.
5. MAINTENANCE AREA:
- One (1) Xxxxxxx Model S19-220 wall mounted emergency eye wash
unit near battery charging area.
- Note: Equipment wash station is not included in Landlord's work
for the Maintenance Area and will be provided as a separate
Allowance item at an allowance of $10,000.
6. LIGHTING:
- General warehouse lighting consisting of 400 watt metal halide
fixtures to provide an average 35-foot-candles at 30" above the
finished floor based on an OPEN FLOOR PLAN.
- If Tenant's rack layout and work plan is included in the
Working Drawings, Landlord will provide lighting for the
initial 240,000 square feet in the Warehouse Premises
(excluding office areas) consisting of:
(a) for up to 60% of the Warehouse Premises, 400 watt metal
halide fixtures to provide an average 35-foot-candles
at 30" above the finished floor based on a RACKED FLOOR
PLAN, and
(b) for up to 20% of Warehouse Premises consisting of 400
watt metal halide light fixtures to provide 50 foot
candles at 30" above the finished floor based on an
OPEN FLOOR PLAN.
- In order to allow Landlord to provide Tenant with 35-foot
candles at 30" above the finished floor based on a RACKED FLOOR
PLAN as set forth in item D.1. below, Landlord will initially
install 20-foot candles at 30" above the finished floor in the
250,000 SF of the Warehouse Premises that are not included the
initial 240,000 SF of the Warehouse Premises.
7. PAINTING:
- Paint all interior walls white.
8. LOADING:
- 104 (9'X 10') loading dock doors
- Two 12'X 14' automatic drive-in doors with windows (provided
one door will be located in the first 240,000 square feet of
the Warehouse Premises and one door will be located in the
remaining 250,000 square feet of the Warehouse Premises)
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- 56 docks will be equipped with (a) Rite Xxxx HD1700STL 7'X 8'
35,000 lb Hydraulic dock levelers, (b) Xxxxxxxx Eliminator
Gapmaster 600G dock shelters, (c) Rite Xxxx RHR600 Dok Lok
vehicle restraints with lights; and (d) interior dock
spotlights with adjustable fans and dock bumpers (collectively,
the "DOCK EQUIPMENT"). Twenty-eight (28) docks containing the
Dock Equipment shall be located in the initial 240,000 square
feet of Warehouse Premises and the other twenty-eight (28) will
be evenly spaced in the remaining 250,000 square feet of the
Warehouse Premises (provided Landlord will not unreasonably
withhold its consent to Tenant's request for commercially
reasonable alternate placement of the levelers). The location
of all of the Dock Equipment shall be shown on the Working
Drawings.
- Dock channels and dock bumpers are included at all overhead
doors not receiving dock equipment.
9. SPRINKLER:
- ESFR system with 75 psi designed to the requirements of NFPA
231 C and applicable local codes
B. ALLOWANCE ITEMS: The Landlord will provide the following items at
Landlord's sole cost and expense, not to exceed a total Allowance of
$648,000.00, as described in the Work Letter to which this Exhibit D-1 is
attached. The total Allowance may be used for any of the listed items and any
excess Allowance for one or more items may be used to pay for other items so
long as the total $648,000.00 Allowance is not exceeded. The following items may
be supplemented and expanded by Tenant's plans and specifications. Tenant shall
pay for all costs in excess of the total Allowance for the following items:
1. MAINTENANCE PREMISES OFFICE ($20,500.00 ALLOWANCE WHICH IS BASED UPON
$10,500 FOR 300 SF OFFICE AND $10,000 FOR EQUIPMENT WASH STATION):
- 300 SF office within the 2,000 SF caged maintenance area.
- Equipment wash station.
2. SHIPPING OFFICE ($87,500.00 ALLOWANCE):
- 2,500 square foot shipping office to be located on the dock
wall across from the main office. The allowance has been based
on a standard finish for the following specifications:
- one (1) 10X12 private office, open area for three (3)
cubicles, with a dividing wall possessing a counter and
sliding glass to the trucker's lounge, an area large
enough for two 6-person tables, vending machines and
one (1) unisex restroom, with vinyl floor tile at
office and restroom floors and ceramic tile up to four
(4) feet at restroom.
- one (1) men's restroom and one (1) women's restroom for
fifty (50) employees with an 80-female /20-male gender
split with vinyl floor tile, ceramic tile up to four
(4) feet high on restroom walls and industrial grade
hand washing stations.
3. MAIN OFFICE AREA ($525,000 ALLOWANCE):
- Approximately 15,000 square foot two-story main office area
including approximately 5,000 square foot mezzanine with
two-story glass and an entrance atrium. The allowance has been
based on a standard finish for the following specifications:
- three (3) 12'X14' and eight (8) 10'X12' private offices
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- open area to accommodate ten (10) 6'X8' cubicle
- one (1) 10'X12' receiving office near the dock area
- secured lobby area
- storage/supplies room - 16'X20'
- training room - 16'X20'
- computer room with "clean" power - 20'X20'
- janitor's room with a deep sink
- eight (8) person conference room
- twenty-five (25) person conference room
- break/training room to accommodate seventy-five (75)
people with cabinets, sink, refrigerator and vending
area, inclusive of lockers along the wall for
one-hundred (100) people
- one (1) men's restroom and one (1) women's restroom for
thirty (30) employees in the office with an 80/20
gender split, both with vinyl tile floors and ceramic
tile walls up to four (4) feet
- interior full height drywall partitions with a latex
paint finish, wall covering in the reception area.
Colors to be selected by Tenant
- 2' X 4' acoustical, lay-in panels in exposed grid at
the 9'0" ceiling height
- 3'0" X 7'0" solid core doors with stain finish in
hollow metal door frames with floor-mounted door stops
and passage hardware with 2 locksets
- minimum of 28-oz. level loop carpet of nylon fiber with
4" vinyl base with direct glue-down vinyl tile in the
restrooms, storage/supplies room, miscellaneous room,
shipping office and break/training room
- 2' X 4' fluorescent fixture with parabolic lenses to
provide a light level equal to AN AVERAGE of 75 foot
candles maintained over desk area at 30" above finished
floor
- HVAC equipment proposed to comfortably heat and air
condition the offices for cooling to 75 DEG. F when 95
DEG. F outside or for heating to 72 DEG. F when 0 DEG.
F outside
4
4. GUARD SHACK ($15,000.00 ALLOWANCE):
- Open guard shack at main entrance
C. AMORTIZED ITEMS NOT INCLUDED IN TENANT IMPROVEMENTS. The following items
are not being provided at this time but may be requested by Tenant after the
Contraction Option has expired or been irrevocably waived by Tenant, all of
which shall be constructed by Landlord at Tenant's sole expense or amortized as
set forth in Section 1.d. of the Lease:
1. PARKING:
- Additional employee and trailer parking as more particularly
described in the Lease
2. HVAC:
- HVAC in the Warehouse Premises
- Electrical service upgrades and distribution associated with
HVAC in the Warehouse Premises
3. RESTROOMS:
- One (1) men's restroom and one (1) women's restroom for up to
200 additional employees with secured entrance area and an
80/20 gender split, both with vinyl tile floors, ceramic tile
walls up to four (4) feet, industrial grade hand washing
stations and two (2) showers per restroom.
D. LANDLORD IMPROVEMENTS (NOT SUBJECT TO AN ALLOWANCE, REIMBURSEMENT BY TENANT
OR AMORTIZATION).
- Based on the square footage in the Warehouse Premises in excess
of 240,000 square feet retained after the Contraction Option
date, Landlord will provide lighting for:
(a) up to 60% of the additional space remaining in the
Warehouse Premises (excluding office areas) consisting
of 400 watt metal halide fixtures to provide an average
35-foot-candles at 30" above the finished floor based
on a RACKED FLOOR PLAN; and
(b) up to 20% of the space remaining in the Warehouse
Premises (excluding office areas) consisting of 400
watt metal halide light fixtures to provide 50 foot
candles at 30" above the finished floor based on an
OPEN FLOOR PLAN.
- Tenant shall (at Tenant's sole cost prior to the commencement
of the installation of the lighting by Landlord) clear all work
areas to accommodate equipment necessary for the installation
of the required lighting.
5
EXHIBIT E
ACCEPTANCE OF PREMISES MEMORANDUM
1. PARTIES
This Exhibit is attached to and made a part of that certain
Lease Agreement
(the "LEASE") dated as of January 17, 2003 by and between Eagle Trade
Center, L.L.C.,, a Delaware limited liability company, as "LANDLORD", and
The Xxxxxxx Xxxxxx Company, a Massachusetts corporation, as "TENANT", for
the premises known as Suite 100 (the "Premises"), Eagle's Landing Trade
Center 3, Xxxxxxxxxxx, Xxxxx County, Georgia.
2. RECITALS
The Commencement Date, as defined in the Lease, has now been determined by
Landlord and Tenant as well as the date of the expiration of the term. The
purpose is to set forth such dates and to provide for Tenant's acceptance
of the Premises.
3. DATES
In accordance with ARTICLE 1 of the Lease, Landlord and Tenant agree that
the Term of the Lease has commenced and shall expire on the following
dates:
Lease Commencement Date: ___________________________________
Lease Expiration Date: ___________________________________
4. ACCEPTANCE OF PREMISES
Tenant accepts the Premises in the condition existing as of the
Commencement Date and acknowledges and agrees that all work required to be
performed by Landlord pursuant to the "WORK LETTER" attached to the Lease
as EXHIBIT D has been completed by Landlord in full compliance with EXHIBIT
D and to the satisfaction of Tenant.
5. MISCELLANEOUS
A. Effect:
Except to the extent this Lease has been modified by this EXHIBIT E to
the Lease, the remaining terms and conditions of the Lease shall
remain unmodified and in full force and effect.
B. Defined Terms:
The defined terms used in this EXHIBIT E to the Lease, as indicated by
the first letter of a word being capitalized, shall have the same
meaning in this EXHIBIT E as such terms and provisions have in the
Lease.
1
7. EXECUTION
This Exhibit has been executed and shall be deemed effective as of the date
first written above.
LANDLORD: TENANT:
EAGLE TRADE CENTER, L.L.C.,, a Delaware The Xxxxxxx Xxxxxx Company
limited liability company a Massachusetts corporation
By: AmberJack, Ltd, an Arizona corporation,
Its Managing Member By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Date:
--------------------------
By:
--------------------------------
Name: Attest:
------------------------------ ------------------------
Title: Name:
----------------------------- --------------------------
Date: Title:
------------------------------ -------------------------
Date:
--------------------------
Attest:
----------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
-------------------------------
2
EXHIBIT F
ENVIRONMENTAL QUESTIONNAIRE AND DISCLOSURE STATEMENT
The purpose of this form is to obtain information regarding the use of hazardous
substances on the Premises. Prospective tenants should answer the questions in
light of their proposed operation on the Premises. Existing tenants should
answer the questions as they relate to on-going operations on the Premises and
should update any information previously submitted. If additional space is
needed to answer the questions, you may attach separate sheets of paper to this
form. All statements are made to the best of the actual knowledge of Tenant,
provided Tenant represents that the undersigned is the officer and employee of
The Xxxxxxx Xxxxxx Company most likely to have knowledge of the facts
represented in this Questionnaire. As used in this Environmental Questionnaire
and Disclosure Statement, the phrase "TENANT'S ACTUAL CURRENT KNOWLEDGE" or
similar phrase shall mean the actual current knowledge of the undersigned and
duly authorized officer of The Xxxxxxx Xxxxxx Company. The undersigned
individual shall have no personal liability related to this Questionnaire.
1. GENERAL INFORMATION
Name of Responding Company: ____________________________________________
Check the Applicable Status: Prospective Tenant Existing Tenant
Mailing Address: _______________________________________________________
_______________________________________________________
Contact Person: _______________________________________________________
Title: _______________________________________________________
Telephone Number: (____)____________________
Address of Leased Premises:_____________________________________________
Length of Lease Term: __________(___) Years and _________(____) Months
Describe the proposed operation to take place on the property, including
principal products manufactured or services to be conducted. Existing
Tenants should describe any proposed changes to on-going operations.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
2. STORAGE OF HAZARDOUS MATERIALS
2.1 Will any hazardous materials be used or stored on-site?
Wastes: Yes No
Chemical Products: Yes No
2.2 Attach the list of any hazardous materials to be used or stored,
the quantities that will be on-site at any given time, and the
location and method of storage (e.g. 55 gallon drums on concrete
pad).
1
3. STORAGE TANKS & SUMPS
3.1 Is any above or below ground storage of gasoline, diesel, or other
hazardous substances in tanks or sumps proposed on the premises?
Yes No
If yes, describe the materials to be stored, and the type, size
and construction of the sump or tank. Attach copies of any Permits
obtained for the storage of such substances.
__________________________________________________________________
__________________________________________________________________
3. WASTE MANAGEMENT
3.1 Has your company been issued an EPA Hazardous Waste Generator I.D.
Number?
Yes No
3.2 Has your company filed a biennial report as a hazardous waste
generator?
Yes No
3.3 Attach the list of the hazardous waste, if any, generated or to be
generated at the premises, its hazard class and the quantity
generated on a monthly basis.
3.4 Describe the method(s) of disposal for each waste. Indicate where
and how often disposal will take place.
__________________________________________________________________
__________________________________________________________________
3.5 Indicate the name of the person(s) responsible for maintaining
copies of hazardous waste manifests completed for off-site
shipments of hazardous waste.
__________________________________________________________________
3.6 Is any treatment or processing of hazardous wastes currently
conducted or proposed to be conducted at the premises:
Yes No
If yes, please describe any existing or proposed treatment
methods.
__________________________________________________________________
__________________________________________________________________
3.7 Attach copies of any hazardous waste permits or licenses issued to
your company with respect to its operations on the premises.
2
4. WASTEWATER TREATMENT/DISCHARGE
4.1 Do you discharge wastewater to:
_____ storm drain? _____ sewer?
_____ surface water? _____ no industrial discharge
4.2 Is your wastewater treated before discharge?
Yes No
If yes, describe the type of treatment conducted.
__________________________________________________________________
4.3 Attach copies of any wastewater discharge permits issued to your
company with respect to its operations on the premises.
5. AIR DISCHARGES
5.1 Do you have any air filtration systems or stacks that discharge
into the air?
Yes No
5.2 Do you operate any of the following types of equipment, or any
other equipment requiring an air emissions permit?
_____ Spray booth
_____ Dip tank
_____ Drying oven
_____ Incinerator
_____ Other (Please Describe)
_____ No Equipment Requiring Air Permits
5.3 Are air emissions from your operations monitored?
Yes No
If so, indicate the frequency of monitoring and a description
of the monitoring results.
__________________________________________________________________
5.4 Attach copies of any air emissions permits pertaining to your
operations on the premises.
6. HAZARDOUS MATERIALS DISCLOSURES
6.1 Does your company handle hazardous materials in a quantity equal
to or exceeding an aggregate of 500 pounds, 55 gallon, or 200
cubic feet?
Yes No
3
6.2 Has your company prepared a hazardous materials management plan
("BUSINESS PLAN") pursuant to local County/City Fire Department
requirements?
Yes No
If so, attach a copy of the business plan.
6.3 Describe the procedures followed to comply with OSHA Hazard
Communication Standard requirements.
__________________________________________________________________
__________________________________________________________________
7. ENFORCEMENT ACTIONS, COMPLAINTS
7.1 Has your company ever been subject to any agency enforcement
actions, administrative orders, or consent decrees?
Yes No
If so, describe the actions and any continuing compliance
obligations imposed as a result of these actions?
7.2 Has your company ever received requests for information, notice or
demand letters, or any other inquiries regarding its operations?
Yes No
7.3 Have there ever been, or are there now pending, any material
lawsuits against the company regarding any material environmental
concerns?
Yes No
7.4 Has an environmental audit ever been conducted at your company's
current facility?
Yes No
If so, discuss the results of the audit.
__________________________________________________________________
__________________________________________________________________
7.5 Have there been any problems or complaints from neighbors at the
company's current facility regarding material environmental
concerns?
Yes No
4
8. REPRESENTATIONS
8.1 To Tenant's actual current knowledge, are there any Hazardous
Materials (as defined in Section 24 of the Lease) present on or in
the Project that would have an adverse effect on any occupants of
the Project?
Yes No
If so, describe the actions and any continuing compliance
obligations imposed as a result of these actions?
The Xxxxxxx Xxxxxx Company,
a Massachusetts corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Date:
------------------------------------------
5
EXHIBIT G
INTENTIONALLY DELETED
1
EXHIBIT H
RULES AND REGULATIONS
(INDUSTRIAL)
This Exhibit is attached to and made a part of that certain
Lease Agreement
dated January 17, 2003 by and between eagle Trade Center, L.L.C., a Delaware
limited liability company, as "LANDLORD", and The Xxxxxxx Xxxxxx Company, a
Massachusetts corporation, as "TENANT", for the Premises known as Eagle's
Landing Trade Center 3, Xxxxxxxxxxx, Xxxxx County, Georgia.
Unless otherwise defined, capitalized terms used herein shall have the same
meanings as set forth in the lease. In the event of any conflict or
inconsistency between this Exhibit and the Lease, the Lease shall control.
1. Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall that may appear unsightly from
outside the Premises.
2. The walls, walkways, sidewalks, entrance passages, courts and vestibules
shall not be obstructed or used for any purpose other than ingress and
egress of pedestrian travel to and from the Premises, and shall not be used
for loitering or gathering, or to display, store or place any merchandise,
equipment or devices, or for any other purpose. The walkways, entrance
passageways, courts, vestibules and roof are not for the use of the general
public and Landlord shall in all cases retain the REASONABLE right to
control and prevent access thereto by all persons whose presence in the
judgment of the Landlord shall be prejudicial to the safety, character,
reputation and interests of the Building and its tenants. No tenant or
employee or invitee of any tenant shall be permitted upon the roof of the
Building.
3. No awnings or other projection shall be attached to the outside walls of
the Building. No security bars or gates, curtains, blinds, shades or
screens shall be attached to or hung in, or used in connection with, any
window or door of the Premises without the prior written consent of
Landlord. Neither the interior nor exterior of any windows shall be coated
or otherwise sunscreened without the express written consent of Landlord.
4. Tenant shall not in any way deface any part of the Premises or the
Building. Tenant shall not lay linoleum, tile, carpet or other similar
floor covering so that the same shall be affixed to the floor of the
Premises in any manner except as approved by Landlord in writing. The
expense of repairing any damage resulting from a violation of this rule or
removal of any floor covering shall be borne by Tenant.
5. The toilet rooms, urinals, wash bowls and other plumbing apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant.
6. Landlord shall direct electricians as to the manner and location of any
future telephone wiring. No boring or cutting for wires will be allowed
without the prior consent of Landlord. The locations of the telephone, call
boxes and other office equipment affixed to the Premises shall be subject
to the prior written approval of Landlord.
7. The Premises shall not be used for manufacturing, offices or the storage of
merchandise except as the same may be incidental to the permitted use of
the Premises. No exterior storage shall be allowed at any time without the
prior written approval of Landlord. The
Page 2 of 100
Premises shall not be used for cooking or washing clothes without the prior
written consent of Landlord, or for lodging or sleeping of for any immoral
or illegal purposes.
8. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them whether by the use
of any musical instrument, radio, phonograph, machinery, or otherwise.
Tenant shall not use, keep or permit to be used, or kept, any foul or
obnoxious gas or substance in the Premises or permit or suffer the Premises
to be used or occupied in any manner offensive or objectionable to Landlord
or other occupants of this or neighboring buildings or premises by reason
of any odors, fumes or gases.
9. Neither Tenant nor any of Tenant's agents shall at any time bring or keep
upon the Premises any toxic, hazardous, inflammable, combustible or
explosive fluid, chemical or substance without the prior written consent of
Landlord.
10. No animals, except service animals, shall be permitted at any time within
the Premises.
11. Tenant shall not use the name of the Building or the Project in connection
with or in promoting or advertising the Business of Tenant, except as
Tenant's address, without the prior written consent of Landlord. Landlord
shall have the right to prohibit any advertising by Tenant which, in
Landlord's reasonable opinion, tends to impair the reputation of the
Project or its desirability for its intended uses, and upon written notice
from Landlord, Tenant shall refrain from or discontinue such advertising.
12. Canvassing, soliciting, peddling, parading, picketing, demonstrating or
otherwise engaging in any conduct that unreasonably impairs the value or
use of the Premises or the Project are prohibited and Tenant shall
cooperate to prevent the same.
13. All equipment of any electrical or mechanical nature shall be placed by
Tenant in the Premises, in settings approved by Landlord in writing, in
such a way as to best minimize, absorb and prevent any vibration, noise or
annoyance. No equipment of any type shall be placed in the Premises which
in Landlord's opinion exceeds the load limits of the floor or otherwise
threatens the soundness of the structure or improvements of the Building.
14. All furniture, equipment and freight shall be moved in and out of the
Building in accordance with rules established by Landlord, and shall not
impair vehicular and pedestrian circulation in the Common Area. Landlord
will not be responsible for loss or damage to any furniture, equipment, or
other personal property of Tenant from any cause.
15. No air conditioning unit or other similar apparatus shall be installed or
used by Tenant without the prior written consent of Landlord
16. No aerial antenna shall be erected on the roof or exterior walls of the
premises, or on the grounds, without in each instance the prior written
consent of Landlord. Any aerial or antenna so installed by or on behalf of
Tenant without such written consent shall be subject to removal by Landlord
at any time without prior notice at the expense of Tenant, and Tenant shall
upon Landlord's demand pay all of Landlord's costs associated with such
removal.
17. The entire Premises, including vestibules, entrances, doors, fixtures,
windows and plate glass, shall at all times be maintained in a safe,
reasonably neat and reasonably clean condition by Tenant. All trash, refuse
and waste materials shall be regularly removed from the Premises by Tenant
and placed in the containers at the locations designated by Landlord for
refuse collection. All cardboard boxes must be "broken down" prior to being
placed in the trash containers. All styrofoam chips must be bagged or
otherwise contained prior to placement in the trash containers, so as not
to constitute a nuisance. Pallets may not be
Page 3 of 100
stacked or placed outside the Premises or disposed of in the trash
containers or enclosures. The burnings of trash, refuse or waste material
is prohibited.
18. Tenant shall use at Tenant's cost such pest extermination contractor as
Landlord may direct and at such, intervals as Landlord may require.
19. Tenant shall re-key the Premises immediately following the Commencement
Date and deliver two (2) copies of each key to Landlord. During the Term of
the Lease, Tenant shall be responsible for the keys and security for the
Premises. Upon the termination or early expiration of this Lease, Tenant
shall immediately deliver all keys to the Premises and any locks therein to
Landlord.
20. No person shall enter or remain within the Project while intoxicated or
under the influence of liquor or drugs. Landlord shall have the right, but
not the duty, to exclude or expel from the Project any person who, in the
absolute discretion of Landlord, is under the influence of liquor or drugs.
21. Tenant agrees to comply with all such Rules and Regulations. Should Tenant
not abide by these Rules and Regulations, Landlord or any "OPERATOR,"
"ASSOCIATION" or "DECLARANT" under any Restrictions may serve a three (3)
day notice to correct the deficiencies. If Tenant has not corrected the
deficiencies by the end of the notice period, Tenant will be in default of
the Lease, and Landlord and/or its designee shall have the right, without
further notice, to cure the violation at Tenant's expense.
22. Landlord reserves the right to amend or supplement the foregoing Rules and
Regulations and to adopt and promulgate additional rules and regulations
applicable to the Premises. Notice of such rules and regulations and
amendments and supplements thereto, if any, shall be given to the Tenant.
23. Neither Landlord nor Landlord's Agents or any other person or entity shall
be responsible to Tenant or to any other person for the ignorance or
violation of these Rules and Regulations by any other tenant or other
person. Tenant shall be deemed to have read these Rules and Regulations and
to have agreed to abide by them as a condition precedent, waivable only by
Landlord, to Tenant's occupancy of the Premises.
Page 4 of 100
EXHIBIT I
FORM OF CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "AGREEMENT"), dated as of ____________, is
entered into by THE XXXXXXX XXXXXX COMPANY, a Massachusetts corporation
("TENANT"), and ___________________________________ ("AUDITOR"), for the benefit
of EAGLE TRADE CENTER, L.L.C., a Delaware Limited Liability Company
("LANDLORD").
W I T N E S S E T H T H A T:
WHEREAS, in connection with that certain Lease (the "LEASE") dated as of January
17, 2003, between Landlord and Tenant, Tenant has the right to hire an
independent accounting firm to audit Landlord's books and records pertaining to
Operating Costs (as defined in the Lease); and
WHEREAS, it is expected that in connection with such audit, Tenant and Auditor
will receive or have access to Confidential Information (defined below); and
WHEREAS, as a condition of Tenant's audit right, Landlord requires that Tenant
and Auditor keep confidential the Confidential Information.
NOW, THEREFORE, in consideration of and as a condition of Tenant's audit right
and in consideration of payment by Tenant for Auditor's services for performing
the audit, and for other good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, Auditor and Tenant
agree as follows, for the benefit of Landlord:
1. Auditor and Tenant acknowledge that the information which Auditor and Tenant
may receive in connection with such audit is non-public, confidential and/or
proprietary information relating to Landlord, its business operations and the
Building, and that Landlord would be irreparably damaged if such information
were disclosed to or utilized on behalf of any other person (including Auditor
and Tenant), firm, corporation or any other tenant of the Building for any
reason other than Tenant's audit of Landlord. Auditor and Tenant agree that any
information given to Auditor or Tenant by Landlord during the course of such
audit is, and shall remain, property owned by Landlord, and neither Auditor nor
Tenant shall have any right in or to such information, other than to use the
information for the purposes set forth in the Lease.
2. Auditor and Tenant agree to keep confidential, and agree to cause their
employees, associates, agents and advisors to keep confidential, any information
belonging to Landlord and not generally known to the public about the business
and affairs of Landlord, including, without limitation, (a) all books, manuals,
records, memoranda, projections, business plans, tenant lists, cost information,
contractual relationships, and (b) other information, whether computerized,
written or oral, relating specifically or generally to Operating Costs, the
Building and the business operations of Landlord (the "Confidential
Information").
3. Auditor and Tenant each agree to maintain such internal policies, procedures
and practices as are necessary to adequately safeguard against a breach of this
Agreement.
Page 5 of 100
4. The phrase "to keep confidential," as used herein, means that the information
or document, including the content, substance or effect of such information or
document, (a) shall not be disclosed or distributed by Auditor or Tenant to any
other person, firm, organization or entity, including to any associate, agent,
advisor or affiliate of Auditor or Tenant not directly involved in the audit, or
to any other tenant of the Building, (b) shall not be utilized by either Auditor
or Tenant for any purpose other than as described in the Lease, except in
connection with the litigation, arbitration or other proceeding between Landlord
and Tenant.
5. Notwithstanding anything to the contrary set forth herein, in the event that
Auditor or Tenant is required to disclose Confidential Information in legal,
arbitration, governmental or regulatory proceedings, Auditor or Tenant will
exercise its best efforts to obtain assurances that confidential treatment will
be accorded such Confidential Information even after such disclosure.
6. Auditor and Tenant acknowledge that the subject matter of this Agreement is
unique and that no adequate remedy at law would be available for breach of the
obligations specified herein. Accordingly, in the event of a breach or
threatened breach by Auditor or Tenant of the provisions of this Agreement,
Landlord shall, in addition to any other rights and remedies available to it, at
law or in equity, be entitled to injunctive relief by a court or agency of
competent jurisdiction enjoining and restraining the violating party from
committing or continuing any violation of this Agreement.
7. Any waiver by Landlord of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach of the same or
of any other provision hereof.
Page 6 of 100
8. In case any one or more of the provisions or parts of a provision contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of this Agreement;
and this Agreement shall, to the fullest extent possible, be reformed and
construed as if such invalid or illegal or unenforceable provision, or part of a
provision, had never been contained herein, and such provision or part shall be
reformed so that it would be valid, legal and enforceable to the maximum extent
possible.
9. This Agreement shall be binding upon Tenant, Auditor and their successors and
assigns for the benefit of Landlord, and shall be fully enforceable by Landlord
against Tenant, Auditor and their successors and assigns.
10. This Agreement may be amended or modified in whole or in part, only by an
instrument in writing signed by Landlord, Tenant and Auditor.
11. This Agreement shall be construed in accordance with and governed for all
purposes by the laws of the State of Georgia, without regard to conflicts of law
principles. Venue for any action arising herefrom shall be in Xxxxx County,
Georgia, and the parties hereto submit themselves to the jurisdiction of the
state and federal courts of Xxxxx County, Georgia.
IN WITNESS WHEREOF, Tenant and Auditor have duly executed this Agreement as of
the date first above written.
TENANT:
The Xxxxxxx Xxxxxx Company,
a Massachusetts corporation
By:
----------------------------------------
Name:
--------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
AUDITOR:
-------------------------------------------
a
------------------------------------------
By:
----------------------------------------
Name:
--------------------------------------
Title:
------------------------------------
Date:
-------------------------------------
Page 7 of 100
EXHIBIT J
ARBITRATION PROVISIONS
If Landlord or Tenant submits a notice to the other (an "ARBITRATION
NOTICE") to determine any matter that may be arbitrated pursuant to the
terms of the Lease, the issue(s) stated in such notice (and any additional
issues raised by the other party in its response to the first notice) shall
be settled by arbitration in accordance with the provisions below (the
"ARBITRATION PROCEDURE"):
a. SELECTION OF INITIAL ARBITRATORS/QUALIFICATIONS OF ARBITRATORS.
(i) SELECTION OF INITIAL ARBITRATORS. Landlord and Tenant shall,
within five (5) business days after the date on which the party
requesting arbitration delivers the Arbitration Notice to the
other party, each appoint an arbitrator and within five (5)
business days thereafter, the two arbitrators shall select a
third arbitrator. If either party fails to appoint an
arbitrator within the required period the other party's
arbitrator shall select two (2) additional arbitrators. If the
two arbitrators are unable to agree upon a third arbitrator
within said five (5) business day period, the third arbitrator
shall be appointed as soon as reasonably possible thereafter by
the American Arbitration Association's office in Atlanta,
Georgia (or any successor organization, or if no successor
organization shall then exist, by a civil district court of
competent jurisdiction located in Xxxxx County, Georgia).
(ii) QUALIFICATIONS OF ARBITRATORS. The arbitrator shall be a
licensed commercial real estate broker or a licensed Georgia
attorney and shall have been actively and continuously engaged
in leasing transactions involving over 2,000,000 rentable
square feet of industrial space in the Atlanta, Georgia area
for the immediately preceding ten (10) year period) and shall
be familiar with the issues relating to office space and shall
be familiar with the issues relating to the dispute that is
subject to the arbitration under this Lease.
(iii) DELIVERY OF ARBITRATION PROVISIONS. Landlord and Tenant shall
deliver to the arbitrators a copy of this Exhibit J and each
such arbitrator shall be required to sign a statement that
acknowledges their receipt of this Exhibit J and deliver the
statement to Landlord and Tenant.
b. DELIVERY OF PROPOSAL AND EVIDENCE. Within five (5) business days
following the selection of the initial arbitrators pursuant to
paragraph (i) preceding, each party shall have the right to submit to
such arbitrators such party's proposed terms (each proposal, a
"PROPOSAL"), together with reasonable evidence supporting such
Proposal. The arbitrators shall not be required to disclose to
Landlord or Tenant the factors that the arbitrators took into
consideration to determine the dispute or the weight they gave to all
or any of such factors presented by either party to the dispute. The
arbitrators shall consider the Proposal submitted by Landlord and the
Proposal submitted by Tenant and shall be required to accept one of
the Proposals to resolve the dispute. The arbitrators shall have the
authority to request additional facts or evidence from each of the
parties and, if such arbitrators so require, a hearing to present the
same, BUT THE ARBITRATORS SHALL NOT ENGAGE IN THEIR OWN FACT-FINDING.
c. ARBITRATION PROCESS. Within fifteen (15) days after the three
arbitrators accept appointment, the arbitrators shall make the sole
determination of the resolution of the dispute by selecting one
party's position and their determination shall be final, binding on
the parties and non-appealable.
Page 8 of 100
(i) ISSUANCE OF DECISION. The arbitrators shall execute and
acknowledge their decision in writing and deliver a copy
thereof to each of the parties personally or by registered or
certified mail, return receipt requested within two (2) days
after the arbitration decision is made.
(ii) EXTENSION OF TIME PERIODS. By agreement in writing, Landlord
and Tenant may extend the time periods set forth in this
Section.
(iii) ARBITRATOR'S FAILURE TO PERFORM OR RESIGNATION. If a selected
arbitrator subsequently fails, refuses or is otherwise unable
to act, a new arbitrator shall be appointed in his or her
stead, which appointment shall be made in the same manner as
set forth above for the appointment of such resigning
arbitrator. The parties shall use all reasonable efforts to
select all arbitrators within five (5) days after the delivery
of the Arbitration Notice.
(iv) FINAL AND BINDING DETERMINATION. The decision of an arbitrator
or arbitrators pursuant to preceding clauses of this Section
shall be final and binding on the parties and non-appealable.
(v) EXPENSES OF ARBITRATION. The non-prevailing party shall pay the
costs of the arbitrators and of the arbitration procedure,
including, without limitation all reasonable attorneys' and
paralegals' fees and expenses incurred in connection with the
arbitration and any negotiation between Landlord and Tenant
that preceded the negotiation.
Page 9 of 100
EXHIBIT K
INTENTIONALLY DELETED
Page 10 of 100
EXHIBIT L
OWNER'S TITLE POLICY
Page 11 of 100
EXHIBIT M
LANDLORD CONSTRUCTION CONTACTS
CONTACT NAME TELEPHONE NO. MOBILE NO. FAX NO. E-MAIL ADDRESS
---------------------------------------------------------------------------------------------
1. Xxxx Xxxxxx 000-000-0000 000-000-0000 000-000-0000 xxxxxxx@xxxxxxxx.xxx
2. Xxxxx Xxxxxx 000-000-0000 000-000-0000 000-000-0000 xxxxxxx@xxxxxxxx.xxx
TENANT CONSTRUCTION CONTACTS
CONTACT NAME TELEPHONE NO. MOBILE NO. FAX NO. E-MAIL ADDRESS
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1. Xxxx Xxxxx 000-000-0000 000-000-0000 Xxxx.xxxxx@xxxxxxx.xxx
2. Xxxx Xxxx 000-000-0000 000-000-0000 Xxxx.xxxx@xxxxxxx.xxx
Page 12 of 100
EXHIBIT N
PARKING SPACES
Page 13 of 100
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Space above line intentionally blank for recorder's office.
EXHIBIT O
After recording,
please return to:
Xxxxxx X. XxXxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
STATE OF GEORGIA )
COUNTY OF XXXXX )
SHORT FORM
LEASE AGREEMENT
AND NOTICE OF RIGHT OF FIRST REFUSAL TO PURCHASE
This SHORT FORM LEASE AGREEMENT (this "Lease"), dated as of _________,
2003, by and between Eagle Trade Center, L.L.C., a Delaware limited liability
company ("Landlord"), party of the first part, and The Xxxxxxx Xxxxxx Company, a
Massachusetts corporation ("Tenant"), party of the second part;
W I T N E S S E T H:
Landlord hereby leases to Tenant, and Tenant leases from the Landlord, for
a term commencing on the date this Lease is executed and ending at 5:00 p.m.
Georgia time on the date which is eight four (84) months from the Commencement
Date, as more particularly set forth in the Long-Form Lease, upon the terms and
conditions set forth in the Lease Agreement (the "LONG-FORM LEASE"), dated as of
the date hereof, by and between the Landlord and Tenant, covering the land
described in Exhibit A hereto and a portion of the building, improvements, and
building fixtures located and to be located thereon (collectively called the
"PREMISES"), as more particularly described in the Long-Form Lease. The
Long-Form Lease and all terms and provisions thereof are hereby incorporated
herein by this reference as if set forth in full herein. All capitalized terms
utilized herein shall have the meaning ascribed thereto in the Long-Form Lease.
Without limitation, the Long-Form Lease contains provisions that, subject
to the condition that Tenant's rights under the Long-Term Lease not be disturbed
so long as Tenant is not in default under the Lease, (1) the Long-Term Lease is
subordinate to any mortgage placed upon the subject property and (2) Tenant will
attorn to any such Mortgagee. The terms and conditions of the non-disturbance,
subordination and attornment agreement are more particularly described in the
Long-Form Lease.
Page 14 of 100
The Long-Form Lease also contains a right of first refusal for the purchase
of the subject building, which right is more particularly described in the
Long-Form Lease.
IN WITNESS WHEREOF, LANDLORD HAS EXECUTED THIS LEASE, UNDER SEAL, BY ITS
DULY AUTHORIZED OFFICERS; AND TENANT HAS EXECUTED THIS LEASE, UNDER SEAL, BY ITS
DULY AUTHORIZED OFFICERS.
LANDLORD:
Signed, sealed and delivered EAGLE TRADE CENTER, L.L.C.,
on the ____ day of _________, A DELAWARE LIMITED LIABILITY COMPANY
______ in the presence of:
By: AmberJack, Ltd., an Arizona
corporation
Its managing Member
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Unofficial Witness
By:
----------------------
Name:
----------------------
Title:
------------------------
Date:
------------------------
Attest:
----------------------
Name:
----------------------
Title:
------------------------
Date:
------------------------
Attest:
--------------------- ----------------
Notary Public Name:
----------------
Title:
----------------
Commission Expiration Date: Date:
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[CORPORATE SEAL]
[NOTARY SEAL]
Page 1 of 100
TENANT:
Signed, sealed and delivered THE XXXXXXX XXXXXX COMPANY,
on the ____ day of _________, A MASSACHUSETTS CORPORATION
______ in the presence of:
By:
----------------------
--------------------- Name:
Unofficial Witness ----------------------
Title:
------------------------
Date:
------------------------
Attest:
----------------------
Name:
----------------------
Title:
------------------------
Date:
------------------------
Attest:
--------------------- ----------------
Notary Public Name:
----------------
Title:
----------------
Commission Expiration Date: Date:
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[CORPORATE SEAL]
[NOTARY SEAL]
Page 2 of 100
EXHIBIT A
TRACT I:
All that certain tract or parcel of land lying and being in Land Xxx 0, 00xx
Xxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx, being more particularly described as follows:
To find the true point of beginning, commence at the point of intersection of
the Northeasterly right of way line of Eagle's Landing Parkway (200' r/w) and
the Northwesterly right of way line of the Norfolk Southern Railroad (150' r/w);
thence, running with the aforesaid right of way line of Eagle's Landing Parkway
in a generally Northeasterly direction 440.71 feet to an 1/2" iron pin set at
the true point of beginning; thence, leaving the aforesaid true point of
beginning
5. 639.58 feet along the arc of a curve deflecting to the right and
having a radius of 1173.24 feet and a chord bearing and distance of
North 59 DEG. 33' 40" East 631.69 feet to a 1/2" iron pin found;
thence, leaving the aforesaid right of way line of Eagle's Landing
Parkway
6. South 35 DEG. 26' 53" East, 624.86 feet to a 1/2" iron pin found;
thence
7. South 51 DEG. 39' 00" West, 536.35 feet to a 1/2" iron pin set; thence
8. North 42 DEG. 59' 19" West, 713.34 feet to a 1/2" iron pin set at the
point of beginning, containing 405,585 square feet or 9.31 acres of
land.
TRACT II:
All that tract or parcel of land lying and being in Land Xxx 0, 00xx Xxxxxxxx
and Land Xxx 00, 0xx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx.
BEGINNING at a 1/2" rebar found on the Southerly r/w line of Eagle's Landing
Parkway (200' r/w) at a point which is 1080.45 feet Easterly along the Southerly
r/w line of Eagle's Landing Parkway from its intersection with the Northerly r/w
line of Norfolk and Southern Railroad (150' r/w at this point), and running
thence along a curve to the right having an Arc length of 308.12 feet along the
right of way of Eagle's Landing Parkway, said curve having a radius of 1173.24
feet with a chord distance of 307.24 feet with a chord bearing of North 82 DEG.
44' 42" East; thence South 89 DEG. 43' 59" East a distance of 841.61 feet along
the right of way of Eagle's Landing Parkway to an iron pin; thence leaving said
Road r/w South 67 DEG. 43' 46" East a distance of 334.78 feet to a point; thence
South 60 DEG. 44' 53" West a distance of 804.97 feet to an iron pin; thence
South 03 DEG. 20' 56" East a distance of 403.75 feet to an iron pin; thence
South 42 DEG. 33' 57" East a distance of 448.46 feet to a point; thence South 45
DEG. 39' 03" West a distance of 492.64 feet to an iron pin located on the
Northeasterly r/w line of the Norfolk and Southern Railroad right of way (250'
r/w at this point); thence North 64 DEG. 24' 05" West a distance of 459.67 feet
to an iron pin; thence South 25 DEG. 35' 55" West along the Westerly r/w line of
said Norfolk and Southern Railroad r/w line 50.00 feet to an iron pin located on
the Northerly r/w line of said Norfolk and Southern Railroad r/w line (150' r/w
at this point); thence along a curve to the right having an Arc length of 351.34
feet in the Norfolk and Southern right of way, with a radius of 2128.68 feet
with a chord distance of 350.95 feet with a chord bearing of North 59 DEG. 40'
23" West to an iron pin; thence continuing along said r/w line North 54 DEG. 56'
40" West a distance of 350.44 feet to a 1/2" rebar found; thence leaving said
Railroad r/w North 51 DEG. 39' 00" East a distance of 841.35 feet to an iron
pin; thence North 35 DEG. 26' 53" West a distance of 624.86 feet to a 1/2" rebar
found and the POINT OF BEGINNING, containing 30.61 Acres, more or less.
Page 3 of 100
EXHIBIT "B" TO SHORT FORM LEASE
[ATTACH FLOOR PLAN OF PREMISES]
Page 4 of 100
