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EXHIBIT 10.3
LEASE AGREEMENT
Between
REGENT PACES FERRY OFFICE I, INC.,
a Georgia corporation
as Landlord
and
Southeast Commerce Holding Company
a Georgia Corporation
as Tenant
Dated: October 14, 1997
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PACES SUMMIT I
0000 XXXXX XXXXX XXXX
XXXXXXX, XXXXXXX
SUMMARY OF BASIC LEASE TERMS
1. Lease Date: October 14, 1997
1. Landlord: Regent Paces Ferry Office I, Inc., a Georgia
corporation.
1. Landlord's Address for Notices: c/o Regent Partners, Inc.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Property Manager
1. Landlord's Address for Payment c/o Regent Partners, Inc.
of Rent: 0000 Xxxxxxxxx Xxxx, X.X.
[Section 4] Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Property Manager
1. Tenant: Southeast Commerce Holding Company, a Georgia
corporation
1. Tenant's Address for Notices Prior to 000 Xxxxxxxx Xxxxxxx
Commencement Suite 400
[Section 12.1] Xxxxxxx, Xx. 00000
Attention: Rich Parliontieri
1. Tenant's Address for Notices Southeast Commerce Holding Company
After Commencement Date: 0000 Xxxxx Xxxxx Xxxx
[Section 12.1] Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Rich Parliontieri
1. Premises: Suite No. 190 located on the first (1st) floor(s) of
[Section 2] the Building substantially as shown on the floor
plan attached hereto as Exhibit B
1. Stipulated Square Footage of Premises: 5,436 rentable square feet
Premises:
1. Stipulated Square Footage of the 120,344 rentable square feet
Building:
1. Tenant's Share: 4.52%, Representing a fraction, the numerator of
which is the Stipulated Square Footage of the
Premises and the denominator of which is the
Stipulated Square Footage of the Building
1. Term: Approximately 10 years, and 0 months beginning
[Section 3] on the Commencement Date and ending at 11:59
p.m. on the Expiration Date, unless sooner
terminated as provided herein
1. Anticipated Commencement Date: April 1, 1998; the actual Commencement Date shall
[Section 3] be determined in accordance with Section 3
1. Expiration Date: Approximately 10 years and 0 months after the
[Section 3] Commencement Date
1. Base Rent:
[Section 4.1]
Portion of Annual Base Annual Base Monthly Base
Lease Term Rent/RSF Rent Rent
---------- -------- ---- ----
4/1/98-3/31/00 $20.25 $110,079.00 $ 9,173.25
4/1/00-3/31/03 $23.00 $125,028.00 $10,419.00
4/1/03-3/31/08 $25.00 $135,900.00 $11,325.00
------ ------ ------ ------
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1. Operating Expenses Calendar year ending December 31, 1998
Base Year:
[Section 4.3]
1. Initial Installment: $9,173.25
[Section 4.6]
1. Security Deposit: $9,173.25
[Section 4.7]
1. Use: General office purposes
[Section 8.1]
1. Tenant's Broker and Address for Notices: Xxxx Ping Realty
000 Xxx Xxxx
Xxxxxxxxx Xxxx, Xx. 00000
1. Parking Spaces: 3.7 spaces for each 1,000 square feet of Stipulated
[Section 12.8] Square Footage of the Premises within the Parking
Facilities
1. Design Fee Allowance: $1.00 multiplied by Stipulated Rentable Square
[Exhibit D] Footage of Premises, for total Design Fee
Allowance of $5,436.00
1. Buildout Allowance: $21.00 multiplied by Stipulated Rentable Square
[Exhibit D] Footage of Premises for total Buildout Allowance of
$114,156
1. Exhibits: The following are attached to this Lease and by this
reference incorporated into this Lease:
Summary of Basic Lease Information
Special Stipulations
Exhibit A - Property
Exhibit B - Floor Plans for Premises
Exhibit C - Rules and Regulations
Exhibit D - Work Letter
Exhibit E - Acknowledgement, Acceptance and
Amendment
Exhibit F - Building Shell Construction
Exhibit G - Statement of Tenant in Re: Lease
Exhibit H - Additional Land Within Complex
Exhibit I - Indemnification and Release Agreement
The foregoing Summary of Basic Lease Terms (the "Summary of Lease
Terms") is hereby incorporated into and made a part of the Lease. Each
reference in the Summary of Lease Terms shall mean the information set forth
above and shall be construed to incorporate all of the terms provided under the
particular Lease paragraph pertaining to such information. In the event of a
conflict between the Summary of Lease Terms and the Lease, the Lease shall
prevail.
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TABLE OF CONTENTS
LEASE AGREEMENT
No. Description Page
--- ----------- ----
1. Basic Lease Information and Certain Definitions..................................................1
1.1 Building...........................................................................1
1.2 Commencement Date..................................................................1
1.3 Common Area or Common Areas........................................................1
1.4 Complex............................................................................1
1.5 CPI................................................................................1
1.6 Estimated Operating Expense Increase...............................................1
1.7 Estimated Operating Statement......................................................1
1.8 Expense Increase Year..............................................................2
1.9 Land...............................................................................2
1.10 Landlord's Architect...............................................................2
1.11 Landlord's Broker..................................................................2
1.12 Lease Year.........................................................................2
1.13 Manager............................................................................2
1.14 Operating Expense Base.............................................................2
1.15 Operating Expense Increase.........................................................2
1.16 Operating Expenses.................................................................2
1.17 Operating Statement................................................................2
1.18 Parking Facilities.................................................................2
1.19 Percentage Increase................................................................2
1.20 Property...........................................................................2
1.21 Rent...............................................................................3
1.22 Rules and Regulations..............................................................3
1.23 Summary of Lease Term..............................................................3
1.24 Work Letter........................................................................3
2. Premises.........................................................................................3
3. Lease Term.......................................................................................3
4. Rent.............................................................................................3
4.1 Base Rent..........................................................................3
4.2 Base Rent Adjustment...............................................................3
4.3 Operating Expense Increase.........................................................4
4.4 Operating Expenses.................................................................5
4.5 General Provisions Regarding Rent..................................................7
4.6 Initial Installment................................................................8
4.7 Security Deposit...................................................................8
4.8 Landlord's Security Interest.......................................................9
4.9 Late Charges.......................................................................9
5. Construction, Alteration, Maintenance and Repair................................................10
5.1 Building Allowance and Tenant Finishes............................................10
5.2 Repairs By Landlord...............................................................10
5.3 Repairs By Tenant.................................................................10
5.4 Alterations and Improvements......................................................10
5.5 Performance of Maintenance, Repairs, Alterations and Improvements.................10
5.6 Liens.............................................................................11
6. Possession of Premises..........................................................................11
6.1 Landlord's Failure to Give Possession.............................................11
6.2 Acceptance and Waiver.............................................................11
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6.3 Surrender of Premises.............................................................11
6.4 Cleaning Premises.................................................................12
7. Services........................................................................................12
7.1 Building Services.................................................................12
7.2 Excess Services...................................................................12
7.3 Interruption of Services..........................................................13
7.4 Electrical Service................................................................13
7.5 Health Club Facility..............................................................13
8. Use and Occupancy of the Premises...............................................................14
8.1 Permitted Use.....................................................................14
8.2 Signs.............................................................................14
8.3 Hazardous Materials...............................................................14
8.4 Carding and Advertising...........................................................15
8.5 Removal of Fixtures...............................................................15
8.6 Entering Premises.................................................................15
9. Tenant's Insurance; Waivers and Indemnities.....................................................16
9.1 Insurance Coverages...............................................................16
9.2 Insurance Policy Requirements.....................................................16
9.3 Blanket Insurance Policies........................................................17
9.4 Waivers...........................................................................17
9.5 Indemnities.......................................................................17
10. Default and Remedies............................................................................18
10.1 Default...........................................................................18
10.2 Remedies..........................................................................18
11. Destruction or Damage; Condemnation.............................................................20
11.1 Destruction or Damage.............................................................20
11.2 Condemnation......................................................................20
12. Additional Provisions...........................................................................21
12.1 Service of Notice.................................................................21
12.2 Mortgagee's Rights................................................................21
12.3 Governmental Regulations..........................................................22
12.4 Abandonment of Premises...........................................................23
12.5 Assignment and Subletting.........................................................23
12.6 Tenant's Estoppel.................................................................24
12.7 Attorney's Fees and Homestead.....................................................24
12.8 Parking...........................................................................24
12.9 Storage...........................................................................25
12.10 Waste Disposal....................................................................25
12.11 Brokers...........................................................................25
12.12 Sale of Building..................................................................26
12.13 Transfer of Tenants...............................................................26
12.14 Alteration of Common Area.........................................................26
12.15 No Estate In Land.................................................................26
12.16 Cumulative Rights.................................................................26
12.17 Paragraph Titles..................................................................27
12.18 Severability; Interpretation......................................................27
12.19 Damage or Theft of Personal Property..............................................27
12.20 Holding Over......................................................................27
12.21 Rules and Regulations.............................................................27
12.22 Quiet Enjoyment...................................................................27
12.23 Entire Agreement..................................................................28
12.24 Limitation of Liability...........................................................28
12.25 Submission of Agreement...........................................................28
12.26 Authority.........................................................................28
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12.27 Force Majeure.....................................................................28
12.28 Multiple Tenants..................................................................28
12.29 Time is of the Essence............................................................28
12.30 Governing Law.....................................................................28
12.31 Waiver of Rights..................................................................28
12.32 Special Stipulations..............................................................28
12.33 Landlord's Tradenames.............................................................29
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SUMMARY OF BASIC LEASE TERMS
SPECIAL STIPULATIONS
EXHIBIT A PROPERTY
EXHIBIT B FLOOR PLANS FOR PREMISES
EXHIBIT C RULES AND REGULATIONS
EXHIBIT D WORK LETTER
EXHIBIT E ACKNOWLEDGMENT, ACCEPTANCE AND AMENDMENT
EXHIBIT F BUILDING SHELL CONSTRUCTION
EXHIBIT G STATEMENT OF TENANT IN RE: LEASE
EXHIBIT H ADDITIONAL LAND WITHIN COMPLEX
EXHIBIT I INDEMNIFICATION AND RELEASE AGREEMENT
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LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter called the "Lease") is made and
entered into this 14 day of October, 1997, by and between REGENT PACES FERRY
OFFICE I, INC., a Georgia corporation (hereinafter called "Landlord"); and
Southeast Commerce Holding Company, a Georgia corporation (hereinafter called
"Tenant").
1. BASIC LEASE INFORMATION AND CERTAIN DEFINITIONS. Each of the
terms capitalized and defined in this Section shall refer to and shall have the
respective meaning set forth in this Section.
1.1. BUILDING: The six (6) story building having
approximately 120,344 rentable square feet of space constructed or to be
constructed by Landlord on the Land, together with any additions, replacements
or alterations to same.
1.2. COMMENCEMENT DATE: That certain date on which the
Term and the Rent payable hereunder shall commence, as such date is determined
pursuant to the provisions of Section 3 hereof.
1.3. COMMON AREA OR COMMON AREAS: All areas, whether
improved or unimproved, within the exterior boundaries of the Land and easement
areas outside of the exterior boundaries of the Land which benefit the Land,
which are now or hereafter made available for the nonexclusive use, convenience
and benefit of Landlord and Tenant and other tenants of the Building, their
employees, agents, customers, invitees or licensees, including without
limitation, malls, lobby areas, walkways, driveways, curbs, gutters, sidewalks,
corridors, loading zones, parking areas, storage areas, stairwells, elevators,
service areas, signs, decorative improvements, such as sculptures and
fountains, courts, paving, lighting and landscaped and planted areas. The
meaning of "Common Area" or "Common Areas" may be expanded, contracted or
otherwise altered in accordance with the provisions of Section 12.14.
1.4. COMPLEX: The Land, the Building, the Parking
Structure and the Common Areas, and the real property adjacent to the Land
described on Exhibit H, and any office buildings, hotels, retail facilities,
parking structures and common areas located thereon or associated therewith, as
the same may be altered, enlarged or reconfigured from time to time.
1.5. CPI: The "Consumer Price Index for all Urban
Consumers, U.S. Cities Average, All Items (1982-84 = 100)" issued by the Bureau
of Labor Statistics of the United States Department of Labor. If the manner in
which such index is determined by said Bureau of Labor Statistics shall be
substantially revised, an adjustment shall be made by Landlord to such index as
revised which would produce results equivalent, as nearly as possible, to those
which would have been obtained if such index had not been so revised. If the
1982-84 average shall no longer be used as an index of 100, such change shall
constitute a substantial revision. If the Consumer Price Index published by the
Bureau of Labor Statistics of the United States Department of Labor is
discontinued, then the Consumer Price Index published by the United States
Department of Commerce shall be substituted (with proper adjustment); and if
the United States Department of Commerce Index is also discontinued, then
Landlord shall designate a suitable substitute.
1.6. ESTIMATED OPERATING EXPENSE INCREASE: Landlord's
estimate of (a) the amount by which the Operating Expenses for an Expense
Increase Year will be in excess of the Operating Expense Base multiplied by (b)
Tenant's Share.
1.7. ESTIMATED OPERATING STATEMENT: A statement rendered
to Tenant setting forth: (a) Landlord's reasonable estimate of the projected
Operating Expenses for the then-current Expense Increase Year; (b) a
computation of the Estimated Operating Expense Increase due for the
then-current Expense Increase Year; (c) a computation of the monthly Estimated
Operating Expense Increase installments to be paid by Tenant pursuant to the
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Estimated Operating Statement, being one-twelfth (1/12) of the amount
determined pursuant to clause (b) above; and (d) a computation of the amount
due Landlord, or credit due Tenant, in respect of the lapsed months of the
then-current Expense Increase Year.
1.8. EXPENSE INCREASE YEAR: Each calendar year,
commencing with the calendar year following the Commencement Date, falling, in
whole or in part, within the Lease Term.
1.9. LAND: That certain tract or parcel of land
described with particularity on Exhibit A.
1.10. LANDLORD'S ARCHITECT: Xxxxxxxx Associates, or such
other Georgia licensed architect as Landlord may select.
1.11. LANDLORD'S BROKER: Regent Partners, Inc., a Georgia
corporation.
1.12. LEASE YEAR: Each and every twelve (12) full
calendar month period during the Term of this Lease, provided that the first
Lease Year shall also include any partial month of the Term in which the
Commencement Date falls if the Commence Date does not fall on the first day of
a month. The first Lease Year shall commence on the Commencement Date and end
on the last day of the twelfth (12th) full calendar month thereafter.
1.13. MANAGER: Any entity appointed by Landlord to manage
the Building and/or perform all or certain of Landlord's obligations under this
Lease. The Manager as of the date hereof is Regent Partners, Inc.
1.14. OPERATING EXPENSE BASE: Operating Expenses for the
Building for the Base Year.
1.15. OPERATING EXPENSE INCREASE: The payments to be made
by Tenant to Landlord in the amounts, at the times and in the manner provided
for by Section 4.3.
1.16. OPERATING EXPENSES: As defined in Section 4.4.
1.17. OPERATING STATEMENT: A statement setting forth (a)
the Operating Expenses for an Expense Increase Year; (b) a computation of the
total Operating Expense Increase payable by Tenant for such Expense Increase
Year; (c) an accounting for Estimated Operating Expense Increase payments, if
any, made during such Expense Increase Year; and (d) the amount of Operating
Expense Increase then payable to Landlord, or the credit in respect thereof to
which Tenant is entitled, for such Expense Increase Year, taking into account
(with respect to any such credit) any increase in Estimated Operating Expense
Increase payments due Landlord pursuant to any Estimated Operating Statement
also rendered with respect to the then-current Expense Increase Year.
1.18. PARKING FACILITIES: The parking facilities
constructed or to be constructed by Landlord on the Land.
1.19. PERCENTAGE INCREASE: When computed with respect to
the adjustment to Base Rent to occur as of January 1 of any calendar year, as
outlined in Section 4.2 of this Lease, stated as a percentage, derived by using
the published CPI with respect to the December immediately preceding such
adjustment date (or, if no CPI is published for such December, the CPI most
recently published prior to the date of the adjustment) divided by the
published CPI with respect to the December prior to the Commencement Date (or,
if no CPI is published for such December, the CPI most recently published prior
to the January 1 immediately preceding the Commencing Date).
1.20. PROPERTY: The Land and any improvements now or
hereafter located thereon, including without limitation, the Building and the
Parking Facilities.
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1.21. RENT: The Base Rent and the Additional Rent as
defined in Section 4.3.
1.22. RULES AND REGULATIONS: The agreements of Tenant
concerning the operation and/or use of the Premises and/or the balance of the
Complex contained in Exhibit C, as same may be modified or replaced from time
to time by Landlord in its sole, but reasonable, discretion.
1.23. SUMMARY OF LEASE TERM: The Summary of Basic Lease
Terms attached hereto.
1.24. WORK LETTER: The description of the work to be
performed by Landlord to complete the Premises set forth on Exhibit D.
2. PREMISES. For and in consideration of the rents, covenants,
agreements and stipulations herein contained to be paid, kept and performed by
Tenant, Landlord does hereby rent and least to Tenant and Tenant does hereby
rent and lease from Landlord for use as an office the Premises. The Premises
shall be prepared for Tenant's occupancy in the manner and subject to the
provisions of the Work Letter.
3. LEASE TERM. Tenant shall have and hold the Premises for the
Term unless this Lease terminates earlier. The Term shall begin on the date
(the "Commencement Date") which shall be, subject to the provisions of the Work
Letter, the earlier to occur of (i) the Anticipated Commencement Date or (ii)
thirty (30) days after the date on which Landlord notifies Tenant that the
construction of the Building (excluding space within the Building to be
occupied by other tenants or which is otherwise unnecessary for Tenant's use
and enjoyment of the Premises) and build-out of the initial improvements for
the Premises, if any, to be made by Landlord in accordance with the Work Letter
are substantially completed, but in no event later than the date Tenant first
occupies all or any portion of the Premises for the conduct of its business,
and shall terminate at 11:59 p.m. on the Expiration Date, unless sooner
terminated or extended as hereinafter provided. Promptly following the
Commencement Date, Landlord and Tenant shall enter into a letter agreement in
the form attached hereto as Exhibit E, specifying, among other things, the
Commencement Date and the Expiration Date. To the extent any improvements are
to be made by Landlord to the Premises in accordance with the Work Letter, such
improvements shall be deemed to be "substantially completed" when Landlord, in
its reasonable judgment and in consultation with its architect and/or
contractors, certifies to Tenant that (i) such improvements have been
substantially completed and (ii) any certificate of occupancy necessary for
Tenant's occupancy of the Premises in accordance with the provisions of this
Lease has been duly issued.
4. RENT.
4.1. BASE RENT. Tenant shall pay to Landlord, at
Landlord's Address for Payment of Rent, or at such other place as Landlord
shall designate in writing to Tenant, the Base Rent in the amount(s) set forth
in item 15 of the Summary of Lease Terms for the Lease Year in question. For
the purposes of this Lease the rentable square feet within the Premises shall
be the Stipulated Square Footage of the Premises. The Base Rent for each Lease
Year shall be payable in equal monthly installments, due on the first day of
each calendar month, in advance, in legal tender of the United States of
America, without abatement, demand, deduction or offset whatsoever. One full
monthly installment of Base Rent shall be due and payable on the Commencement
Date and a like monthly installment of Base Rent shall be due and payable on or
before the first day of each calendar month following the Commencement Date
during the Term hereof; provided, that if the Commencement Date should be a
date other than the first day of a calendar month, the monthly Base Rent
installment payable on the Commencement Date by Tenant shall be prorated to
that partial calendar month, and the excess shall be applied as a credit
against the next monthly Base Rent installment. Tenant shall pay, as Additional
Rent, all other amounts or sums due from Tenant to Landlord under this Lease.
4.2. BASE RENT ADJUSTMENT. The amount of the Base Rent
shall be increased as of January 1 of each calendar year of the Lease Term to
equal the Base Rent stated in item
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15 of the Summary of Lease Terms for such Lease Year plus an amount equal tot
he produce obtained by multiplying (i) such Base Rent for such Lease Year by
(ii) the Percentage Increase determined as of the date of adjustment; provided,
however, that Base Rent (as previously adjusted) shall never decrease by virtue
of this Section. Landlord shall notify Tenant in writing of the new annual Base
Rent amount and the new monthly installment amount thereof at least three (3)
days prior to the date on which the increase in Base Rent becomes effective or,
if Landlord is not reasonably able to determine such amounts by such time,
promptly following the time when such amounts can reasonably be determined.
Tenant covenants and agrees to pay to Landlord the adjusted Base Rent in equal
monthly installments on the first day of each and every month for the pertinent
calendar year after notification of the adjusted Base Rent from Landlord.
Failure or inability of Landlord to notify Tenant prior to the pertinent
January 1 adjustment date, however, shall not affect Tenant's obligation to pay
Base Rent as adjusted for each and every month of the relevant calendar year
and, if Tenant has not been notified of the adjusted amounts of Base Rent prior
to January 1 of the calendar year in question, Tenant shall continue to pay
Base Rent at the rate in effect prior to the date of adjustment until notified
of the new amounts, after which time Tenant shall (x) make further payments of
Base Rent thereafter arising as so adjusted and (y) pay to Landlord in a lump
sum any difference arising with respect to Base Rent payments made by Tenant
for the calendar year in question prior to the date of Tenant's receipt of such
notice. Notwithstanding anything contained herein to the contrary, in no event
shall the Base Rent Adjustment contemplated hereby result in an increase in
Base Rent of less than two (2%) percent of the Base Rent payable by Tenant
prior to such adjustment date.
4.3. OPERATING EXPENSE INCREASE:
(a) Tenant covenants and agrees to pay to Landlord the
Operating Expense Increase for each Expense Increase Year during the Term,
which amount shall be computed by subtracting the Operating Expense Base from
the Operating Expenses shown on the Operating Statement for the Expense
Increase Year in question, and multiplying the result by Tenant's Share. Under
no circumstances shall Tenant be entitled to any refund of or credit against
Operating Expenses for any Expense Increase Year should Operating Expenses ever
be less than the Operating Expense Base. Within one hundred twenty (120) days
after the expiration of each Expense Increase Year, Landlord shall furnish
Tenant with an Operating Statement. The Operating Expense Increase shall,
except as provided in paragraph (b) of this Section 4.3, be due from Tenant
thirty (30) days after the rendering of the Operating Statement for such
Expense Increase Year.
(b) Landlord may render an Estimated Operating Statement
for any Expense Increase Year. If and when so rendered from time to time,
Tenant shall pay to Landlord in advance on the first day of each calendar month
the monthly Estimated Operating Expense Increase installments provided for in
such Estimated Operating Statement, such payments to continue until another
Estimated Operating Statement is rendered. Upon the rendering of an Operating
Statement for any Expense Increase Year for which Estimated Operating Expense
Increase installments were paid by Tenant, Tenant shall, within thirty (30)
days thereafter, pay to Landlord the sum of (x) the excess, if any, of the
Operating Expense Increase due for such Expense Increase Year over the monthly
Estimated Operating Expense Increase installments paid by Tenant in respect of
such Expense Increase Year and (y) the excess, if any, of the Estimated
Operating Expense installments due for the then-current Expense Increase Year,
as shown on the current Estimated Operating Statement, over the Estimated
Operating Expense Increase installments then being paid by Tenant multiplied by
the number of months which shall have elapsed, in whole or in part, since the
commencement of the current Expense Increase Year. If Tenant's Estimated
Operating Expense Increase installments for the prior or current Expense
Increase Year shall exceed the Operating Expense Increase due for the prior
Expense Increase Year or the Estimated Operating Expense Increase due for the
current Expense Increase Year, respectively, such excess shall first be
credited against any amounts shown due on the Operating Statement and the
Estimated Operating Statement and the balance, if any, shall be credited
against the next succeeding installments or installments of Operating Expense
Increase or Estimated Operating Expense Increase becoming due hereunder,
provided, however, that if the Lease Term shall expire or this Lease shall
terminate prior to full
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application of such credit, any balance due Tenant shall be refunded to Tenant
by Landlord if Tenant is not in default under this Lease (and, if Tenant is in
default hereunder, such balance shall be held as additional security for
Tenant's performance, may be applied by Landlord toward the cure of any such
default and shall not be refunded until any such default is completely cured by
Tenant).
(c) Operating Expense Increase shall be prorated on a
daily basis for any Expense Increase Year not wholly falling within the Term.
(d) Tenant acknowledges that certain Operating Expenses
will vary depending on an overall occupancy levels in the Building. If the
average occupancy level of the Building was less than ninety-five percent (95%)
of the total rentable square footage of the Building during the Base Year or
any Expense Increase Year, the actual Operating Expenses for the Base Year or
Expense Increase Year in question, as applicable, shall be adjusted to equal
Landlord's reasonable estimate of Operating Expenses had ninety-five (95%) of
the total rentable square footage of the Building been occupied. Landlord and
Tenant further acknowledge that the Building is or may be part of the larger
group of buildings operated by Landlord or managed by the Manager, and that
certain of the costs of management, operation, maintenance, repair and security
of such group of buildings from time to time shall be allocated among and
shared by two or more of the buildings within such group of buildings
(including the Building). It is also understood that certain costs incurred
with respect to various facilities surrounding the Building may, from time to
time, be allocated (if appropriate) entirely to the Building. This
determination of all such costs and their allocation shall be made by Landlord
in accordance with sound accounting principles. Accordingly, the term
"Operating Expenses", as used in this Lease, shall from time to time include
some of the costs, expenses, and taxes enumerated below which were incurred
with respect to and allocated to or shared by the Building in accordance with
the foregoing. Notwithstanding the foregoing or anything else contained in this
Lease to the contrary, Tenant understands and agrees that its right to use
other portions of the Complex of which the Property is a part (including the
common areas of such Complex) are those available to the general public and
that this Lease does not grant to it additional rights of use. Specifically,
but without limitation, nothing in this Lease affords Tenant any rights of
parking within the Complex except as may be expressly provided in Section 12.8.
4.4. OPERATING EXPENSES.
(a) Operating Expenses shall be all those expenses of
operating, servicing, managing, maintaining and repairing the Property,
Building, and the Common Areas in a manner deemed by Landlord reasonable and
appropriate and in the best interest of the tenants of the Building and in a
manner consistent with first-class office buildings in the Atlanta, Georgia
area. Operating Expenses shall include, without limitation, the following:
(1) All real and personal property ad valorem
taxes and assessments, whether general or special, applicable to the Land, the
Building, and the Common Areas any furniture, fixtures, machinery, apparatus,
systems and appurtenances of Landlord used in connection therewith or the
operation thereof, including without limitation, sewer rents, rates and
charges, transit taxes, and any other federal, state or local governmental
charge, general, special, ordinary or extraordinary, and any and all reasonable
costs and expenses incurred by Landlord in seeking a reduction or refund of any
such taxes and assessments and assessments and charges payable under any
private easement or restrictive covenant agreements benefiting or burdening the
Land. However, Tenant shall not be obligated for income or franchise taxes or
any other taxes imposed on or measured by Landlord's net income or profits from
the operation of the Building or otherwise, unless there is imposed in the
future such a tax in lieu of the real property ad valorem taxes, in which event
such tax shall be deemed an Operating Expense of the Building.
(2) Insurance premiums and deductible amounts,
including, without limitation, for commercial general liability, "all risks"
property, rent loss and other coverages
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carried by Landlord on the Building, the Property and any easement areas
benefiting the Property.
(3) All utility costs and expenses, including
without limitation, water, power, heating, lighting, ventilation, sanitary
sewer and air conditioning, but not including those utility charges actually
paid by Tenant or other tenants of the Building.
(4) Janitorial and maintenance expenses,
including:
(i) Janitorial services and janitorial
supplies and other materials used in the operation and maintenance of the
Building.
(ii) The cost of maintenance and service
agreements on mechanical systems and equipment, window cleaning, grounds
maintenance, pest control, security, trash and snow removal, and other similar
services or agreements relating to the operation, maintenance and repair of the
Building, the Property and the Common Areas; and
(iii) Costs and expenses paid or incurred
by Landlord for the maintenance and repair of the Land, the Building, the
Common Areas and the mechanical systems and equipment and personal property
used in connection therewith, including without limitation, the heating,
ventilating and air conditioning equipment, elevators and escalators, if any,
plumbing and electrical systems and equipment, light bulbs and broken glass,
including replacement thereof.
(5) Management fees equal to 4% of gross rents
paid with respect to the Property (provided gross rents shall not include
Operating Expenses actually paid to Landlord) and the market rental value of a
management office actually located in the Building or in another building which
serves the Building; provided, that if such management office serves buildings
other than the Building, the market rental value of such management office
shall be equitably apportioned to the Building;
(6) The costs, including interest, amortized over
its useful life, or at Landlord's option, the time period within which the
operating efficiency realized from the installation of such capital improvement
shall result in an operating expense savings equal the cost of acquiring and
installing such capital improvement, of any capital improvement made to the
Building by or on behalf of Landlord after the date of this Lease which is
required under any governmental law or regulation that was not applicable to
the Building at the time of its construction, and of the acquisition and
installation of any device or equipment designed to improve the operating
efficiency of any system within the Building.
(7) All services, supplies, repairs, replacements
or other expenses directly and reasonably associated with servicing,
maintaining, managing and operating the Land, the Building and the Common
Areas.
(8) Wages and salaries of Landlord's employees
(not above the level of Building Manager) to the extent engaged in the
maintenance, operation, repair, security and services of the Building,
including without limitation, so called fringe benefits, social security taxes,
unemployment insurance taxes, costs for providing coverage for disability
benefits, cost of any pensions, hospitalization, welfare or retirement plans,
or any other similar or like expenses incurred under the provision of any
collective bargaining agreement, costs of uniforms, and all other costs or
expenses that Landlord pays to or on behalf of employees to the extent engaged
in the operation, maintenance, repair and security of the Land, the Building
and the Common Areas. Such costs related to employee who perform such services
for other properties in addition to the Property shall be equitably apportioned
to the Property to reflect the proportionate time such employee allocates to
the Property.
(9) Legal and accounting costs and expenses.
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(10) Landscaping and grounds maintenance costs
and expenses and security service costs and expenses unless Landlord hires a
third party to provide such services pursuant to a service contract and the
cost of that service contract is already included in Operating Expenses as
described above.
(11) The costs of "Muzak" services, if any.
(12) Costs and expenses of redecorating,
painting and carpeting the Common Areas within the Building.
(13) Expenses incurred in the purchase or
acquisition of materials and supplies in connection with all the foregoing.
(14) Such other expenses paid by Landlord, from
time to time, in connection with the operation and maintenance of the
Building,, the Property and the Common Areas as would be expected to be paid by
a reasonable and prudent operator and manager of a building and site comparable
to the Land, the Building and the Common Areas.
4.5. GENERAL PROVISIONS REGARDING RENT:
(a) The provisions of this Section 4 concerning the
payment of Operating Expense Increase shall survive the expiration or earlier
termination of the Term as to any and all sums due Landlord up to the date
thereof, including any Operating Expense Increase due for the last Expense
Increase Year, or portion thereof, falling within the Lease Term, which sum
shall be paid promptly by Tenant in accordance with the terms of this Section
4. Within one hundred twenty (120) days following the expiration or earlier
termination of the Term, Landlord shall render a final Operation Statement,
certified by Landlord, and Landlord and Tenant shall adjust the Operation
Expense Increase payment or credit due Landlord or Tenant, as the case may be,
for the last Expense Increase Year of the Term, all in accordance with the
foregoing provisions of Section 4.3.
(b) It is understood and agreed that Tenant's payment of
Operating Expense Increase shall not be deemed payments of rental as that term
is construed in relation to governmental wage and price control or analogous
governmental actions now or hereafter affecting the amount of rental which
Landlord may charge Tenant. Notwithstanding the foregoing, in the event that
such governmental actions or controls prevent the application of all or any
part of the provisions of this Section 4 regarding the payment of Operating
Expense Increase, Tenant hereby agrees to pay as monthly rent hereunder the
monthly Base Rent plus one-twelfth (1/12) of the Operating Expense Increase
which was due for the Expense Increase Year preceding the year of the
institution of such actions or controls, but in no case to exceed the maximum
rent permitted by such actions or controls.
(c) Tenant covenants and agrees to be liable for and to
pay in a timely manner all taxes and assessments levied or assessed against
personal property, furniture and fixtures placed by Tenant in the Premises.
Further, and in addition to the Base Rent and Operating Expense Increase,
Tenant shall reimburse Landlord, within the thirty (30) days after written
demand, for 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, or personal property located in the Premises,
or any leasehold improvements made in or to the Premises by or for tenant
regardless of whether such improvements were constructed by Landlord or Tenant
regardless of whether title to such improvements shall be in the name of
Landlord, or Tenant; (ii) upon, measured by or reasonably attributable to the
Rent payable hereunder, or any component thereof, levied by any governmental
body with respect to the receipt of such Rent; (iii) upon or with respect to
the possession, leasing, operating, 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 rights, an interest or an estate in the Premises. In the event
that it shall not be lawful for Tenant so to reimburse Landlord, the monthly
Base Rent payable to Landlord
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under this Lease shall, to the maximum extent permitted by law, be revised to
net Landlord the same net Base Rent after the imposition of any such tax upon
Landlord as would have been payable to Landlord prior to the imposition of any
such tax. Tenant shall also be solely liable for any taxes, including rental,
sales and use taxes, assessed directly against Tenant by any governmental
authority.
(d) It is understood and agreed that Base Rent and
Operating Expense Increase shall be due and payable as provided herein, without
setoff or deduction whatsoever. Operating Expense Increase and each and every
other charge, fee, cost or expense which Tenant is obligated or liable to pay
to, refund to or reimburse Landlord shall, for the purposes of the default
provisions of this Lease, be deemed Additional Rent due from Tenant, and
Tenant's failure to so pay, refund or reimburse, when due shall entitle
Landlord to all the remedies provided for herein and at law or in equity on
account of failure to pay Rent.
(e) Base Rent, Operating Expense Increase and other sums
due hereunder shall be paid in legal tender at Landlord's Address for Payment
of Rent, or to such other address as may be specified by Landlord by notice
given from time to time as provided herein. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly installment of Base Rent or any
other component of Rent due hereunder, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment of Rent (or any
portion thereof) be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or to pursue any other remedy provided in this Lease or
under applicable law.
(f) Delay by Landlord in providing Tenant with any
statements regarding Operating Expense Increase shall not relieve Tenant from
the obligation to pay Operating Expense Increase upon the rendering of such
statements.
4.6. INITIAL INSTALLMENT. Simultaneously with the
execution of this Lease, Tenant shall pay to Landlord the Initial Installment.
Such sum shall be applied by Landlord to the first monthly installment(s) of
Base Rent as they become due hereunder. In the event Tenant fails to take
possession of the Premises in accordance with the all the terms hereof, such
sum shall be retained by Landlord for application in reduction, but not in
satisfaction, of damages suffered by Landlord as a result of such breach by
Tenant.
4.7. SECURITY DEPOSIT. Landlord acknowledges that it has
received the Security Deposit from Tenant, simultaneously with the execution of
this Lease. The Security Deposit shall be security for the full and faithful
performance and observance by Tenant of the covenants, terms and conditions of
this Lease, including without limitation, the payment of Rent, on the part of
Tenant to be kept and performed. No interest shall be payable on the Security
Deposit, and the Security Deposit need not be held in a segregated account and
may be commingled with Landlord's separate funds. It is agreed and acknowledged
by Tenant that the Security Deposit is not an advance payment of rent or a
measure of Landlord's damages in the case of default by Tenant. Upon the
occurrence of any event of default under this Lease, Landlord may use, apply or
retain the whole or any part of the Security Deposit to the extent required for
the payment of all or any part or component of Rent or any other sum as to
which Tenant is in default or for the payment of any other injury, expenses or
liability resulting from any event of default. Use, application or retention of
the Security Deposit by Landlord shall not prohibit or limit Landlord's
exercise of any other remedies Landlord may have for Tenant's default.
Following any such application of the Security Deposit, Tenant shall pay to
Landlord on demand an amount necessary to restore the Security Deposit to its
original amount. In the vent that Tenant shall fully and faithfully comply with
all of the terms, provisions, covenants and conditions of this Lease, the
Security Deposit shall be returned to Tenant within thirty (30) days after the
Expiration Date and after delivery of possession of the Premises to Landlord
shall be released from all liability for the return of the Security Deposit,
and Tenant shall look to the new landlord for its return, so long as the
transferring Landlord assigns and transfers the Security Deposit to the
acquiring landlord or provides the acquiring landlord a credit for same. The
Security Deposit shall not be assigned or encumbered by Tenant, and any such
assignment or encumbrance shall be void.
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4.8. LANDLORD'S SECURITY INTEREST. In addition to any
landlord's lien arising at law or by statute, Landlord shall have, at al times,
and Tenant hereby grants to Landlord a valid security interest, to secure
payment of Rent and other sums of money becoming due hereunder from Tenant, and
to secure performance by Tenant of any covenant, agreement or condition
contained herein, in and upon all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Tenant presently or which may
hereafter be situated in the Premises, and all proceeds therefrom, and such
property shall not be removed therefrom without the consent of Landlord until
all arranges in Rent as well as any and all other sums of money then due to
Landlord hereunder shall first have been paid and discharged and all of the
covenants, agreements, and conditions hereof have been fully complied with and
performed by Tenant. This provision shall be considered a security agreement
and, in consideration of this Lease, upon the occurrence of an event of default
by Tenant, Landlord may, in addition to any other remedies provided herein,
exercise all remedies granted a "Secured Party" under the Uniform Commercial
Code in force in the State of Georgia. Without limitation. Landlord may enter
upon the Premises and tax possession of any and all goods, wares, equipment,
fixtures, furniture, improvements, and other personal property of Tenant
situated on or in the Premises, without liability for trespass or conversion,
and sell the same at public or private sale, with or without having such
property at the sale, after giving Tenant reasonable notice of the time and
place of any public sale or of the time after which any private sale is to be
made, for cash or on credit, or for such price and terms as Landlord deems
best, at which sale the Landlord or its assigns may purchase unless otherwise
prohibited by law. Unless otherwise provided by law, and without intending to
exclude any other manner of giving Tenant reasonable notice, the requirement of
reasonable notice shall be met if such notice is given in the manner prescribed
in Section 12.1 of this Lease at least five (5) days before the time of sale.
Landlord may also, at its option, foreclose the lien created hereby in the
manner and form provided for the foreclosure of security instruments or in any
other manner permitted by law. The proceeds from any such disposition, less any
and all expenses connected with the taking of possession, holding and selling
of the property (including reasonable attorneys' fees and other expenses),
shall be applied as a credit against the indebtedness secured by the security
interest granted in this Section 4.8. Any surplus shall be paid to Tenant or as
otherwise required by law, and Tenant shall pay any deficiencies forthwith.
Upon request by Landlord, Tenant agrees to execute and deliver to Landlord a
financing statement or statements (and continuation statements as necessary) in
form sufficient to perfect the security interest of Landlord in the
aforementioned property and proceeds thereof under the provisions of the
Uniform Commercial Code in force in the State of Georgia. Any statutory or
common law lien for rent is not hereby waived, the security interest herein
granted being in addition and supplementary thereto.
4.9. LATE CHARGES. Other remedies for non-payment of Rent
notwithstanding, if any monthly installment of Base Rent or Additional Rent is
not received by Landlord on or before the date due, or if any payment due
Landlord by Tenant which does not have a scheduled due date is not received by
Landlord on or before the fifth (5th) business day following the date Tenant
receives an invoice for such payment, a late charge in an amount equal to the
greater of $100,. or five percent 95%) of such past due amount shall be
immediately due and payable as Additional Rent and interest shall accrue from
the date past due until paid in an amount equal to the lesser of eighteen
percent (10%) per annum or the highest rate permitted by applicable law (the
"Interest Rate"). Nothing contained herein shall be deemed to require Landlord
to accept any payment of Rent received by Landlord after the expiration of the
due date unless such delinquent Rent payment is paid within the applicable cure
period and accompanied by such late charges as are herein described.
Additionally, Tenant shall pay to Landlord a processing and handling fee of
fifty dollars ($50.00) for any check of Tenant's which is returned to Landlord
because of insufficient funds, to compensate Landlord for its additional
administrative costs and expenses in handling such items, it being agreed that
the exact amount thereof would be difficult or impossible to ascertain.
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5. CONSTRUCTION, ALTERATION, MAINTENANCE AND REPAIR.
5.1. BUILDING ALLOWANCE AND TENANT FINISHES. The initial
improvements to the Premises, if any, shall be governed by the Work Letter
attached hereto as Exhibit D and its provisions shall control in the event of a
conflict with any of the other provisions of this Lease.
5.2. REPAIRS BY LANDLORD. Tenant, by taking possession of
the Premises, shall accept and shall be held to have accepted the Premises as
suitable for the use intended by this Lease. Landlord shall not be required,
after possession of the Premises has been delivered to Tenant, to make any
repairs or improvements to the Premises, except as set forth in this Lease.
Within thirty (30) days after the Commencement Date, Tenant will execute and
deliver to Landlord the acknowledgment, acceptance and amendment agreement
attached hereto as Exhibit E and made a part hereof. Landlord shall maintain in
good condition and repair the exterior walls, roof, Common Areas, foundation,
structural portions and the central portions of the Building's mechanical,
electrical, plumbing and HVAC systems, but only those portions responsible for
central distribution which shall include the central HVAC units located on any
floor even if a single tenant occupies all the space in the Building such HVAC
unit serves and not the branches which serve only one tenant's space (the
"Central Building Systems"), provided such repairs are not occasioned by
Tenant, Tenant's invitees or anyone in the employ or control of Tenant.
Landlord shall not be responsible for the maintenance and repair of any such
mechanical systems or equipment to the extent they provide service solely to
the Premises, including without limitation, any supplementary air conditioning
equipment, and the maintenance of any such equipment shall be solely Tenant's
duty and responsibility.
5.3. REPAIRS BY TENANT. Except as described in Section 5.2
above, Tenant shall, at its own cost and expense, maintain the Premises, but
specifically excluding the Central Building Systems, in good condition and
repair and in a neat and clean, first-class condition, including making all
necessary repairs and replacements. Tenant shall further, at its own cost and
expense, repair or restore any damage or injury to all or any part of the
Building, the Property or the Common Areas caused by Tenant or Tenant's agents,
employees, invitees, visitors or contractors, including but not limited to any
repair or replacements necessitated by (i) the construction or installation of
improvements to the Premises by or on behalf of Tenant, and (ii) the moving of
any Property into or out of the Premises. Landlord, at Tenant's expense, shall
have the right to perform or cause to be performed by Landlord's contractors or
workmen all maintenance, repairs, alterations, additions or improvements Tenant
is required or authorized to perform under this Lease, and the costs and
expenses related thereto together with a three percent (3%) management fee
shall be charged to Tenant as Additional Rent and shall become due and payable
by Tenant with the monthly installment of Base Rent next due hereunder.
5.4. ALTERATIONS AND IMPROVEMENTS. Tenant shall not make or
allow to be made any alterations, physical additions or improvements in or to
the Premises without first obtaining in writing Landlord's written consent for
such alterations or additions, which consent may be granted or withheld in the
sole, absolute discretion of Landlord. Upon Landlord's request, Tenant will
furnish Landlord plans and specifications for any proposed alterations,
additions or improvements and shall reimburse Landlord for its reasonable cost
to review such plans. Any alterations, physical additions or improvements shall
at once become the Property of Landlord; provided, however, Landlord, at its
option, may require Tenant to remove any alterations, additions or improvements
in order to restore the Premises to the condition existing on the Commencement
Date. All costs of any such alterations, additions or improvements shall be
borne by Tenant.
5.5. PERFORMANCE OF MAINTENANCE, REPAIRS, ALTERATIONS AND
IMPROVEMENTS. All maintenance, repairs, alterations, additions or improvements
performed by Tenant shall (a) be made in a good, first-class, workmanlike
manner, (b) be performed in such a manner as to maintain harmonious labor
relations, (c) not adversely affect the Central Building Systems, (d) comply
with all building, safety, fire, plumbing, electrical and other codes and
governmental requirements, (e) not result in any usage in water, electricity,
gas or other utilities or of heating, ventilating or air conditioning (either
during or after such work) in
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excess of the capacities Landlord is generally obligated to provide to the
Premises, unless prior written arrangements satisfactory to Landlord are made
with respect thereto and (f) be made in a manner that does not disturb other
tenants (i.e., any loud work must be performed during non-business hours).
Tenant must maintain appropriate liability and builder's risk insurance
throughout the construction. Tenant does hereby indemnify and hold Landlord
harmless from and against all claims for damages or death or persons or damage
or destruction of property arising out of the performance of any such
alterations, additions or improvements made by or on behalf of Tenant. Under no
circumstances shall Landlord be required to pay, during the Term of this Lease
and any extensions or renewals thereof, any ad valorem or property tax on such
alterations, additions or improvements, Tenant hereby covenanting to pay all
such taxes when they become due. In the event any maintenance, repairs,
alterations, additions or improvements are to be performed by contractors or
workmen other than Landlord's contractors or workmen, any such contractors or
workmen must first be approved, in writing, by Landlord. Landlord agrees to
assign to Tenant any rights it may have against the contractor of the Premises
with respect to any work performed by said contractor in connection with any
such work performed by Landlord or at the request of Landlord on behalf of
Tenant.
5.6. LIENS. No work performed by Tenant in the Premises in
the nature of erection, construction, alteration, addition, improvements,
remodeling, maintenance or repair shall be deemed to be for the immediate use
and benefit of Landlord, and no mechanic's, materialmen's or other liens shall
be allowed against the estate of Landlord by reason of any consent given by
Landlord to Tenant to improve the Premises. Tenant shall promptly pay all
persons furnishing labor or materials with respect to any work performed by or
on behalf of Tenant or its contractors on or about the Premises and Tenant
shall discharge of record within twenty (20) days following the date Tenant
receives actual notice of the filing thereof, by payment or bonding, any
mechanic's or materialmen's lien filed against the Premises, the Building or
the Complex for work or materials claimed to have been furnished to or on
behalf of Tenant.
6. POSSESSION OF PREMISES.
6.1. LANDLORD'S FAILURE TO GIVE POSSESSION. Landlord shall
not be liable for damages to Tenant for failure to deliver possession of the
Premises to Tenant if such failure is due to no fault of Landlord or to the
failure of any construction or remodeling of the Building or the Premises to be
completed or to the failure of any previous tenant to vacate the Premises.
Landlord will use its reasonable good faith efforts to give possession to
Tenant by the Anticipated Commencement Date of the Term. If Landlord's failure
to do so is caused by the act of any previous tenant holding over, Landlord
agrees to transfer to Tenant the right to prosecute in its own name any cause
of action which Landlord may have against such tenant holding over, Tenant to
hold for itself any recovery in such action, except for any amounts due
Landlord as Rent hereunder.
6.2. ACCEPTANCE AND WAIVER. Landlord shall not be liable
to Tenant, its agents, employees, guests or invitees (and, if Tenant is any
entity, its officers, managers, members, partners, agents, employees, guest or
invitees) for any damage caused to any of them due to the Building or any part
or appurtenances thereof being improperly constructed or being or becoming out
of repair, or arising from the leaking of gas, water, sewer or steam pipes, or
from electricity, but Tenant, by moving into the Premises and taking possession
thereof, shall accept, and shall be held to have accepted the Premises as
suitable for the purposes for which the same are leased, and shall accept and
shall be held to have accepted the Building and every appurtenances thereof,
and Tenant by said act waives any and all defects therein.
6.3. SURRENDER OF PREMISES. Whenever under the terms
hereof Landlord is entitled to possession of the Premises, Tenant at once shall
surrender the Premises and the keys thereto to Landlord in the same condition
as on the Commencement Date hereof, casualty damage and natural wear and tear
only one excepted, and Tenant shall remove all of its personal property
therefrom and shall, if directed to do so by Landlord, remove all improvements
which have been made therein by or on behalf of Tenant, including any
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improvements made prior to the Commencement Date; provided, however, that
Tenant shall not be permitted to remove any movable furniture, personal
property or equipment from the Premises at any time, including at the end of
the term or any renewal thereof, or other sooner termination of this Lease, if
Tenant is then in material default under this Lease. All such property not
promptly removed by Tenant shall be deemed abandoned by Tenant and title to
same shall pass to Landlord under this Lease as by a xxxx of sale. Whenever
under the terms hereof, Landlord is entitled to possession of the Premises,
Landlord may forthwith reenter the Premises and repossess itself thereof and
remove all persons and effects therefrom, using such force as may be necessary
without being guilty of forcible entry, detainer, trespass or other tort.
Tenant's obligation to observe or perform these covenants shall survive the
expiration or other termination of the Term of this Lease. If the last day of
the Term of this Lease or any renewal falls on Sunday or a legal holiday, this
Lease shall expire on the business day immediately preceding.
6.4. CLEANING PREMISES. Upon vacating the Premises, Tenant
agrees to clean the Premises thoroughly or to pay Landlord for the cleaning
necessary to restore the Premises to their condition when Tenant's possession
commenced, casualty damage and natural wear and tear only excepted, regardless
of whether any Security Deposit has been forfeited.
7. SERVICES.
7.1. BUILDING SERVICES. The normal business hours of the
Building shall be from 8:00 A.M. to 6:00 P.M. on Monday through Friday, and
9:00 A.M. to 1:00 P.M. on Saturday, exclusive of national holidays and other
days observed generally as holidays in Atlanta, Georgia. Landlord shall furnish
the following services for the Building during the normal business hours of the
Building except as noted:
(i) Elevator service for passenger and
delivery needs;
(ii) Heating and air conditioning;
(iii) Hot and cold running water for all
rest rooms and lavatories;
(iv) Soap, paper towels, and toilet
tissue for public rest rooms;
(v) Janitorial service, which includes
sanitizing, dusting, cleaning, mopping, vacuuming and removal of trash not
requiring special handling, Monday through Friday;
(vi) Custodial, electrical and
mechanical maintenance services are provided Monday through Friday;
(vii) Electric power for lighting and
outlets not in excess of a total of 5 xxxxx per rentable square foot of the
Premises at 100% connected load; and
(viii) Replacement of Building standard
lamps and ballasts as needed.
7.2. EXCESS SERVICES. Tenant shall have no right to any
services in excess of those provided herein. If Tenant desires to use services
in an amount or for a period in excess of that provided for herein, then
Landlord, at its option, may provide same, but as a condition to providing such
additional services Landlord reserves the right to charge Tenant as Additional
Rent hereunder a reasonable sum as reimbursement for the direct cost of such
added services; charge Tenant for the cost of any additional equipment or
facilities or modifications thereto, necessary to provide the additional
services; and/or to discontinue providing such excess services to Tenant. In
the event of disagreement as to the reasonableness of such charge, the opinion
of the appropriate local utility company or an independent professional
engineering firm shall prevail.
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7.3. INTERRUPTION OF SERVICES. Landlord shall not be
liable for any damages directly or indirectly resulting from the failure to
furnish or the interruption in any of the services described above. Landlord
shall use all reasonable efforts to furnish uninterrupted services as required
above, and no such failure or delay shall constitute actual or constructive
eviction of Tenant or operate to relieve Tenant from the prompt and punctual
performance of each and all of the covenants to be performed herein by Tenant.
Landlord shall also not be liable to Tenant for damage to person or property
caused by defects in, or repairs to the cooling, heating, electric, water
elevator or other apparatus or systems or by water discharge from sprinkler
systems, if any, in the Building.
7.4. ELECTRICAL SERVICE. Landlord reserves the right to
xxxxx the Premises or any portion thereof separately, and if the Premises (or
any portion thereof), are so separately metered, Tenant shall pay all
electricity furnished to the Premises which is so separately metered. Tenant
shall not, without Landlord's prior written consent, use any equipment,
including without limitation, electronic data processing machines, punchcard
machines, duplicating machines, mainframe computers, photocopiers, printers or
other machines which use electric current in excess of 110 volts, which will
increase the amount of electricity ordinarily furnished for use of the Premises
as general office space or which require clean circuits or other special
distribution circuits. If Tenant desires additional 110 volt electrical power
beyond that supplied by Landlord as provided above, electric current in excess
of 110 volts, or other special power requirements or circuits, then Tenant may
requires Landlord to provide such supplemental power to the Premises, which
request Landlord may grant or withhold in its reasonable discretion. If
Landlord furnishes such power or circuits, Tenant shall pay Landlord on demand,
the cost of the design, installation and maintenance of the facilities required
to provide such additional or special electrical power or circuits and the cost
of all electrical currents so provided at a rate not to exceed that which would
be charged by the power company providing electric service to the Building, or
its successor, if Tenant were a direct customer thereof. Landlord may require
separate electrical metering of such supplemental electrical power or circuits
to the Premises, and Tenant shall pay, upon demand, the cost of design,
installation and maintenance of such metering facilities. In no event shall
Tenant have access to any electrical closets in the Building, it being agreed
that any electrical engineering, design or contract work shall be performed by
Landlord or an electrical engineer and/or electrical contractor designated by
Landlord at Tenant's expense.
7.5. HEALTH CLUB FACILITY. Landlord anticipates that it
will (but shall not be obligated to) construct, maintain, and operate an
unattended health facility, including restrooms, showers and changing
facilities for males and females in approximately 1,500 square feet of space
located on the basement level of the Building (the "Health Facility"),
containing such equipment and facilities as Landlord shall deem appropriate in
its sole discretion. As a condition precedent to the ability of Tenant and any
other party obtaining access to the Health Facility through Tenant using the
Health Facility, Tenant shall execute an Indemnification and Release Agreement
in a form substantially similar to Exhibit K, attached hereto and incorporated
by this reference, thereby agreeing to indemnify, release and hold harmless
Landlord from any and all claims and actions arising from the use of the Health
Facility by Tenant and Tenant's officers, members, managers, employees, agents
and invitees and other persons gaining access to the Health Facility by or
through Tenant (the "Tenant Health Facility Users"). Any use by Tenant Health
Facility Users shall be at Tenant's and such persons' sole risk and Landlord
shall have no responsibility for such persons. All Tenant Health Facility Users
shall execute a waiver and release agreement waiving and releasing any and all
claims, actions or causes of action which any such person has or may have which
result from or in any manner relate to such person's gaining access to and
making use of the Health Facility. In the event that Landlord should construct
and establish the Health Facility, the Health Facility shall be available for
use by Tenant Health Facility Users at no charge. Landlord shall have the right
to discontinue operating the Health Facility at any time it shall deem
appropriate.
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8. USE AND OCCUPANCY OF THE PREMISES.
8.1. PERMITTED USE. Tenant shall use and occupy the
Premises for general office purposes and for no other purpose. The Premises
shall not be used for any illegal purpose, nor in violation of any valid laws,
ordinances, rules or regulations of any governmental body, nor in any manner to
create any nuisance or trespass, nor in any manner to vitiate the insurance or
increase the rate of insurance on the Premises or the Building, nor in any
manner inconsistent with the first-class nature of the Building.
8.2. SIGNS. Tenant shall obtain the written approval of
Landlord prior to placing and maintaining, or causing or permitting to be
placed and maintained any sign, advertising matter or other thing of any kind,
on the exterior of the Premises, or any decorating, lettering or advertising
matter on any exterior door of the Premises or any inside walls of the Premises
which would be visible from the exterior of the Premises without the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
All exterior and elevator lobby signs shall, unless Landlord otherwise
specifically consents in writing, conform to uniform building sign
specifications promulgated by Landlord and Landlord shall provide and install
same at Tenant's cost and expense. Tenant shall place no signs upon the outside
walls or the roof of the Building or in any of the Common Areas.
8.3. HAZARDOUS MATERIALS.
(a) Tenant hereby covenants that, from and after the
date hereof and thereafter during the Term except for ordinary cleaning and
office supplies used and stored on the Premises by Tenant in the ordinary
course of its business (i.e., cleaning solvents, toner, ink etc.), Tenant shall
not cause or permit any "Hazardous Substances" (as hereinafter defined) to be
placed, held, located or disposed of in or about the Premises or the Complex or
any part of either and that neither the Premises nor the Complex, nor any part
of either, shall ever be used by Tenant or persons claiming under Tenant as a
storage site (whether permanent or temporary) for any Hazardous Substances. For
purposes of this Section 8.3, "Hazardous Substances" shall mean and include
those elements or compounds which are contained in the list of hazardous
substances adopted by the United States Environmental Protection Agency (EPA)
or the list of toxic pollutants designated by Congress or the EPA or which are
defined as hazardous, toxic, pollutant, infectious or radioactive by any other
federal, state or local statute, law, ordinance, code, rule, regulation, order
or decree regulating, relating to or imposing liability (including, without
limitation, strict liability) or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as now or at any
time hereafter in effect (collectively "Environmental Laws").
(b) Tenant hereby agrees to comply with all
Environmental Laws with regard to its use and occupancy of the Premises and to
indemnify Landlord and hold Landlord harmless from and against any and all
losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorneys' fees, costs of any settlement or judgment and
claims of any and every kind whatsoever paid, incurred or suffered by, or
asserted against, Landlord by any person, entity or governmental agency for,
with respect to, or as direct or indirect result of Tenant's failure to comply
with the provisions of this Lease and applicable Environmental Laws in
connection with its use and occupancy of the Premises or the presence in, or
the escape, leakage, spillage, discharge, emission, or release from, the
Premises of any Hazardous Substance (including, without limitation, any losses,
liabilities, including strict liability, damages, injuries, expenses, including
reasonable attorneys' fees, costs of any settlement or judgment or claims
asserted or arising under the Comprehensive Environmental Response,
Compensation and Liability Act, any so-called federal, State or local
"Superfund" or "Superlien" laws or any other Environmental Laws); provided,
however, that the foregoing indemnity is limited to matters arising solely from
Tenant's violation of the covenant contained in Subsection 8.3(a) above, and
shall not cover any such liability to the extent caused by the acts of
Landlord, Landlord's employees or agents, or other tenants of the Building.
(c) In the event Landlord suspects, in its reasonable
opinion, that Tenant has violated any of the covenants contained in this
Section 8 or that the Premises or Complex are
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not in compliance with the Environmental Laws for any reason as to which Tenant
is responsible hereunder, or that the Premises or Complex are not free of
Hazardous Substances for any reasons as to which Tenant is responsible
hereunder, Tenant shall take steps as Landlord requires by written notice to
Tenant in order to confirm or deny such occurrences, including without
limitation, the preparation of environmental studies, audits, surveys or
reports. In the event that Tenant fails to take such action, Landlord may take
such action and shall have such access to the Premises as Landlord deems
necessary and the costs and expenses of all such actions taken by Landlord,
including, without limitation, Landlord's attorneys' fees, shall be due and
payable by Tenant upon demand therefor from Landlord as additional rent
hereunder. If any lender or governmental agency shall ever require testing to
ascertain whether or not there has been any release of Hazardous Substances,
then the reasonable costs thereof shall be reimbursed by Tenant to Landlord
upon demand as Additional Rent if any Hazardous Substances are determined by
Landlord to exist or be present as a result of Tenant failing to comply with
the covenants contained in this Subsection 8.3. In addition, Tenant shall
execute affidavits, representations and the like from time to time at
Landlord's request concerning Tenant's best knowledge and belief concerning the
presence of Hazardous Substances in, on or about the Premises. Further,
Landlord reserves the right at any time and from time to time to enter the
Premises following reasonable advance notice thereof to Tenant (except in cases
of emergency) in order to perform periodic environmental studies, audits,
surveys and reports and in order to determine whether Tenant is in compliance
with the terms of this Section 8.3.
8.4. CARDING AND ADVERTISING. Landlord may card the
Premises and/or advertise the Premises as being "For Rent" at any time
following a default by Tenant which remains uncured and at any time within one
hundred eighty (180) days prior to the expiration, cancellation or termination
of this Lease for any reason and during any such periods may exhibit the
Premises to prospective tenants.
8.5. REMOVAL OF FIXTURES. If Tenant is not in default
hereunder, Tenant may, prior to the expiration of the Term of this Lease, or
any extension thereof, remove any fixtures and equipment which it has placed in
the Premises after the Commencement Date which can be removed without
significant damage to the Premises, provided Tenant repairs all damages to the
Premises caused by such removal.
8.6. ENTERING PREMISES. Landlord may enter the Premises at
reasonable hours provided that Landlord's entry shall not unreasonably
interrupt Tenant's business operations and that prior notice is given (and, if
in the opinion of Landlord any emergency exists, at any time and without
notice): (a) to perform any construction, renovation or repairs which Landlord
is obligated or authorized to make to the Premises or the Building pursuant to
the terms of this Lease or to the other premises within the Building pursuant
to the leases of other tenants or in connection with any construction,
renovation or repairs to the Building which Landlord deems necessary or
desirable; (b) to inspect the Premises to see that Tenant is complying with all
of the terms and conditions hereof and with the rules and regulations hereof;
(c) to remove from the Premises any articles or signs kept or exhibited herein
in violation of the terms hereof; an d(d) to exercise any other right or
perform any other obligation that Landlord has under this Lease. Landlord shall
be allowed to take all material into and upon the Premises that may be required
to make any repairs, improvements and additions, or any alterations, without in
any way being deemed or held guilty of improvements and additions, or any
alterations, without in any way being deemed or held guilty of improvements and
additions, or any alterations, without in any way being deemed or held guilty
of trespass and without constituting a constructive eviction of Tenant. The
Rent reserved herein shall in no wise xxxxx while said repairs, alterations or
additions are being made and Tenant shall not be entitled to maintain a set-off
or counterclaim for damages against Landlord by reason of loss from
interruption to the business of Tenant because of the prosecution of any such
work. All such repairs, decorations, additions and improvements shall be done
during ordinary business hours, or, if any such work is at the request Tenant
to be done during any other hours, the Tenant shall pay all overtime and other
extra costs.
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9. TENANT'S INSURANCE; WAIVERS AND INDEMNITIES
9.1. INSURANCE COVERAGES. From and after the date of
delivery of the Premises from Landlord to Tenant, Tenant will carry and
maintain, at its sole cost and expense, the following types of insurance, in
the amounts specified and in the form hereinafter provided for:
(a) Liability Insurance in the Commercial General
Liability form (or reasonable equivalent thereto) covering the Premises and
Tenant's use thereof against claims for personal injury, bodily injury or
death, property damage and product liability occurring upon, in or about the
Premises, such insurance to be written on an occurrence basis (not a claims
made basis), to be in combined single limits amounts not less than $3,000,000
and to have general aggregate limits of not less than $5,000,000 for each
policy year. The insurance coverage required under this Section 9.1 shall, in
addition, extend to any liability of Tenant arising out of the indemnities
provided for in Section 9.5 and, if necessary, the policy shall contain a
contractual endorsement to that effect. The general aggregate limits under the
Commercial General Liability insurance policy or policies must apply separately
to the Premises and to Tenant's use thereof (and not to any other location or
use of Tenant) and such policy shall contain an endorsement to that effect. The
certificate of insurance evidencing the Commercial General Liability form of
policy shall specify all endorsements required herein and shall specify on the
face thereof that the limits of such policy applies separately to die Premises.
(b) Boiler and machinery insurance in adequate amounts on
all fired objects and other fired pressure vessels and systems maintained by
Tenant which serve the Premises only (if any); and if the said objects and the
damage that may be caused by them or result from them are not covered by
Tenant's extended coverage insurance, then such insurance shall be in an amount
not less than $250,000 and be issued on a replacement cost basis.
(c) Insurance covering all of the items included in
Tenant's leasehold improvements and heating, ventilating and air conditioning
equipment maintained by Tenant under the terms of this Lease, trade mixtures,
merchandise and personal property from time to time in, on or upon the
Premises, and alterations, additions or changes made by Tenant in an amount not
less than one hundred percent (100%) of their full replacement value from-time
to time during the Term, providing protection against perils included within
the standard form of "all-risks' fire and casualty insurance policy, together
with insurance against sprinkler damage, vandalism and malicious mischief. Any
policy proceeds relating to the Premises from such insurance shall be paid to
Landlord and such proceeds shall- be used for the repair, construction and
restoration or replacement of the property damaged or destroyed unless this
Lease shall cease and terminate under the provisions of Section 11 of this
Lease.
(d) Workers' Compensation and Employees Liability
insurance affording statutory coverage and containing statutory limits with the
Employees Liability portion thereof to have minimum limits of $500,000.00.
(e) Business Interruption Insurance equal to not less than
fifty percent (50%) of the estimated gross earnings (as defined in the standard
form of business interruption insurance policy) of Tenant at the Premises which
insurance shall be issued on an "all risks" basis (or its equivalent).
(f) Any other form or forms of insurance or any changes or
endorsements to the insurance required herein as Landlord, or any mortgagees or
lessors of Landlord may require, from time to time, provided such forms of
insurance, changes or endorsements are reasonably necessitated by Tenant's
particular use of the Premises or reasonable business practices.
9.2. INSURANCE POLICY REQUIREMENTS. All policies of the
insurance provided for in this Section 9 shall be issued in form reasonably
acceptable to Landlord by insurance companies with a rating and financial size
of not less than A-X in the most current available
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"Best's Insurance Reports", and licensed to do business in the states in which
Landlord's Building is located. Each and every such policy:
(a) shall name Landlord as an additional insured (as well
as any mortgages of Landlord of which Tenant has received written notice and
any other party reasonably designated by Landlord to Tenant in writing) and the
coverage in (b), (c) and (e) shall also name Landlord as loss payee.
(b) shall (and a certificate thereof shall be delivered
to Landlord at or prior to the execution of the Lease) be delivered to each of
Landlord and any such other parties in interest within thirty (30) days after
delivery of possession of the Premises to Tenant and thereafter within thirty
(30) days prior to the expiration of each such policy, and, as often as any
such policy shall expire or terminate. Renewal or additional policies shall be
procured and maintained by Tenant in like manner and to like extent;
(c) shall be endorsed to contain a provision that the
insurer will give to Landlord, and any ground lessor or Holder (as hereinafter
defined) of which Tenant has received written notice at least thirty (30) days
notice in writing in advance of any material change, cancellation, termination
or lapse, or the effective date of any reduction in the amounts of insurance;
and
(d) shall be written as a primary policy which does not
contribute to and is not in excess of coverage which Landlord may carry.
9.3. BLANKET INSURANCE POLICIES. Any insurance provided
for in this Section 9 may be maintained by means of a policy or policies of
blanket insurance, covering additional items or locations or insureds,
provided, however, that:
(a) Landlord and any other parties in interest from time
to time designated by Landlord to Tenant shall be named as an additional
insured thereunder as their interests may appear;
(b) the coverage afforded Landlord and any such other
parties in interest will not be reduced or diminished by reason of the use of
such blanket policy of insurance;
(c) any such policy or policies shall specify therein (or
Tenant shall furnish Landlord with a written statement from the insurers under
such policy specifying) the amount of the total insurance allocated to the
Tenant's improvements and property; and
(d) the requirements set forth in this Section 9 are
otherwise satisfied.
9.4. WAIVERS. Notwithstanding anything to the contrary
set forth hereinabove, Landlord and Tenant do hereby waive any and all claims
against one another for damage to or destruction of real or personal property
to the extent such damage or destruction can be covered by "all risks" property
insurance of the type described in Section 9.1(c) above. Each party shall also
be responsible for the payment of any deductible amounts required to be paid
under the applicable "all risks' fire and casualty insurance carried by the
party whose property is damaged. These waivers shall apply if the damage would
have been covered by a customary "all risks' insurance policy, even if the
party fails to obtain such coverage. The intent of this provision is that each
,shall look solely to its insurance with respect to property damage or
destruction which can be covered by "all risks" insurance of the type described
in Section 9.1(c). To further effectuate the provisions of this Section 9.4,
Landlord and Tenant both agree to provide copies of this Lease (and in
particular, these waivers) to their respective insurance carriers and to
require such insurance carriers to waive all rights of subrogation against the
other party with respect to property damage covered by the applicable "all
risks" fire and casualty insurance policy.
9.5. INDEMNITIES. Tenant does hereby indemnify and save
harmless Landlord against all claims for damages to persons or property which
are caused anywhere in the
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Premises, the Building or the Common Areas caused by the acts of Tenant, its
agents, officers, directors, managers, members, employees contractors, invitees
or guests or which occur in the Premises (or arise out of actions taking place
in the Premises) except to the extent such damage is caused by the negligence
or willful misconduct of Landlord, its agents, or employees. The foregoing
indemnity obligations of Tenant shall include attorney's fees, investigation
costs and all other costs and expenses incurred by Landlord from the first
notice that any claim or demand has been made or may be made. The provisions of
this Section 9.5 shall survive the termination of this Lease with respect to
any damage, injury or death occurring, before such termination. If Landlord is
made a party to any litigation commenced by or against Tenant or relating to
this Lease or to the Premises, and provided that in any such litigation
Landlord is not finally adjudicated to be at fault, then Tenant shall pay all
reasonable costs and expenses, including reasonable attorney's fees and court
costs, incurred by or imposed upon Landlord because of such litigation, and the
amount of all such reasonable costs and expenses shall be a demand obligation
owing by Tenant to Landlord.
10. DEFAULT AND REMEDIES.
10.1. DEFAULT. If Tenant shall:
(a) fail to pay any Rent herein reserved for more than
five (5) days from the date when due; or
(b) fail to perform any of the terms or provisions of
this Lease other than the provisions requiring the payment of Rent, and shall
not cure such failure within thirty (30) days after written notice is given to
'Tenant by Landlord; or
(c) be adjudicated a bankrupt; or
(d) have a permanent receiver 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; or
(e) whether voluntarily or involuntarily, take advantage
of any debtor relief proceedings under any present or future law, whereby the
Rent or any part thereof, is, or is proposed to be, reduced or payment thereof
deferred; or
(f) have its effects levied upon or attached under
process against Tenant, not satisfied or dissolved within thirty (30) days
after written notice from Landlord to Tenant to obtain satisfaction thereof,
or,
(g) be an individual, in the event of the death of the
individual and the failure of the executor, administrator or personal
representative of the estate of the deceased individual to have assigned the
Lease within three (3) months after the death to an assignee approved by
Landlord; then, and in any of said events (each a "default' or an "event of
default"), Landlord, at its option, may exercise any or all of the remedies set
forth in Section 10.2 below.
10.2. REMEDIES. Upon the occurrence of any default set
forth in Section 10.1 above which is not cured by Tenant within the applicable
cure period provided therein, if any, Landlord may exercise all or any of the
following remedies:
(a) terminate this Lease by giving Tenant written notice
of termination, in which event this Lease shall terminate on the date specified
in such notice and all rights of Tenant under this Lease shall expire and
terminate as of such date, Tenant shall remain liable for all obligations under
this Lease up to the date of such termination and Tenant shall surrender the
Premises to Landlord on the date specified in such notice, and if Tenant fails
to so surrender, Landlord shall have the right, without notice, to enter upon
and take possession of the Premises and to expel and remove Tenant and its
effects without being liable for prosecution or any claim of damages therefor;
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(b) terminate this Lease as provided in the immediately
preceding subsection and recover from Tenant all damages Landlord may incur by
reason of Tenant's default, including without limitation, the then present
value (using a discount rate of the lower of the prime rate published in the
Wall Street Journal immediately prior to such default, and if the Wall Street
Journal or the prime rate therein shall not be published, a comparable index
selected by Landlord shall be used, or the rate of interest then payable on
currently-issued United States Treasury Bills or Notes having a maturity at the
time of the event of default, closest to the scheduled Expiration Date of the
Term) of (i) the total Rent which would have been payable hereunder by Tenant
for the period beginning with the day following the date of such termination
and ending with the Expiration Date of the current Term (or any extended Term
if Tenant shall have exercised an extension option), minus (ii) the aggregate
reasonable rental value of the Premises for the same period, plus (iii) the
costs of recovering the Premises, and all other expenses incurred by Landlord
due to Tenant's default, including without limitation, reasonable attorneys'
fees, plus (iv) the unpaid Rent earned as of the date of termination, plus
interest, all of which sum shall be immediately due and payable by Tenant to
Landlord. In determining the aggregate reasonable rental value pursuant to item
(ii) above, the parties hereby agree that all relevant factors shall be
considered as of the time Landlord seeks to enforce such remedy, including, but
not limited to, (A) the length of time remaining in the then current term, (B)
the then current market conditions in the general area in which the Building is
located, (C) the likelihood of re-letting the Premises for a period of time
equal to the remainder of the current Term, (D) the net effective rental rates
(taking into account all concessions) then being obtained for space of similar
type and size in similar type buildings in the general area in which the
Building is located, (E) the vacancy levels in comparable quality buildings in
the general area in which the Building is located, and (F) current levels of
new construction that will be completed during the remainder of the current
Term and the degree to which such new construction will likely affect vacancy
rates and rental rates in comparable quality buildings in the general area in
which the Building is located. Tenant agrees to pay the aforesaid amount at
once, together with all Rent and all charges and assessments theretofore due to
Landlord;
(c) without terminating this Lease, declare immediately
due and payable the present value (using a discount rate of five percent (5%)
per annum or the rate of interest then payable on currently-issued United
States Treasury Bills or Notes having a maturity at the time of the event of
default closest to the scheduled Expiration Date of the Term) of all Rent due
under this Lease for the entire remaining current Term of this Lease, together
with the costs of recovering and reletting the Premises and all other expenses
incurred by Landlord in connection with Tenant's default plus the unpaid Rent
earned as of the date of termination, plus interest thereon; and Landlord may
immediately proceed to distrain, collect, or bring action for such sum, or may
file a proof of claim in any bankruptcy or insolvency proceedings to enforce
payment thereof; provided, however, that such payment shall not be deemed a
penalty or liquidated damages, but shall merely constitute payment in advance
of all Rent payable hereunder throughout the current Term. and provided
further, however, that upon Landlord receiving such payment, Tenant shall be
entitled either to remain in possession of the Premises or to receive front
Landlord all rents received by Landlord from other assignees, tenants and
subtenants on account of said Premises during the remainder of the current Term
(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 item (c)), less all costs, expenses and attorneys' fees of Landlord
incurred in connection with the reletting of the Promises;
(d) without terminating this Lease, and without notice to
Tenant, Landlord may in its own name, but as agent for Tenant enter into and
take possession of the Premises and re-let the Premises, or a portion thereof,
as agent of Tenant, upon any terms and conditions as Landlord may deem
necessary or desirable (but Landlord shall have no obligation to attempt to
re-let the Premises or any part thereof). Upon any such re-letting, all rentals
received by Landlord from such re-letting shall be applied first to the costs
incurred by Landlord in accomplishing any such re-letting, and thereafter shall
be applied to the Rent owed by Tenant to Landlord during the remainder of the
term of this Lease and Tenant shall pay any
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deficiency between the remaining Rent due hereunder and the amount received by
such re-letting as and when due hereunder;
(e) allow the Premises to remain unoccupied and collect
Rent from Tenant as it becomes due;
(f) pursue such other remedies as are set forth in this
Lease or are available at law or in equity; or
(g) If Landlord exercises any of the remedies set forth
in Section 10.2, in addition to all other costs and expenses Landlord shall be
entitled to recover under this Lease, Landlord shall also be entitled to
recover:
(h) the cost of performing any other covenants which
would have otherwise been performed by Tenant;
(i) the amount of any rental abatement or other rental
concession provided by Landlord to Tenant; provided, however, that in no event
shall Tenant's liability hereunder exceed the total of all Rent due under this
Lease;
(j) all sums expended by Landlord, and not previously
reimbursed to Landlord by Tenant, in connection with improving or repairing the
Premises to Tenant's specifications; and
(k) all costs and expenses incurred by Landlord in
connection with the termination of this Lease and eviction of Tenant.
11. DESTRUCTION OR DAMAGE; CONDEMNATION.
11.1. DESTRUCTION OR DAMAGE. If the Building or the
Premises are (i) totally destroyed by storm, fire, earthquake, or other
casualty, (ii) damaged or destroyed by any casualty to the extent that in
Landlord's reasonable judgment, repair of such damage or destruction would not
be economically feasible, or (iii) damaged to the extent that, in Landlord's
reasonable opinion the damage cannot be restored within one hundred eighty
(180) days of the date the damage occurred, or if the damage is not covered by
standard "all risks" property insurance, or if the Landlord's lender requires
that the insurance proceeds be applied to its loan, Landlord shall have the
right to terminate this Lease effective as of the date of such destruction or
damage by written notice to Tenant on or before sixty (60) days following the
date of such damage and Rent shall be accounted for as between Landlord and
Tenant as of the date of such casualty. Under no circumstances shall Landlord
be liable to Tenant for inconvenience, annoyance, loss of profits, expenses or
any other type of injury or damage resulting from the repair of any such damage
or from any repair, modification, arranging or rearranging of any portion of
the Premises or any part or all of the Building or for termination of the Lease
as provided above. Tenant assumes the risk of any and all damage to its
personal property in or on the Premises and from any casualty whatsoever. If
the Premises are damaged by any such casualty or casualties but Landlord is not
entitled to or does not terminate this Lease as provided above, this Lease
shall remain in full force and effect, Landlord shall notify Tenant in writing
within sixty (60) days of the date of the damage that the damage will be
restored (and will include Landlord's good faith estimate of the date the
restoration will be complete), in which case Rent shall xxxxx from the date of
such casualty as to any portion of the Premises which is not usable, and
Landlord shall restore the Premises to substantially the same condition as
before the damage occurred as soon as practicable, whereupon full Rent shall
recommence.
11.2. CONDEMNATION. If the whole of the Property, the
Building or the Premises, or such portion thereof as will make the Property,
the Building or the Premises unusable for the purposes contemplated hereby in
the reasonable judgment of Landlord for their intended purposes, is condemned
or taken by any legally constituted authority for any public or quasi-public
use or purpose, or by private purchase in lieu thereof, then in either of
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said events, Landlord may terminate this Lease by written notice to Tenant and
the Term hereby granted shall cease from that time when possession thereof is
taken by the condemning authorities, and Rent shall be accounted for as between
Landlord and Tenant as of that date. If a portion of the Building or Premises
is so taken, but not such amount as will make the Premises unusable in the
reasonable judgment of Landlord for the purposes herein leased, or if Landlord
elects not to terminate this Lease, this Lease shall continue in full force and
effect and the Rent shall be reduced pro rata in proportion to the amount of
the Promises so taken. Tenant shall have no right or claim to any part of any
award made to or received by Landlord for such condemnation or taking, and all
awards for such condemnation or taking shall be made solely to Landlord.
12. ADDITIONAL PROVISIONS.
12.1. SERVICE OF NOTICE. From and after the Commencement
Date, and except as otherwise provided by law, notices required or permitted to
be given to Tenant under this Lease shall be sent to Tenant's Address for
Notice After Commencement Date as set forth in the Summary of Lease Terms Prior
to the Commencement Date, all notices required or permitted to be given to
Tenant under this Lease shall be sent to Tenant's Address for Notice Prior to
Commencement Date set forth in the Summary of Lease Terms. Notices to Landlord
shall be sent to Landlord's Address for Notice as set forth in the Summary of
Lease Terms.
All notices given hereunder may be given by certified mail, hand delivery or by
surface or air-express courier service and shall be deemed given when deposited
for delivery by an approved method; provided, however, that the time period for
any response to such notice shall begin to run only upon actual receipt or when
delivery is refused or cannot be accomplished because the party has moved and
has not provided the other party with notice of its new address by notice as
provided herein. Landlord and Tenant may change their address for notice or
appoint up to two (2) additional persons to receive notices hereunder on ten
(10) days prior notice to the other party.
12.2. MORTGAGEE'S RIGHTS.
(a) Tenant agrees that this Lease shall be subject and
subordinate (i) to ally mortgage, deed to secure debt or other security
interest now encumbering the Property and to all advances which may be
hereafter made, to the full extent of all debts and charges secured thereby and
to all renewals or extensions of any part thereof, and to any mortgage, deed to
secure debt or other security interest which any owner of the Property may
hereafter, at any time, elect to place on the Property; (ii) to any assignment
or Landlord's interest in the leases and rents from the Building or Property
which includes the Lease which now exists or which any owner of the Property
may hereafter, at any time, elect to place on the Property; and (iii) to any
Uniform Commercial Code Financing Statement covering the personal property
rights of Landlord or any owner of the Property which now exists or any owner
of the Property may hereafter, at any time, elect to place on the foregoing
personal property (all of the foregoing instruments set forth in (i), (ii) and
(iii) above being hereafter collectively referred to as "Security Documents").
Tenant agrees upon request of the holder of any Security Documents ("Holder")
to hereafter execute any documents which the counsel for Landlord or Holder may
deem necessary to evidence die subordination of the Lease to the Security
Documents. In default of Tenant so doing, Landlord or Holder is hereby
empowered to execute any documents in the name of Tenant evidencing such
subordination, as the act and deed of Tenant, and this authority is hereby
declared to be coupled with an interest and not revocable.
(b) In the event of a foreclosure pursuant to any
Security Documents, Tenant shall at the election of the Landlord, thereafter
remain bound pursuant to the terms of this Lease as if a now and identical
Lease between the purchaser at such foreclosure.("Purchaser'), as landlord, and
Tenant, as tenant, had been entered into for the remainder of the Term hereof
and Tenant shall attorn to the Purchaser upon such foreclosure sale and shall
recognize such Purchaser as the Landlord under the Lease. Such attornment shall
be effective and self-operative without the execution of any further instrument
on the part of any of the parties hereto. Tenant agrees, however, to execute
and deliver at any time and from time to time,
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upon the request of Landlord or of Holder, any instrument or certificate that
may be necessary or appropriate in any such foreclosure proceeding or otherwise
to evidence such attornment.
(c) If the Holder of any Security Document or the
Purchaser upon the foreclosure of any of the Security Documents shall succeed
to the interest of Landlord under the Lease, such Holder or Purchaser shall
have the same remedies, by entry, action or otherwise for the non-performance
of any agreement contained in the Lease, for the recovery of Rent or for any
other default or event of default hereunder that Landlord had or would have had
if any such Holder or Purchaser had not succeeded to the interest of Landlord.
Any such Holder or Purchaser which succeeds to the interest of Landlord
hereunder, shall not be (a) liable for any act or omission or any prior
Landlord (including Landlord); or (b) subject to any offsets or defenses which
Tenant might have against any prior Landlord (including Landlord); or (c) bound
by any Rent which Tenant might have paid for more than the current month to any
prior Landlord (including Landlord); or (d) bound by any amendment or
modification of the Lease made without its consent. Nothing herein contained
shall be construed to permit any Holder to terminate the enjoyment by Tenant of
the Premises so long as the Tenant is not in default under the Lease, provided
the Holder of the Security Documents has approved the Lease.
(d) Tenant hereby acknowledges that if the interest of
Landlord hereunder is covered by an assignment of Landlord's interest in Lease,
Tenant shall pay all Rent due and payable under the Lease directly to the
holder of the assignment of Landlord's interest in Lease upon notification of
the exercise of the rights thereunder by the Holder thereof.
(e) Notwithstanding anything to the contrary set forth
in this Section 12.2, the Holder of any Security Documents shall have the
right, at any time, to elect to make this Lease superior and prior to its
Security Document. No documentation, other than written notice to Tenant, shall
be required to evidence that the Lease has been made superior and prior to such
Security Documents, but Tenant hereby agrees to execute any documents
reasonably requested by Landlord or Holder to acknowledge that the Lease has
been made superior and prior to the Security Documents.
12.3. GOVERNMENTAL REGULATIONS.
(a) Tenant shall, at its own expense, promptly comply
with all requirements of any legally constituted governmental or public
authority made necessary by reason of Tenant's occupancy of the Premises.
(b) Tenant waives the benefits of all existing and
future rent control legislation and statutes and similar governmental rules and
regulations, whether in time of war or not, to the full extent permitted by
law.
(c) Except as provided in paragraph (d) of this Section
12.3, if, in order to maintain the Building as an office building, or
the Premises for the use stipulated herein, Landlord shall be required by any
governmental authority to repair, alter, remove, construct, reconstruct, or
improve any part or all of the Premises or the Building, such action shall be
performed by Landlord but shall in no way affect Tenant's obligations under
this Lease. Tenant waives all claim for injury, damage or abatement of Rent
because of such repair, alteration, removal, construction, reconstruction, or
improvement; provided, however, that if such action by Landlord renders the
Premises untenantable, and if Landlord cannot reasonably complete such acts
within one hundred eighty (180) days after notice to it to perform such acts by
the governmental authority, either Landlord of Tenant, by written notice to the
other delivered not later than seventy (70) days after the date of notice to
Landlord by such governmental authority, may terminate this Lease, in which
event Rent shall be apportioned and paid up to and including the date the
Premises become untenantable if terminated by Landlord, but up to and including
the date of termination if terminated by Tenant.
(d) Without limiting the provisions of Section 12.3(d)
Tenant shall, at Tenant's sole cost and expense but subject to Landlord's prior
written approval, which
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approval shall not be unreasonably withheld, make each and every alteration or
addition to the Premises required to bring the Premises into compliance with
the requirements imposed by the Americans with Disabilities Act, (42 U.S.C.
Section 12101 et. seq.) and any regulations promulgated pursuant thereto ("ADA
Requirements") effective from time to time during the Term, and any period of
holding over by Tenant if:
(i) the requirement for such alteration
or addition arises as a result of:
(1) any alteration of addition by
tenant; or
(2) any violation by Tenant of any ADA
Requirements; or
(3) a special use of the Premises or
any part thereof by Tenant or any assignee or subtenant of Tenant or any
employee, officer, director, member, manager, invitee or guest (including, but
not limited to, use for a facility which constitutes, or, if open to the public
generally, would constitute, a "place of public accommodation" under the ADA
Requirements); or
(4) the special needs of the
employee(s) of Tenant or any assignee or subtenant of Tenant; or
(ii) the ADA Requirements would otherwise make
Tenant, rather than Landlord, primarily responsible for making such alteration
or addition.
12.4. ABANDONMENT OF PREMISES. Tenant agrees not to
abandon or vacate the Premises during the term of the Lease and to use said
Premises for the purpose herein leased until the expiration hereof.
12.5. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, without the prior written consent
of Landlord, assign, hypothecate, or otherwise transfer 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 Tenant. Landlord's consent or
refusal to consent to a proposed assignment or sublease must be an action which
is taken reasonably and in good faith. For the purposes of the immediately
preceding sentence, Landlord shall be deemed to be acting reasonably and in
good faith in determining whether to consent to a proposed assignment or
sublease when Landlord considers such factors as, without limitation, the
identity and business reputation of the proposed assignee or subtenant, the
relationship of the proposed assignee or subtenant's business, the
creditworthiness of the proposed assignee or subtenant, and any agreement or
leasing restrictions with existing tenants or other third parties that prohibit
or restrict Landlord from leasing to the proposed assignee or subtenant. Tenant
agrees to pay to Landlord as Additional Rent, on demand, a Five Hundred Dollar
($500.00) administrative processing fee in connection with any request by
Tenant for consent to a proposed assignment or subletting and, in addition,
reasonable out-of-pocket costs incurred by Landlord (including without
limitation, attorneys' fees) in connection with any request by Tenant for
Landlord to consent to any assignment or subletting by Tenant. All monies so
paid shall be non-refundable in any event, regardless of whether Landlord
consents to the proposed assignment or subletting. Any assignment or sublease
shall not nullify these provisions, and all later assignments or subleases
shall be made likewise only after the prior written consent of Landlord is
obtained in each instance.
(b) No sublease or assignment by Tenant shall relieve
Tenant of any liability hereunder. Without limiting the foregoing, if, with
consent of Landlord, this Lease is assigned or the Premises or any part thereof
is sublet or occupied by any party other than Tenant, Landlord may, after
default by Tenant, collect rent from the assignee, subtenant or occupant, and
apply the net amount collected to the Rent herein reserved, but no such
assignment, subletting, occupancy, or collection shall be deemed (i) a waiver
of any of Tenant's covenants
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contained in this Lease, (ii) the acceptance by Landlord of the assignee,
subtenant, or occupancy as Tenant hereunder, or (iii) the release of Tenant
from further performance by Tenant of its covenants under this Lease.
(c) The assignment or transfer of a controlling interest
in Tenant or the occupancy of the Premises by any successor firm or entity of
the Tenant or by any firm or entity into which or with which the Tenant may
become merged or consolidated shall be deemed an assignment of this Lease
requiring the prior written consent of Landlord.
(d) Notwithstanding the giving by Landlord of its
consent to any assignment or sublease with respect to the Premises, no such
assignee or sublessee may exercise any expansion option, right of first refusal
option, or renewal option under this Lease, nor shall any such party have the
benefit of any specific signage or other similar privileges or rights which may
be provided to Tenant under this Lease except in accordance with a separate
written agreement entered into directly between such assignee or sublessee and
Landlord. After a permitted assignment or subletting, the original Tenant shall
have no right to exercise on behalf of a permitted assignee or sublessee as to
the space assigned or sublet any expansion option, right of first refusal
option or renewal or extension option.
(e) Should Landlord permit any assignment or subletting
by Tenant and should the monies received as a result of such assignment or
subletting (when compared to the monies still payable by Tenant to Landlord) be
greater than Landlord would have received hereunder had not Landlord permitted
such assignment or subletting, then fifty percent (50%) of the "Gross Profit"
shall be payable by Tenant to Landlord, it being the parties' intention that
Landlord, in consideration of Landlord's permitting such assignment or
subletting, shall receive fifty percent (50%) of any Gross Profit from any such
assignment or subletting. Further, should the assignment or subletting giving
rise to the Gross Profit be arranged by Landlord (or its Manager) on Tenant's
behalf (if being understood that neither Landlord nor its Manager shall have
any obligation to arrange for same), one hundred percent (100%) of the Gross
Profit shall be paid to Landlord.
12.6. TENANT'S ESTOPPEL. Tenant shall, from time to time,
upon not less than ten (10) days prior written request by Landlord, execute,
acknowledge and deliver to Landlord a certificate substantially in the same
form as the Estoppel Certificate which is attached hereto as Exhibit G. Each
certificate delivered pursuant to this Section may be relied upon by any
prospective purchase or transferee of Landlord's interest hereunder or of any
part of Landlord's property or any holder or prospective Holder of any Security
Documents.
12.7. ATTORNEY'S FEES AND HOMESTEAD. If any Rent owing
under this Lease is collected by or through an Attorney at Law, Tenant agrees
to pay fifteen percent (15%) thereof as attorney's fees. Tenant waives all
homestead rights and exemptions which he may have under any law against any
obligations owing under this Lease and Tenant hereby assigns to Landlord his
homestead and exemption.
12.8. PARKING. Tenant shall be entitled to use up to the
maximum number of parking spaces stipulated in the Summary of Lease Terms in
the parking facilities located on the Property in common with and on the same
basis as the other tenants in the Building. Parking spaces shall be unassigned
and shall be leased at the posted monthly rental rates in effective therefor
from time tot time. If less than the maximum number of spaces allowed hereunder
are leased by Tenant as of the Commencement Date or any time thereafter, Tenant
shall forfeit permanently any rights to spaces not so leased. Landlord and
Tenant agree and Tenant acknowledges that rates for spaces in parking
facilities of the Complex may vary according to the location of the spaces in
the facilities and according to whether or not spaces are reserved or
unreserved. Tenant further acknowledges and agrees that landlord may designate
certain spaces within the parking facilities of the complex as reserved or
assigned spaces for the benefit of Landlord, visitors to the Complex or tenants
therein, other tenants, couriers and delivery services and other persons.
Tenant shall comply and cause its employees to comply with all rules and
regulations established by Landlord and/or the operator of the parking
facilities including, without limitation, any card, sticker or other
identification system
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whether now or hereafter in affect and agrees to pay to Landlord a deposit for
each parking card issued in the amount of Fifteen Dollars ($15.00), which rate
is subject to change from time to time. All parking privileges granted pursuant
to this Section 12.8 are non-assignable and non-transferable by Tenant,
provided, however, that parking privileges may be assigned or transferred by
Tenant in conjunction with a transfer, assignment or subletting allowed by
Section 12.5 of this Lease. Tenant agrees to pay, as additional rent, the sum
of $14.00 (which rate is subject to change from time to time) for any parking
card, sticker or other identification instrument which becomes lost, mutilated
or destroyed. Tenant's invitees shall be entitled to use such parking
facilities on a first-come, first-served basis by paying the posted hourly
rate. Landlord reserves the right to build improvements upon, reduce the size
of, relocate, reconfigure, eliminate, and/or make alterations or additions to
such parking facilities at any time.
12.9. STORAGE. If Landlord makes available to Tenant any
storage space, anything stored therein shall be wholly at the risk of Tenant,
and Landlord shall have no responsibility of any character in respect thereto.
12.10. WASTE DISPOSAL.
(a) All normal trash and waste ( i.e., waste that does
not require special handling pursuant to subparagraph (b) below) shall be
disposed of through the janitorial service.
(b) Tenant shall be responsible for the removal and
disposal of any waste deemed by any governmental authority having jurisdiction
over the matter to be hazardous or infectious waste or waste requiring special
handling, such removal and disposal to be in accordance with any and all
applicable governmental rules, regulations, codes, orders or requirements.
Tenant agrees to separate and xxxx appropriately all waste to be removed and
disposed of through the janitorial service pursuant to (a) above and hazardous,
infectious or special waste to be removed and disposed of by Tenant pursuant to
this subparagraph (b). Tenant hereby indemnifies and holds harmless Landlord
from and against any loss, claims, demands, damage or injury Landlord may
suffer or sustain as a result of Tenant's failure to comply with the provisions
of this subparagraph (b).
12.11. BROKERS. Except with respect to Landlord's Broker
(whose commission Landlord shall pay) and Tenant's Broker (if any) (to whom
Landlord's Broker is obligated to pay a portion of such commission in
accordance with a separate written agreement between Landlords' Broker and
Tenant's Broker), Tenant and Landlord each represent and warrant to the other
that no Broker, agent, commission, salesman or other person has represented the
warranting party in the negotiations for and procurement of this Lease and of
the Premises, and that no commissions, fees or compensation of any kind are due
and payable in connection therewith to any such person or entity. The
individual(s) executing this Lease on behalf of Tenant hereby swear to and for
the benefit of Landlord and any lender of Landlord holding a lien or security
title interest in and to all or any portion of the Property, any attorneys
certifying title to the Property and any title insurance company insuring title
to all or any portion of the Property that (a) except for Tenant's Broker, if
any, (ii) all fees, commission, compensation or other amounts payable to any
real estate brokers engaged by Tenant in connection with the Lease have been
paid in full or (ii) the rights of any and all real estate brokers engaged by
Tenant to file any lien, notice of lien or claim of lien under O.C.G.A. Section
00-00-000 et. seq. have been waived in writing by such broker and (b) except
for the commission payable by Landlord to Tenant's Broker, in accordance with a
separate written agreement between Landlord's Broker and Tenant's Broker, if
any, all fees, commissions, compensation or other amounts payable to Tenant's
Broker in connection with this Lease have been paid in full. Each party further
warrants that any compensation arrangement with the parties excepted from the
foregoing warranty have been reduced to writing in its entirety and a separate
agreement signed simultaneously with or before this Lease by the party against
whom commission or compensation is charged. Each party agrees to indemnify and
hold the other harmless from and against any claim for any such commissions,
fees or other form of compensation by any such third party claiming through the
indemnifying party, including,
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without limitation, any and all claims, causes of action, damages, costs and
expenses (including attorneys' fees and expenses) associated therewith.
12.12. SALE OF BUILDING. In the event of any sale or sales
of the Building (and the property on which same is situated) or of any ground
lease thereof, the Landlord named herein above shall be and hereby is entirely
freed and relieved of all covenants and obligations of Landlord hereunder
during the period such party has possession of the Building. Should the entire
Building and the property on which same is situated be severed as to ownership
by sale and/or lease, then the owner of the entire Building or the lessee of
the entire Building that has the right to lease space in the Building to
tenants shall be deemed the "Landlord." Tenant shall be bound to any succeeding
Landlord for all the terms, covenants and conditions hereof and shall execute
any attornment agreement not in conflict herewith at the request of any
succeeding Landlord. The provisions of this Section 12.2 shall apply to each
and every sale, lease or other transfer of the Building or the property on
which same is situated, or both during the Lease Term.
12.13. TRANSFER OF TENANTS. Landlord hereby reserves the
right at its sole option and upon giving at least sixty (60) calendar days
written notice in advance to Tenant, to transfer and remove Tenant from the
Premises from time to time to any other available space in the Complex of
substantially equal area, which space shall, once Tenant has been relocated
therein, be deemed "Premises" for purposes of this Lease. Landlord hereby
agrees to bear the expense of such transfer and removal, as well as the expense
of renovations or alterations which are necessary to make the new space conform
substantially in layout and appointment with the Premises. Failure of Tenant to
cooperate with Landlord pursuant to this provision and to remove itself from
the Premises shall permit Landlord to enter the Premises and to remove Tenant
and its property therefrom and to relocate Tenant and its property in the new
space provided by landlord pursuant to this provision, all without being liable
to Tenant in any manner whatsoever for such acts, except for the expenses which
are expressly provided in this Section 12.13 to be paid by Landlord.
12.14. ALTERATION OF COMMON AREAS. Landlord reserves the
right in its sole discretion to redesign, change, rearrange, alter,
reconstruct, modify, expand, reduce or supplement any and all of the facilities
designed for the common use and convenience of the tenants of the Complex
and/or the Building, including without limitation, parking areas, driveways and
other Common Areas, so long as access to the Premises is not materially and
adversely affected thereby. In furtherance, and no in limitation, of the
foregoing, Landlord shall have the right to erect additional buildings or other
improvements in the Complex or to add to or otherwise modify buildings and
facilities now or hereafter existing in the Complex and in connection with any
such activity and reconstruction, to erect temporary scaffolds and other aids
to construction on the exterior of the Premises, provided that access to the
Premises shall not be denied Tenant and that there shall be no encroachment
upon the interior of the Premises. Landlord shall have the right to close the
Common Areas or any portion thereof (including without limitation, all
roadways, driveways, accessways, sidewalks and parking areas and facilities now
or hereafter within the Complex) at such time and in such manner as is
necessary or appropriate, in Landlord's sole opinion, to prevent their
dedication as public rights-of-way or streets and to do and perform such other
acts in, to and with respect to the Common Areas as at the time in question are
within good and generally accepted standards of operation of mixed-use
developments. Any elimination or shutting off of light, air or view by any
structure which may be erected on lands adjacent to the Building shall in no
way affect this Lease and Landlord shall have no liability to Tenant with
respect thereto.
12.15. NO ESTATE IN LAND. This contract shall create the
relationship of landlord and tenant between Landlord and Tenant; no estate
shall pass out of Landlord; Tenant has only a usufruct, not subject to levy or
sale, and not assignable by Tenant except with Landlord's consent or as
otherwise expressly provided herein.
12.16. CUMULATIVE RIGHTS. All rights, powers and
privileges conferred hereunder upon the parties hereto shall be cumulative but
not restrictive to those given by law.
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12.17. PARAGRAPH TITLES. The paragraph titles used herein
are not to be considered a substantive part of this Lease, but merely
descriptive aids to identify the paragraph to which they refer. Use of the
masculine gender includes the feminine and neuter, and vice versa, where
necessary to impart contextual continuity.
12.18. SEVERABILITY; INTERPRETATION. Each clause and
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by applicable law; however, if any clause or provision of this Lease
is or becomes illegal, invalid or enforceable because of present or future laws
or any rule or regulation of any governmental body or entity, effective during
the Term, the intention of the parties hereto is that the remaining terms and
provisions of this Lease and the application of such terms and provisions to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, unless the amount of Rent payable
hereunder is thereby decreased, in which event Landlord may terminate this
Lease. Should any of the provisions of this Lease require judicial
interpretation, it is agreed that the court interpreting or construing same
shall not apply a presumption that the terms of any such provisions shall be
more strictly construed against one party by reason of any rule of construction
that a document is to be construed more strictly against the party who itself
of through its agent prepared the same, it being agreed that the agents of all
parties have participated in the negotiation and preparation of this Lease.
12.19. DAMAGE OR THEFT OF PERSONAL PROPERTY. All personal
property brought into the Premises shall be at the risk of the Tenant only and
Landlord shall not be liable for theft thereof or any damage thereto occasioned
by any acts of co-tenants, or other occupants of the Building, or any other
person.
12.20. HOLDING OVER. In the event Tenant remains in
possession of the premises after the expiration of the Term hereof, or of any
renewal term, with Landlord's written consent, Tenant shall be a tenant at will
and such tenancy shall be subject to all the provisions hereof, except that the
monthly rental shall be at the higher of double the monthly Base Rent payable
hereunder upon such expiration of the Term hereof, or of any renewal term, or
double the then current fair market rental value of the Premises. In the event
Tenant remains in possession of the Premises after the expiration of the Term
hereof, or any renewal term, without Landlord's written consent, Tenant shall
be a tenant at sufferance and may be evicted by Landlord without any notice,
but Tenant shall be obligated to pay rent for such period that Tenant holds
over without written consent at the same rate provided in the previous sentence
and shall also be liable for any and all other damages Landlord suffers as a
result of such holdover including, without limitation, the loss of a
prospective tenant for such space or claims made by other or prospective
tenants resulting from delay by Landlord in delivering possession of the
Premises to such other or prospective tenants. There shall be no renewal of
this Lease by operation of law or otherwise. Nothing in this Section shall be
construed as a consent by Landlord for any holding over by Tenant after the
expiration of the Term hereof, or any renewal term.
12.21. RULES AND REGULATIONS. The rules and regulations in
regard to the Building, annexed hereto, and all reasonable rules and
regulations which Landlord may hereafter, from time to time, adopt and
promulgate for the government and management of the Building and the Complex,
are hereby made a part of this Lease and shall, during the said term, be in all
things observed and performed by Tenant, his agents, employees and invitees.
12.22. QUIET ENJOYMENT. Tenant, upon payment in full of
the Required Rent and full performance of the terms, conditions, covenants and
agreements contained in this Lease, shall peaceably and quietly have, hold and
enjoy the Premises during the Term; subject, however, to all ground leases,
restrictive covenants, easements and other encumbrances now or hereafter
affecting the Premises, the Building or the Complex (if applicable). Landlord
shall not be responsible for the acts or omissions of any other tenant, Tenant
or third party that may interfere with Tenant's use and enjoyment of the
Premises.
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12.23. ENTIRE AGREEMENT. This Lease contains the entire
agreement of the parties and no representations, inducements, promises or
agreements, oral or otherwise, between the parties not embodied herein shall be
of any force or effect.
12.24. LIMITATION OF LIABILITY. Landlord's obligations and
liability with respect to this Lease shall be limited solely to Landlord's
interest in the Building, as such interest is constituted from time to time,
and neither Landlord nor any partner of Landlord, shall have any personal
liability whatsoever with respect to this Lease.
12.25. SUBMISSION OF AGREEMENT. Submission of this Lease
to Tenant for signature does not constitute a reservation of space or an option
to acquire a right of entry. This Lease is not binding or effective until
execution by and delivery to both Landlord and Tenant.
12.26. AUTHORITY. If Tenant executes this Lease as a
corporation or a limited liability company, each of the persons executing this
Lease on behalf of Tenant does hereby represent and warrant that Tenant is a
duly organized and validly existing corporation or limited liability company
(as the case may be), that Tenant is qualified to do business in the State of
Georgia, that Tenant has full right, power and authority to enter into this
Lease, and that each person signing on behalf of Tenant is authorized to do so.
If Tenant executes this Lease as a partnership, trust or other legal entity,
execution hereof shall constitute a representation and warranty by Tenant that
Tenant has complied with all applicable laws, rules and governmental
regulations relative to Tenant's right to do business in the State of Georgia,
that such entity has the full right and authority to enter into this Lease and
that all persons signing on behalf of Tenant were authorized to do so by any
and all necessary and appropriate partnership, trust or other action. In the
event any such representation and warranty is false, all persons who execute
this Lease shall be individually, jointly and severally, liable as Tenant. Upon
Landlord's request, Tenant shall provide Landlord with evidence reasonably
satisfactory to Tenant confirming the foregoing representations and warranties.
12.27. FORCE MAJEURE. Landlord shall be excused from the
performance of any of its obligations for the period of any delay resulting
from any cause beyond its control, including without limitation, all labor
disputes, governmental regulations or controls, fires or other casualties,
inability to obtain any materials or services or acts of God.
12.28. MULTIPLE TENANTS. If Tenant is composed of more
than one individual or entity, then all such individuals and entities shall be
jointly and severally liable for the due and property performance of Tenant's
duties and obligations arising from or in connection with this Lease.
12.29. TIME IS OF THE ESSENCE. Except as otherwise
specifically provided herein, time is of the essence of this Lease.
12.30. GOVERNING LAW. The laws of the State of Georgia
shall govern the interpretation, validity, performance and enforcement of this
Lease.
12.31. WAIVER OF RIGHTS. No failure or delay by Landlord
to exercise any right or power given it or to insist upon strict compliance by
Tenant with any obligation imposed on it, and no custom or practice of either
party hereto at variance with the terms hereof shall constitute a waiver or
modification of the terms hereof by Landlord or any right it has herein to
demand strict compliance with the terms hereof by Tenant. This Lease contains
the sole and entire agreement of Landlord and Tenant with respect to the
Premises and no prior or contemporaneous oral or written representations or
agreements between the parties and affecting the Premises shall have legal
effect. No representative, agent or employee of Landlord has or shall have any
authority to waive any provision of this Lease unless such waiver is expressly
made in writing and signed by an authorized representative of Landlord.
12.32. SPECIAL STIPULATIONS. The Special Stipulations, if
conflicting, if any, attached hereto are modifications to the terms of this
Lease and such Special Stipulation shall
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control in the event of any conflict with the other provisions of this Lease or
any exhibits hereto.
12.33. LANDLORD'S TRADENAMES. Tenant acknowledges and
agrees that the names "Paces Summit," "Regent Partners, Inc." and "Regent Paces
Ferry Office I, Inc." are registered tradenames of Landlord or affiliates of
Landlord (the "Tradenames") and that Landlord or affiliates of Landlord operate
under the Tradenames. Tenant acknowledges the superior rights of Landlord and
its affiliates to use the Tradenames, and agrees that it will not make use of
the Tradenames or authorize or allow their publication in any materials or
publications generated by Tenant or any affiliates of Tenant without Landlord's
prior written consent.
IN WITNESS WHEREOF, the duly authorized representatives of the parties
herein have hereunto set their hands and seals, the day and year first above
written.
Signed, sealed, delivered and sworn LANDLORD:
to in the presence of: --------
REGENT PACES FERRY OFFICE I,
INC., a Georgia corporation
/s/ Xxxxxxxx Xxxxxxx
--------------------------------------
Notary Public
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxx
My Commission Expires: Title: President
-----------------------------------
December 20, 1997
--------------------------------------
Attest: /s/ Xxxxxxx X. Xxxxxxxxxxxx
------------------------------------------
[Notary Seal] Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Asst. Secretary/Asst. Treasurer
-----------------------------------
(CORPORATE SEAL)
Signed, sealed, delivered and sworn TENANT:
to in the presence of:
Southeast Commerce Holding Co., a
-------------------------------------------------
/s/ Xxxx X. Xxxxxxx Georgia corporation
--------------------------------------
--------------------------------------
Notary Public
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
My Commission Expires: Title: Chairman/CEO
-----------------------------------
February 5, 2001
--------------------------------------
Attest: /s/ Xxxxxx Xxxxxxxx
[Notary Seal] ------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director of Marketing
-----------------------------------
(CORPORATE SEAL)
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SPECIAL STIPULATIONS
These Special Stipulations are attached to and made a part of that
certain Lease Agreement (the "Lease") dated October 14, 1997, by and between
REGENT PACES FERRY OFFICE 1, INC., a Georgia corporation ("Landlord") and
Southeast Commerce Holding Company, a Georgia Corporation ("Tenant"). The
capitalized terms contained in these Special Stipulations have the meaning
attributed to them in the Lease unless otherwise set forth herein. To the
extent there is any conflict or inconsistency between these Special
Stipulations and the Lease, these Special Stipulations shall supersede and
control over any such conflicting provisions.
1. Charter. Tenant is currently in the process of applying to the Office
of Thrift Supervision (the "OTS") to obtain a charter to operate as a federally
insured, federal savings association (the "Charter"). Tenant is also in the
process of raising funds to Meet the capital requirements which will be imposed
on Tenant as a condition to the issuance of the Charter. Landlord shall not be
obligated to incur any costs or expenses or perform any of Landlord's Work
until Tenant shall: have had its Charter finally approved and issued so that
Tenant has full authority to open and conduct a banking business (the
"Chartered Association"). Without limiting the foregoing, Tenant shall provide
to Landlord (i) a copy of its preliminary and final Charter approval from the
OTS, (ii)evidence that the FDIC has approved said Chartered Association for
FDIC provided insurance and (iii) evidence that Tenant has raised all funds
required by the OTS and the FDIC to capitalized the Chartered Association, and
in any event not lea than $5,000,000 (the "Chartered Evidence"), prior to
undertaking Landlord's Work. If Tenant shall not have created a Chartered
Association, and provided to Landlord evidence of same, including without
limitation, the Chartered Evidence prior to April 1, 1998, or if the OTS shall
earlier deny the application for the Charter or the Tenant shall withdraw its
application for the Charter, Landlord shall have the right to terminate this
Lease by providing written notice to Tenant.
2. Tenant Space Plans. Notwithstanding the provisions of Special
Stipulation 1, Landlord and Tenant shall promptly proceed with the preparation
of the Tenant Space Plans as set forth in the Work Letter, but Tenant agrees
that it shall be solely responsible for and pay, on demand, all costs and
expenses related to the preparation of the Tenant Space Plans as incurred. If
the Charter is issued, Tenant will thereafter be reimbursed for the costs and
expenses incurred by Tenant to have the Tenant Space Plans prepared up to the
amount set forth in Section 3 of the Work Letter. If Landlord examines its
right to terminate the Lease set forth in Special Stipulation No. 1, Landlord
shall not be responsible for any costs or expenses related to the Tenant Space
Plans.
3. Assignment to Chartered Association. Once the Charter has been issued,
Tenant may assign the Lease or Landlord may require that the Lease be assigned
to the Chartered Association in accordance with the assignment provisions of
the Lease.
4. Vault and Automatic Teller Machine. The Premises are or will be
comprised of approximately 5,400 rentable square feet of space in the lobby of
the Building, which will include, without limitation, a vault, (the "Vault")
and an automatic taller machine (the "ATM"). The ATM will be affixed to the
exterior of the Building through the Premises. The Tenant Space Plans shall
include plans and specifications for installation of the Vault and the ATM,
which shall be reviewed and approved by Landlord as provided in the Work
Letter. Tenant agrees to keep the ATM in good condition and repair and to
operate the ATM continuously throughout the term of the Lease. In the event
that the ATM is not continuously and actively operated and used (excluding
non-use during periods of ordinary maintenance or repair), Tenant at Landlord's
request and in any event prior to the end of the Term shall remove the ATM and
restore the exterior of the Building to the condition the Building was in prior
to the installation of the ATM, including the replacement or restoration of the
Building facade. Prior to the end of the Term, Tenant shall also remove the
Vault from the Premises, and return the portion of the Premises previously
occupied by the Vault to the condition the Premises were in prior to the
installation of the Vault. Tenant agrees to maintain the area surrounding the
ATM in good order, providing cleaning services to the area at regular intervals
each day to ensure that the area remains free of debris and trash. Tenant
agrees to undertake any and all security measures
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necessary to keep its Premises and the area surrounding the ATM safe and free
of crime, including, but not limited to, the installation of surveillance
cameras and exterior lighting and the posting of security guards as shall be
reasonably necessary or customary in the industry. Tenant agrees to defend,
indemnify and hold harmless Landlord, its partners, agents, officers, managers,
members, directors, employees and representatives as well as their
predecessors, heirs, executors, administrators, legal representatives,
successors and assigns, jointly and individually, of and from and against any
and all actions (civil and criminal) all claims, damages, demands, loss
(including death), liabilities and expenses (including, without limitations,
reasonable attorneys' fees) suffered, asserted against or incurred by Landlord
as a result of use or operation of the ATM or the operation of the Premises as
a Chartered Association.
5. Notwithstanding anything in Section 3 or Exhibit D to the contrary,
the Commencement Date of the Lease shall be April 1, 1998.
6. Provided that the granting of such signage approval shall not after,
or diminish Landlord's right or ability to erec4 the maximum amount of signage
now permitted on the Property, and the property (the "Option Property")
adjacent and to the east of the Property which Landlord currently has an option
to purchase, Tenant may make application to the local governmental authorities
for a variance, special use permit or other appropriate approval or authority
(the "Signage Approval") to allow Tenant to erect separate, free-standing
signage on the Property exterior to the Building along Paces Ferry Road between
the main driveway for the Building and Hillcrest Road ("Tenant's Signage").
Provided Tenant can obtain the Signage Approval without so diminishing
Landlord's sign rights, Landlord will assist Tenant in its pursuit of the
Signage Approval, at Tenant's sole cost and expense, and if obtained, allow
Tenant at Tenant's sole cost and expense to erect Tenant's Signage on the
Property in the area aforesaid. Within 60 days of the execution of the Lease,
Tenant shall submit to Landlord, for Landlord's review and approval, plans and
specifications for Tenant's Signage, including all information regarding the
dimensions, lettering, color, design and structure of Tenant's Signage, which
shall be subject to Landlord's approval. Tenant's rights to Tenant's Signage am
not transferable, except in the event of an assignment of this Lease to the
Chartered Association. In the event that Tenant assigns or sublets the
Premises, other than an assignment of the Lease to the Chartered Association,
which Chartered Association shall have the same rights as Tenant with respect
to the construction and maintenance of Tenant's Signage, Tenant shall
immediately remove Tenant's Signage at Tenant's sole cost and expense, and
repair any damage caused to the Building or the Property resulting from such
removal.
7. Section 12.13 TRANSFER OF TENANTS is hereby deleted.
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EXHIBIT A
Legal Description of Property
ALL THAT TRACTOR PARCEL OF LAND lying and being in Land Lots 769 and 816 of the
17th District, 2nd Section of Xxxx County, Georgia, being more particularly
described as follows:
That certain 4.167-acre tract of land more particularly depicted as "Tract 1"
on that certain subdivision plat dated September 17, 1996, last revised October
24, 1996, recorded in Plat Book 164 at page 77, and rerecorded in Plat Book 164
at page 79, Xxxx County, Georgia records (the "Plat"); the Plat is incorporated
herein by this reference.
TOGETHER WITH all right, title and interest of the owner of said Tract 1 in and
to the easements described in that certain Limited Warranty Deed and Agreement
dated October 31, 1996 between The Bankers Bank and Regent Paces Ferry Office
1, Inc. recorded at Deed Book 9964, Page 133 of the aforesaid records.
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EXHIBIT B
Premises
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EXHBIIT C
RULES AND REGULATIONS
1. The sidewalks, entry passages, corridors, halls, elevators and
stairways shall not be obstructed by Tenants or used by them for any purpose
other than those of ingress and egress. The floors, skylights and windows that
reflect or admit light into any place in said building shall not be covered or
obstructed by Tenants. The water closets 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.
2. No advertisement or other notice shall be inscribed, painted or
affixed on any part of the outside or inside of said building, except upon the
doors, and of such order, size and style, and at such places, as shall be
designated by Landlord. Interior signs on doors will be ordered for Tenants by
Landlord, the cost thereof to be charged to and paid for by Tenants.
3. No Tenant shall do or permit to be done in its Premises. or
bring or keep anything therein, which shall in any way increase the rate of
fire insurance on the Building. or on Property kept therein, or obstruct or
interfere with the rights of other Tenants 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 clerks and servants, shall
maintain order in the Premises and the Building shall not make or permit any
improper noise in (lie Premises or the Building or interfere in any way with
other Tenants, tenants or those having business with them. Nothing shall be
thrown by Tenants, their clerks or servants, out of the windows or doors, or
down the passages or skylights of the Building. No rooms shall be occupied or
used as sleeping or lodging apartments at any time. No part of the Building
shall be used or in any way appropriated for gambling, immoral or other
unlawful practices, and no intoxicating liquor or liquors shall be sold in the
Building.
4. 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 charge of the Premises, except as may be specifically
provided otherwise in the Lease.
5. No animals, birds, bicycles or other vehicles shall be allowed
in the offices, halls, corridors, elevators or elsewhere in the Building,
without the approval of Landlord, except for animals for visually impaired
persons or other disabilities for which animals are utilized.
6. No painting shall be done, nor shall any alterations be made to
any part of the Building or the Promises by putting up or changing any
partitions, doors or windows, nor shall there be any nailing. boring or
screwing into the woodwork or plastering, nor shall any connection be made in
the electric wires or gas or electric mixture without the consent in writing on
each occasion of Landlord; provided however, the Tenant shall have the right to
hang pictures and other decorative art on the interior walls of the Premises.
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 by Tenant or
Tenant's agent, the same shall be immediately replaced or repaired. by Tenant
and put in order under the direction and to the satisfaction of Landlord, or
its agents, and shall be kept whole and in good repair. Tenants shall not
injure, overload, or deface the Building, the woodwork or the walls of the
Promises, nor carry on upon the Premises any noxious, noisy or offensive
business.
7. Two keys will be furnished Tenants without charge. No additional
locks or latches shall be put upon any door without the written consent of
Landlord. Tenants, at the termination of their Lease, shall return to Landlord
all keys to doors in the Building.
8. Landlord in all cases retains the power to prescribe the weight
and position of iron safes or other heavy articles. Tenants must make
arrangements with the superintendent of the
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Building when the elevator is required for the purpose of the carrying of any
kind of freight.
9. The use of burning fluid, camphene, benzene, kerosene or
anything except gas or electricity, for lighting the Premises, is prohibited.
No offensive gases or liquids will be permitted.
10. If Tenants desire blinds, coverings or drapes over the windows,
they must be of such shape, color and material as may be prescribed by
Landlord, and shall be erected only with Landlord's consent and at the expense
of the Tenant desiring them. No awnings shall be placed on the Building.
11. If Tenants require wiring for a xxxx or buzz system, such wiring
shall be done by the electrician of the Building only, and no outside wiring
man shall be allowed to do work of this kind unless by the written permission
of Landlord, or its agent. If telegraphic or telephonic service is desired, the
wiring for same shall be done as directed by the electrician of the Building or
by some other employee of Landlord who may be instructed by the superintendent
of the Building to supervise same, and no boring or cutting for wiring shall be
done unless approved by Landlord or its representatives, as stated.
12. At Landlord's discretion, the Building may be in charge of a
night watchman, and every person entering or leaving the Building may be
questioned by the watchman as to the visitoe3 business in the Building and
shall sign his or her name on a form provided by the Building for so
registering such persons. Landlord shall have no liability with respect to
breaches of the Building security, if any.
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EXHIBIT D
WORK LETTER
To induce Tenant to enter into the Lease (to which this Exhibit D is
attached) and in consideration of the mutual covenants hereinafter contained,
Landlord and Tenant agree as follows:
1. Leased Premises "As-Is." Tenant and Landlord agree and Tenant
acknowledges that the Premises are in all respects being leased by Landlord to
Tenant and shall be accepted by Tenant, in their current "As-Is"/"Where-Is"
condition and that Landlord has and shall have no obligation or duty whatsoever
to make any alterations, repairs or improvements of any kind or nature in or to
the Premises in order to prepare same for Tenant's occupancy, except for such
alterations, repairs or improvements, if any, as may be expressly provided-in
Paragraph 2 below.
2. Landlord's Work. Landlord shall construct or cause to be
construct4 the Premises (the "Work") in accordance with the Tenant Space Plans
(as hereinafter defined). Such construction shall be performed by Metric
Constructors, Inc., as general contractor, or such other general contractor as
Landlord may select (the "Landlord's Contractor"). Tenant shall cause
Landlord's Architect to prepare a preliminary layout, working drawings, plans
and specifications necessary for the build-out of the improvements which will
comprise Tenant's Premises, adequate in detail for Landlord to perform or cause
to be performed the Work, including without limitation, mechanical (sprinkler,
air conditioning, hearings electrical and plumbing) drawings covering
mechanical elements of the Work (such drawings are referred to as the "Tenant
Space Plans"), which Tenant Space Plans shall cover the construction of the
Premises beyond the finish level for the Building described in Exhibit F. The
Tenant Space Plans shall be completed and submitted by Tenant to Landlord
within sixty (60) days of the date of this Lease. The Tenant Space Plans (and
any modifications thereof) shall comply with all governmental standards,
regulations and requirements and shall be subject to Landlord's approval (which
approval shall not be unreasonably withhold, conditioned or delayed).
3. Build-Out Allowance. Landlord will provide to Tenant an
allowance of up to $19.00 per rentable square foot contained within the
Premises for the actual build-out of the Premises pursuant to the Tenant Space
Plans (the "Buildout Allowance") and up to $1.00 per rentable square foot
contained within the Premises for the actual costs of preparation of the Tenant
Space Plans and any changes thereto and any costs necessary to file such plans
with, and obtain the necessary permits and approvals of any governmental
authority having jurisdiction (the "Design Fee Allowance') inclusive,, of a
three percent (3%) construction management fee Tenant and Landlord agree that
the costs for tenant finishes and improvements, and the costs of preparing the
Tenant Space Plans and any modifications thereto in excess of such allowances
set forth above for each shall be paid by. Tenant to Landlord as follows: fifty
percent (50%) of Tenants estimated costs prior to commencement of the Work;
twenty-rive percent (25%) of Tenant's estimated costs within five (5) business
days of Landlord's notice to Tenant that fifty percent (50%) of the
construction is complete and the balance of actual costs upon completion of the
Work and prior to Tenant's occupancy of the Premises. Any additional amounts
which later become due which were not within Landlord's estimate shall be
payable on demand. Should Tenant fail to pay for such excess Tenant finishes as
herein provided, such amount due shall accrue interest at the Interest Rate and
the failure to pay such amount when due shall be an Event of Default.
4. Tenant's Access Prior to Commencement Date. Landlord, at
Landlord's discretion, shall permit Tenant and Tenant's agents to enter the
Premises prior to the Commencement Date of the term of the Lease in order that
Tenant may do such other work as may be required by Tenant to make the Premises
ready for Tenant's use and occupancy. If Landlord permits such entry prior to
such Commencement Date, such permission is conditioned upon Tenant and its
agents, contractors, employees and invitees working in harmony and not
interfering with Landlord and its agents, contractors and employees in doing
the Work or other
2
44
tenants and occupants of the Building. If at any time such entry shall cause or
threaten to cause disharmony or interference, Landlord shall have the right to
withdraw such permission upon twenty-four (24) hours notice to Tenant. Tenant
agrees that any such entry into and occupation of the Premises shall be deemed
to be under all of the terms, covenants, conditions and provisions of the Lease
except as to the covenant to pay the rent and Tenant's acceptance or occupancy
of the Premises for the purposes of determining the Commencement Date, and
further agrees Landlord shall not be liable in any way for any injury, loss or
damage which may occur to any of Tenant's work and installations made in the
Premises or to properties placed therein prior to the Commencement Date of the
term of the Lease, the same being at Tenant's sole risk.
5. Delays in Occupancy. If for any reason, other than Tenant Delays
described below, Landlord cannot or is unable to deliver possession of the
Premises to Tenant on or before the Anticipated Commencement Date in accordance
with and in the condition required by this Work Letter and (lie Lease, the
Least shall not be void or voidable except as provided in the following
sentence, Landlord shall not be liable to Tenant for any loss or damage
resulting from Landlord's failure or delay in so delivering possession of the
Premises, but in such case the Commencement Date shall not occur until Landlord
is able to substantially complete the Work and deliver the Premises to Tenant
in the condition required by this Lease. Further, if for any reason (i)
Landlord shall not have delivered Possession of the Premises to Tenant or (ii)
if the Tenant Delay Completion Date (as hereinafter deemed) shall not have
occurred on or before the date which is six (6) months after the Anticipated
Commencement Date, then this Lease shall be voidable by either party upon
thirty (30) days written notice to the other given at any time prior to
delivery of possession in accordance with this Work Letter and the Lease,
provided that such notice shall be void if possession is delivered within said
thirty (30) day period. If the Lease is voided pursuant to this provision, then
any moneys advanced by Tenant to Landlord shall be returned and the parties
hereto shall have no further rights, claims or obligations under this Lease.
6. Tenant Delays. If the Anticipated Commencement Date occurs, but
Landlord is unable to deliver the Premises to Tenant in accordance with and in
the condition required by this Work Letter and the Lease due to any act,
emission, delay or default by Tenant, including any delays by Tenant in the
submission of plans, drawings, specifications or other information or in
approving any drawings or estimates or in giving any authorization or .approval
("Tenant Delay"), then Landlord shall be deemed to have substantially completed
the Premises on the date the Premises would have been substantially completed
but for such Tenant Delay (the "Tenant Delay Completion Date") and Tenant's
obligation under this Lease, including without limitation, the obligation to
pay Rent shall nonetheless commence on the date which is thirty (30) days after
the Tenant Delay Completion Date (which shall in such case be the Commencement
Date).
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EXHIBIT E
ACKNOWLEDGMENT, ACCEPTANCE AND AMENDMENT
Tenant hereby acknowledges that the Premises demised pursuant to the
Lease to which this Exhibit G is attached (the "Lease"), and all tenant
finish items to be completed by the Landlord, or Landlord's Contractors have
been satisfactorily completed in every respect, except for the punchlist
items set forth below, and Tenant hereby accepts said Premises as
substantially complete and ready for the uses intended as set forth in the
Lease. Landlord shall complete the punchlist items, if any, as soon as is
reasonably possible. Possession of the Premises is hereby delivered to Tonan4
and any damages to walls, ceilings, floors or existing work, except for any
damages caused by Landlord or Landlord's contractors in completing any
punchlist items, shall be the sole responsibility of Tenant.
Tenant and Landlord hereby further acknowledge and agree as follows:
1. The Commencement Date (as defined in the Lease) is 199__ and the
Expiration Date (as defined in the Lease) is _______________, 199__.
2. The exact rentable square feet contained within the Premises is _____
square feet; and if differing from Exhibit A-1 attached to the Lease, the
Premises are as shown and outlined in red on Exhibit C-1 attached hereto.
3. Tenant's Share is ________%.
4. The initial Base Rent payable under die Lease is $__________,
payable in equal monthly installments as provided in the Lease.
5. Rent under the Lease will commence as of ________________________.
6. Tenant intends to occupy the Premises on ___________________________.
7. _____________ (No.) keys to the Premises have been delivered to
Tenant or Tenant's representative.
8. The following punch list items are all that remain to be completed by
Landlord or Landlords contractor:
9. This Acknowledgment, Acceptance and Amendment, when executed by
Landlord and Tenant, shall be attached to and shall become a part of the Lease.
If any provision contained herein conflicts with any provision of the Lease,
the provisions hereof shall supersede and control, and the Lease shall be
deemed modified and amended to conform with the Provisions hereof.
10. Other agreements or modifications:
IN WITNESS WHEREOF, Landlord and Tenant leave Hereunto set their
hands and seals, this ____ day of _______________, 19___.
TENANT: LANDLORD:
------ --------
REGENT PACES FERRY OFFICE I, INC.
---------------------------------
By: By:
------------------------------ -------------------------------
Title: Title:
------------------------ -------------------------
By: By:
------------------------------ -------------------------------
Title: Title:
------------------------ -------------------------
[CORPORATE SEAL] [CORPORATE SEAL]
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EXHIBIT F
BUILDING SHELL CONSTRUCTION
Landlord shall complete the following improvements to the Building in
order for the Building to be considered substantially complete. The Tenant
Space Plans shall cover any additional improvements necessary to complete the
Promises.
(a) Perimeter walls and core walls on the floor on which the
Premises are located completed, taped, bedded and ready for paint finish;
(b) Unfinished concrete floors throughout the Premises broom
clean and ready for Building Standard carpet;
(c) Building Standard 110 Volt 20 amp. power supplied to the
Building core, together with Building Standard power grid installed in coiling;
(d) Men's and Women's restroom facilities including drinking
fountain with Building. Standard finishes (or with such temporary finishes as
to allow the facilities to be used) located oft each floor-on which the
Promises am located;
(e) Building Standard. voice communication speakers, exit
lights, fire extinguishers. and cabinets within the core, and smoke detectors
in accordance with applicable building codes and based on an open office floor
plan on each floor on which the Promises are located;
(f) Telephone distribution room installed with mounting board;
(g) Building Standard 4'x4' ceiling grid system installed
throughout with Building Standard ceiling tile and grid materials to complete
the 2'x2' ceiling grid stocked on floor;
(h) Building Standard sprinkler distribution from main loop to
brass upright sprinkler heads installed at a ratio of one head for each 225
square fed of Usable Area of the Premises based on an open office floor plan;
(i) Thin line (1') aluminum horizontal mini-blinds to cover all
exterior windows;
(j) Building Standard 2' x 4' three inch parabolic light
fixtures stacked on the floor on the basis of 1 fixture for every 80 usable
square feet;
(k) A variable air volume HVAC distribution system with 1
powered induction unit per 1,000 square foot for exterior zones and I variable
air volume unit per 1,500 square foot for interior zones based on a full floor
open office plan, I thermostat connection in the ceiling is provided for each
zone. Low pressure duct work downstream from exterior zone mixing boxes
connected to perimeter diffusers.
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EXHIBIT G
STATEMENT OF TENANT IN RE: LEASE
[Tenant's Letterhead]
Date: ______________________________
---------------------------------
---------------------------------
---------------------------------
---------------------------------
[Mortgage #/Describe Contract]_____________
Prooperty Name ____________________________
Address (including ZIP CODE)_______________
Tenant's Floor and Suite # ________________
Ladies and Gentlemen:
It is our understanding that you have committed to [place a mortgage
upon/acquire an interest in) the subject promises and as a condition precedent
thereof have required this certification of the undersigned:
The undersigned, as Tenant under that certain lease dated
_______________________, made with ______________________, as Landlord, hereby
ratifies the said Lease and certifies that:
1. The "Commencement Date" of said lease is ______________; and
2. the undersigned is presently solvent and free from reorganization
and/or bankruptcy and is in occupancy, open and conducting
business in the premises; and
3. the current base rental payable pursuant to the terms of said
lease is $____________ per annum; and further, additional rental
pursuant to said lease is payable as follows:___________________
_______________________; and
4. said lease is in full force and effect and has not been
assigned, modified, supplemented or amended in any way (except
by agreement(s) dated ____________________), and neither party
thereto is in default thereunder, and
5. the lease described above represents the entire agreement
between the parties as to the leasing of the premises; and
6. the term of said lease expires on ____________________; and
7. all conditions under said lease to be performed by the lessor
have been satisfied, including without limitation, all
co-tenancy requirements thereunder, if any (or state unperformed
conditions); and
8. all required contributions by lessor to lessee on account of
lessee's improvements have been received; and
9. on this date there are no existing defenses or offsets, claims
or counterclaims which the undersigned has against the
enforcement of said lease by the lessor; and
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10. no rental has been paid in advance and no security (except the
security deposit in the amount of $______________) has been
deposited with lessor; and
11. lessee's floor area is ____________ square feet; and
12. the most recent payment of current basis rental was for the
payment due on ________________, 19___, and all basic rental and
additional rental payable pursuant to the terms of the lease
have been paid up to said date; and
13. the undersigned acknowledges notice that lessor's interest under
the lease and the rent and all other sums due thereunder will be
assigned to you [as part of the security for the mortgage loan
by you to lessor in connection with said transfer]. [In the
event the __________________________, as lender, notified die
undersigned of a default under the mortgage and demands that the
undersigned pay its rent and all other sums due under the lease
to lender, lessee agrees that it shall pay its rent and all such
other sums to lender.]
Very truly yours,
---------------------------------
(Lessee)
By:
------------------------------
Its:
-----------------------------
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EXHIBIT H
All that tract or parcel of land situated, lying and being in Land
Lots 769 and 816 in the 00xx Xxxxxxxx, 0xx Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx and
being Tract 2 containing 4.223 acres on that certain subdivision plat for The
Banker's Bank prepared by Xxxxxxxxx Land Surveying, Inc. dated September 17,
1996, last revised October 24, 1996 recorded in Plat Book 164, page 77, Xxxx
County, Georgia, records and rerecorded in Plat Book 164, page 79, aforesaid
records.
TOGETHER WITH easement rights as conveyed in that certain Limited Warranty Deed
and Agreement from The Banker's Bank to Regent Paces Ferry Office 1, Inc. Dated
October 31, 1996 and recorded on or about such date in the Xxxx County, Georgia
records.
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EXHIBIT I
INDEMNIFICATION AND RELEASE AGREEMENT
THIS INDEMNIFICATION AND RELEASE AGREEMENT (the "Agreement") is made
as of this _______ day of _____________, ______, by and between REGENT PACES
FERRY OFFICE I, INC., a Georgia corporation (the "Landlord") and
_________________ _______________, a _________________________ ("Tenant").
WITNESSETH:
WHEREAS, Tenant has entered into a lease agreement dated as of
_______________, 1997 (the "Lease"), with Landlord for the lease of certain
premises located at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 in Xxxx
County, Georgia, as Tenant's said premises are more particularly described in
the Lease (the "Premises");
WHEREAS, in consideration for the use by Tenant of certain exercise
facilities located at the Premises (the "Facilities"), Tenant has agreed to
enter into this Agreement for the benefit of Landlord.
NOW, THEREFORE, for and in consideration of the promises and covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Use of Facilities. In connection with the use of the Facilities, Tenant
acknowledges and agrees to the following:
(a) Tenant, its agents, employees or authorized invitees may use the Facilities
only in accordance with the Rules and Regulations promulgated by Landlord, a
copy of which is attached hereto as Schedule A and made a part hereof, as
Landlord may amend the same from time to time;
(b) The Facilities may be used only by Tenant and the agents, employees and
authorized invitees of the Tenant and only under the terms and conditions
provided herein;
(c) To induce Landlord to allow Tenant to use the Facilities free of charge,
Tenant recognizes and agrees that the condition, operation and use of the
Facilities will be unsupervised by Landlord, and its respective agents,
employees and representatives, and Tenant hereby agrees to indemnify and hold
harmless the Landlord, as set forth below;
(d) All use of the Facilities by Tenant, its agents, invitees or employees is
at the sole risk of each such party using the same, and Landlord shall have no
liability therefor;
(e) Prior to using the Facilities, each person requesting the privilege of
using the Facilities will execute and acknowledge (the "Acknowledgment") of
their assumption of risk and release of Landlord for the use of the Facilities,
a copy of which is attached hereto and made a part hereof as Schedule B; and
(f) Each party using the Facilities has sole responsibility for being aware of
(I) the proper use of the Facilities; (II) the condition of the Facilities;
(III) the limitations of such party in the use of the Facilities; and (IV) the
physical and medical condition of such party, as determined by such party after
consulting with their physician as to the use of the Facilities.
2. Agreement of Tenant. Tenant agrees that only those employees or agents of
Tenant who are designated by Tenant in writing to Landlord and who have
executed an original Acknowledgment and delivered same to Landlord shall have a
security code or be provided with an access card which allows them access to
the Facilities; provided, however, that the Landlord shall not be responsible
for monitoring the identity of the security code holder or
51
access card holder. A disclaimer of liability in the form attached hereto as
Schedule C shall be posted at appropriate and noticeable locations in the
Facilities and Tenant's use and any use by Tenant's agents, employees and
authorized invitees of the Facilities shall be subject thereto. Landlord shall
not provide, and shall be under no obligation, express or implied, to provide,
personnel on site to supervise the Facilities.
3. Indemnification. Tenant shall and does hereby agree to indemnify, defend and
hold harmless Landlord, its partners, agents, officers, directors, employees
and representatives as well as their predecessors, heirs, executors,
administrators, legal representatives, successors and assigns, jointly and
individually, of and from any and all actions (civil and criminal), claims,
damages, demands, loss (including death), liabilities and express (including,
without limitations, reasonable attorneys' fees), except for those arising from
or as a result of any gross negligence or willful misconduct of or material
breach of this Agreement by Landlord or any of its partners, agents, officers,
directors, employees, or authorized representatives, which action, claim,
damage, demand, loss or expense is asserted against Landlord as a result of the
use of the Facilities by Tenant, by the agents, employees or invitees of
Tenant, or by others permitted in the Facilities by Tenant or its agents or
employees.
4. Release. Tenant hereby irrevocably and unconditionally releases, remises,
acquits and forever discharges Landlord, its partners, agents, officers,
managers, members, directors, employees and representatives, as well as their
predecessors, heirs, executors, administrators, legal representatives,
successor and assigns, jointly and individually, of and from any and all
claims, demands, causes of action, obligations, damages, cost, attorneys' fees
and liabilities, whether known or unknown and whether direct, indirect, or
derivative, of whatever kind or nature, except for those arising from or as a
result of any gross negligence or willful misconduct or material breach of this
Agreement by Landlord or any of its partners, agents, officers, managers,
members, directors, employees or authorized representatives, which claims,
demands, causes of action, obligations, damages, costs, attorneys' fees or
liabilities could be asserted in any lawsuit now, or which may accrue at any
time in the future, as a result of the use to the Facilities by Tenant, by the
employees or by others permitted on the Facilities by Tenant, its employees,
agents or invitees.
5. Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their successors, heirs,
and assigns.
6. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Georgia.
7. Entire Agreement. This Agreement constitutes the entire agreement between
the parties hereto. This Agreement may not be enlarged, modified or altered
except in writing and signed by the parties hereto.
IN WITNESS WHEREOF, the duly authorized representatives of Tenant, Landlord
have executed this Agreement as of the day and year above written.
TENANT:
-------------------------------------
By:
----------------------------------
Print Name:
--------------------------
Title:
-------------------------------
[CORPORATE SEAL]
2
52
SCHEDULE TO HEALTH FACILITY INDEMNIFICATION AND RELEASE
AGREEMENT
RULES AND REGULATIONS REGARDING
THE HEALTH FACILITY
1. Only authorized tenants and their personnel may enter this Facility. All
persons must be 18 years of age or older.
2. Anyone using the Facility uses it at HIS OR HER OWN RISK AND ASSUMES FULL
AND COMPLETE RESPONSIBILITY for any injury or loss that might be suffered as a
result of such use.
3. ALL EQUIPMENT AND FACILITIES MUST BE USED IN ACCORDANCE WITH THEIR
INSTRUCTIONS.
4. NO SMOKING ALLOWED in Facility.
5. NO ALCOHOLIC BEVERAGES ALLOWED in Facility.
6. Proper attire must be worn at all times.
7. No equipment shall be removed from the Facility.
8. No permanent locks are to be left on the lockers.
9. No clothes, towels or personal effects are to be left in the Facility.
10. Please keep the Facility SAFE AND CLEAN.
11. Conditions are subject to change without prior notice.
12. Membership can be revoked due to undesirable behavior, abuse of equipment,
or abuse of the Rules and Regulations, and such undesirable behavior is not
limited to the items listed above.
Operating Hours:
Monday through Friday - ______ a.m. through ______ p.m.
53
SCHEDULE B TO HEALTH FACILITY INDEMNIFICATION AND RELEASE
AGREEMENT
RELEASE AGREEMENT
In consideration for the use of the exercise and related facilities
including but not limited to any and all exercise equipment located at the
health facility at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (the
"Facilities") in connection with the leasing of certain premises by
_______________________________, a _____________________ (the "Tenant"), the
undersigned acknowledges and agrees with REGENT PACES FERRY OFFICE I, INC., a
Georgia corporation (the "Landlord") as follows:
1. The undersigned shall have the right to use the Facilities only in
accordance with the Rules and Regulations promulgated by Landlord from time to
time. With his/her signature below, the undersigned acknowledges that he/she
has read, understands and agrees to abide by and comply with all the current
Rules and Regulations and any other Rules and Regulations now or hereafter
promulgated by Landlord.
2. The Facilities may be used only by Tenant, the agents, employees and
authorized invitees of Tenant.
3. In order that the Facilities may be used free of charge, the undersigned
recognizes that the condition, operation and use of the Facilities will be
unsupervised by Landlord, its respective agents, and employees and the
undersigned shall be responsible for any personal injury and any loss of
personal property.
4. All use of the Facilities by Tenant, its agents, employees, authorized
invitees or others is at the sole risk of each such party, and Landlord shall
have no liability therefor, and the undersigned hereby expressly and
unconditionally releases Landlord from all liability, loss cost and expense for
the use by the undersigned of the Facilities.
5. The undersigned acknowledges and agrees that he/she has sole
responsibility for being aware of (i) the proper use of the Facilities, (ii)
the condition of the Facilities; (iii) his/her limitations in the use of the
Facilities, and (iv) the physical and medical condition of such party, as
determined by such party after consulting with their physical as to the use of
the Facilities.
6. Tenant hereby irrevocably and unconditionally releases, remises, acquits
and forever discharges Landlord, its partners, agents, officers, managers,
members, directors, employees and representatives, as well as their
predecessors, heirs, executors, administrators, legal representatives,
successor and assigns, jointly and individually, of and from any and all
claims, demands, causes of action, obligations, damages, cost, attorneys' fees
and liabilities, whether known or unknown and whether direct, indirect, or
derivative, of whatever kind or nature, except for those arising from or as a
result of any gross negligence or willful misconduct or material breach of this
Agreement by Landlord or any of its partners, agents, officers, managers,
members, directors, employees or authorized representatives, which could be
asserted in any lawsuit now, or which may accrue at any time in the future, as
a result of the use to the Facilities by Tenant, by the employees or by others
permitted on the Facilities by Tenant, its employees, agents or invitees.
54
This Release is executed by the undersigned, with full knowledge of
its contents, including, but not limited to, the assumption of risk by the
undersigned for his/her use of the Facilities and the complete and
unconditional release of Landlord from Liability for the use by the undersigned
of the Facilities.
WITNESS: BY:
-------------------------------(SEAL) ----------------------------------
Print Name: Print Name:
-------------------------- -----------------------
Date: Date:
-------------------------------- -----------------------------
2
55
SCHEDULE C
NOTICE
HEALTH FACILITY
PLEASE NOTE:
The equipment in this Health Facility is intended for private use only
by Paces Summit tenants and their employees who have offices located at 0000
Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000. Regent Paces Ferry Office I, Inc.
("Landlord") expressly denies liability for the use of these exercise
facilities, which use shall be at the user's own risk. All tenants and
employees assume full responsibility for the unsupervised use of these exercise
facilities owned and made available by the Landlord and shall hold the Landlord
harmless from any and all loss, claims, injury, damage or liability sustained
or incurred by them resulting therefrom.
If a person has any history of health or medical problems, he or she
should consult a physician before using this Health Facility. All persons
should consult an exercise professional before undertaking a program of
strenuous exercise.
