Ackerman & Co. South Tower - Suite 1000 Atlanta, Georgia 30328
Xxxxxxxx
& Co.
00
Xxxxxxxx Xxxxxxx
Xxxxx
Xxxxx - Xxxxx 0000
Xxxxxxx,
Xxxxxxx 00000
770.913.3900
THIS
LEASE
is made
this 20th
day of
July, 2007, by and among NARMADA
PARTNERS, LLC (hereinafter
“Landlord”), and SIMTROL,
INC.
(hereinafter “Tenant”).
1. PREMISES.
Landlord,
for and in consideration of the rents, covenants, agreements, and stipulations
hereinafter mentioned, provided for and contained hereinafter to be paid, kept,
and performed by Tenant, leases and rents unto Tenant and Tenant hereby rents
and leases from Landlord the following described space in 000 Xxxxxxxxx Xxxxx
(hereinafter called the “Building”) being approximately 10,000
rentable square feet located at Xxxxx 000, 000 Xxxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx Xxxxxx, Xxxxxxx 00000,
(hereinafter the “Premises”). The Premises are more particularly described and
shown on Exhibit
“A”
as
attached hereto and made a part hereof. No easement for light or air is granted
hereunder. The “Land” shall
mean that certain parcel of real property as is more particularly described
on
Exhibit
“E”
attached
hereto and made a part hereof, and upon which the Building is located. The
“Project” shall include all improvements now or hereinafter constructed on the
Land, including, without limitation, the Building, parking areas and other
common areas.
2. TERM.
The
Tenant shall have and hold the Premises for a term of sixty
(60)
months
beginning on the 1st
day of
September, 2007, and ending on the 31st
day of
August, 2012, at midnight, unless sooner terminated as hereinafter provided,
or
unless adjusted pursuant to Paragraph 7 (hereinafter the “Term”).
3. RENTAL
AND COVENANTS TO PAY RENT.
(a) Tenant
shall pay to Landlord at 000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000
or at
such other place as Landlord may designate in writing without demand, deduction,
or set-off, an annual rental of One
Hundred Thirty-seven Thousand Four Hundred Ninety-nine and 96/100 Dollars
($137,499.96)
(hereinafter “Base Rental”), payable in equal monthly installments of
Eleven
Thousand Four Hundred Fifty-eight and 33/100 Dollars
($11,458.33)
in
advance on the first day of each calendar month during the Term subject to
adjustment as provided in this paragraph. However, the rental shall be no less
than the Base Rental as specified above. Rental for any period during the Term
which is for less than one month shall be a prorated portion of the monthly
rental due.
| (b) |
Base
Rental shall escalate as follows:
|
“Base
Rental”: Throughout
the Term of this Lease, Tenant shall pay base rental to Landlord calculated
as
follows:
|
Rental
Period
|
Monthly
|
Annually
|
|||||
|
9/1/07-
8/31/08
|
$
|
11,458.33
|
$
|
137,500.00
|
|||
|
9/1/08-
8/31/09
|
$
|
11,802.08
|
$
|
141,625.00
|
|||
|
9/1/09-
8/31/10
|
$
|
12,154.00
|
$
|
145,848.00
|
|||
|
9/1/10-
8/31/11
|
$
|
12,516.67
|
$
|
150,200.00
|
|||
|
9/1/11-
8/31/12
|
$
|
12,900.00
|
$
|
154,800.00
|
|||
(c) All
payments, other than those specified above, as required in this Lease to be
made
by Tenant to Landlord shall be deemed to be and shall become additional rent
hereunder, whether or not the same shall be designated as such and shall be
due
and payable along with usual rental payments subject to the same conditions
and
remedies as exist for said rental payments.
4. LATE
CHARGES.
Other
remedies for nonpayment of rental notwithstanding, time is of the essence of
this Lease, and if Tenant pays rent on or after the sixth (6th)
day of
the month, a late charge equal to the greater of five percent (5%) of the
monthly rent or One Hundred Dollars ($100.00) will be due as additional rent.
In
the event Tenant’s rent check is dishonored by the bank, Tenant agrees to pay
Landlord $25.00 as a handling charge and, if applicable, the late charge, and
Tenant shall deliver said monies to Landlord as specified in Paragraph 3.
Dishonored checks must be replaced by cashier’s check, certified check, or money
order. In the event more than one check is dishonored, Tenant agrees to pay
all
future rents and charges in the form of cashier’s check, certified check, or
money order. Any other amounts payable to Landlord under this Lease, with the
exception of rent, shall be considered past due thirty (30) days from Landlord’s
billing date and Tenant shall pay a monthly service charge of five percent
(5%)
of the amount past due for that and each subsequent month that the amount
remains past due. The parties agree that such charges represent a fair and
reasonable estimate of the costs the Landlord will incur by reason of such
late
payment and/or returned check.
5. SECURITY
DEPOSIT.
On
the
date of execution of this Lease by Tenant, Tenant will pay to Landlord the
first
full month’s Base Rental in the amount of $11,458.33
and a
security deposit in the amount of $11,458.33.
Landlord shall have the right, but not the duty, to apply any part of said
deposit to cure any default of Tenant and if Landlord does so, Tenant shall
upon
demand deposit with Landlord the amount so applied so that Landlord shall have
the full deposit on hand at all times during the Term of this Lease to be held
in an escrow account. Landlord shall have the right, but not the duty, to hold
said security deposit in an interest bearing escrow account and retain any
interest accrued. In the event of a sale of the Building or a lease of the
Building, subject to this Lease, Landlord shall transfer the security deposit
to
the new landlord, and the Tenant shall attorn to the new landlord and the
present Landlord shall thereupon be released from all liability for the return
of such security deposit, and Tenant shall look solely to the new landlord
for
the return of such security deposit and this provision shall apply to every
transfer or assignment made of the security deposit to a new landlord. The
security deposit under this Lease shall not be assigned or encumbered by Tenant
without the written consent of the Landlord and any such assignment or
encumbrance without the Landlord’s written consent shall be void. Such security
deposit shall be returned to Tenant within thirty (30) days following the end
of
the Term of this Lease provided that Tenant has performed Tenant’s obligations
under this Lease and provided that no defective conditions, including any
structural defects, other than normal wear and tear and casualty, are left
unrepaired by Tenant and that Tenant does not owe Landlord any debts. Any
portion of the security deposit not required to reimburse Landlord for
Landlord’s expense in repairing defective conditions caused by Tenant, or for
paying amounts owed by Tenant to Landlord, shall be refunded to Tenant as
provided above.
6. REIMBURSEMENT
FOR OPERATING EXPENSES OF LANDLORD.
A. Operating
Expenses.
In
addition to the Base Rental payable hereunder, Tenant agrees to reimburse
Landlord, as Additional Rent hereunder, for Tenant’s share of all operating
expenses (the “Operating
Expenses”)
as
described in Exhibit
“C”
attached
hereto and by this reference made a part hereof, of maintaining and operating,
directly or indirectly, the Building over and above the 2007 Base Year Operating
Expenses.
B. Tenant’s
Share.
For
purposes of calculating Tenant’s share of all Operating Expenses for the Project
other than electrical costs allocated to the Premises, Tenant’s share shall be
25%. For purposes of calculating Tenant’s share of electrical costs allocated to
the Premises, Tenant’s share shall equal 50% of the electrical costs for the
second floor of the Building. Landlord represents that the electrical
consumption for the second floor of the Building is separately
metered.
C. Tenant’s
Share of the Operating Expenses.
On or
before March 1, 2009 and on or before each March 1st
thereafter during the Term, Landlord shall furnish to Tenant a statement of
Operating Expenses for the prior calendar year. Within thirty (30) days
following Tenant’s receipt of such statement but in any event on or before the
following April 1st,
Tenant
shall pay to Landlord, as Additional Rent, an amount equal to the excess, if
any, of Tenant’s Share of Operating Expenses for such calendar year over
Tenant’s Share of the 2007 Base Year Operating Expenses. If this Lease shall
terminate on a day other than the last day of a calendar year, the Additional
Rent payable by Tenant pursuant to this Paragraph shall be prorated on the
basis
which the number of days from the commencement of such calendar year to and
including such termination date bears to three hundred sixty-five
(365).
D. Additional
Taxes.
Rent
and all other charges to be paid by Tenant hereunder, Tenant shall pay to
Landlord, upon demand as Additional Rent hereunder, any and all taxes payable
by
Landlord (other than net income taxes) whether or not now customary or within
the contemplation of the parties hereto: (i) upon, measured by or reasonably
attributable to the cost or value of Tenant’s equipment, furniture, fixtures,
improvements (whether constructed by Landlord or Tenant) and other personal
property located in the Premises; (ii) upon, measured by or reasonably
attributable to the Rent payable hereunder, or any component thereof, including,
without limitation, any gross income tax or excise tax levied by the City of
Norcross, County of Gwinnett, the State of Georgia, the Federal Government
or
any other federal, state, county, municipal or other governmental body with
respect to the receipt of such rent; (iii) upon or with respect to the
possession, leasing, operation, management, maintenance, alteration, repair,
use
or occupancy by Tenant of the Premises or any portion thereof; and (iv) upon
this transaction or any document to which Tenant is a party creating or
transferring an interest or an estate in the Premises.
7. COMMENCEMENT.
The
date
on which possession of the Premises is taken by Tenant (hereinafter
“Commencement Date”) will establish the commencement of rent on this Lease if
possession is taken before the 1st
day of September, 2007 (the
“Scheduled Commencement Date”). If for any reason Landlord fails to deliver the
Premises ready for occupancy on the above date, this Lease shall remain in
full
force and effect and Landlord shall have no liability to Tenant due to delay
in
occupancy and rental shall commence when the premises are ready for occupancy.
Moreover, the Term of this Lease shall be proportionately extended for an
additional period of time to the end that this Lease shall provide for a full
Term as herein provided. If a delay in having the Premises ready for occupancy
is caused by Tenant, or if the Premises are ready for occupancy on the above
date but Tenant does not take occupancy, rental in either case will commence
as
of the above date, unless specified otherwise herein.
Notwithstanding
anything to the contrary contained in this Lease, in the event Landlord fails
to
deliver possession of the Premises to Tenant with the Premises Improvements
substantially complete on or before the Scheduled Commencement Date, and
provided such failure is not caused by a Tenant Delay and/or Force Majeure
(each
as defined in this Lease), then as Tenant’s sole and exclusive remedy, Tenant
shall receive a rental credit to be applied to Base Rental first coming due
under this Lease in an amount equal to one day of Base Rental for each day
following the Scheduled Commencement Date to and through the date Landlord
delivers possession of the Premises to Tenant with the Premises Improvements
substantially complete.
8. ACCEPTANCE
OF PREMISES.
Landlord
and Landlord’s Broker have made no representations or promises with respect to
the Building, the Premises, or this Lease except as herein expressly set forth.
The taking of possession of the Premises by Tenant shall be conclusive evidence
that Tenant accepts the Premises “as is” and that the Premises and the Building
are suitable for the use intended by Tenant and were in good and satisfactory
condition at the time such possession was so taken, excluding any punch list
items.
9. REPAIR
BY TENANT AND REMOVAL OF IMPROVEMENTS AND ALTERATIONS UPON
TERMINATION.
(a) Tenant
will, at Tenant’s expense, take good care of the Premises and the fixtures and
appurtenances therein, and will cause no active or permissive waste or injury
thereof; and Tenant shall, at Tenant’s expense, but under the direction of
Landlord, promptly repair any damage to the Premises or the Building caused
by
the misuse or neglect thereof, or by persons permitted on the Premises by
Tenant, or Tenant moving in or out of the Premises.
(b) Tenant
will not, without Landlord’s written consent, make any alterations, additions,
or improvements in or about the Premises and will not do anything to or on
the
Premises which will increase the rate of fire insurance on the Building. All
alterations, additions, or improvements (including but not limited to carpets,
window treatments, and window treatment hardware) made or installed by Tenant
to
the Premises shall become the property of Landlord at expiration of the Term
of
this Lease, or any extensions or renewals thereof. Landlord reserves the right
to require Tenant to remove any improvements or additions made to the Premises
by Tenant; Tenant further agrees to do so prior to the expiration of the Term
or
within thirty (30) days after notice from Landlord, whichever shall be later,
provided that Landlord gives such notice no later than thirty (30) days after
expiration of the Term of this Lease, or any extensions or renewals
thereof.
(c) No
later
than the last day of the Term, Tenant will remove all of Tenant’s personal
property and trade fixtures and repair all damage done by or in connection
with
the installation or removal of said property and will surrender the Premises
(together with all keys to the Premises) in as good a condition as existed
at
the beginning of the Term, reasonable wear and tear, damage by fire, the
elements, or casualty excepted. All property of Tenant remaining on the Premises
after expiration of the Term shall be deemed conclusively abandoned and may
be
removed by Landlord, and Tenant shall reimburse Landlord for the cost of such
removal, subject, however, to Landlord’s right to require Tenant to remove any
improvements or additions made to the Premises by Tenant pursuant to
sub-paragraph (b) of this Section 9.
(d) In
doing
any work of any nature in, to, or about the Premises, Tenant will use the only
contractors or workmen approved by Landlord, which approval shall not be
unreasonably withheld. Tenant shall promptly cause the removal of any lien
for
material or labor claimed to be furnished to Premises at Tenant’s
request.
10. REPAIRS
AND MAINTENANCE OF THE BUILDING.
Landlord
shall provide for the cleaning, repair, and maintenance of the public portions
of the Building. Unless otherwise expressly stipulated herein, Landlord shall
not be required to make any improvements or repairs of any kind or character
on
the Premises during the Term of this Lease, except repairs to the exterior
walls, corridors, windows, roof, and other structural elements and equipment
of
the Building, and such additional maintenance as may be necessary because of
damage by persons other than Tenant, its brokers, employees, invitees, or
visitors. Landlord shall not be liable to Tenant for losses due to theft or
burglary or for damages done by unauthorized persons on the
Premises.
11. USE.
Tenant
shall use the Premises for general office operation and for all lawful
activities normally incidental thereto and related to the conduct of Tenant’s
business, but for no other purposes. Tenant shall not use or occupy the
Premises, or permit the Premises to be used or occupied, in violation of any
ordinance, law, or regulation of any governmental body, or in any manner which
would vitiate or increase the premium charged for insurance on the Premises
or
the Building or that would cause damage to the Building, or that would
constitute a public nuisance, or that would disturb the quiet enjoyment of
the
other tenants of the Building.
12. SERVICES
- WATER, CLEANING, AND ELECTRICITY.
Landlord
shall furnish the following services without additional charge:
(a) Heat
and
air conditioning in Landlord’s reasonable judgment sufficient to reasonably cool
or heat the Premises, at the proper season, during standard building hours
(8:00
A.M. to 6:00 P.M. on Mondays through Fridays, inclusive and 8:00 A.M. to 1:00
P.M. on Saturdays) on normal business days, except holidays observed by national
banks as legal holidays; provided, however Tenant shall have sole control over
the thermostat serving Tenant’s server room within the Premises. In the event
Tenant desires heat and/or air conditioning for the Premises during non-building
standard hours, Tenant shall notify Landlord in advance and Landlord shall
provide additional after-hours heating and air conditioning services to the
Premises.
(b) Restroom
facilities including water, paper towels, and a commercially reasonable amount
of toilet tissue;
(c) Janitorial
services each Monday through Friday, except holidays observed by national banks
as legal holidays;
(d) Electric
current sufficient to meet Tenant’s specifications as set forth in Tenant’s
Plans (as defined in Section 2 of Exhibit
“B”).
Tenant
will not use any electrical equipment which in Landlord’s opinion will overload
the wiring installations or interfere with the reasonable use thereof by other
users in the Building. Except as otherwise expressly set forth in Tenant’s
Plans, Tenant will not, without Landlord’s prior written consent in each
instance (which shall not be unreasonably withheld) connect any additional
items
(such as electric heaters, data processing equipment, or copy machines) to
the
Building’s electrical distribution system, or make any alterations or additions
to such system. Should Landlord grant such consent, all additional circuits
or
equipment required therefore shall be provided by Landlord and the reasonable
cost thereof shall be paid by Tenant upon Landlord’s demand. In addition to the
foregoing, in the event Tenant uses electrical current in excess of the amount
set forth herein, Tenant shall be responsible for all additional costs related
to such excess usage;
(e) If
Tenant
uses an excessive amount of any of the services enumerated in this Section
12,
then Landlord reserves the right to charge Tenant as additional rent a
reasonable sum for such excess;
(f) Landlord
shall in no way be liable for cessation of any of the above services caused
by
strike, accident, or reasonable breakdown, nor shall Landlord be liable for
damages resulting from any of the fixtures or equipment in the Building being
out of repair, or for injury to person or damage to property, caused by any
defects in the electrical equipment, heating, ventilating, and air conditioning
system, water apparatus, or for any damages arising out of failure to furnish
the services enumerated in this Section 12.
13. DESTRUCTION
OF OR DAMAGE TO PREMISES.
If
the
Premises are made untenantable in whole or in part by fire or other casualty,
the rent, until repairs shall be made or this Lease is terminated as hereinafter
provided, shall be abated on a per diem basis and prorated according to the
part
of the Premises which is actually used by Tenant, if any; provided, however
such
abatement shall only occur if such fire or other casualty was not caused by
the
fault or negligence of the Tenant, its contractors, invitees, brokers, or
employees. If such damage shall be so extensive that the Premises cannot be
restored by Landlord within a period of one hundred twenty (120) days (as
evidenced by a written declaration from Landlord to Tenant), then Tenant shall
have the right to cancel this Lease by notice to Landlord at any time within
thirty (30) days after the date of such damage. If such damage is so extensive
that, in Landlord’s reasonable judgment, repair of such damage or destruction
would not be economically feasible, then Landlord will have the right to cancel
this Lease by notice to Tenant at any time within thirty (30) days after the
date of such damage. If this Lease is not so terminated, the Landlord will
promptly repair the damage at the Landlord’s expense.
14. RULES
AND REGULATIONS.
Tenant
will faithfully observe and comply with the “Rules and Regulations”, known as
Exhibit
“D”,
attached hereto and made a part hereof, and such further reasonable rules and
regulations as Landlord may prescribe, on written notice to Tenant, for the
safety, care, and cleanliness of the Building, and the comfort, quietness,
and
convenience of other occupants of the Building.
15. EVENTS
OF DEFAULT.
The
happening of any one or more of the following events (hereinafter any one of
which may be referred to as an “Event of Default”) during the Term of this
Lease, or any renewal or extension thereof, shall constitute a breach of this
Lease on the part of the Tenant:
(a) Tenant
fails to pay within
five (5) days
of
when due
the rental as provided for herein, and such failure continues for an
additional
seven
(7) days following written notice from Landlord; provided, however,
Landlord shall only be obligated to provide written notice and such cure period
three (3) times in any twelve (12) consecutive month period, and the fourth
(4th) and any subsequent failure to pay rental within
five (5) days of when
due
during any twelve (12) consecutive calendar month period shall be deemed an
immediate Event of Default;
(b) Tenant
abandons or vacates the Premises;
(c) Tenant
fails to comply with or abide by and perform any other obligation imposed upon
Tenant under this Lease, and such failure continues in excess of thirty (30)
days following written notice provided, however, in the event such failure
cannot be reasonably cured within such thirty (30) day period, Tenant shall
be
granted such additional time as is reasonably necessary provided Tenant
immediately commenced such cure following written notice and Tenant diligently
and continuously pursues completion of such cure;
(d) Tenant
is
adjudicated bankrupt or files for bankruptcy protection;
(e) A
permanent receiver is appointed for Tenant’s property and such receiver is not
removed within sixty (60) days after written notice from Landlord to Tenant
to
obtain such removal;
(f) Tenant
either voluntarily or involuntarily takes advantage of any debt or relief
proceedings under the present or future law, whereby the rent or any part
thereof is, or is proposed to be reduced or payment thereof
deferred;
(g) Tenant
makes an assignment for benefit of creditors; or
(h) Tenant’s
effects are levied upon or attached under process against Tenant, which is
not
satisfied or dissolved within thirty (30) days after written notice from
Landlord to Tenant to obtain satisfaction thereof.
16. REMEDIES
UPON DEFAULT.
Upon
the
occurrence of an Event of Default, Landlord, in addition to any and all other
rights or remedies it may have at law or in equity, shall have the option of
pursuing any one or more of the following remedies:
(a) Landlord
may terminate this Lease by giving notice of termination, in which event this
Lease shall expire and terminate on the date specified in such notice of
termination, with the same force and effect as though the date so specified
were
the date herein originally fixed as the termination date of the Term of this
Lease, and all rights of Tenant under this Lease and in and to the Premises
shall expire and terminate, and Tenant shall remain liable for all obligations
under this Lease arising up to the date of such termination and Tenant shall
surrender the Premises to Landlord on the date specified in such
notice;
(b) Landlord
may terminate this Lease as provided in Paragraph 16(a) hereof and recover
from
Tenant all damages Landlord may incur by reason of Tenant’s default, including,
without limitation, a sum which, at the date of such termination, represents
the
then value of the excess, if any, of (i) the monthly rental and additional
rent
for the period commencing with the day following the date of such termination
and ending with the date hereinbefore set for the expiration of the full Term
hereby granted, or (ii) the aggregate reasonable rental value of the Premises
(less reasonable brokerage commissions, attorneys’ fees, and other costs
relating to the reletting of the Premises) for the same period, all of which
excess sum shall be deemed immediately due and payable.
(c) Landlord
may, without terminating this Lease, declare immediately due and payable all
monthly rental and additional rent due and coming due under this Lease for
the
entire remaining term hereof, together with all other amounts previously due,
at
once; provided, however, that such payment shall not be deemed a penalty or
liquidated damages but shall merely constitute payment in advance of rent for
the remainder of said term; upon making such payment, Tenant shall be entitled
to receive from Landlord all rents received by Landlord from other assignees,
tenants and subtenants on account of the Premises during the Term of this Lease,
provided that the monies to which Tenant shall so become entitled shall in
no
event exceed the entire amount actually paid by Tenant to Landlord pursuant
to
this clause (c) less all costs, expenses and attorneys’ fees of Landlord
incurred in connection with the reletting of the Premises; or
(d) Landlord
may, from time to time without terminating this Lease, and without releasing
Tenant in whole or in part from Tenant’s obligation to pay monthly rental and
additional rent and perform all of the covenants, conditions and agreements
to
be performed by Tenant as provided in this Lease, make such alterations and
repairs as may be necessary in order to relet the Premises, and, after making
such alterations and repairs, Landlord may, but shall not be obligated to,
relet
the Premises or any part thereof for such term or terms (which may be for a
term
extending beyond the Term of this Lease) at such rental or rentals and upon
such
other terms and conditions as Landlord in its sole discretion may deem advisable
or acceptable; upon each reletting, all rentals received by Landlord from such
reletting shall be applied first, to the payment of any indebtedness other
than
rent due hereunder from Tenant to Landlord; second, to the payment of any costs
and expenses of such reletting, including brokerage fees and attorneys’ fees,
and of costs of such alterations and repairs; third, to the payment of the
monthly rental and additional rent due and unpaid hereunder, and the residue,
if
any, shall be held by Landlord and applied against payments of future monthly
rental and additional rent as the same may become due and payable hereunder;
in
no event shall Tenant be entitled to any excess rental received by Landlord
over
and above charges that Tenant is obligated to pay hereunder, including monthly
rental and additional rent; if such rental received from such reletting during
any month is less than those to be paid during the month by Tenant hereunder,
including monthly rental and additional rent, Tenant shall pay any such
deficiency to Landlord, which deficiency shall be calculated and paid monthly;
Tenant shall also pay Landlord, as soon as ascertained and upon demand, all
costs and expenses incurred by Landlord in connection with such reletting and
in
making any alterations and repairs which are not covered by the rentals received
from such reletting; notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate this Lease for such
previous breach.
Tenant
acknowledges that the Premises are to be used for commercial purposes, and
Tenant expressly waives the protections and rights set forth in Official Code
of
Georgia Annotated Section 44-7-52.
Notwithstanding
anything to the contrary contained herein, Landlord agrees to use commercially
reasonable efforts to mitigate its damages in the event of an Event of Default;
provided, however in no event shall Landlord be obligated to favor the Premises
over any other vacant space in the Building.
17. ASSIGNMENT
AND SUBLETTING.
Tenant
shall not, without the prior written consent of Landlord, which shall not be
unreasonably withheld, assign this Lease or any interest hereunder, or sublet
the Premises or any part thereof, or permit the use of the Premises by any
party
other than the Tenant. Consent to any assignment or sublease shall not impair
this provision and all later assignments or subleases shall be made likewise
only on the prior written consent of Landlord. The assignee of Tenant, at the
option of Landlord, shall become liable to Landlord for all obligations of
Tenant hereunder, but no sublease or assignment by Tenant shall relieve Tenant
of any liability hereunder. Consent to any assignment or sublease shall nullify
any lease options or first rights of refusal. Notwithstanding
the foregoing but subject to the terms and conditions set forth herein, Tenant
may assign this Lease or sublet the Premises or any portion thereof, without
restrictions, to any partnership, corporation or limited liability company
which
controls, is controlled by, or is under common control with Tenant, to any
partnership, corporation or limited liability company resulting from a merger
or
consolidation with Tenant, or to any person or entity which acquires all the
assets of Tenant provided that in any such event such assignee (i) has a net
worth equal to or greater than the net worth of Tenant as of the date of this
Lease, and (ii) assumes in writing all of Tenant’s obligations under this
Lease.
18. EMINENT
DOMAIN.
If
all or
any part of Premises or the land on which Building stands or any estate therein
are taken by virtue of eminent domain or conveyed or leased in lieu of such
taking, this Lease shall expire on the date when title shall vest, or the term
of such lease shall commence, and any rent paid for any period beyond said
date
shall be repaid to Tenant. It is expressly agreed that the Tenant shall not
have
any right or claim of any award made to or received by the Landlord for such
taking. The widening of streets abutting the land on which the Building stands
shall not affect this Lease, provided no part of the Building is so taken.
Nothing herein contained, however, shall preclude Tenant from claiming, proving,
and receiving from the condemning authority a separate award for the value
of
any of Tenant’s personal property taken which Tenant could have rightfully
removed from the Premises hereunder and for relocation and moving expenses,
so
long as the Landlord’s award is not thereby reduced.
19. LANDLORD’S
ENTRY OF PREMISES.
Landlord
may enter the Premises with prior notice, except in case of emergencies, at
reasonable hours with prospective purchasers or tenants, or to inspect the
Premises, or to make repairs required by Landlord under the terms hereof or
repairs to adjoining space within the Building.
20. TRANSFER
OF TENANTS.
Intentionally
omitted.
21. SUBORDINATION.
Landlord
may, from time to time, grant first lien deeds of trust, security deeds,
mortgages, or other first lien security interests covering its estate in the
Building (each a “Mortgage”). Tenant agrees that this Lease shall be subject and
subordinate to each Mortgage, including any modifications, extensions, renewals
thereof and advances thereunder from time to time in effect. The foregoing
provisions shall be self operative, and no further instrument of subordination
shall be required to make this Lease subject and subordinate to any Mortgage.
Tenant shall, upon request, from time to time execute and deliver to Landlord
or
the holder of any Mortgage any instrument requested by Landlord or the holder
of
such Mortgage to evidence the subordination of this Lease to any such Mortgage.
Tenant agrees to recognize and attorn to any party succeeding to the interest
of
Landlord as a result of the enforcement of any Mortgage, and be bound to such
party under all the terms, covenants, and conditions of this Lease, for the
balance of the Term of this Lease, including any extensions or renewals thereof,
with the same force and effect as if such party were the original Landlord
under
this Lease. Upon the request of Landlord, Tenant agrees to execute a
subordination and attornment agreement incorporating the provisions set forth
above and otherwise in form reasonably acceptable to Landlord.
22. INDEMNITY
AND INSURANCE.
Tenant
agrees to and hereby does indemnify and save Landlord harmless against all
claims for damages to persons or property by reason of Tenant’s use or occupancy
of the Premises, and all expenses incurred by Landlord because thereof,
including attorneys’ fees and court costs. Supplementing the foregoing and in
addition thereto, Tenant shall during the Term of this Lease and any extension
or renewal thereof, and at Tenant’s expense, maintain in full force and effect
comprehensive general liability insurance with limits of $500,000.00 per person
and $1,000,000.00 per incident, and property damage limits of $100,000.00,
which
insurance shall contain a special endorsement recognizing and insuring any
liability accruing to Tenant under the first sentence of this Paragraph 22,
and
naming Landlord as additional insured. Tenant shall provide evidence of such
insurance to Landlord prior to the commencement of the Term of this Lease.
Landlord and Tenant each hereby release and relieve the other, and waive its
right of recovery, for loss or damage arising out of or incident to the perils
insured against which perils occur in, on, or about the Premises, whether due
to
the negligence of Landlord or Tenant or their Brokers, employees, contractors,
and/or invitees, to the extent that such loss or damage is within the policy
limits of said comprehensive general liability insurance. Landlord and Tenant
shall, upon obtaining the policies of insurance required, give notice to the
insurance carrier or carriers that the foregoing mutual waiver of subrogation
is
contained in this Lease.
23. RIGHTS
CUMULATIVE.
All
rights, powers, and privileges conferred hereunder upon the parties hereto
shall
be cumulative and not restrictive of those given by law.
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If
Tenant
remains in possession of the Premises after expiration of the Term hereof,
with
Landlord’s acquiescence and without any express agreement of the parties, Tenant
shall be a tenant at will at the rental rate which is in effect at the end
of
this Lease and there shall be no renewal of this Lease by operation of law.
If
Tenant remains in possession of the Premises after expiration of the Term hereof
without Landlord’s written consent, Tenant shall be a tenant at sufferance. In
the event Tenant remains in possession of the Premises after the expiration
of
the Term hereof, with Landlord’s written consent, then Tenant shall be deemed a
month-to-month tenant with such tenancy terminable upon thirty (30) days advance
written notice by either party. In any event, during any such holdover and
commencing on the date following the date of such expiration, the monthly rental
payable under Section 3 above shall for each month, or fraction thereof during
which Tenant so remains in possession of the Premises, be one hundred fifty
percent (150%) of the monthly rental otherwise payable under Section 3 above.
25. WAIVER
OF RIGHTS.
No
failure of Landlord to exercise any power given Landlord hereunder or to insist
upon strict compliance by Tenant of its obligations hereunder and no custom
or
practice of the parties at variance with the terms hereof shall constitute
a
waiver of Landlord’s right to demand exact compliance with the terms
hereof.
26. SECTION
TITLES.
The
section titles in this Lease are included for convenience only and shall not
be
taken into consideration in any construction or interpretation of this Lease
or
any of its provisions.
27. NOTICE.
(a) Any
notice by either party to the other required or permitted under this Lease
shall
be valid only if in writing and shall be deemed to be duly given only if
delivered personally or sent by registered or certified mail addressed (1)
if to
Tenant, at the Premises, and (2) if to Landlord, at the address set forth
herein, or at such other address for either party as that party may designate
by
notice to the other; notice shall be deemed given, if delivered personally,
upon
delivery thereof, and if mailed upon the mailing thereof.
(b) Tenant
hereby appoints as its agent to receive service of all dispossessory or distrain
proceedings, the person in charge of the Premises at the time of occupying
the
Premises; and if there is no person in charge or occupying same, then such
services may be made by attachment thereof on the main entrance to the
Premises.
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“Landlord”
as used in this Lease shall include the undersigned, its heirs, representatives,
assigns, and successors in title to the Premises. “Tenant” shall include the
undersigned, its heirs, representatives, and successors, and if this Lease
is
validly assigned or sublet, shall also include Tenant’s assigns or subtenant
covered by such assignment or sublease. “Broker” and “Co-Broker” shall include
the undersigned, their successors, assigns, heirs, and representatives.
“Landlord”, “Tenant”, “Broker” and “Co-Broker” include male and female, singular
and plural, corporation, partnership, or individual, as may fit the particular
parties.
29. ENTIRE
AGREEMENT.
This
Lease contains the entire agreement of the parties hereto, and no
representations, inducements, promises, or agreements, oral or otherwise,
between the parties, not embodied herein, shall be of any force or effect.
No
subsequent alteration, amendment, change, or addition to this Lease, except
as
to changes or additions to the Rules and Regulations described in Paragraph
14,
shall be binding upon Landlord or Tenant unless reduced to writing and signed
by
Landlord and Tenant.
30. ATTORNEYS’
FEES.
In
the
event that any action or proceeding is brought to enforce any term, covenant
or
condition of this Lease on the part of Landlord or Tenant, the prevailing party
in such litigation shall be entitled to recover reasonable attorneys’ fees to be
fixed by the court in such action or proceeding, in an amount at least equal
to
fifteen percent (15%) of any damages due from the non-prevailing party.
Furthermore, Landlord and Tenant agree to pay the attorneys’ fees and expenses
of (a) the other party to this Lease (either Landlord or Tenant) if it is made
a
party to litigation because of its being a party to this Lease and when it
has
not engaged in any wrongful conduct itself, and (b) Broker, if Broker is made
a
party to litigation because of its being a party to this Lease and when Broker
has not engaged in any wrongful conduct itself.
31. LIMITATION
ON BROKER’S SERVICES AND DISCLAIMER.
XXXXXXXX
& CO. (“Broker”), and CB
XXXXXXX XXXXX, INC. (“Co-Broker”)
are the only brokers involved in the procurement of this Lease. Tenant must
look
solely to Landlord regarding all covenants and agreements contained herein,
and
Broker and Co-Broker shall never be liable to Tenant regarding any matter which
may arise by virtue of this Lease.
32. NO
ESTATE IN LAND.
This
Lease shall create the relationship of landlord and tenant between the parties
hereto. Tenant has only a usufruct not subject to levy and sale, and not
assignable by Tenant except by Landlord’s consent.
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33. TIME
OF ESSENCE.
Time
is
of the essence of this Lease.
34. REAL
ESTATE COMMISSION.
Landlord
agrees to pay to Broker and Co-Broker for negotiating this Lease, a commission
as agreed to in a separate agreement. Tenant warrants and represents that it
has
had no dealings with any broker or broker(s) in connection with this Lease,
other than Broker and Co-Broker and Tenant covenants to pay, hold harmless,
and
indemnify Landlord from and against any and all cost, expense, or liability
for
any compensation, commissions, or charges claimed by any broker or broker(s)
on
behalf of the Tenant with respect to this Lease or negotiations thereof, other
than Broker and Co-Broker.
35. EXCULPATION
OF LANDLORD.
Landlord’s
obligations and liability to Tenant with respect to this Lease shall be limited
solely to Landlord’s interest in the Building, and neither Landlord nor any
joint ventures, partners, officers, directors, employees, or shareholders of
or
in Landlord shall have any personal liability whatsoever with respect to this
Lease.
36. CERTAIN
ENVIRONMENTAL MATTERS.
(a) Tenant
shall not use, store, treat, discard, or dispose of any hazardous substances
in
or about the Premises. For purposes of this Lease, “hazardous substances” shall
mean and include those elements or compounds which are contained in the list
of
hazardous substances adopted by the Environmental Protection Agency (EPA) and
the list of toxic pollutants designated by Congress or the EPA under any
applicable environmental law or legislation; as such lists may be supplemented,
amended, or newly enacted from time to time. To the extent that any of the
applicable environmental laws of the State of Georgia establish a meaning for
“hazardous substances” which is broader than that specified in any federal
legislation or laws, such broader meaning shall apply. “Applicable environmental
law” shall mean and include the collective aggregate of the following: any law,
statute, ordinance, rule, regulation, order, or determination of any
governmental authority or any board of fire underwriters (or body exercising
similar functions) or any restrictive covenant or deed restriction (recorded
or
otherwise) affecting the Premises pertaining to health or the
environment.
(b) The
occupancy, operation, and use of the Premises by Tenant shall not violate any
applicable environmental laws, of any federal, state, local, or other
governmental authority.
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13
(c) Without
limiting the generality of the above, Tenant represents that it is not the
subject of any pending or, to the best of Tenant’s knowledge, threatened
investigation or inquiry by any governmental authority, or subject to any
remedial obligations under any applicable environmental laws, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (“CERCLA”), the Resource Conservation and
Recovery Act of 1987, as amended (“RCRA”), and any and all applicable state
laws, and this representation and warranty would continue to be true and correct
following disclosure to any applicable governmental authority of all relevant
facts, conditions, and circumstances pertaining to the Tenant.
(d) Tenant
represents that it is not required to obtain any permits, licenses, or
authorization to occupy, operate, or use any portion of the Premises by reason
of any applicable environmental laws.
(e) Tenant
represents that it has not received any notice from any governmental authority
with respect to any violation of any applicable environmental laws.
(f) Tenant
shall not cause any violation of any applicable environmental laws, nor permit
any sub-tenant of any portion of the Premises to cause such a violation, nor
permit any environmental liens to be placed on any portion of the Building
or
the Premises.
(g) Tenant
shall give notice to Landlord immediately upon (i) Tenant’s receipt of any
notice from any governmental authority of a violation of any applicable
environmental laws or upon acquiring knowledge of the receipt of any such notice
by any sub-tenant of any portion of the Premises, and (ii) acquiring knowledge
of the presence of any hazardous substances on the Premises in a condition
that
is resulting or could reasonably be expected to result in any adverse
environmental impact, with a full description thereof. Tenant shall promptly
comply with all applicable environmental laws requiring the notice, removal,
treatment, or disposal of such hazardous substances, caused by or within the
control of Tenant and provide the Landlord with satisfactory evidence of such
compliance.
37. FORCE
MAJEURE.
Whenever
a period of time is herein prescribed for action to be taken by Landlord,
Landlord shall not be liable or responsible for, and there shall be excluded
from the computation of any such period of time, any delays due to strikes,
riots, acts of God, shortages of labor or materials, theft, fire, public enemy,
injunction, insurrection, court order, requisition, or any other causes or
any
kind whatsoever which are beyond the control of Landlord.
38. SEVERABILTIY.
The
terms, conditions, covenants, and provisions of this Lease shall be deemed
to be
severable. If any clause or provision herein contained shall be adjudged to
be
invalid or unenforceable by a court of competent jurisdiction or by operation
of
any applicable law, it shall not affect the validity of any other clause or
provision herein, but such other clauses or provisions shall remain in full
force and effect.
39. QUIET
ENJOYMENT.
If
Tenant
shall pay the rent herein and other amounts to be paid by Tenant to Landlord,
and will and faithfully keep, perform, and observe all of the covenants,
agreements, and conditions herein stipulated to be kept, performed, and observed
by Tenant, Tenant shall at all times during the term of the Lease have the
peaceable and quiet enjoyment of the Premises without hindrance of Landlord
or
any person lawfully claiming under Landlord subject, however, to the terms
of
this Lease and any Mortgage placed on the property of which the Premises are
a
part.
Ack.
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14
In
the
event that Tenant acquires title to the property of which the Premises are
a
part, or any part thereof, or any premises as an expansion of, addition to
or
substitution for the Premises at any time during the Term of this Lease, or
any
renewals thereof, or within six (6) months after the expiration of the term
hereof or the extended term hereof, Landlord shall pay Broker a commission
on
the sale of the property in lieu of any further commission which otherwise
would
have been due under this Lease. Such commission, as negotiated between the
parties, shall be six
percent (6%)
of the
gross sales price, payable in full in cash at closing.
41. AGENCY
DISCLOSURE.
Landlord
and Tenant hereby acknowledge that Broker has acted as an agent for Landlord
in this
transaction and will be paid a commission by the Landlord and that Co-Broker
has
acted as an agent for Tenant
in this
transaction and will be paid a real estate commission by the
Landlord.
42. NO
OPTION.
The
submission of this Lease for examination does not constitute a reservation
of or
option for the Premises, and this Lease shall become effective only upon
execution and delivery of a fully executed Lease by Landlord.
43. SPECIAL
STIPULATIONS.
The
Special
Stipulations in Exhibit
“B”
shall,
if conflicting with the foregoing provisions of this Lease,
control.
[
SIGNATURES ON FOLLOWING PAGE ]
Ack.
No. 013
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15
IN
WITNESS WHEREOF, the parties have hereunto set their hands and seals the day
and
year first above written.
|
Signed,
sealed and delivered in the presence of:
|
TENANT:
SIMTROL,
INC., a
Delaware Corporation
|
|||||||
|
By:
/s/
Xxxxxxx Xxxx
|
||||||||
|
Witness
Signed,
sealed and delivered in the presence of:
|
Name
Printed: Xxxxxxx
Xxxx
|
|||||||
|
Its:
Chief
Financial Officer
|
||||||||
|
Address:
000
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
|
||||||||
|
Phone: (000)
000-0000
|
||||||||
|
LANDLORD:
NARMADA
PARTNERS, LLC
|
||||||||
|
By:
/s/
Xxxxx Xxxx
|
||||||||
|
Witness
|
Name
Printed: Xxxxx
Xxxx
|
|||||||
|
Its:
Managing
Partner
|
||||||||
|
Address:
000
Xxxxxxxxx Xxxxx, Xxxxx 000
|
||||||||
|
Xxxxxxxx,
XX 00000
|
||||||||
|
Phone:
000-000-0000
|
||||||||
Ack.
No. 013
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16
DESCRIPTION
OF PREMISES
[See
attached]
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EXHIBIT
“A-1”
PLANS
[See
attached]
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EXHIBIT
“B”
SPECIAL
STIPULATIONS
1. LETTER
OF CREDIT.
(a) Upon
the
execution and delivery of this Lease by Tenant, Tenant shall deliver to Landlord
$100,000.00 (the “Additional
Security Deposit”)
in the
form of a standby, unconditional, irrevocable letter of credit, naming Landlord
and Landlord’s successors and assigns as beneficiary, issued by any well
capitalized state or national bank having banking offices in Atlanta, Georgia
and over $300,000,000 in assets for call-reporting purposes (a “Permitted
Issuer”), permitting full or partial draws thereon by Landlord’s presentation of
a request for draw and statement that an Event of Default (as defined in Section
15 of the Lease) then exists under this Lease and otherwise in form and content
reasonably acceptable to Landlord (a “Qualified
Letter of Credit”).
Tenant shall from time to time cause its Qualified Letter of Credit to be
renewed as a Qualified Letter of Credit or replaced with a new Qualified Letter
of Credit no later than thirty (30) days (i) prior to any expiration date
thereof so that a Qualified Letter of Credit remains in effect for thirty (30)
days after the scheduled expiration date of the Term, or (ii) after the issuer
of the Qualified Letter of Credit then posted with Landlord ceases to qualify
as
a Permitted Issuer. If Tenant fails timely to renew or replace any letter of
credit as required in the preceding sentence, then, in addition to any other
remedy set forth in the Lease, Landlord shall have the right to draw on such
letter of credit and to retain the amounts so drawn as security for the faithful
performance by Tenant of all the terms and conditions of this Lease on the
part
of Tenant to be performed during the Term. In the event Landlord draws on such
letter of credit in accordance with the foregoing sentence, Landlord shall
hold
such funds as an additional Security Deposit in compliance with Section 5 of
this Lease. Landlord may draw upon the letter of credit and apply the proceeds
thereof to cure any uncured Event of Default under this Lease.
(b) The
Additional Security Deposit is not an advance payment of rent or a measure
or
limit of Landlord’s damages upon an Event of Default. Landlord may, from time to
time and without prejudice to any other remedy otherwise available to Landlord,
use an amount of the Additional Security Deposit not to exceed the amount of
the
default to cure any Event of Default. Notwithstanding the
foregoing, in the event of an Event of Default by Tenant, Landlord shall have
the right to draw down the Additional Security Deposit in such amount as
Landlord reasonably estimates shall be required to cure such Event of Default.
Following any such application of the Additional Security Deposit, Tenant shall
either (i) restore the letter of credit to the full amount required hereunder,
or (ii) pay to Landlord on demand such amount so applied which shall be held
by
Landlord as an additional Security Deposit in accordance with the terms of
Section 5 of this Lease.
(c) The
Additional Security Deposit may be commingled with other funds, and no interest
shall be paid thereon. If Landlord transfers its interest in this Lease and
the
transferee assumes Landlord’s obligations under this Lease accruing after the
date of the transfer, then Landlord may assign the Additional Security Deposit
to the transferee and Landlord thereafter shall have no further liability with
regard to the Additional Security Deposit, including the return thereof. Any
failure to present or delay in presenting any draft pursuant to the Qualified
Letter of Credit shall not constitute a waiver of Landlord’s right to present
such draft or exercise any other right or remedy available to Landlord at law
or
under the terms of this Lease.
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(d) Notwithstanding
anything to the contrary contained herein, provided that no Event of Default
has
occurred under this Lease for each twelve (12) full calendar month period
following the Commencement Date of this Lease, then upon Tenant’s written
request, Landlord shall join in a letter from Tenant instructing the issuer
of
the Qualified Letter of Credit to decrease the amount of the letter of credit
by
$20,000.00. If an Event of Default shall have occurred at any time during the
first twelve (12) full consecutive calendar months of the Term of this Lease,
or
any twelve (12) consecutive calendar month period thereafter, Landlord shall
not
be required to join in any subsequent letter instructing the issuer of the
Qualified Letter of Credit to decrease the Qualified Letter of Credit nor shall
Tenant be entitled to decrease the Qualified Letter of Credit and Tenant’s
obligation to maintain a Qualified Letter of Credit in accordance with
subsection (a) above shall continue for the duration of this Lease.
2. IMPROVEMENTS.
(a) Notwithstanding
anything to the contrary contained or implied in the Lease, hereby, Tenant
agrees that, except as specifically and expressly provided in Subsection 2(b)
below, it will accept possession of the Premises,
in an
“AS
IS,
WHERE IS”
condition, and that no representations, warranties, or inducements, with respect
to any condition of the Premises
have
been
made by Landlord, or its designated representatives, to Tenant, or its
designated representatives. In furtherance of the foregoing, Tenant hereby
acknowledges that, except as specifically and expressly provided in Subsection
2(b) below, no promises to decorate, alter or improve the
Premises
either
before or after the execution of this Lease have been made to Tenant, or its
designated representatives, by Landlord, or its designated
representatives.
(b) Provided
Tenant is not in default of the Lease, and subject to and upon the terms and
conditions set forth herein, Landlord agrees to construct certain improvements
(the “ Premises Improvements”)
in the
Premises
at
Landlord’s cost and expense in accordance with the plans prepared by M.
Xxxxxxxxxxx Xxxxxxx dated June 20, 2007, and attached hereto as Exhibit
“A-1”
(the
“Plans”).
Tenant acknowledges and agrees that if Tenant desires any improvements to
the
Premises Improvements
in
excess
of or different from the Plans (“Changes”),
such
Changes shall be subject to Landlord’s prior written approval, which approval
shall not be unreasonably withheld provided the same are not structural in
nature. Tenant shall be responsible for the costs of such Changes (including,
without limitation, design, construction and construction management costs,
and
any architectural fees, space planning, engineering fees and construction
management fees), and of any delays resulting there from, all of which costs
shall be payable at the time Tenant authorizes such Changes to be performed
in
the Premises
(i.e.,
upon Tenant’s approval of the final working drawings and specifications and/or
Tenant’s and Landlord’s approval of any change order in connection with such
Changes). Any approval by Landlord of, or consent by Landlord to, the Plans
or
other items to be submitted to and/or reviewed by Landlord pursuant to this
Lease, shall be deemed to be strictly limited to an acknowledgment of approval
or consent by Landlord thereto, and such approval or consent shall not
constitute the assumption by Landlord of any responsibility for the accuracy,
sufficiency or feasibility of the Plans, and shall not imply any acknowledgment,
representation or warranty by Landlord that the design is safe, feasible,
structurally sound or will comply with any legal or governmental requirements,
and Tenant shall be responsible for all of the same. Subject to the foregoing,
Tenant’s occupancy of any portion of the
Premises
shall be
conclusive evidence that Tenant has accepted the Premises
and
shall be deemed conclusively to establish that Landlord’s construction
obligations with respect to the Premises have been completed in accordance
with
the Plans.
Ack.
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(c) If
Landlord shall be delayed in substantially completing Landlord’s construction of
the Premises
Improvements as a result of: (i) the incorporation by Tenant of any non-building
standard materials, finishes or installations into the work contemplated by
the
Plans; (ii) Tenant’s Changes to the Plans; (iii) Tenant’s failure to timely
furnish any revisions of the Plans in connection with any Changes to the Plans;
(iv) Tenant’s failure to pay to Landlord in a timely manner the costs referenced
in Subsection 2(b) hereof with respect to any Changes to the Plans; or (v)
any
other act or omission caused by or on behalf of Tenant, including, without
limitation, the breach by Tenant of its obligations under the Lease, as amended
hereby (each, a “Tenant
Delay”);
then
Landlord shall not be responsible for any such delays and the Premises
Commencement Date shall be accelerated by the number of days of such delay
as
more particularly set forth in Section 7 above.
(d) Tenant
hereby appoints Xxxxx Xxxxxx as the authorized representative of Tenant for
purposes of dealing with Landlord with respect to all matters involving,
directly or indirectly, the Plans and the
Premises
Improvements, including, without limitation, any Changes to the Plans (such
person hereafter referred to as the “Designated
Representative”).
Tenant hereby represents and warrants to Landlord that the Designated
Representative has the requisite power and authority to deal with Landlord
in
the manner contemplated herein, and that Tenant shall be bound by the acts
and
omissions of the Designated Representative.
(e) Landlord
at its discretion may permit Tenant and its agents to enter the Premises
up
to two
(2) weeks prior to the Lease Commencement Date to prepare the Premises
for
Tenant’s use and occupancy thereof. Any such permission shall constitute a
license only, conditioned upon Tenant’s: (i) working in harmony with Landlord
and Landlord’s agents, contractors, workmen, mechanics and suppliers and with
other tenants and occupants of the Building; (ii) obtaining in advance
Landlord’s reasonable approval of the contractors proposed to be used by Tenant;
and (iii) furnishing Landlord with such insurance as Landlord may reasonably
require against liabilities which may arise out of such entry. Landlord shall
have the right to withdraw such license for any reason upon twenty four (24)
hours’ written notice to Tenant. Landlord shall not be liable in any way for any
injury, loss or damage which may occur to any of Tenant’s property or
installations in the
Premises
prior to
the Premises
Commencement Date. Tenant shall protect, defend, indemnify and save harmless
Landlord from all liabilities, costs, damages, fees and expenses arising out
of
the activities of Tenant or its agents, contractors, suppliers or workmen in
the
Premises
or the
Building. Any entry and occupation permitted under this Subsection 2(e) shall
be
governed by the terms of the Lease.
(f) If
Landlord, for any reason whatsoever, cannot deliver possession of the
Premises
or any
portion thereof, to Tenant on or before September 1, 2007, then (A) this Lease
shall not be void or voidable, (B) neither party shall be liable to the other
for any loss or damage resulting therefrom, and (C) Tenant shall not be entitled
to any compensation, consolation, consideration, replacement of such space,
or
any or remedy from or against Landlord by reason of such failure or inability
to
take possession of the
Premises
Area or
any portion thereof except as otherwise expressly set forth in Section 7 of
the
Lease.
Ack.
No. 013
- Revised
1/06
Standard
Office Lease Agreement
EXHIBIT
“C”
OPERATING
EXPENSES
The
term
“Operating
Expenses”
shall
include, without limitation, the following items:
General
administrative and management fees; water and sewer charges; sanitary
assessments; garbage and waste disposal; license, permit and inspection fees;
heat, light, power and other utilities; air conditioning and ventilation;
elevator and escalator services; plumbing service; janitorial and cleaning
service; maintenance, repair and service contracts; watchmen, guards and
personnel engaged in the management, operation, maintenance, repair and
protection of the Project, together with wages, fringe benefits, payroll taxes
and employee benefits applicable thereto; insurance, including, without
limitation, fire and extended coverage, rent loss and boiler and machinery
coverage and personal injury and property damage liability insurance; supplies,
materials, tools and equipment; all costs and expenses of contesting by
appropriate legal proceedings any matter concerning operating or managing the
Project or the amount of validity of any property taxes levied against the
Project; the costs and expenses of all personal property, fixtures and equipment
(including window washing machinery) used in the management, operation,
maintenance and repair of the Project, including, without limitation, exterior
window coverings provided by Landlord and carpeting in public corridors and
common areas; all fees for professional services (including, but not limited
to,
attorneys’ and accountants’ fees) rendered in connection with the operation,
administration and management of the Project; all costs and expenses of repair,
maintenance and cleaning of the roof and exterior of the Building, sidewalks
and
related common areas (including loading docks) contiguous to the Building and
all common areas (including stairs and elevators) window cleaning and similar
functions; any insurance deductibles (provided, however in no event shall any
insurance deductible exceed Two Thousand Five Hundred and 00/100 Dollars
[$2,500.00]); all costs and expenses for repair and maintenance of all support
systems serving the Project, including, but not limited to, water, electrical,
gas, fuel, steam, smoke, sewage, elevator, heating, ventilation and air
conditioning systems serving the Building; reserves for alterations, repairs
and
replacement; and all other expenditures with respect to the operation,
maintenance, administration and management of the Project which are affected
in
accordance with accepted principles of sound management and accounting practices
as applied to the operation, maintenance, administration and management of
first-class office buildings in Atlanta, Georgia, all real estate taxes,
assessments and other governmental levies and charges, general and special,
ordinary and extraordinary, unforeseen as well as foreseen, of any kind and
nature (including any interest on such assessments whenever the same are
permitted to be paid in installments) which may presently or hereafter be
imposed, levied, assessed or confirmed by any lawful taxing authorities or
which
may become due and payable out of or for, or which may become a lien or charge
upon or against the whole, or any part, of the Project, Land, Building and
all
other improvements now or at any time during the Lease Term constituting a
part
of the Project, or any taxes in lieu thereof which would be payable even if
the
Project were the sole property of Landlord and the income from the Project
were
the sole income of Landlord (all of which real estate taxes, assessments,
levies, charges and costs are hereafter collectively referred to as
“Taxes”);
Landlord shall have sole, absolute and unrestricted right, but not the
obligation, to contest the validity or amount of the taxes by appropriate
proceedings, and if Landlord shall institute any such contest of its own
volition, it shall have the sole, absolute and unrestricted right to settle
any
contest, proceeding or action upon whatever terms Landlord may, in its sole
discretion, determine; and the cost, amortized over such reasonable period
as
Landlord shall determine, together with interest at the rate of one percent
(1%)
per annum above the prime rate charged by SunTrust Bank from time to time on
the
unamortized balance, of any capital improvements or structural alterations
made
to the Building by Landlord that reduce or limit costs of any item of Operating
Expenses or are required under any governmental law or regulation or by
Landlord’s insurance carrier; provided, however, that Operating Expenses shall
not include costs of tenant improvements, real estate brokers’ commissions,
interest directly related to financing the Project, costs of services directly
recoverable from tenants in the Building and capital items, except the cost
of
capital improvements specified above. Landlord and Tenant hereby acknowledge
and
agree that some common area expenses may be incurred generally with respect
to
the Project, as opposed to being allocable solely to the Premises or to the
Building in which the Premises is located. Tenant agrees to reimburse Landlord
for Tenant’s Operating Expenses of the Project in accordance with Section 6 of
the Lease.
Ack.
No. 013
- Revised
1/06
Standard
Office Lease Agreement
EXHIBIT
“D”
RULES
AND REGULATIONS
(Page
1
of 2)
| 1. |
The
sidewalks, entry passages, corridors, halls, and stairways shall
not be
obstructed by tenants, or used by them for any purpose other than
those of
ingress and egress.
|
| 2. |
The
water closet and other water apparatus, shall not be used for any
other
purpose than those for which they were constructed, and no sweepings,
rubbish, or other obstructing substances shall be thrown
therein.
|
| 3. |
No
advertisement or other notice shall be inscribed, painted, or affixed
on
any part of the outside or inside of the Building. Window shades,
blinds,
or curtains of a uniform color and pattern only, as specified by
Landlord,
shall be used throughout the Building to give a uniform color exposure
through exterior windows. No awnings shall be placed on
Building.
|
| 4. |
No
tenant shall do or permit to be done in the Building, or bring or
keep
anything thereon, which shall in any way obstruct or interfere with
the
rights of other tenants, or in any way injure or annoy them, or conflict
with the laws relating to fires, or with the regulations of the Fire
Department, or any part thereof, or conflict with any of the rules
and
ordinances of the Board of Health. Tenants, their invitees, and employees
shall maintain order in the Building, shall not make or permit any
improper noise in the Building or interfere in any way with other
tenants
or those having business with them. No rooms shall be occupied or
used as
sleeping or lodging apartments at any time without permission of
Landlord.
No part of the Building shall be used or in any way appropriated
for
gambling, immoral, or other unlawful practices. No intoxicating liquor
or
liquors shall be sold in the Building by Tenant without Landlord’s
permission.
|
| 5. |
Tenants
shall not employ any persons other than the janitors of Landlord
(who will
be provided with pass-keys into the offices) for the purpose of cleaning
or taking care of Premises.
|
| 6. |
No
animals (other than assistance animals), birds, bicycles, or other
vehicles shall be allowed into the offices, halls, corridors, or
elsewhere
in the Building.
|
| 7. |
All
glass, locks, and trimmings in or upon the doors and windows of the
Building shall be kept whole, and when any part thereof shall be
broken,
the same shall immediately be replaced and put in order under direction
and to the satisfaction of Landlord, or its broker, and shall be
left
whole and in good repair. Tenants shall not deface the Building,
the
woodwork, or the walls of the
Premises.
|
| 8. |
No
additional locks or latches shall be put upon any door without the
written
consent of Landlord. Tenants at the termination of their Lease of
the
Premises shall return to Landlord all keys and security cards to
doors in
Building.
|
Ack.
No. 013
- Revised
1/06
Standard
Office Lease Agreement
EXHIBIT
“D”
RULES
AND REGULATIONS
(Page
2
of 2)
| 9. |
Landlord
in all cases retains power to prescribe the weight and position of
iron
safes, files having excessive weight, or other heavy articles. Any
damage
done to the Building or to tenants or to other persons by taking
a safe or
other heavy article in or out of Premises, for overloading a floor,
or in
any other manner shall be paid for by tenant causing such
damage.
|
| 10. |
Parking
facilities supplied by Landlord for tenants shall be used for vehicles
that may occupy a standard parking area only (i.e. 8’ x 13’). Moreover,
the use of such parking facilities shall be limited to normal business
parking and shall not be used for a continuous parking of any vehicle
or
trailer regardless of size.
|
| 11. |
The
Landlord shall not be responsible to any tenant for the non-observance
or
violation of any of these Rules and Regulations by any other
tenants.
|
| 12. |
Tenant
shall not permit in the Premises any cooking or the use of any apparatus
for the preparation of food nor the use of any electrical apparatus
likely
to cause an overload of electrical circuits, with the exception of
a
microwave oven, coffee machine, or
refrigerator.
|
| 13. |
Tenant
shall maintain no food or drink coin operating vending machines within
the
Premises or the Building without the written consent of Landlord;
such
consent shall not preclude Landlord from charging Tenant for utility
costs
thereof. Tenant agrees that all personal property, including machines
permitted by Landlord under this paragraph, brought into the Premises
by
Tenant, its employees, licensees and invitees shall be at the sole
risk of
Tenant and Landlord and shall not be liable for theft or of money
deposited therein or for any damages thereto; such theft or damage
being
the sole responsibility of Tenant.
|
| 14. |
All
tenants and occupants shall observe strict care not to leave their
windows
or doors open when it rains or snows, or while air-conditioning or
heating
systems are in operation, and for any fault or carelessness in any
of
these respects, shall indemnify other tenants for any injury sustained
by
other tenants, and to Landlord for damage to paint, plastering or
other
parts of the Building, resulting from such default or
carelessness.
|
| 15. |
Landlord
may waive one or more of these Rules and Regulations for the benefit
of
any particular tenant, but no such waiver by Landlord shall be construed
as a waiver of such Rules and Regulations in favor of any other tenant,
nor prevent Landlord from thereafter enforcing such Rules and Regulations
against any or all of the other tenants of the
Building.
|
| 16. |
These
Rules and Regulations are supplemental to, and shall not be construed
to
in any way modify or amend, in whole or in part, the terms, covenants,
agreements, and conditions of any lease of any premises in the
Building.
|
Ack.
No. 013
- Revised
1/06
Standard
Office Lease Agreement
EXHIBIT
“E”
THE
LAND
Ack.
No. 013
- Revised
1/06
Standard
Office Lease Agreement
