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EXHIBIT 10.2
LANDLORD'S CONSENT TO SECOND SUBLEASE
June 2, 1999
Charter Behavioral Health Systems, LLC
000 Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxx, Xxxxxxx 00000
Attention: Mr. Xxxx Xxxxx, Senior Director, General Office Services
RE: (1) Prime Lease:
(A) Landlord: Sanctuary Park Realty Holding Company, a
Delaware corporation
(B) Tenant: TheraTx, Incorporated, a
Delaware corporation n/k/a Vencare Rehab
Services, Inc.
(C) Prime Lease: Lease, dated April 25, 1995, between
Regency Park West Associates, L.P., a
Georgia limited partnership, as "Landlord,"
and Tenant, as "Tenant"; as amended by: (a)
that certain First Amendment to Lease (the
"First Amendment"), dated October 25, 1995,
(b) that certain Second Amendment to Lease
(the "Second Amendment"), dated August 12,
1996, and (c) that certain Third Amendment
to Lease (the "Third Amendment"), dated
March 12, 1997 (the Lease, as amended by the
First Amendment, the Second Amendment and
the Third Amendment, is hereinafter
collectively referred to as the "Lease").
(2) Sublease:
(A) Sublessor: TheraTx, Incorporated, a Delaware
corporation n/k/a Vencare Rehab Services,
Inc.
(B) Sublessee: Charter Behavioral Health
Systems, LLC, a Delaware limited liability
company ("Sublessee")
(C) Sublease: Sublease dated April 30, 1998,
between TheraTx, Incorporated and Charter
Behavioral Health Systems, LLC, a copy of
which is attached hereto as Exhibit "A" and
by this reference made a part hereof.
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Charter Behavorial Health Systems, LLC
(3) Second Sublease:
(A) Second Charter Behavioral Health Systems, LLC, a
Sublessor: Delaware limited liability company
("Second Sublessor")
(B) Second: Witness Systems, Incorporated, a Delaware
Sublessee corporation ("Second Sublessee")
(C) Second: Second Sublease Agreement, dated May 28,
Sublease: 1999, a copy of which is attached hereto as
Exhibit "B" and by this reference made a
part hereof (the "Second Sublease")
--------------------------------------------------------------------------------
Gentlemen:
Landlord has succeeded to the interest of Regency Park West Associates, L.P., as
"Landlord" under the Prime Lease. In accordance with your request, when and only
when executed below by Landlord and Sublessor, Landlord and Sublessor shall
hereby grant their consent (this "Consent") to the execution and delivery of the
Second Sublease, subject to the following terms and conditions:
1. This Consent shall not be assignable without the express written
consent of Landlord, Sublessor, Sublessee and Second Sublessor.
2. Nothing herein contained:
(a) shall operate as a representation or a warranty by Landlord or
Sublessor; or
(b) shall be deemed or construed to modify, waive, impair or
affect any of the provisions, covenants, agreements, terms or
conditions contained in the Prime Lease and/or the Sublease,
or to waive any present or future breach thereof, or any of
Tenant's obligations under the Prime Lease and/or Sublessee's
obligations under the Sublease, or any right or remedy of
Landlord against Tenant under the Prime Lease and/or
Sublessor's right or remedy against the Sublessee under the
Sublease or otherwise, or to enlarge or increase Landlord's
obligations or Tenant's rights under the Prime Lease or to
enlarge or increase Sublessor's obligations or Sublessee's
rights under the Sublease or otherwise; or
(c) shall create any privity of contract between Second Sublessee
and Landlord and/or Second Sublessee and Sublessor, except as
set forth herein.
3. The Second Sublease is and shall remain subject and subordinate at all
times to all of the provisions, covenants, agreements, terms and
conditions contained in the Prime Lease and the Sublease, and to all
renewals, modifications, replacement and extensions thereof
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Charter Behavorial Health Systems, LLC
acknowledged and consented to, in writing by Landlord, Sublessor,
Second Sublessor and Second Sublessee.
4. Notwithstanding anything to the contrary in the Second Sublease, this
Consent shall not be deemed or construed as a Consent by Landlord
and/or Sublessor to, or as permitting, any other or further leasing or
subleasing by Tenant, Second Sublessor or anyone claiming under or
through Tenant or Second Sublessor (including, without limitation,
Second Sublessee), and no other or further lease or sublease of the
premises demised by the Second Sublease (the "Second Subleased Space")
or any part thereof, or any assignment of the Second Sublease, or a
modification of the Second Sublease, shall be made by Tenant, Second
Sublessor or anyone claiming under or through Tenant, Second Sublessor
(including, without limitation, Second Sublessee), without Landlord's
and Sublessor's prior written consent in each instance as set forth in
the Prime Lease and the Sublease.
5. Nothing contained in this Consent or in the Second Sublease shall be
deemed to create any landlord-tenant or other relationship between
Landlord and Second Sublessee or Sublessor and Second Sublessee. Except
as may be set forth in the Prime Lease and the Sublease, Landlord and
Sublessor shall have no obligation whatsoever under the Second
Sublease.
6. Except to the extent permitted in the Prime Lease and the Sublease,
nothing in this Consent shall be deemed to constitute Landlord's nor
Sublessor's consent to any signage, alterations, installations or
improvements, if any, specified in the Second Sublease. All such
requests for approval shall be submitted to a approved by the Property
Manager, Xxxxx Xxxx LaSalle Management Services, Inc. All construction
necessary to prepare the Second Subleased Space by Second Subleases is
subject to Landlord's and Sublessor's approval. All such construction
must be designed by architects and engineers approved by Landlord and
Sublessor and performed by contractors and subcontractors approved by
Landlord and Sublessor. All such design and construction must meet all
applicable building, fire and safety codes. Second Sublessor and Second
Sublessee acknowledge that the Second Subleased Space is located on a
floor of the building which is presently designed as a single tenant
floor. Subdivision of such floor into a multi-tenant floor will require
the installation of fire rated walls and other safety and code related
changes. Landlord reserves the right by written notice to Second
Sublessor and Second Sublessee to require the removal of all such
improvements by the Second Sublessor and Second Sublessee at the end of
the term of the Second Sublease.
7. In the event of any inconsistency in the terms and conditions of this
Consent and the terms and conditions of the Second Sublease, the terms
and conditions of this Consent shall govern.
8. Subject to the terms of Section 9 and 10 of this Consent, upon the
expiration or any earlier termination of the term of the Prime Lease or
the Sublease, or in case of the surrender of the Prime Lease by Tenant
to Landlord, or Sublessee to Sublessor, the Second Sublease and its
term shall expire and come to an end as of the effective date of
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Charter Behavorial Health Systems, LLC
such expiration, termination or surrender of the Prime Lease or
Sublease, and Second Sublessee shall vacate the Second Subleased Space
on or before such date. In the event that Second Sublessee fails to
vacate the Second Subleased Space on or before such expiration of the
Second Sublease, Landlord and Sublessor shall be entitled to all the
rights and remedies available to a landlord against a tenant holding
over after the expiration of the term as set forth in the Prime Lease
and/or the Sublease.
9. In the event that the Prime Lease shall expire or terminate during the
term of the Second Sublease for any reason other than condemnation or
destruction by fire or other cause, Landlord may elect, in its sole
discretion, but without any obligation to do so, to continue the Second
Sublease with the same force and effect as if Landlord, as landlord,
and Second Sublessee, as tenant, had entered into a lease as of such
effective date for a term equal to the then unexpired term of the
Second Sublease, and containing the same terms and conditions as those
contained in the Second Sublessee, and Second Sublessee shall attorn to
Landlord and Landlord and Second Sublessee shall have the same rights,
obligations and remedies thereunder as were had by Tenant (as
Sublessor) and Second Sublessee thereunder prior to such effective
date, respectively, except that in no event shall Landlord be: (a)
liable for any act or omission by Tenant or Second Sublessor; (b)
subject to any offsets or defenses which Second Sublessee had or might
have had against Tenant or Second Sublessor; (c) bound by any rent or
additional rent or other payment paid by Second Sublessee to Tenant or
Second Sublessor in advance; or (d) bound by any amendment to the
Second Sublease not consented to in writing by Landlord.
10. In the event that the Sublease shall expire or terminate during the
term of the Second Sublease for any reason other than condemnation or
destruction by fire or other cause, Sublessor may elect, in its sole
discretion, but without any obligation to do so, to continue the Second
Sublease with the same force and effect as if Sublessor, as landlord,
and Second Sublessee, as tenant, had entered into a lease as of such
effective date for a term equal to the then unexpired term of the
Second Sublease and containing the same terms and conditions as those
contained in the Second Sublease, and Second Sublessee shall attorn to
Sublessor and Sublessor and Second Sublessee shall have the same
rights, obligations and remedies thereunder as were had by Sublessee
(as Second Sublessor) and Second Sublessee thereunder prior to such
effective date, respectively, except that in no event shall Sublessor
be: (a) liable for any act or omission by Second Sublessor; (b) subject
to any offsets or defenses which Second Sublessee had or might have had
against Second Sublessor; (c) bound by any rent or additional rent or
other payment paid by Second Sublessee to Second Sublessor in advance;
or (d) bound by any amendment the Second Sublease not consented to in
writing by Sublessor.
11. This Consent is expressly conditioned upon the Second Subleased Space
being used by Second Sublessee solely for the purposes set forth in
Paragraph 5(a) of the Prime Lease and for no other purposes.
12. Prior to Second Sublessee's occupancy of the Second Subleased Space,
Second Sublessor shall submit to Landlord and Sublessor evidence of
insurance certifying Second Sublessee's compliance with applicable
provisions of the Prime Lease.
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Charter Behavorial Health Systems, LLC
13. Second Sublessor agrees to reimburse Landlord and Sublessor for legal
fees and any other costs incurred by Landlord and Sublessor in
connection with its review of the Second Sublease and the giving of
this Consent. Second Sublessee agrees that, prior to taking occupancy
of the Second Subleased Space, it will request that Landlord rekey all
exterior and interior doors in the Second Subleased Space which
currently have locks and will reimburse Landlord for its reasonable,
actual expenses for such rekeying of the Second Subleased Space.
14. Notwithstanding anything to the contrary in the Sublease and Second
Sublease, Tenant shall remain primarily liable to Landlord for any
breaches or liabilities and obligations of "Tenant" under the Prime
Lease and likewise, Sublessee shall remain liable to Sublessor for any
breaches or liabilities and obligations under the Sublease.
15. Second Sublessor and Second Sublessee hereby jointly and severally
agree to indemnify, defend and hold Landlord and Sublessor harmless
from and against any claims made by any broker or finder for a
commission or fee in connection with the Second Sublease.
16. This Consent may be executed in any number of counterparts, any one of
which shall be deemed an original, and all of which shall constitute
one and the same agreement.
17. Upon the return to Landlord of an executed an unaltered original hereof
with the signatures of Tenant, Second Sublessor and Second Sublessee
thereon, Landlord will consider this letter as a request from Second
Sublessor and Second Sublessee for approval of the Second Sublease,
and, if Landlord approves the Second Sublease, it will execute this
Consent where indicated below and this Consent shall, upon delivery to
Sublessor and Second Sublessor, be deemed to be the binding obligation
of each party in respect of all matters herein required on the part of
each such party to be done or performed. This Consent shall not be
effective and Landlord shall not be bound by the terms of this Consent
unless and until this Consent is executed by Landlord and delivered to
Sublessor and Second Sublessor.
Very truly yours,
SANCTUARY PARK REALTY HOLDING
COMPANY, a Delaware corporation
By: [/s/ Illegible]
-----------------------------------
Name: [Illegible]
------------------------------
Title: [Illegible]
------------------------------
Date:
---------------------------------
(Signature Continued on Following Page)
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Charter Behavorial Health Systems, LLC
READ, ACCEPTED AND AGREED TO BY TENANT, SUBLESSEE/SECOND SUBLESSOR, AND SECOND
SUBLESSEE:
TENANT/SUBLESSOR:
THERATX, INCORPORATED,
a Delaware corporation
By: [Illegible]
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
(CORPORATE SEAL)
Date:
---------------------------------
SUBLESSEE/SECOND SUBLESSOR:
CHARTER BEHAVIORAL HEALTH SYSTEMS, LLC,
a Delaware limited liability company
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title:
-----------------------------
(CORPORATE SEAL)
Date: 6/2/99
---------------------------------
SECOND SUBLESSEE:
WITNESS SYSTEMS, INCORPORATED,
a Delaware corporation
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Name: Xxx X. Xxxxxx
------------------------------
Title: CFO
-----------------------------
(CORPORATE SEAL)
Date: 6/2/99
---------------------------------
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Exhibit "A"
to Landlord's Consent to Second Sublease
Charter
SUBLEASE AGREEMENT
April 30, 1998
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TABLE OF CONTENTS
Section Page
1. Sublease........................................................................................1
2. Term............................................................................................1
3. Rent............................................................................................2
4. Alterations.....................................................................................4
5. Assignment and Subletting.......................................................................4
6. Brokers.........................................................................................4
7. Sublessee's Additional Obligations..............................................................4
8. Incorporation by Reference......................................................................4
9. Landlord's Consent..............................................................................5
10. Indemnification.................................................................................5
11. Termination; Default; Remedies..................................................................5
12. Miscellaneous...................................................................................5
12.1 Binding Effect.......................................................................5
12.2 Notices..............................................................................5
12.3 Governing Law........................................................................7
12.4 Entire Agreement.....................................................................7
12.5 Counterparts.........................................................................7
3
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LIST OF EXHIBITS
Exhibit A - Drawing showing location of Subleased Premises
Exhibit B - Copy of Lease and all amendments
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SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is made and entered into as of the
30th day of April, 1998, by and among: (i) THERATX, INCORPORATED, a Delaware
corporation ("Sublessor"), (ii) CHARTER BEHAVIORAL HEALTH SYSTEMS, LLC, a
Georgia limited liability company ("Sublessee").
RECITALS:
A. Pursuant to that certain Lease dated as of April 25, 1995, between
Sublessor as the "Tenant", and Landlord's predecessor, Regency Park West
Associates, L.P. ("Regency"), as amended by a First Amendment to Lease dated
October 25, 1995, a Second Amendment to Lease dated August 12, 1996, and a Third
Amendment to Lease dated March 12, 1997 (as amended, the "Lease"), Landlord has
leased to Sublessor certain real property consisting of a total of approximately
107,695 rentable square feet located on the first, third and fourth floors of a
multi-story precast concrete and glass office building (the "Building") situated
at 0000 Xxxxxxxxx Xxxxxxx in Alpharetta, Georgia (the "Leased Premises").
B. Sublessor desires to sublet a portion of the Leased Premises to
Sublessee, and Sublessee desires to sublet such portion of the Leased Premises
from Sublessor, upon the terms and conditions contained in this Sublease.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the parties
hereto hereby agree as follows:
1. SUBLEASE. Sublessor hereby leases to Sublessee, and Sublessee hereby
leases from Sublessor, that portion of the Leased Premises constituting the
fourth floor of the Building (Lake View I, at Sanctuary Park) consisting of
47,846 rentable square feet (43,695 usable square feet) in the location shown on
the drawing attached hereto and made a part hereof, as Exhibit A, together with
the nonexclusive use of all common areas pertaining thereto (including, but not
limited to Sublessee's proportionate share of all parking space rights of
Sublessor pursuant to the Lease, it being agreed and understood that such spaces
consist of four (4) unreserved and nondesignated spaces for each One Thousand
(1,000) feet of rentable square feet) (all of the foregoing is hereinafter
collectively referred to as the "Subleased Premises").
2. TERM. The initial term (the "Initial Term") of this Sublease shall
commence on June 1, 1998 (the "Commencement Date") and shall continue for a
period of eleven (11) years and six (6) months, ending on November 30, 2009. In
addition, in the event Sublessor does not desire to utilize the Subleased
Premises for its own use following the expiration of the Initial Term, and
providing Sublessee is not then (i.e., as of the date of Sublessor's receipt of
Sublessee's notice of Sublessee's desire to negotiate mutually acceptable terms
and conditions applicable to the renewal of this Sublease) in default or
threatened default, and provided Sublessee has not assigned or sublet all or any
portion of the Subleased Premises, Sublessee shall
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have the right to extend this Sublease for an additional term (the "Renewal
Term") (the Initial Term and the Renewal Term are sometimes hereinafter
collectively referred to as the "Term") of five (5) years, commencing on
December 1, 2009, upon written notice to Sublessor given on or before June 1,
2009, upon the same terms and conditions contained herein, except that the Base
Rent during the Renewal Term shall increase as agreed upon by Sublessor and
Sublessee. If Sublessor and Sublessee have not reached an agreement regarding
the amount of the Base Rent during the Renewal Term by July 1, 2009, then this
Sublease shall terminate upon expiration of the Initial Term. Failure of
Sublessee to provide the above described written notice to Sublessor by June 1,
2009 shall be deemed a waiver by Sublessee of its right to extend this Sublease
for the Renewal Term.
3. RENT. Sublessee shall pay base rent ("Base Rent"), in equal monthly
installments in advance, as follows:
Period (Number of Months) Base Rent Monthly Installment
June 1, 1998 - -0- -0-
November 30, 1998
(six months)
December 1, 1998 - $307,709.55 ($8.575 per $34,189.95 per month
August 31, 1999 rentable square foot)
(nine months)
September 1, 1999 - $273,519.64 ($17.15 per $68,379.91 per month
December 31, 1999 rentable square foot)
(four months)
Thereafter, commencing on January 1, 2000, and continuing for the
remainder of the Initial Term, the Base Rent (as adjusted) shall be adjusted on
January 1 of each year to an amount equal to the Base Rent (as adjusted) in the
immediately preceding calendar year, adjusted by the percentage increase (if
any) in the "Consumer Price Index" (as hereinafter defined) which occurred over
the twelve (12 ) month period immediately preceding the date of each adjustment
(it being agreed and understood, that if the Consumer Price Index decreases,
there will be no such adjustment, and the Base Rent will remain the same as the
prior year).
The term, "Consumer Price Index" shall be the Consumer Price Index for
All Urban Consumers - U.S. City Average for All Items (1982-84 = 100) of the
Bureau of Labor Statistics of the United States Department of Labor. If the
Consumer price Index published by the Department of Labor, Bureau of Labor
Statistics, is changed so that it affects the calculations achieved hereunder,
the Consumer Price Index shall be converted in accordance with a conversion
factor published by the United States Department of Labor, Bureau of Labor
Statistics. If the Consumer Price Index is discontinued or revised during the
Term of this Sublease, such other government index or computation with which it
is replaced for purposes of the Lease shall be used for purposes of this
Sublease. Notwithstanding the foregoing, in no event
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shall the annual effective amount of the Base Rent increase from one calendar
year to the next by more than five percent (5%).
All Base Rent shall be payable in equal monthly installments, on or
before the first (1st) day of each month, in advance. Sublessee shall pay the
sum of One Hundred Thirty Six Thousand Seven Hundred and Sixty Dollars
($136,760.00) to Sublessor, at such time as this Sublease has been fully
executed and Landlord has consented to the same, which amount represents payment
of Base Rent for the months December of 1998 and January, February and March,
1999, of the Initial Term.
In addition to the Base Rent, upon receipt of a written invoice from
Sublessor, Sublessee shall also pay, as and when due, to either Sublessor or to
such party as such amount shall be owed, Sublessee's Share (as that term is
hereinafter defined) of any and all increases over the "Base Amount" required to
be paid by Sublessor, as Tenant's Share under the terms of the Lease, including,
without limitation, all operating expenses, insurances, taxes utilities and
other charges (the "Operating Expenses"). For purposes of this Sublease, the
"Base Amount" shall mean the amount of Operating Expenses of the Building for
the calendar year 1997, and the term, "Additional Rent", shall mean, in addition
to the definition ascribed to that term in the Lease, Sublessee's Share of (i)
the increase (if any) in Landlord's Operating Expenses for the calendar year
1998 as compared with the calendar year 1997 (i.e., the Base Amount, as defined
herein), and (ii) Landlord's estimated increase in operating expenses for the
then current calendar year as compared with the previous calendar year. The
Additional Rent shall be estimated each year, beginning January 1, 1999, and
paid in equal monthly installments, in accordance with, and consistent with, the
Lease. The Additional Rent shall be reconciled by Sublessor at the end of each
calendar year, and Sublessee shall pay to Sublessor the amount of any
deficiency, or Sublessor shall reimburse Sublessee for any overpayment, as the
case may be, in accordance with, and consistent with, the Lease. Sublessee's
Share shall be defined as a fraction, the numerator of which shall be the then
current rentable area of the Subleased Premises (i.e., 47,846 rentable square
feet) and the denominator of which shall be 107,695 rentable square feet (i.e.,
the size of Sublessor's premises under the Lease). Thus 44.43% is defined as
Sublessee's Share, and Sublessee shall be obligated to pay 44.43% of Tenant's
Share, as that term is defined in the Lease.
Sublessor agrees that it will cooperate with Sublessee, and assist
Sublessee as reasonably requested, in obtaining access to Landlord's books and
records for the purpose of verifying the Operating Expenses, pursuant to, and in
accordance with, Section 3(f) of the Lease.
If any payment of Base Rent or other sum due thereunder from Sublessee
to Sublessor remains unpaid for a period of five (5) days after such amount is
due, the amount of such unpaid Base Rent or other payment shall be increased by
a late charge to be paid to Sublessor by Sublessee in an amount equal to five
percent (5%) of the amount of the delinquent Base Rent or other payment.
4. ALTERATIONS. By the execution of this Sublease, Sublessee
acknowledges that it has examined and knows the condition of the Subleased
Premises, and that Sublessee accepts the Subleased Premises in its "as is, where
is" condition, with all faults. Any and all alterations to the Subleased
Premises shall be in accordance with Section 7 of the Lease.
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Sublessor agrees that the audio/video equipment, the large tables
located in the Board Room, and Health Center equipment shall remain in the
Subleased Premises and be included as a part thereof. Sublessee acknowledges and
agrees that it is accepting all of the equipment described in the preceding
sentence in its "as is, where is" condition, with all faults, and Sublessee
further acknowledges the Sublessor makes no warranties or representations
whatsoever with respect to the foregoing equipment (other than warranty of
title).
5. ASSIGNMENT AND SUBLETTING. Sublessee shall not assign, transfer or
further sublease all or any part of its interest in the Subleased Premises
without the consent of both Landlord and Sublessor. The parties acknowledge and
agree that Landlord's and Sublessor's consent to any such Subletting or
assignment shall be in accordance with Section 10 of the Lease, and with the
Section 15 of Exhibit F to the Lease.
6. BROKERS. The parties acknowledge and agree that Xxxx Xxxxxxxx &
Associates ("Xxxxxxxx") represents Sublessee in connection with this Sublease
and Xxxxxx & Associates, LLC ("Xxxxxx") represents Sublessor in connection with
this Sublease.
Sublessor agrees that it shall pay Xxxxxx a real estate commission
equal to one and one-half times (1-1/2) the first full monthly payment of Base
Rent due under this Sublease, plus six percent (6%) of all Base Rent due under
this Sublease during the Initial Term. Sublessor shall pay fifty percent (50%)
of the foregoing commission to Xxxxxx, within thirty (30) days following
execution and delivery of this Sublease by Sublessor and Sublessee and receipt
of Landlord's consent to sublease, and Sublessor shall pay the remaining fifty
percent (50%) of such commission on the Commencement Date. Xxxxxx shall then pay
within five (5) business days, two-thirds of such commissions actually received
from Sublessor to Xxxxxxxx and Xxxxxx shall be entitled to retain one-third of
such commissions. Sublessee shall not be liable or responsible for payment of
any commissions payable under the Sublease.
7. SUBLESSEE'S ADDITIONAL OBLIGATIONS. With respect to the Subleased
Premises, after and incurred from the Commencement Date and throughout the Term,
Sublessee shall be responsible for payment and/or performance(s) as applicable
of all utility and service charges, maintenance, and Tenant's indemnification
and insurance obligations pursuant to the Lease.
8. INCORPORATION BY REFERENCE. The sublease of the Subleased Premises
by Sublessor to Sublessee shall be controlled by the Lease, a copy of which is
attached hereto and made a part hereof, and incorporated herein by this
reference, as Exhibit B. After and incurred from the Commencement Date
throughout the Term, Sublessee agrees to abide by and perform each and every
obligation of Tenant under the Lease with respect to the Subleased Premises. The
sublease by Sublessor to Sublessee shall be governed by this Sublease; provided,
however, that in the event of a conflict between the Lease and this Sublease,
the Lease shall control.
9. [Omitted].
10. INDEMNIFICATION. Sublessee agrees that from and after the
Commencement Date and throughout the Term, it will indemnify Sublessor and hold
Sublessor and Landlord harmless from and against any and all claims, actions,
damages, liabilities, losses and expenses
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(including reasonable attorney's fees) in connection with the loss of life,
personal injury, and/or damage to property arising from or out of any occurrence
in, upon or at the Subleased Premises, or the occupancy or use by Sublessee of
the Subleased Premises, its agents, contractors, employees, wholly or in partly
by any act or omission of Sublease, its agents, contractors, employees,
servants, or concessionaires. Sublessor agrees that from and after the
Commencement Date and throughout the Term, it will indemnify Sublessee and hold
Sublessee harmless from and against any and all claims, actions, damages,
liability, losses and expenses (including reasonable attorney's fees) in
connection with the loss of life, personal injury, and/or damage to the property
arising from or out of any acts or omissions occurring prior to the Commencement
Date and any acts of omission of Sublessor or its agents, employees, successors
or assigns, relating to the Lease or this Sublease.
11. TERMINATION; DEFAULT; REMEDIES. In the event Landlord terminates
the occupancy rights of Sublessor under the Lease, the right of Sublessee to
occupy the Subleased Premises shall also cease and terminate, and this Sublease
shall be null and void. In addition, in the event Sublessee shall fail to pay
any installment of Base Rent or other sums of money payable to Sublessor within
five (5) days after the same is due and payable under this Sublease, or in the
event Sublessee shall breach or fail to comply with any other covenants or
provisions of this Sublease or the Lease on its part to be performed, and such
failure continues for a period of twenty (20) days after Sublessor's written
notice thereof to Sublessee, Sublessor shall have the right to terminate this
Sublease and to bring an action against Sublessee for damages occasioned by such
breach or default, including, but not limited to, reasonable attorney's fees
12. MISCELLANEOUS.
12.1 BINDING EFFECT. All of the terms, conditions, covenants,
stipulations and agreements to be performed by any of the parties hereto shall
be binding upon their respective heirs, successors, legal representatives and
assigns. The parties hereto warrant that they have the express authority to bind
the respective parties to this Sublease.
12.2 NOTICES. All notices, mailing and communications relative
to this Sublease shall be in writing and shall be either personally delivered
and receipted, or delivered by registered U.S. mail, postage prepaid, return
receipt requested, in either event delivered and addressed to the parties as
follows (all notices shall be deemed "received" on the date upon which receipt
is acknowledged in writing, either personally or by return receipt):
If to the Sublessor: TheraTx, Incorporated
0000 Xxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Force, Esq., Vencor, Inc.
Phone: 502/000-0000
Fax: 502/000-0000
15
cc: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxxxx Xxxx & XxXxxxxx PLLC
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Direct Phone: 502/000-0000
Fax: 502/000-0000
If to the Sublessee: Charter Behavioral Health Systems, LLC
Xxxxx 0000
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxx
Direct Phone: 404/000-0000
Fax: 404/000-0000
cc: Xxxx Xxxx, Esq.
Vice President & General Counsel
Charter Behavioral Health Systems, LLC
Xxxxx 000
0000 Xxxxxxxxx Xxxx, XX
Xxxxxxx, XX 00000
Phone: 404/000-0000
Fax: 404/000-0000
cc: Xxxx Xxxxxx, Esq.
Dow, Xxxxxx & Xxxxxxxxx
Suite 0000
Xxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Phone: 770/000-0000
Fax: 770/000-0000
If to Landlord: Sanctuary Park Realty Holding Company
c/o X.X. Xxxxxx Investment Management, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxxxxx
Any party may change its address for receiving notices and communications by
giving the other appropriate written notice thereof.
12.3 GOVERNING LAW. The provisions of this Sublease shall be construed,
enforced and governed in all respects by the laws of the State of Georgia.
12.4 ENTIRE AGREEMENT. This Sublease, together with the exhibits
attached hereto, constitutes the complete and entire understanding and agreement
between the parties
16
hereto with regard to all matters involved in this transaction and supersedes
any and all prior or contemporaneous agreements, whether written or oral.
12.5 COUNTERPARTS. This Sublease may contain more than one
counterpart of the signature page and this Sublease may be executed by affixing
the signatures of each party to one of such counterpart signature pages; all of
such counterpart signature pages shall be read as though one, and they shall
have the same force and effect as though all of the signers had signed a single
signature page.
IN TESTIMONY WHEREOF, WITNESS the signatures of the parties hereto as
of the day, month and year first written above.
CHARTER BEHAVIORAL HEALTH SYSTEMS,
LLC
By: /s/ Xxxxx Xxxxxx
-----------------------------
Title: CFO
-----------------------------
("Sublessee")
17
EXHIBIT A
[Attach drawing showing location of Subleased Premises]
[Architectural Drawing of Office Space - 4th Floor]
18
EXHIBIT B
[Attach copy of Lease and all Amendments]
19
OFFICE LEASE AGREEMENT
THERATX, INC.
00
XXXXXXX XXXX XXXX
OFFICE LEASE AGREEMENT
TABLE OF CONTENTS
1. Leased Premises
2. Term and Possession
3. Monthly Rental
4. Security Deposit
5. Occupancy and Use
6. Compliance with Laws
7. Alterations
8. Repair
9. Liens
10. Assignment and Subletting
11. Insurance and Indemnification
12. Waiver of Subrogation
13. Services and Utilities
14. Estoppel Certificate
15. Holding Over
16. Subordination
17. Re-Entry by Landlord
18. Insolvency or Bankruptcy
19. Default and Remedies
20. Damage by Fire or Other Casualty
21. Condemnation
22. Sale by Landlord
23. Right of Landlord to Perform
24. Surrender of Premises
25. Waiver
26. Parking
27. Notices
28. Certain Rights Reserved to Landlord
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29. Abandonment
30. Successors
31. Attorneys' Fees
32. Corporate Authority
33. Mortgagee Approvals
34. Landlord's Lien
35. Quiet Enjoyment
36. Limitation of Landlord's Liability and
Exculpation of Partners
37. Right to Relocate
38. Disclaimer of Creation of Partnership or
Joint Venture
39. Lease Effective Date
40. Rules and Regulations
41. No Brokers
42. Recording
43. Miscellaneous
44. Special Stipulations
EXHIBITS
A Floor Plan
B Legal Description
B-1 Conceptual Plan
C Leased Premises Improvement Agreement
D Estoppel Certificate
E Rules and Regulations
F Special Stipulations
G Non-Disturbance and Attornment Agreement
22
OFFICE LEASE AGREEMENT
THIS LEASE is made as of this 25th day of April, 1995, between REGENCY
PARK WEST ASSOCIATES, L.P., a Georgia limited partnership (hereinafter called
"Landlord"), and THERATX, INCORPORATED, a Delaware corporation (hereinafter
called "Tenant").
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
those premises thereinafter called "Premises" or "Leased Premises") shown on
Exhibit "A" attached hereto and made a part hereof, being located on the upper
two floors of a multi-story precast concrete and glass office building (the
"Building") constructed on a parcel of land (the "Property") described on
Exhibit "B" attached hereto and made a part hereof.
1. LEASED PREMISES
Net Usable Area of Leased Premises: 73,059 sq. ft.
Net Rentable Area of Leased Premises: 80,000 sq. ft.
Suite Number 400
2. TERM AND POSSESSION
(a) The term of this Office Lease (the "Term" or "Lease Term") shall be
for two hundred forty (240) months (or until sooner terminated as herein
provided), beginning on the "Commencement Date"( as hereinafter defined), except
that if the Commencement Date is other than the first day of a calendar month,
the Term shall be extended for the remainder of the final calendar month
thereof.
(b) The "Commencement Date" shall be (i) July 1, 1996; or (ii) such
later date upon which the improvements in the Leased Premises have been
substantially completed in accordance with the plans and specifications therefor
(other than minor punch list items and any work which cannot be completed on
such date provided such incompletion will not substantially interfere with
Tenant's use of the Leased Premises) and a temporary certificate of occupancy
has been issued by the City of Alpharetta, Georgia, provided, however, the
Commencement Date and the payment of rent hereunder shall be accelerated by the
number of days of any delay resulting from Tenant's request(s) for materials,
finishes or installations, other than provided for in the plans agreed upon by
the parties in accordance with the Leased Premises Improvement Agreement
("Exhibit "C" hereto), which causes Landlord to be delayed in delivering the
Leased Premises.
(c) Landlord agrees to perform the "Improvement Work" to the Premises
as provided in the Leased Premises Improvement Agreement (Exhibit "C" hereto)
with diligence, subject to events and delays due to causes beyond its reasonable
control. Landlord agrees that the Leased Premises and the Building shall at the
Commencement Date comply with applicable building codes and the Americans With
Disabilities Act (42 U.S.C. Section 1201. et sq.) The Leased
23
Premises shall be deemed substantially completed and possession delivered when
Landlord has substantially completed the work to be constructed or installed
pursuant to the provisions of said Leased Premises Improvement Agreement,
subject only to the completion of items on Landlord's punch list (and exclusive
of the installation of all telephone and other communications facilities and
equipment and other finish work to be performed by or for Tenant).
(d) The taking of possession by Tenant shall (subject to any
limitations set forth in the Leased Premises Improvement Agreement) be deemed
conclusively to establish that the Leased Premises have been completed in
accordance with the plans and specifications and are in good and satisfactory
condition as of the date when possession was so taken, latent defects excepted.
3. MONTHLY RENTAL
(a) Tenant shall pay to Landlord, commencing on the Commencement Date
and continuing throughout the Lease Term, initial Monthly Rental of One Hundred
Eight Thousand Four Hundred Sixty-Six and 66/100 Dollars ($108,466.66), said
Monthly Rental (hereinafter also referred to as "Base Rental") being computed by
multiplying "Net Usable Area" (as defined hereafter) by a factor of 1.095 (or,
for multi-tenant floors, by a factor of 1.15), (ii) then further multiplying the
product thereof by Sixteen and 27/100 Dollars ($16.27) per square foot, and then
(iii) dividing the resulting product thereof by 12. Said Monthly Rental shall be
due and payable in equal installments as of the first day of each month during
every year of the Term hereof in lawful money of the United States, without
deduction or offset whatsoever to Landlord or to such other firm or person as
Landlord may from time to time designate in writing. Said rental is subject to
adjustment as provided hereinbelow, provided that in no event shall Monthly
Rental be at any time less than the original base Monthly Rental stated
hereinabove. If this Lease commences on a day other than the first day of a
calendar month, the Monthly Rental for the fractional month shall be
appropriately prorated. Landlord and Tenant agree that Tenant has paid in full
in advance the Monthly Rental for the initial month of the Lease Term and that
full receipt thereof is acknowledged by Landlord.
(b) Tenant recognizes that late payment of any rent or other sum due
hereunder from Tenant to Landlord will result in administrative expense to
Landlord, the extent of which additional expense is extremely difficult and
economically impracticable to ascertain. Tenant therefore agrees that if rent or
any other payment due hereunder from Tenant to Landlord remains unpaid ten (10)
days after said amount is due, the amount of such unpaid rent or other payment
shall be increased by a late charge to be paid Landlord by Tenant in an amount
equal to five percent (5%) of the amount of the delinquent rent or other
payment. The amount of the late charge to be paid to Landlord by Tenant for any
month shall be computed on the aggregate amount of delinquent rents and other
payments, including all accrued late charges then outstanding. Tenant agrees
that such amount is a reasonable estimate of the loss and expense to be suffered
by Landlord as a result of such late payment by Tenant and may be charged by
Landlord to defray such loss and expense. The provisions of this Paragraph shall
not relieve Tenant of the obligation to pay rent or other payments on or before
the date on which they are due: nor do the terms of this Paragraph in any way
affect Landlord's remedies pursuant to
24
Paragraph 19 of this Lease or otherwise at law in the event said rent or other
payment is unpaid after the date due.
(c) "Net Usable Area" is (i) in the case of a single tenancy floor, all
space measured from the inside surface of the outer wall of the Building to the
inside surface of the opposite outer wall, excluding only the areas ("Service
Areas") within the outside walls used for building stairs, fire towers, elevator
shaft flues, vents, pipe shafts, vertical ducts, restrooms, mechanical room,
electrical/telephone room and custodial room, but including any such areas which
are for the specific use of the Tenant such as (but no limited to) special
stairs or elevators, dedicated computer telephone and communications equipment
rooms and (ii) in the case of a multi-tenancy floor, all space excluding those
Service Areas as defined in (i) hereinabove, if any, within the inside surface
of the outer wall of the Building enclosing the tenant occupied portion of the
floor and measured to the midpoint of the walls separating areas leased by or
held for lease to other tenants or from areas devoted to corridors, elevator
lobbies, restrooms and other similar facilities for the use of all tenants on
the particular floor.
No deductions from Net Usable Area are made for columns
necessary to the Building. The Net Usable Area in the Leased Premises and in the
Building have been calculated on the basis of the foregoing definition and are
hereby stipulated above as to the Leased Premises, whether the same should be
more or less as a result of minor variations resulting from actual construction
and completion of the Leased Premises for occupancy so long as such work is done
substantially in accordance with the approved plans.
(d) Commencing July 1, 1997, then on January 1, 1998 and on each
January 1 thereafter during the Lease Term (or as soon thereafter as
practicable), the Monthly Rental specified in this Lease shall be increased by
taking that portion of the Monthly Rental which is not a part of the Operating
Expenses of the Building and multiplying said amount by fifty percent (50%) of
the percentage increase in the Consumer Price Index (the "Index" or "CPT") which
occurred over the yearly period (or in the case of the second such adjustment
only, the six month period) between the applicable month of the calendar year
immediately preceding the calendar year as to which the adjustment is being made
and the applicable month of that year (except that in the case of the second
adjustment only, fifty percent (50%) of the percentage increase in said Index
occurring between the end of June, 1997 and the end of December, 1997). The
increase in Monthly Rental as determined above for each given calendar year or
other period shall be accumulated over the Lease Term, and the cumulative annual
additions to Monthly Rental shall be added to the initial Base Rent figure set
out above to determine, for each succeeding calendar year, the annual increase
in Monthly Rental. (See the further explanation and formula set out at Paragraph
19 of the Special Stipulations, Exhibit "F"). If the Monthly Rental cannot be
calculated by the end of any calendar year because of the unavailability of the
then current Index, Tenant shall continue to pay the then existing Monthly
Rental and the Landlord shall prepare as soon as practicable (but in no event
later than April 1 of each successive calendar year) a statement reflecting the
increase in Monthly Rental for the calendar year in question. Within ten (10)
days following receipt of Landlord's statement. Tenant shall also pay any
amounts due from Tenant because of such adjustments for months in which Tenant
would have paid a greater Monthly Rental had such figure been calculated
earlier. If Tenant's payments have been in excess of the increased Monthly
Rental due, Tenant shall be provided a
25
credit for such excess amount applied to the next installment of Monthly Rental
due by Tenant; provided that, in no event shall Monthly Rentals ever be less
than Initial Monthly Rental.
(e) "Consumer Price Index" shall be the Consumer Price Index for All
Urban Consumers - U.S. City Average for All Items (1982-84 = 100) of the Bureau
of Labor Statistics of the United States Department of Labor. If the Consumer
Price Index published by the Department of Labor, Bureau of Labor Statistics is
changed so that it affects the calculations achieved hereunder the Consumer
Price Index shall be converted in accordance with a conversion factor published
by the United States Department of Labor, Bureau of Labor Statistics. If the
Consumer Price Index is discontinued or revised during the Term of this Lease,
such other government index or computation with which it is replaced or which it
most closely resembles shall be used in order to obtain substantially the same
result as would have been obtained if the Consumer Price Index had not been
discontinued or revised. If the Consumer Price Index is discontinued and no
government index or computation then replaces or closely resembles the same,
Landlord and Tenant shall in good faith agree upon a suitable substitute.
(f) "Operating Expenses of the Building" shall mean all expenses of
every kind, both fixed and viable and including, without limitation any and all
federal, state and local taxes (except income taxes), fees and assessments now
or hereafter existing, as are incurred with respect to the ownership,
management, operation, or maintenance of the Building, all as recorded on an
accrual basis and in accordance with accepted principles of sound management and
accounting practices applicable to first-class office building complexes.
"Tenant's proportionate share of the Operating Expenses of the Building"
(hereinafter "Tenant's Share") shall mean for any period the amount in excess of
Five Dollars ($5.00) per rentable square foot of the Leased Premises determined
by multiplying the Operating Expenses of the Building for such period by a
fraction, the numerator of which shall be the then current Net Rentable Area of
the Leased Premises, and the denominator of which shall be 177,800 square feet,
which is represented by Landlord to be the total rentable area of the Building.
Provided, however, in no event shall operating expenses include: (A) the cost of
any service, e.g., electricity that Landlord sells to tenants and for which
Landlord is entitled to be reimbursed by such tenants; (B) leasing commissions,
attorney fees and other costs and expenses incurred in connection with
negotiations or disputes with tenants or other occupants of the Building or
prospective tenants; (C) the cost of any work or service performed for any
specific tenant of the Building (as distinguished from work or services
performed generally for all tenants); (D) management fees in excess of four
percent (4%) of gross annual collections for the Building; (E) any other
interest or amortization of debt except as specified in the Agreement; (F)
compensation paid to clerks or attendants in concessions or newsstands; (G) any
cost or expense for which Landlord is separately reimbursed or for which
Landlord receives a credit from any other party; or (H) any costs, fines or
penalties incurred due to violations by Landlord of any governmental rule or
authority.
Commencing July 1, 1997, then on January 1, 1998 and on or
about each January 1 thereafter (or as soon thereafter as practicable). Landlord
shall provide Tenant with statements of estimated Operating Expenses for the
calendar year (or, in the case of the second such adjustment only, the six month
period) just ended and the projected Operating Expenses for the current calendar
year or other period and Tenant shall pay as "additional rent" Tenant's Share of
the projected increase therein from the prior year or period to the current year
or period. One-
26
twelfth (1/12) of such projected increase (or, in the case of the second such
adjustment only, one-sixth (1/6) of such projected increase) in Operating
Expenses shall be payable by Tenant monthly in advance. If Landlord has not
furnished Tenant with Landlord's projected Operating Expenses for the then
current year by January 1 (or, in the case of the first such adjustment only, by
July 1, 1997) Tenant shall continue to pay any additional rent on the basis of
the prior year's or period's projected Operating Expenses until the month after
the current year's or period's projected Operating Expenses have been provided
by Landlord. Landlord shall, within one hundred twenty (120) days (or as soon
thereafter as practicable) after the close of each calendar year or period,
provide Tenant an unaudited statement of such year's actual Operating Expenses
compared to the actual initial Operating Expenses. If actual Operating Expenses
are greater than the projected Operating Expenses, Tenant shall pay Landlord,
within thirty (30) days of such statement's receipt, Tenant's Share of the
difference thereof. If such year's or period's projected Operating Expenses are
greater than actual Operating Expenses, Landlord shall credit Tenant with
Tenant's Share of the difference between projected Operating Expenses and the
greater of actual Operating Expenses or initial Operating Expenses. If such
year's actual Operating Expenses are less than the actual Operating Expenses for
the previous year, Tenant's Monthly Rental shall be correspondingly reduced. In
no event, however, shall the Five Dollar ($5.00) factor mentioned hereinabove
ever be reduced or the Monthly Rental be less than Initial Monthly Rental. (See
the formula set out at Paragraph 20 of the Special Stipulations, Exhibit "F").
Landlord shall make Landlord's books and records available to Tenant during
normal business hours and upon reasonable notice by Tenant for review by Tenant:
the cost of said review shall be borne by Tenant unless the actual Operating
Expenses as reported by Landlord are found to have been overstated by an amount
in excess of five percent (5%) in which event the cost of such review shall be
borne by Landlord.
4. SECURITY DEPOSIT [OMITTED]
5. OCCUPANCY AND USE
(a) Tenant shall use and occupy the Premises for general office
purposes and for no other use or purpose without the prior written consent of
Landlord.
(b) Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building or injure or annoy them, nor shall Tenant
use or allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purposes or for any business use or purpose reasonably deemed to
be disreputable or inconsistent with the operation of a first class office
building: nor shall Tenant cause or maintain or permit any nuisance or breach of
the peace, in or about the Premises. Tenant shall not commit or suffer the
commission of any waste in, on, or about the Premises.
6. COMPLIANCE WITH LAWS
Tenant shall be solely responsible for and shall pay promptly and
before delinquent all federal, state, city county and other taxes, license fees
and assessments due or coming due during or after the Term of this Lease against
Tenant. Tenant's interest in this Lease or Tenant's personal property or
intangibles owned, placed in or generated in, upon or about the Premises by
27
Tenant. Tenant shall not use the Premises in a manner which will in any way
conflict with any law, statute, ordinance, or governmental rule or regulation
now in force or which may hereafter be enacted or promulgated. Tenant shall not
do or permit anything to be done on or about the Premises or bring or keep
anything therein which will any way increase the rate of any insurance upon the
Building or any of its contents or cause a cancellation of said insurance or
otherwise affect said insurance in any manner. Tenant shall at its sole cost and
expense promptly comply with all laws, statutes, ordinances, recommendations,
rules and regulations and requirements of governmental, public or private
authorities and agencies, which are now in force or which may hereafter be in
force and with the requirements of any board of fire underwriters or other
similar body now or hereafter constituted as may apply in relation to or
affecting the condition, use or occupancy of the Premises, including without
limitation the Occupational Safety and Health Act, (29 U.S.C. Section 651, et
seq., as amended) and the Americans With Disabilities Act (42 U.S.C. Section
12101, et seq., as amended). Upon demand, Tenant shall pay to Landlord as
additional rent, to be added to any installment of rent thereafter becoming due,
any cost incurred by Landlord in curing any default or meeting any obligation of
Tenant under this Paragraph and Landlord shall have the same remedies for a
default in payment of such sums as for a default in the payment of rent.
7. ALTERATIONS
Tenant shall not make or suffer to be made any alterations, additions,
changes or improvements in, on, or to the Premises or any part thereof without
the prior written consent of Landlord; and any such alterations, additions,
changes or improvements in, on, or to said Premises, except for Tenant's movable
furniture and equipment shall immediately become Landlord's property and, at the
end of the Term hereof, shall remain on the Premises without compensation to
Tenant unless Tenant elects to remove same, in which event Tenant shall do so,
and also restore the Premises to its pre-existing condition at Tenant's sole
cost and expense. In the event Landlord consents to the making of any such
alterations, additions, changes or improvements by Tenant, the same shall be
made by Tenant, at Tenant's sole cost and expense in accordance with all
applicable laws, statutes, ordinances, rules and regulations public and private
and all requirements of Landlord's and Tenant's insurance policies, and in
accordance with plans and specifications approved by Landlord (such approval not
be unreasonably withheld, delayed or conditioned). Any contractor or person
selected by Tenant to make the same and all subcontractors must first be
approved in writing by Landlord or, at Landlord's opinion, the alteration,
addition or improvement shall be made by Landlord for Tenant's account and
Tenant shall reimburse Landlord for the cost thereof upon demand; provided, that
should Landlord elect to perform for Tenant's account, the cost thereof to
Tenant shall be competitive with any preferred estimate previously obtained by
Tenant and provided to Landlord for such alteration, addition or improvements.
Upon the expiration or sooner termination of the Term herein provided, Tenant
may opt to remove any improvements or alteration at Tenant's sole cost and
expense and Tenant shall forthwith and with all due diligence, at its sole cost
and expense, thereupon repair and restore the Premises to their original
condition.
8. REPAIR
By taking possession of the Premises, Tenant accepts the Premises as
being in the condition in which Landlord is obligated to deliver them and
otherwise in good order, condition
28
and repair, latent defects excepted. Tenant shall, at all times during the Term
hereof at Tenant's sole cost and expense, keep the Premises and every part
thereof in good order, condition and repair, excepting ordinary wear and tear,
damage thereto by fire, earthquake, act of God or the elements. Tenant shall
upon the expiration or sooner termination of the Term hereof, unless Landlord
demands otherwise as in this Paragraph provided, surrender to Landlord the
Premises and all repairs, changes, alterations, additions and improvements
thereto in the same condition as when received, or when first installed,
ordinary wear and tear, damage by fire, earthquake, act of God, or the elements
excepted. It is hereby understood and agreed that Landlord has no obligation to
alter, remodel, improve, repair, decorate or paint the Premises or any part
thereof except as specified in Exhibit "C" attached hereto and made a part
hereof and that no representations respecting the condition of the Premises or
the Building have been made by Landlord to Tenant, except as specifically herein
set forth.
9. LIENS
Tenant shall keep the Premises free from any liens arising out of work
performed, material furnished, or obligations incurred by Tenant. In the event
that Tenant shall not, within thirty (30) days following the imposition of any
such lien, cause the same to be released of record by payment or posting of a
proper bond. Landlord shall have, in addition to all other remedies provided
herein and by law, the right, but not the obligation to cause the same to be
released by such means as it shall deem proper, including payment of the claim
giving rise to such lien. All such sums paid by Landlord and all expenses
incurred by it in connection therewith shall be considered additional rent and
shall be payable to Landlord by Tenant on demand and with interest at the rate
per annum of four percent higher than the prime commercial lending rate from
time to time of SunTrust Bank in Atlanta, Georgia; provided, however, that if
such rate exceeds the maximum rate permitted by law the maximum lawful rate
shall apply; the interest rate so determined is hereinafter called the "Agreed
Interest Rate." Landlord shall have the right at all times to post and keep
posted on the Premises any notices permitted or required by law, or which
Landlord shall deem proper, for the protection of Landlord, the Premises, the
Building, and any other party having an interest therein from mechanics' and
materialmen's liens, and Tenant shall give to Landlord at least five (5)
business days prior written notice of commencement of any construction on the
Premises.
10. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not sell, assign, encumber or otherwise transfer by
operation of law or otherwise this Lease or any interest herein, sublet the
Premises or any portion thereof, or suffer any other person to occupy or use the
Premises or any portion thereof, without the prior written consent of Landlord
as provided for herein, not shall Tenant permit any lien to be placed on
Tenant's interest by operation of law; provided that Landlord's consent to
assignment or subletting shall not unreasonably be withheld, delayed or
conditioned. Tenant shall (i) by written notice, advise Landlord of its desire
from and after a stated date (which shall not be less than thirty (30) days or
more than ninety (90) days after the date of Tenant's notice) to assign this
Lease or to sublet the Premises or any portion thereof for any part of the Term
hereof; said notice by Tenant shall state the name and address of the proposed
assignee or subtenant and Tenant shall deliver to Landlord a true and complete
copy of the proposed sublease with said notice; and (ii) supply Landlord with
such information, financial statements, verifications and related
29
materials as Landlord may request or desire to evaluate the written request to
sublet or assign. Within ten (10) business days after Landlord's receipt from
Tenant of all the items specified in the immediately preceding sentence.
Landlord shall have the right, exercisable in its sole discretion to consent to
the proposed subletting or assignment or to disapprove the proposed subletting
or assignment. Tenant shall, at Tenant's own cost and expense, discharge in full
any outstanding commission obligation on the part of the Landlord with respect
to this Lease any commissions which may be due and owing as a result of any
proposed assignment or subletting.
(b) Any subletting or assignment hereunder by Tenant shall not result
in Tenant's being released or discharged from any liability under this Lease. As
a condition to Landlord's prior written consent as provided for in this
Paragraph, the assignee or subtenant shall agree in writing to comply with and
be bound by all of the terms, covenants, conditions, provisions and agreements
of this Lease, and Tenant shall deliver to Landlord promptly after execution, an
executed copy of each sublease or assignment and an agreement of said compliance
by each subtenant or assignee.
(c) Tenant shall reimburse Landlord, within ten (10) days from receipt
of Landlord's invoice, all Landlord's administrative costs and expenses,
including legal fees for reviewing and processing any requests for Landlord's
consent made by Tenant with respect to the subject matter of this Paragraph.
(d) Landlord's consent to any sale, assignment encumbrance, subletting,
occupation, lien or other transfer shall not release Tenant from any of Tenant's
obligations hereunder or be deemed to be a consent to any such subsequent
occurrence. Any sale, assignment, encumbrance, subletting, occupation, lien or
other transfer of this Lease which does not comply with the provisions of this
Paragraph shall be void.
11. INSURANCE AND INDEMNIFICATION
(a) Landlord shall not be liable to Tenant and Tenant hereby waives all
claims against Landlord for any injury or damage to any person or property in or
about the Leased Premises by or from any cause whatsoever, without limiting the
generality of the foregoing, whether caused by water leakage of any character
from the roof, walls, basement, or other portion of the Premises or the
Building, or caused by gas, fire or explosion of the Building or the Office Park
of which it is a part or any part thereof, except as caused by Landlord's
negligence or willful misconduct, as to which Landlord shall indemnify, save and
hold Tenant harmless.
(b) Tenant shall hold Landlord harmless from and defend the Landlord
against any and all claims or liability for any injury or damage to any person
or property whatsoever: (i) occurring in, on, or about the Premises or any part
thereof; (ii) occurring in, on, or about any facilities (including, without
limitation, elevators, stairways, passageways or hallways), the use of which
Tenant may have in conjunction with other tenants of the Building, when such
injury or damage shall be caused in part or in whole by the act, neglect, fault
of, or omission of any duty with respect to the same by Tenant, its agents,
servants, employees or invitees. Tenant further agrees to indemnify and save
harmless Landlord against and from any and all claims by or on behalf of any
work or thing whatsoever done by Tenant in or about or from transactions of
Tenant concerning the Premises and will further indemnify and save Landlord
harmless against
30
and from any and all claims arising from any breach or default on the part of
Tenant in the performance of any covenant or agreement on the part of Tenant to
be performed pursuant to the terms of this Lease, or arising from any act or
negligence of Tenant, or any of its agents, contractors, servants, employees and
licensees and from and against all cost, counsel fees, expenses and liabilities
incurred in connection with any such claim or action or proceeding brought
thereon. Furthermore, in case any action or proceeding be brought against
Landlord by reason of any claims or liability for which Tenant must indemnify
Landlord hereunder. Tenant agrees to defend such action or proceeding at
Tenant's sole expense by counsel reasonably satisfactory to Landlord. The
provisions of this Lease with respect to any claims or liability occurring prior
to expiration or termination of this Lease shall survive any such expiration or
termination.
(c) Tenant agrees to purchase at its own expense and to keep in force
during the term of this Lease a policy or policies of workers' compensation and
commercial general liability insurance, including personal injury and property
damage with contractual liability endorsement in the amount of at least One
Million Five Hundred Thousand Dollars ($1,500,000.00), to be adjusted annually
as Landlord and Tenant may agree, each acting reasonably, combined single limit
per occurrence for personal injuries or deaths of persons occurring in or about
the Premises. Said policies shall: (i) name Landlord as an additional insured
and insure Landlord's contingent liability under this Lease (except for the
workers' compensation policy, which shall instead include waiver of subrogation
endorsement in favor of Landlord); (ii) be issued by an insurance company which
is acceptable to Landlord and licensed to do business in the State of Georgia;
and (iii) provide that said insurance shall not be cancelled unless thirty (30)
days' prior written notice shall have been given to Landlord. Said policy or
policies or certificates thereof shall be delivered to Landlord by Tenant upon
commencement of the Term of this Lease and upon each renewal of said insurance.
(d) Landlord agrees to purchase at its own expense and to maintain
throughout the Lease Term a policy or policies of commercial property and
casualty insurance covering the full insurable value of the Building.
12. WAIVER OF SUBORDINATION
Each of Landlord and Tenant hereby release the other from any and all
liability or responsibility to the other or to anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of insurance covering
such property, even if such loss or damage shall have been caused by fault or
negligence of the other party, or by anyone for whom such party may be
responsible; provided, however, that this release shall be applicable and in
force and effect only to such extent that such releases shall be lawful at that
time and in any event only with respect to loss or damage occurring during such
time as the releasor's policies of insurance shall contain a clause or
endorsement to the effect that any such release shall not adversely affect or
impair said policies or prejudice the right of the releasor to coverage
thereunder, and then only to the extent of the insurance proceeds payable under
such policies. Landlord and Tenant each hereby covenant and agree to cause their
respective insurance carriers to include in their policies such a clause or
endorsement.
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13. SERVICE AND UTILITIES
(a) Landlord shall maintain the public and common areas of the
Building, including lobbies, stairs, elevators, escalators, parking facilities,
loading docks and areas, corridors and restrooms, the windows of the Building,
the mechanical, plumbing and electrical equipment serving the Building and the
structure itself in reasonably good order and condition except for damage
occasioned by the act of Tenant, which damage shall be repaired by Landlord at
Tenant's expense. In the event Tenant requires or needs to have one or more
separate systems of either heating, ventilating, air-conditioning or other
similar systems over and above that provided by Landlord, the installation,
care, expense and maintenance of each such system shall be borne by and paid for
by Tenant.
(b) Subject to the provisions elsewhere herein contained and to the
Rules and Regulations of the Building, Landlord agrees to furnish to the
Premises during ordinary business hours of generally recognized business days to
be determined by Landlord (but exclusive in any event of Sundays and legal
holidays), electrical service, heart and air-conditioning required in Landlord's
judgment for the comfortable use and occupation of the Premises, janitorial
services during the times and in the manner that such services are, in
Landlord's judgment, customarily furnished in comparable office buildings in the
immediate market area, and elevator service.
(c) Landlord shall provide additional or after-hours heating or
air-conditioning at Tenant's reasonable request. Tenant shall pay to Landlord a
reasonable charge for such services as determined from time to time by Landlord.
Tenant agrees to keep and cause to be kept closed all window coverings, if any,
when necessary because of the sun's position, and Tenant also agrees at all
times to cooperate fully with Landlord and to abide by all rules, regulations
and requirements which Landlord may prescribe for the proper functioning and
protection of lighting, heating, ventilating, and air-conditioning systems and
to comply with all laws, ordinances and regulations respecting the conservation
of energy. In the event heat-generating machines, excess lighting or equipment
used in the Premises affect the temperature normally maintained by the
air-conditioning units in the Premises, Tenant shall pay to Landlord upon demand
by Landlord, all costs incurred by Landlord in excess of the ordinary costs of
maintaining the normal temperature of the Premises. Landlord agrees to furnish
to the Leased Premises electricity for general office purposes and hot and cold
water for lavatory and drinking purposes, subject to the provisions in
Subparagraph 13(d) below, Landlord shall in no event be liable for any
interruption or failure of utility services on the Premise, but Landlord will
exercise commercially reasonable efforts to furnish uninterrupted service.
(d) Tenant will not without the written consent of Landlord use any
apparatus or device in the Premises, including without limitation, electronic
data processing machines, punch card machines, and machines using excess
lighting or electrical current which will in any way increase the amount of
electricity or water usually furnished or supplied for use of the Premises as
general office space; nor will Tenant without Landlord's prior written consent
connect with electrical current, except through existing electrical outlets in
the Premises, or water pipes in the Premises, any apparatus or device for the
purpose of using electrical current or water, provided that Tenant may rely upon
any such consents or approvals by Landlord as satisfying all obligations of
Tenant hereunder. If Tenant in Landlord's judgment shall require water or
electrical current or any other resource in excess of that usually furnished or
supplied for use of
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the Premises as general office space (it being understood that such an excess
may result from the number of fixtures, apparatus and devices in use, the nature
of such fixtures, apparatus and devices, the hours of use, or any combination of
such factors). Tenant shall first procure the consent of Landlord which Landlord
may refuse in the use thereof, and Landlord may cause a special meter to be
installed in the Premises in order to measure the amount of water, electrical
current or other resource consumed for any such other use. The cost of any such
meters and of installation, maintenance, and repair thereof shall be paid for by
Tenant and Tenant agrees to pay Landlord promptly upon demand by Landlord for
all such water, electrical current or other resource consumed, as shown by said
meters, at the rates charged by the local public utility furnishing the same,
plus any additional expense incurred in keeping account of the water, electrical
current or other resource so consumed. Landlord shall not be in default
hereunder or be liable for any damages directly or indirectly resulting from,
nor shall the rental herein reserved by reason of: (i) the installation, use or
interruption of use of any equipment in connection with the furnishing of any of
the foregoing utilities and service; (ii) failure to furnish or delay in
furnishing any such utilities or services when such failure or delay is caused
by acts of God or the elements, labor disturbances of any character, any other
accidents or other conditions beyond the reasonable control of Landlord, or by
the making of repairs or improvements to the Premises or to the Building; (iii)
the limitation, curtailment, rationing or restriction on use of water,
electricity, gas or any other form of energy or any other service or utility
whatsoever serving the Premises or the Building. Furthermore, Landlord shall be
entitled to cooperate voluntarily in a reasonable manner with the efforts of
national, state and local governmental agencies or utilities suppliers in
reducing or other resources consumption.
(e) Any sums being payable under this Paragraph shall be considered
additional rent and shall be added to the next installment of rent thereafter
becoming due and Landlord shall have the same remedies for a default in payment
of such sums as for a default in the payment of rent.
(f) Tenant shall not provide any janitorial services without Landlord's
written consent and then only through a janitorial contractor or employees at
all times satisfactory to and under supervision of Landlord. Any such services
provided by Tenant shall be at Tenant's sole expense, risk and responsibility.
14. ESTOPPEL CERTIFICATE
Within ten (10) days following any written request which Landlord may
make from time to time, Tenant shall execute and deliver to Landlord in
recordable form an Estoppel Certificate substantially attached hereto as Exhibit
"D" and made a part hereof, indicated thereon any exceptions thereto which may
exist at that time. Failure of Tenant to execute and deliver such certificate
shall constitute an acceptance of the Premises and acknowledgment by Tenant that
the statements included in Exhibit "D" are true and correct without exception.
Landlord and Tenant intend that any statement delivered pursuant to this
Paragraph may be relied upon by Landlord or by any mortgagee, beneficiary,
purchaser or prospective purchaser of the Building or any interest therein, or
by anyone to whom Landlord may provide said certificate.
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15. HOLDING OVER
Tenant will, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant retains
possession of the Leased Premises or any part thereof after such termination,
then Landlord may, at its option, serve written notice upon Tenant that such
holding over constitutes: (i) creation of a month to month tenancy, upon the
terms and conditions set forth in this Lease; or (ii) creation of a tenancy at
sufferance, in any case upon the terms and conditions set forth in this Lease;
provided, however, that the Monthly Rental (or daily rental under (ii)) shall,
in addition to all other sums which are to be paid by Tenant hereunder, whether
or not as additional rent, be equal to one hundred fifty percent (150%) of the
rental being paid monthly to Landlord under this Lease immediately prior to such
termination (prorated in the case of (ii) on the basis of a 365 day year for
each day Tenant remains in possession). If no such notice is served, then a
tenancy at sufferance shall be deemed to be created at the rent in the preceding
sentence. Tenant shall also pay to Landlord, as additional rent due and payable,
all damages sustained by Landlord resulting from retention of possession by
Tenant, including the loss of any proposed subsequent tenant for any portion of
the Leased Premises. In any such events, Tenant shall vacate the Leased Premises
and deliver full possession to Landlord upon the giving to Tenant by Landlord of
ten (10) days' written notice and demand therefor. The provisions of this
Paragraph shall not constitute a waiver by Landlord of any right of re-entry as
herein set forth, nor shall receipt of any rent or any other act in apparent
affirmance of the tenancy operate as a waiver of the right to terminate this
Lease for a breach of any of the terms, covenants, or obligations herein on
Tenant's part to e performed by Tenant, or of any other right of Landlord.
16. SUBORDINATION
Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, this Lease shall be subject
and subordinate at all times to: (a) all ground leases or underlying leases
which may now exist or hereafter be executed affecting the Building or the
Property upon which the Building is situated or both; and (b) the lien or
interest of any mortgage or deed to secure debt which may now exist or hereafter
be executed in any amount for which said Building, Property, ground leases or
underlying leases, or Landlord's interest or estate in any of said items is
specified as security. Notwithstanding the foregoing, Landlord shall have the
right to subordinate or cause to be subordinated to this Lease any such ground
leases or underlying leases or any such liens or interests of mortgages or deeds
to secure debt. In the event that any ground lease or underlying lease is
terminated for any reason or any mortgage or deed to secure debt is preclosed or
a conveyance in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination, attorn to and become the tenant of the
successor in interest in Landlord at the option of such successor in interest.
Tenant agrees to execute such subordination, non-disturbance and attornment
agreements as the holder of any mortgage or deed to secure debt may reasonably
require. Tenant covenants and agrees to execute and deliver, upon demand by
Landlord and in the form requested by Landlord, any additional documents
evidencing the priority or subordination of this Lease with respect to any
tenant of the successor in interest to Landlord at the option of such successor
in interest. Tenant's obligation to subordinate and attorn may reasonably be
conditioned upon an agreement of non-disturbance by any such successor in
interest to Landlord, but shall not otherwise be conditioned or withheld.
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17. RE-ENTRY BY LANDLORD
Landlord reserves and shall at all times have the right to re-enter the
Premises to inspect the same, to supply janitor service and any other service
provided by Landlord to Tenant hereunder, to show said Premises to prospective
purchasers, mortgagees or tenants, to post notices of nonresponsibility, and to
alter, improve, or repair the Premises and any portion of the Building of which
the Premises are a part or to which access is conveniently made through the
Premises, without abatement of rent, and may for that purpose erect, use, and
maintain scaffolding, pipes, conduits, and other necessary structures in and
through the Premises where reasonably required by the character of the work to
be performed, provided that entrance to the Premises shall not be blocked
thereby, and further provided that Landlord shall provide Tenant twenty-four
(24) hours prior notice of entry except in cases of emergency or the making of
repairs requested by Tenant, and that the business of Tenant shall not be
interfered with unreasonably. Tenant hereby waives any claim for damages for any
injury or inconvenience to or interference with tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss occasioned
thereby, provided that Landlord hall indemnify, save and hold harmless Tenant
for any liability, to Tenant or third parties, for damage to person or property
caused by Landlord's entry, except when acting in response to emergency. For
each of the aforesaid purposes, Landlord shall at all times have and retain a
key with which to unlock all of the doors, in, upon, and about the Premises, and
Landlord shall have the right to use any and all means which Landlord may deem
necessary or property to open said doors in an emergency, in order to obtain
entry to any portion of the Premises, and any entry to the Premises, or portions
thereof obtained by Landlord by any of aid means, or otherwise, shall not under
any circumstances be construed or deemed to be a forcible or unlawful entry
into, or a detainer of, the Premises, or any eviction, actual or constructive,
of Tenant from the Premises or any portions thereof. Landlord shall also have
the right at any time, without the same constituting an actual or constructive
eviction and without incurring any liability to Tenant therefor, to change the
arrangement and/or location of entrances or passageways, doors and doorways, and
corridors, elevators, stairs, toilets, parking facilities, loading docks and
areas, delivery and pick-up areas or other public parts of the Building and to
change the name, number or designation by which the Building is commonly known.
18. INSOLVENCY OR BANKRUPTCY
The appointment of a receiver to take possession of all or
substantially all of the assets of Tenant, or an assignment by Tenant for the
benefit of creditors or any action taken or suffered by Tenant under any
insolvency bankruptcy, or reorganization act, shall at Landlord's option
constitute a breach of this Lease by Tenant. Upon the happening of any such
event or at any time thereafter, this Lease shall terminate after written notice
of termination from Landlord to Tenant. In no event shall this Lease be assigned
or assignable by operation of law or by voluntary or involuntary bankruptcy
proceedings or otherwise and in no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency, or
reorganization proceedings.
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19. DEFAULT AND REMEDIES
(a) The following events shall be deemed to be events of default by
Tenant under this Lease:
(1) Tenant shall fail to pay when or before due any sum of money,
in whole or in part, becoming due to be paid to Landlord
hereunder whether such sum be any installment of the rent
herein reserved, any other amount treated as additional rent
hereunder, or any other payment or reimbursement to Landlord
required herein, whether or not treated as additional rent
hereunder, and such failure shall continue for a period of ten
(10) days from the date such payment was due; or
(2) Tenant shall fail to comply with any term, provision or
covenant of this Lease other than by failing to pay when or
before due any sum of money becoming due to be paid to
Landlord hereunder, and shall not cure such failure within
thirty (30) days (except immediately and forthwith, if the
default involves a hazardous condition) after written notice
thereof to Tenant, except that should completion of such cure
not be possible within such thirty (30) day period. Tenant
shall have ninety (90) days to effect same so long as Tenant
has within such thirty (30) day period commenced cure and
pursues same with due and continuous diligence; or
(3) Tenant shall fail to vacate the leased premises immediately
and forthwith upon termination of this Lease, by lapse of time
or otherwise, or upon termination of Tenant's right to
possession only; or
(4) If, in spite of the provisions hereof, the interest of Tenant
shall be levied upon under execution or be attached by process
of law, or Tenant shall fail to contest diligently the
validity of any lien or claimed lien upon the Leased Premises
and give sufficient security to Landlord to insure payment
thereof and such default shall continue for ten (10) days
after written notice thereof to Tenant.
(b) Upon the occurrence of any such events of default described in
subparagraph (a) above or elsewhere in this Lease, Landlord shall have the
option, at its election, to terminate this Lease or to terminate Tenant's right
to possession only, without terminating this Lease and to pursue any one or more
of the following remedies without any further notice or demand whatsoever,
provided that, upon any termination of this Lease or upon any termination of
Tenant's right to possession without termination of this Lease. Tenant shall in
either event surrender possession and vacate the leased Premises immediately
upon the expiration of five (5) days next following the giving by Landlord to
Tenant of written notice demanding same and deliver possession thereof to
Landlord, and Tenant hereby grants to Landlord full and free license to enter
into and upon the Leased Premises in such event with or without process of law
and to repossess Landlord of the Leased Premises and to expel or remove Tenant
and any others who may be occupying or within the Leased Premises and to remove
any and all property therefrom without being deemed in any manner guilty of
trespass, eviction or forcible entry or
36
detainer and without incurring any liability for any damage resulting therefrom.
Tenant hereby waiving any right to claim damage for such re-entry and expulsion
and without relinquishing any right given to Landlord hereunder or by operation
of law:
(1) Upon termination of this Lease, Landlord shall be entitled to
recover as damages, all rent, including any amount treated as
additional rent hereunder, and other sums due and payable by
Tenant on the date of termination, plus the sum of: (i) an
amount equal to the then present value of the rent, including
any amounts treated as additional rent hereunder, and other
sums provided herein to be paid by Tenant for the residue of
the stated Term hereof, less the fair rental value of the
Leased Premises for such residue (taking into account the time
and expense necessary to obtain a replacement tenant or
tenants, including expenses hereinafter described in
subparagraph (b)(2) hereinbelow relating to recover of the
Leased Premises, preparation for reletting itself, and (ii)
the cost of performing any other covenants which otherwise
would have been performed by Tenant; or
(2) Alternatively to the remedy provided in subparagraph (b)(1)
hereinabove, upon any termination of Tenant's right to
possession only without termination of this Lease, Landlord
may, at Landlord's option enter into the Leased Premises,
remove Tenant's signs and other evidences of tenancy and take
and hold possession thereof as provided in subparagraph (b)(1)
above, without such entry and possession terminating the Lease
or releasing Tenant, in whole or in part, from any obligation,
including Tenant's obligation to pay the rent, including any
amounts treated as additional rent hereunder for the full
Term; and Landlord shall then or thereafter use commercially
reasonable efforts to sublet the Premises or any part thereof,
on such occasions and terms as may be determined in Landlord's
sole discretion and, in such event, if the consideration
collected by Landlord upon any such reletting plus any sums
previously collected from Tenant are not sufficient to pay the
full amount of all rent, including any amounts treated as
additional rent hereunder and other sums reserved in this
Lease for the remaining Term hereof, together with the costs
of repairs, alterations, additions, redecorating, and
Landlord's expenses of reletting and the collection of the
rent accruing therefrom (including attorneys' fees and
broker's commissions). Tenant shall pay to Landlord the amount
of such deficiency upon demand and Tenant agrees that Landlord
may file suit to recover any sums falling due under this
subparagraph from time to time.
(3) In either of the events set forth in subparagraphs (b)(1) and
(b)(2) hereinabove, Landlord may, but need not, relet or
sublet the premises or any part thereof, as the case may be,
for such rent and upon such terms as Landlord in its sole
discretion shall determine including the right to relet the
Premises for a greater or lesser than that remaining under
this Lease, the right to relet the Leased Premises as a part
of a larger area, and the
37
right to change the character and use made of the Leased
Premises) and Landlord shall not be required to accept any
tenant offered by Tenant or to observe any instructions given
by Tenant about such reletting. In any such case, Landlord may
make repairs, alterations and additions in or to the Leased
Premises and redecorate the same to the extent Landlord deems
necessary or desirable and Tenant shall, upon demand, pay the
cost thereof, together with Landlord's expenses for reletting
including, without limitation any broker's commission incurred
by Landlord.
(c) Should Landlord, acting reasonably and in good faith, determine
that Tenant is not acting within a commercially reasonable time to maintain,
repair or replace anything for which Tenant is responsible hereunder, Landlord
may, in Landlord's option, upon Tenant's continued failure to so maintain,
repair or replace after twenty (20) days notice from Landlord, enter into and
upon the Leased Premises, with or without process of law and correct the same,
without being deemed in any manner guilty of trespass, eviction or forcible
entry and detainer and without incurring any liability for any damage resulting
therefrom; and Tenant agrees to reimburse Landlord on demand additional rent for
any expenses which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease.
(d) Any and all property which may be removed from the Leased premises
by Landlord pursuant to the authority of this Lease or of law, to which Tenant
is or may be entitled may be handled removed and stored as the case may be, by
or at the direction of Landlord at the risk cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Leased Premises shall, at Landlord's
option, be deemed conveyed by Tenant to landlord under this Lease as by a xxxx
of sale without further payment or credit by Landlord to Tenant.
(e) In exercising any of the remedies set forth in this Lease with
respect to entry or re-entry of the Leased Premises, Landlord shall not be
civilly or otherwise liable to Tenant for any damage to Tenant's property unless
same is solely caused by the intentional or wanton, willful and reckless conduct
of Landlord.
(f) Pursuit by Landlord of any of the foregoing remedies shall not,
except as set forth in the alternative in the case of those remedies provided in
subparagraphs (b)(1) and (b)(2) hereinabove, preclude pursuit of any of the
other remedies herein provided or any other remedies provided by law or
available in equity (all such remedies being cumulative), nor shall pursuit of
any remedy herein provided constitute a forfeiture or waiver of any rent due to
Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained. No act
or thing done by Landlord or its agents during the Term hereby granted shall be
deemed a termination of this Lease or an acceptance of the surrender of the
Leased Premises, and no agreement to terminate this Lease or accept a surrender
of said Premises shall be valid unless in writing signed by Landlord. No waiver
by Landlord of any violation or breach of any of the terms, provisions and
covenants herein contained shall be deemed or construed to constitute a waiver
of any other violation or breach of
38
any of the terms, provisions and covenants herein contained. Landlord's
acceptance of the payment of rental or other payments hereunder after the
occurrence of an event of default shall not be construed as a waiver of such
default, or as accord and satisfaction of any liability of Tenant unless
Landlord expressly so notifies Tenant in writing. Forbearance by Landlord in
enforcing one or more of the remedies herein provided upon any event of default
shall not be deemed or construed to constitute a waiver of such default or of
landlord's right to enforce any such remedies with respect to such default or
any subsequent default. If on account of any breach or default by Tenant in
Tenant's obligations under the terms and conditions of this Lease, it shall
become necessary or appropriate for Landlord to employ or consult with any
attorney concerning or to enforce or defend any of Landlord's rights or remedies
hereunder. Tenant agrees to pay all reasonable attorneys' fees so incurred, said
attorneys' fees being deemed additional rent due hereunder upon the next date
the payment by Tenant of rent or any installment thereof is due.
(g) Without limiting the foregoing:
(i) Service of process upon Tenant may be had by serving
any registered agent or any officer or director of
Tenant at or upon the Leased Premises and Landlord or
anyone acting therefor shall at all times have the
right to enter, seek out and locate any appropriate
person for such purpose;
(ii) Service of process upon Landlord may be had by
serving any registered agent or partner of Landlord,
or any person actin therefor, at Landlord's offices
in the Building or elsewhere;
(iii) Provided, however, neither Landlord nor Tenant hereby
waive the right to serve each other with process by
any other lawful means;
(iv) Landlord and Tenant expressly waive any right to
trial by jury; and
(v) To the extent permitted by existing or future law of
the State of Georgia, Tenant expressly waives any and
all rights of redemption granted by or under any
existing or future laws if Tenant is evicted or
dispossessed for any cause or if Landlord obtains
possession of the Premises due to Tenant's default
hereunder or otherwise.
20. DAMAGE BY FIRE OR OTHER CASUALTY
(a) If the Building, Improvements, or Leased Premises are rendered
partially or wholly untenantable by fire or other casualty, at any time prior to
the end of the fifteenth (15th) year next following the Commencement Date,
Landlord shall reasonably proceed to rebuild, repair and or materially restore
same and Tenant shall thereupon reoccupy the Premises for the remainder of the
Term of the Lease.
(b) If such untenantability occurs by fire or other casualty occurring
between the end of the ten (10th) year next following the Commencement Date of
the Lease and the end of the fifteenth (15th) year next following same, the Term
for the Lease shall then be extended from the date of Tenant's reoccupancy for a
time sufficient to extend the remaining portion of the Term to
39
a period of ten (10) years next following the date of Tenant's reoccupancy.
During the period of time the Term of the Lease is thereby extended past what
would have been the expiration date of the original Term. Tenant's Monthly
Rental shall be equal to the prevailing competitive market rental rate
appertaining as to similar commercial office buildings in the Alpharetta,
Georgia, area as of the expiration date of the original Term. As used herein,
the phase "prevailing competitive market rental rate" shall mean the rental rate
(projected from the date of the expiration of the original Term) which Tenant
would expect to pay and Landlord would expect to receive under Leases for space
at comparable size and quality to the Premises and as provided for in, and on
terms and conditions comparable to this Lease covering premises similar to the
Premises. If Landlord and Tenant have not reached agreement and executed an
amendment to this Lease setting forth such agreement on or before the date three
(3) months following the expiration of the original Term, then within ten (10)
days after that date each party shall appoint and employ, at its cost, a real
estate appraiser who shall be a member of the American Institute of Real Estate
Appraisers (MAI) with at least ten (10) years of full-time commercial appraisal
and real estate marketing experience in metropolitan Atlanta, Georgia to
appraise and establish the "prevailing competitive market rental rate." The two
appraisers, thus appointed, shall meet promptly and attempt to agree upon and
designate a third appraiser meeting the qualifications set forth above within
ten (10) days after the date of the appointment of the last two appraisers. If
they are unable to agree on the third appraiser, either of the parties, after
giving five (5) days notice to the other, may apply to a judge of the United
States District Court for the district in which the Premises are located for the
selection of a third appraiser meeting the qualifications stated above. Each of
the parties shall bear one-half of the cost of appointment of the third
appraiser and of the third appraiser's fee. Within thirty (30) after the
selection of the third appraiser, a majority of the appraiser shall agree upon
the "prevailing competitive market rental rate." If a majority of the appraisers
are unable to agree within the stipulated time, then each appraiser shall render
his separate appraisal within such time, and the three appraisals shall be
averaged in order to establish such rate; provided however, if the low appraisal
and/or the high are more than ten percent (10%) lower and or higher than the
middle appraisal, the low appraisals and/or the high appraisal shall be
disregarded. If only one appraisal is disregarded, the remaining two appraisals
shall be averaged in order to establish such rate. If both the low appraisal and
the high appraisal are disregarded, the middle appraisal shall establish the
rate. During the period of time between Tenant's reoccupancy and the date the
"prevailing competitive market rental rate" is established, Tenant will continue
to pay Monthly Rental at the rate that appertained at the time the fire or other
casualty occurred.
(c) If the Building, Improvements, or Leased Premises are rendered
partially or wholly untenantable by fire or other casualty at a time when less
than five (5) years remain in the Lease Term, and if such damage, in Landlord's
reasonable estimation, cannot be materially restored within one hundred-fifty
(150) days of such damage, then either Tenant or Landlord may, at its option,
terminate this lease as of the date of such fire or casualty by written notice
to the other within sixty (60) days of such fire or casualty. For purposes
hereof, the Building, Improvements, or Leased Premises shall be deemed
"materially restored" if they are in such condition as would not prevent or
materially interfere with Tenant's use of the Leased premises for the purpose
for which the Premises were being used at the time of such fire or casualty.
(d) If this Lease is not terminated pursuant to this Paragraph, then
Landlord shall proceed with all due diligence to rebuild, repair and/or
materially restore the Building,
40
Improvements or Leased Premises, as the case may be, and thereafter to return
same as near to the condition in which same existed prior to the casualty as is
reasonably feasible under all the circumstances.
(e) If this Lease shall be terminated pursuant to this Paragraph, the
Term of this Lease shall end on the date of such damage as if that date had been
originally fixed in this Lease for the expiration of the Term hereof. If this
Lease shall not be terminated pursuant to this paragraph and if the Leased
Premises is untenantable in whole or in part following such damage, the Monthly
Rental payable during the period in which the Leased Premises is untenantable
shall be reduced to such extent, if any, as may be fair and reasonable under all
of the circumstances.
(f) In no event shall Landlord be required to rebuild, repair or
replace any part of the partitions, fixtures, additions or other improvements
which may have been placed in or about the Leased Premises by Tenant. Any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Building or the Leased Premises shall be for the sole benefit of the party
carrying such insurance and under its sole control.
(g) In the event of any damage or destruction to the Building, the
Leased Premises or the Property by any peril covered by the provisions of this
Paragraph. Tenant shall, upon notice from Landlord, remove forthwith, at its
sole cost and expense such portion or all of the property belonging to Tenant or
his licenses from such portion or all of the Building or the Leased Premises as
Landlord shall request and Tenant hereby indemnifies and holds Landlord harmless
from any loss, liability, costs, and expenses, including attorneys' fees,
arising out of any claim of damage or injury as a result of any alleged failure
to properly secure the Leased Premises prior to such removal.
21. CONDEMNATION
(a) If any substantial part of the Building, Improvements, available
parking area or Leased Premises should be taken for any public or quasi-public
use under governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and the taking would prevent or
materially interfere with the use of the Building or the Leased Premises for the
purpose for which it is then being used, this Lease shall terminate on the date
title vests in the taking authority in the same manner as if the date of such
taking were the date originally fixed in this Lease for the expiration of the
Term hereof. Any decrease in available parking spaces, as provided for in
Paragraph 26 below, a ratio of 3.75 cars per 1,000 rentable square feet of the
Premises shall be deemed to materially interfere with the use by Tenant of the
Building and the Premises.
(b) If part of the Building, Improvements, or Leased Premises shall be
taken for any public or quasi-public use under any governmental law, ordinance
or regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and this Lease is not terminated as provided in subparagraph (a) above,
this Lease shall not terminate but the rent payable hereunder during the
unexpired portion of the Term of this Lease shall be reduced to such extent, if
any, as may be fair and reasonable under all of the circumstances and Landlord
shall undertake to restore the Building, Improvements and Leased Premises to a
condition suitable for Tenant's use, as near to the condition thereof
immediately prior to such taking as is reasonably feasible under all
41
circumstances. In no event, however, shall Landlord be required under this Lease
to incur any expenses in excess of available proceeds from any taking
contemplated hereby for the purposes of restoring the Building or the Premises
after any such taking.
(c) Tenant shall not share in any condemnation award or payment in lieu
thereof or in any award for damages resulting from any grade change of streets
outside the Office Park of which the Building is a part, the same being hereby
assigned to Landlord by Tenant; provided, however, that Tenant may separately
claim and receive from the condemning authority, if legally payable,
compensation for Tenant's removal and relocation costs, for Tenant's loss of
business and/or business interruption, and for any other cost, loss, damage or
expense suffered by Tenant.
(d) Notwithstanding anything to the contrary contained in this
Paragraph, if the temporary use or occupancy of any part of the Premises shall
be taken or appropriated under power of eminent domain during the Term of this
Lease, this Lease shall be and remain unaffected by such taking or appropriation
and Tenant shall continue to pay in full all rent payable hereunder by Tenant
during the Term of this Lease: in the event of any such temporary appropriation
or taking, Tenant shall be entitled to receive that portion of any award which
represents compensation for the use or occupancy of the Premises during the term
of this Lease, and Landlord shall be entitled to receive that portion of any
award which represents the cost of restoration of the Premises and the use and
occupancy of the Premises after the end of the Term of this Lease.
(e) Notwithstanding anything to the contrary contained in this
paragraph 21 or elsewhere in this Lease, in the event of any condemnation,
Landlord shall be entitled to receive its entire award without deduction
therefrom for any estate vested in Tenant by the Lease, but Tenant shall have
the right to make a separate claim with the condemning authority for, and to
receive therefrom: (i) any moving expenses incurred by Tenant as a result of
such condemnation; (ii) any costs incurred or paid by Tenant in connection with
any alteration or improvement made by Tenant to the Premises; (iii) the value of
any of Tenant's property taken; and (iv) any other separate claim which Tenant
may hereafter be permitted to make under applicable law provided, however, that
such other separate claim shall not reduce or adversely affect the amount of the
Landlord's award.
22. SALE BY LANDLORD
In the event of a sale, conveyance or assignment by Landlord of all or
any portion of the Building or Landlord's interest therein, or in or of the
Leased Premises, or if the Building or the Leased Premises comes under the
control of a mortgagee, ground lessor or similar party, the same shall operate
to release Landlord from any future liability upon any of the covenants or
conditions, express or implied, herein contained in favor of Tenant, and in such
event Tenant agrees to look solely to the responsibility of the successor in
interest of Landlord in and to this Lease, and to recognize such successors as
new Landlord or to attorn thereto and execute, at this Landlord's request, an
attornment agreement therewith.
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23. RIGHT OF LANDLORD TO PERFORM
All covenants and agreements to be performed by the Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If the Tenant shall fail to pay any
sum of money or incur any expense, other than rent, required to be paid by
Tenant hereunder, whether or not such failure constitutes a breach of this
Lease, and such failure shall continue for twenty (20) days after notice thereof
by the Landlord, then Landlord may, but shall not be obligated to do so, and
without waiving or releasing the Tenant from any obligations of the Tenant, make
any such payment or incur any such expense or perform any such act on the
Tenant's part to be made or performed as in this Lease required to be adopted by
Tenant. All sums so paid by the Landlord and as necessary incidental costs
together with interest thereon at the rate of one and one-half percent (1 1/2%)
per month, which is eighteen percent (18%) per annum, from the date of such
payment by the Landlord, shall payable as additional rent to the Landlord on
demand, and the Tenant covenants to pay any such sums and the Landlord shall
have, in addition to any other right or remedy of the Landlord, the same rights
and remedies in the event of nonpayment thereof by the Tenant as in the case of
default by the Tenant in the payment of rent.
24. SURRENDER OF PREMISES
(a) Unless Tenant shall, at least one hundred-eighty (180) days
before the last day of the Term hereof, give to Landlord a written notice of any
desire to remain in occupancy of the Premises after that date, Landlord shall
presume an intention by Tenant to surrender the Premises on that date. Nothing
contained herein or in the failure of Tenant to give such notice shall be
construed as an extension of the Term hereof or as consent of Landlord to any
holding over by Tenant.
(b) At the end of the Term or any renewal thereof or other sooner
termination of this Lease, the Tenant will peaceably deliver up to the Landlord
possession of the Premises in the same condition as received, ordinary wear and
tear, damage by fire, earthquake, act of God, or the elements alone excepted. So
long as Tenant is not in default hereunder, Tenant may, upon the termination of
this Lease remove all movable furniture and equipment belonging to Tenant, at
Tenant's sole cost, title to same remaining in Tenant until such termination,
repairing any damage caused by such removal. Upon request by Landlord, unless
otherwise then or previously agreed to in writing by Landlord, Tenant shall
remove, at Tenant's sole cost, all movable furniture and equipment belonging to
Tenant and repair any damage resulting from such removal. Property not so
removed by the last day of the Term shall be deemed abandoned by Tenant, and
title to the same shall thereupon pass to Landlord.
(c) The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof shall, at the option of Landlord, terminate all or
any existing subleases or subtenancies, or may, at the option of Landlord,
operate as an assignment to Landlord of any or all such subleases or
subtenancies.
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25. WAIVER
If either Landlord or Tenant waives the performance of any term,
covenant or condition contained in this Lease, such waiver shall not be deemed
to be a waiver of any subsequent breach of the same or any other term, covenant
or condition contained herein. Furthermore, the acceptance of rent by Landlord
shall not constitute a waiver of any preceding breach at the time Landlord
accepted such rent. Failure by Landlord to enforce any of the terms, covenants
or conditions of this Lease for any length of time shall not be deemed to waive
or to decrease the right of Landlord to insist thereafter upon strict
performance by Tenant. Waiver by Landlord or Tenant of any term, covenant or
condition contained in this Lease may only be made by a writing, shall be
effective only with respect to the subject matter stated therein, and only for
such time and to such extent as provided therein.
26. PARKING
Landlord shall provide, for the non-assigned use of Tenant, up to the
greater of (a) 320 parking spaces or (b) four (4) spaces per 1,000 net rentable
area of the Leased Premises. Said spaces shall not be reserved or otherwise
designated.
27. NOTICES
Each notice required or permitted to be given under this Lease shall be
sent by hand delivery or by depositing it with the United States Postal Service
or the official successor thereto, certified or registered mail, return receipt
requested, with adequate postage prepaid, addressed to the appropriate party as
hereinafter provided. Each such notice shall be effective upon being hand
delivered or deposited with the United States Postal Service, as the case may
be, but the time period in which a response to any such notice must be given or
any action taken with respect thereto shall commence to run from the date of
receipt of the notice by the addressee thereof, as evidenced by the deliver
record of the messenger or courier service or by the return receipt of the
United States Postal Service, as the case may be. Rejection or other refusal by
the addressee to accept or the inability of the messenger or courier service, or
the United States Postal Service, to deliver because of a changed address of
which no notice was given, shall in any case be deemed to be the receipt of the
notice sent. The addresses of Landlord and Tenant are as follows:
Landlord: Regency Park West Associates
0000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
With copy to: GE Capital
One Georgia Center
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxx
00
Xxxxxx: TheraTx, Incorporated
000 Xxxxxxxxxx Xxxx, Xxxxx 000 From and after July 1, 1997
Xxxxxxx, Xxxxxxx 00000 "At the Premises"
Attn: Mr. B. Xxxxx Xxxxx,
Vice President-Administrative Services
Any party shall have the right from time to time to change the address
to which notices to it shall be sent and to specify up to two additional
addresses to which copies of notices to it shall be sent by giving to the other
party or parties at least thirty (30) days prior notice of the changed address
or additional addresses.
28. CERTAIN RIGHTS RESERVED TO LANDLORD
Landlord reserves and may exercise the following rights without
affecting Tenant's obligations hereunder:
(a) To change the name of the Building;
(b) To designate all sources furnishing sign painting and
lettering; and, while obtaining competitive pricing from multiple sources for
same, to also designate all sources for towels, valet service and toilet
supplies, lamps and bulbs used in the Leased Premises:
(c) To retain at all times pass keys to the Leased Premises
(d) To grant to anyone the exclusive right to conduct any
particular business or undertaking in the Building;
(e) To close the Building after regular work hours and on legal
holidays subject, however to Tenant's right to admittance, under such reasonable
regulations as Landlord may prescribe from time to time, which may include by
way of example but not of limitation, that persons entering or leaving the
Building identify themselves to a watchman by registration or otherwise and that
said persons establish their right to enter or leave the Building; and
(f) To take any and all measures, including inspections, repairs,
alterations, decorations, additions and improvements to the Leased Premises or
the Building and identification and admittance procedures for access to the
Buildings as may be necessary or desirable for the safety, protection,
preservation or security of the Leased Premises or the Building or Landlord's
interest, or as maybe necessary or desirable in the operation of the Building.
Landlord may enter upon the Leased Premises and may reasonably exercise
any or all of the foregoing rights hereby reserved without being deemed guilty
of an eviction or disturbance of Tenant's use or possession without being liable
in any manner to the Tenant and without abatement of rent or affecting any of
the Tenant's obligations hereunder.
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29. ABANDONMENT
Tenant shall not vacate or abandon the Premises at any time during the
Term, and if Tenant shall abandon, vacate, or surrender said Premises or be
dispossessed by process of law, or otherwise, any personal property belonging to
Tenant and left on the Premises shall, at the option of Landlord, be deemed to
be abandoned and title thereto shall, at the option of Landlord, thereupon pass
to Landlord.
30. SUCCESSORS
Subject to the provisions of paragraph 10 hereof, the terms, covenants,
and conditions contained herein shall be binding upon and inure to the benefit
of the heirs, successors, executors, administrators and assigns of the parties
hereto.
31. ATTORNEYS' FEES
In the event that any action or proceedings is brought to enforce any
term, covenant or condition of this Lease on the part of Landlord or Tenant, the
prevailing party shall be entitled to reasonable attorneys' fees to be fixed by
the court in such action or proceeding.
32. CORPORATE AUTHORITY
If Tenant signs as a corporation, each of the persons executing this
Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a duly
authorized and existing corporation, that Tenant has and is qualified to do
business in Georgia, that the corporation has full right and authority to enter
into this Lease, and that each and every one of the persons signing on behalf of
the corporation are authorized to do so. Upon Landlord's request, Tenant shall
provide Landlord with evidence reasonably satisfactory to Landlord confirming
the foregoing covenants and warranties.
33. MORTGAGEE APPROVALS
Any approvals or consents of Landlord required under any provisions of
this Lease shall not be deemed to have been unreasonably withheld if any
mortgagee (which shall include the holder of any deed to secure debt) of the
Premises. Building or Property or any portion thereof shall refuse or withhold
its approval or consent thereto. Any requirement of Landlord pursuant to this
Lease which is imposed pursuant to the direction of any such mortgagee shall be
deemed to have been reasonably imposed by Landlord if made in good faith.
34. LANDLORD'S LIEN
In addition to any statutory lien for rent in Landlord's favor,
Landlord shall have and Tenant hereby grants to Landlord a continuing security
interest for all rentals and other sums of money becoming due hereunder from
Tenant upon all goods, wares, equipment, fixtures, furniture, inventory,
accounts, contract rights, chattel paper and other personal property of Tenant
situated on the Leased Premises, and such property shall not be removed
therefrom
46
without the consent of Landlord until all arrearage in rent as well as
any and all other sums of money then due to Landlord hereunder shall first have
been paid and discharged. In the event of a default under this Lease, Landlord
shall have, in addition to any other remedies provided herein or by law, all
rights and remedies under the Uniform Commercial Code, including without
limitation the right to sell the property described in this Paragraph at public
or private sale upon providing the notice called for by the Uniform Commercial
Code, or if none is so supplied by memorandum there of at Landlord's discretion.
Tenant further agrees that this Lease shall constitute a security agreement and
further agrees to execute for recordation, simultaneously with execution of this
Lease or at such other time designated by Landlord at its sole discretion, such
financing statements and other instruments deemed necessary or desirable in the
sole discretion of Landlord to perfect the security interest hereby created. Any
statutory lien for rent is not hereby waived the express contractual lien herein
granted being in addition and supplementary thereto.
35. QUIET ENJOYMENT
Landlord represents and warrants that it has full right and authority
to enter into this Lease and that Tenant while paying the Rentals and performing
its other covenants and agreements herein set forth, shall peaceably, and
quietly have hold and enjoy the Leased Premises for the Term hereof without
hindrance or molestation from Landlord subject to the terms and provisions of
this Lease. In the event this Lease is a sublease, then Tenant agrees to take
the Leased Premises subject to the provisions of the prior leases. Landlord
shall not be liable for any interference or disturbance by other tenants or
third persons, nor shall Tenant be released from any of the obligations of this
Lease because of such interference or disturbance: provided, Landlord shall
enforce all Rules and Regulations of the Building even-handedly upon all Tenants
of the Building.
36. LIMITATION OF LANDLORD'S LIABILITY AND EXCULPATION OF PARTNERS
In no event shall Landlord's liability for breach of this Lease exceed
the amount of rent then remaining unpaid for the then current Term (exclusive of
any renewal periods which have not then actually commenced). This provision is
not intended to be a measure or agreed amount of Landlord's liability with
respect to any particular breach, and shall not be utilized by any court or
otherwise for the purpose of determining any liability of Landlord hereunder,
except only as a maximum amount not to be exceeded in any event. Furthermore,
any liability of Landlord hereunder shall be enforceable only for and out of the
interest of Landlord in the Building. Anything to the contrary contained in this
Lease notwithstanding there shall in no event be any personal or derivative
liability with respect to arising from or related in any manner to the terms,
covenants, conditions and provisions of this Lease or their application, sought
or enforced against any persons, firms, or other entities who constitute the
partners of the Landlord, and Tenant hereby exculpates each and all partners of
Landlord from any and all liability arising from or relating to this Lease and
its provisions or from Landlord's status as such hereunder. Tenant shall,
subject to the rights of any ground lessor, mortgagee or holder of any security
interest, look solely to the interest of Landlord, its successors and assigns,
in the Building for the satisfaction of each and every remedy, if any, of Tenant
as against Landlord herein, including
47
default by Landlord hereunder, and shall in no event have or seek such
satisfaction out of the separate issues of, or from any partner of Landlord.
37. RIGHT TO RELOCATE [OMITTED]
38. DISCLAIMER OF CREATION OF PARTNERSHIP OR JOINT VENTURE
This Lease shall not be deemed to create or constitute a partnership or
joint venture of and between Landlord and Tenant for any purpose, nor is
Landlord to be deemed for any purpose a master, servant, employer, employee,
principal or agent of Tenant.
39. LEASE EFFECTIVE DATE
Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and is not effective
as a lease or otherwise until execution by both Landlord and Tenant.
40. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the Rules and
Regulations printed on Exhibit "E" annexed to this Lease and all reasonable
additions thereto as are from time to time now or hereafter at any time put into
effect by Landlord. Landlord shall not be responsible for the nonperformance by
any other tenant or occupant of the Building or Office Park of any obligation
under said Rules and Regulations, but shall apply and enforce same uniformly as
to all Tenants.
41. NO BROKERS
Tenant represents and warrants to Landlord, that except for Xxxxxxx
Xxxxxx & Company no broker, agent commission salesman or other person has
represented Tenant in the negotiations for and procurement of this Lease and
that, except for the commission payable to the said Xxxxxxx Xxxxxx & Company, no
commission, fee or compensation of any kind is due and payable in connection
herewith to any person or entity. Tenant and Landlord hereby acknowledge and
agree that the commission payable to the said Xxxxxxx Xxxxxx & Company in
connection with the Lease is the sole responsibility of Landlord, and that said
commission shall be paid by Landlord to the said Xxxxxxx Xxxxxx & Company in
accordance with the terms of a separate agreement. Tenant and Landlord also
acknowledge that American Resurgens Management Corp. has acted as agent for
Landlord in this transaction and is to be compensated for its services in
connection therewith in accordance with a separate agreement with Landlord.
American Resurgens Management Corp. has not acted as agent for Tenant in this
transaction.
42. RECORDING
Neither this Lease, nor any memorandum hereof, shall be recorded by
Tenant without Landlord's prior written consent to such recording, which shall
not be unreasonably withheld as to a Memorandum of Lease.
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43. MISCELLANEOUS
(a) The paragraph numbers and Paragraph headings herein, and
designations of subparagraphs, are for convenience of reference only and shall
in no way define, increase, limit or describe the scope or intent of any
provision of this Lease, which shall be construed without reference thereto.
(b) If this Lease is signed by more than one person, or if Tenant
is a partnership, joint venture or other business organization the members of
which are subject to personal liability, the obligations and liability of each
such person or member hereunder shall be joint and several.
(c) The term "Landlord" in this Lease shall include Landlord and
its successors and assigns.
(d) The term "Tenant" or any pronoun used in place thereof shall
indicate and include the masculine, feminine or neuter genders, the singular or
plural number, individuals, firms or corporation, and each of their respective
successors, executors, administrators and permitted assigns, according to the
context hereof.
(e) "Office Park" means the business park owned by Lessor and
comprising approximately 150 acres located situate to Rock Mill Road in Land
Lots 592, 605, 606 and 639 of the 1st District, 2nd Section, Alpharetta, Xxxxxx
County, Georgia, all as more particularly described in EXHIBIT "B" attached
hereto and by this reference made a part hereof.
(f) "Common Areas" means those portions of the Office Park lying
outside the Building which are designated as "common areas" for the use,
enjoyment and benefit of all owners or tenants of property located within the
Office Park and their lessees, sublessees and invitees.
(g) Time is of the essence of this Lease and each and all of its
provisions.
(h) This Lease shall in all respects be governed by and construed
under the laws of the State of Georgia.
(i) Tenant shall have no right to hold back, offset or otherwise
fail to pay any rent, including additional rent, due or any other charges
assessed under any provision of this Lease, for or on account of any claim or
counterclaim alleged against Landlord, save and except pursuant to an order
issued with prior notice to Landlord and after a hearing by a court of record of
competent jurisdiction in the State of Georgia.
(j) This Lease, together with its Exhibits and riders, if any,
contains all the agreements of the parties hereto and supersedes any previous
negotiations or agreements, whether oral or written. There have been no
representations made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its Exhibits.
(k) This Lease may not be modified except by a written instrument
executed by all the parties hereto or their successors and assigns.
49
(l) All obligations of Tenant hereunder not fully performed as of
the expiration or earlier termination of the Term of this Lease shall survive
the expiration or earlier termination of the Term hereof.
(m) If, for any reason whatsoever, any clause, phrase, provision
or portion of this Lease, or the application thereof to any person or
circumstance, shall be or become invalid, unenforceable or ineffective, such
event shall not affect, impair or render invalid, unenforceable or ineffective
the remainder of this Lease or any other clause, phrase, provision or portion
hereof, nor shall it affect the application of any clause, phrase, provision,
provision or portion hereof to other persons or circumstances. It is also the
intention of the parties to this Lease that in lieu of each such clause, phrase,
provision or portion of this Lease that is or may become invalid, unenforceable
or ineffective, there be added as a part of this Lease a clause, phrase,
provision or portion as like and similar in terms to such invalid, unenforceable
or ineffective clause, phrase, provision or portion as may be valid, enforceable
and effective.
(n) Whenever a period of time is herein prescribed for action to
be taken by Landlord or Tenant, the party so charged shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to causes of any kind whatsoever including,
without limitation, acts or events of force majeure, which are beyond the
control of that party. The period for performance of any such delayed action by
the party so charged shall be extended for a period equivalent to the period of
such delay.
(o) Notwithstanding any other provisions of this Lease to the
contrary, if the Commencement Date hereof shall not have occurred before the
twentieth (20th) anniversary of the date hereof, this Lease shall be null and
void and neither party shall have any liability or obligation to the other
hereunder. The purpose and intent of this provision is to avoid the application
of the Rule Against Perpetuities to this Lease.
44. SPECIAL STIPULATIONS.
Additional provisions of this Lease are set forth in the Special
Stipulations attached hereto and made a part hereof as EXHIBIT "F". In the event
of a conflict between the preceding provisions of this Lease and the provisions
of the Special Stipulations EXHIBIT "F", the provisions of the Special
Stipulations shall control.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease under
their hands and seals the day and year first above written, each warranting to
the other that it has the authority to do so and the capacity to bind the
respective entities identified as Landlord and Tenant hereunder.
LANDLORD:
Regency Part West Associates, L.P., a Georgia
Limited Partnership
By: American Resurgens Management Corp.,
a Georgia Corporation
As General Partner
WITNESS/ATTEST:
[Illegible] By: [Illegible]
------------------------- --------------------------------------------
Its:
-------------------------------------------
(CORPORATE SEAL)
TENANT:
TheraTx, Incorporated,
A Delaware Corporation
By: [Illegible]
--------------------------------------------
Its:
-------------------------------------------
(CORPORATE SEAL)
APPROVED:
General Electric Real Estate
Equities, Inc.
By: [Illegible]
---------------------------
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EXHIBIT "A"
LEASED PREMISES FLOOR PLAN
TO BE PROVIDED
(PER SPECIAL XXXXXXXXXXX # 00, EXHIBIT "F")
52
EXHIBIT "B"
OFFICE PARK LEGAL DESCRIPTION
TO BE PROVIDED
(PER SPECIAL STIPULATION #17, EXHIBIT "F")
53
EXHIBIT "B-1"
54
CONCEPTUAL PLAN FOR GE CAPITAL AND AMERICAN RESURGENS MANAGEMENT CORP.
SMALLWOOD, REYNOLDS, XXXXXXX, XXXXXXX & ASSOCIATES, INC. ARCHITECTS
[ARCHITECTURAL DESCRIPTION OF OFFICE PARK]
55
EXHIBIT "C"
LEASED PREMISES IMPROVEMENT AGREEMENT
In consideration of Tenant's execution of the Lease to which this Agreement
forms an Exhibit, and for the mutual considerations hereinafter recited,
Landlord shall provide to the Premises and Tenant shall receive, accept and
provide the following:
SECTION (A) - ARCHITECTURAL, ENGINEERING AND OTHER SERVICES:
(1) Landlord shall provide Tenant with an allowance of Seventy Three
Thousand Fifty-Nine Dollars ($73,059.00), equivalent to One Dollar
($1.00) per useable square foot of the Leased Premises, for use by
Tenant in obtaining architectural and engineering services prior and
incident to construction of Tenant Improvements therein. Tenant, at its
sole cost and expense and through Landlord's designated Architect
and/or Engineer, shall then cause to be prepared Plans and
Specifications for Tenant's Premises as follows:
(a) Detailed architectural drawings and specifications for
Tenant's partition plan, reflected ceiling plan, power,
communication, and telephone plan (location of data and
telephone outlets with pull boxes only), electrical outlets,
finish plan, elevations, details and sections;
(b) Mechanical, electrical, plumbing and lighting plans and
specifications where necessary for installation to Base
Building heating and air conditioning systems. (Landlord shall
provide the Architectural and Mechanical services with respect
to completing the improvements outlined in Section B).
(2) Landlord and Tenant hereby agree that time is of the essence and that
the following sequence and schedule shall be strictly adhered to with
respect to the design and
56
development of Construction Documents and the ultimate construction of
Improvements to Tenant's Premises:
(a) Tenant shall select a coordinator who provides Architect with
information for development of initial space plan within
twelve (12) weeks from execution of Lease.
(b) Architect shall then prepare initial space plan within four
(4) weeks of receipt of Tenant information;
(c) Upon receipt of space plan, Tenant's coordinator, as required,
shall provide additional information for development of
schematic pricing drawings, in not later than two (2) weeks;
(d) Architect shall then prepare schematic pricing drawings and
specifications within two (2) weeks from receipt of
information provided for in (2) (c) above;
(e) Landlord, or its designated agent shall prepare a cost
estimate based upon the drawings referred to in (2) (d) above
within two (2) weeks of receipt of schematic pricing drawings;
(f) Tenant reviews and approves or adjusts the schematic pricing
drawings and the cost estimate, as outlined in (2) (d) and (2)
(e) above, and provides Landlord all remaining information
needed to develop final Plans and Specifications by no later
than one week thereafter;
(g) Landlord, based upon all information previously provided and
approved by Tenant, authorizes Architect to prepare final
Plans and Specifications within four (4) further weeks;
57
(h) Tenant reviews and signs off on the final Plans and
Specifications prepared in accordance with (2) (g) above
within one (1) week;
Upon receipt from Tenant of the approved final Plans and Specifications
referred to in (2) (h) above, Landlord shall obtain a minimum of three
(3) competitive bids and select a contractor, who shall substantially
complete Tenant's Premises by June 30, 1996. Landlord shall provide
Tenant with a Tenant Improvement Allowance of One Million One Hundred
Twenty Thousand Dollars ($1,120,000.00) equivalent to Fourteen Dollars
($14.00) per rentable square foot of the Leased Premises. Should the
cost of all improvements to Tenant's Premises exceed Tenant's
Improvements Allowance, Tenant shall pay Landlord such excess costs
prior to the time payment of any sum including same is due to be made
by Landlord to the contractor under the contract for improvements. Said
excess costs shall be deemed Additional Rent under the Lease. Failure
by Tenant to pay any sums when due will constitute a failure to pay
rent when due and be, at Landlord's option, an event of default by
Tenant under the Lease. Any contractor-initiated change order must be
reviewed an approved by Landlord and Tenant, which review and approval
will not be unreasonably withheld. Should cost of improvements to
Tenant be less than the Tenant Improvement Allowance, Tenant may apply
the remainder thereof to the cost of future Tenant improvements to
expansion areas.
(3) Should Tenant, subsequent to commencement of construction of
Improvements to its Premises, modify the Plans and Specifications in
any way, Tenant shall pay all additional costs thereby incurred by
Landlord plus a fee of twenty-one percent (21%) of the additional cost
for Landlord's cost of coordination, supervision, supervision and
overhead
58
resulting from the revisions to said Plans and Specifications,
excluding any additional architectural and/or engineering fees. All
revised or additional Plans and Specifications are subject to
landlord's prior review and written approval. Should any revisions or
additions to the original Plans and Specifications result in a delay of
substantial completion of the Premises, Tenant agrees that such shall
constitute a "Tenant Delay".
SECTION (B) LANDLORD'S IMPROVEMENTS:
Preliminary to completion of construction of the Tenant
Improvement Work provided for elsewhere in this Agreement, the
following improvements to the Premises (herein called "Base Building
Work") shall have been or be completed by Landlord at its expense:
(1) Perimeter walls and core walls completed, taped and
bedded, ready for paint finish;
(2) Floor - Unfinished concrete slab floor at the interior of
the Leased Premises ready to receive carpeting or other
floor covering;
(3) Building Standard 110-volt power supplied to the building
core, together with building standard power grid
installed in ceiling;
(4) Men's and women's restroom facilities;
(5) Sprinkler riser and main loop;
(6) Building standard voice communication speakers, exit
lights, fire extinguishers and cabinets within common
areas, including the core area;
(7) 2' X 2' ceiling grid system installed throughout with
2' X 2' ceiling tiles stacked on the floors;
59
(8) Perimeter HVAC system installed from mixing boxes including
ductwork and perimeter slot diffusers;
(9) Building standard sprinkler distribution from main loop to
sprinkler heads, and building standard chrome semi-recessed
sprinkler heads;
(11) Thin line (1") aluminum horizontal blinds to cover all
exterior windows.
(12) Electrical Service - Provision of up to 3.5 xxxxx (but no more
than 3.5 xxxxx) per usable square foot of the Leased Premises.
This service shall provide power for lighting fixtures, base
and floor outlets and/or miscellaneous equipment. All
additional electrical service exceeding 3.5 xxxxx per usable
square foot shall be separately connected and metered at the
power source. Tenant shall pay for any and all costs to
submeter and all excess power as metered on a monthly basis;
(13) Heating, Ventilating and Air Conditioning Engineering and
installation of the base building HVAC system to provide cool
and warm air exterior zones supplied through slot diffusers in
accordance with the following specifications:
Summer Conditions
Inside Temperature Outside Temperature
------------------ -------------------
75 d.F dry bulb 92 d.F dry bulb
50% relative humidity 78 wet bulb
Winter Conditions
Inside Temperature Outside Temperature
------------------ -------------------
72 d.F dry bulb 14 d.F dry bulb
60
Any relocation of sprinklers or additions of sprinklers will
be at Tenant's cost.
All remaining preparation of the Leased Premises shall be
considered as Tenant's Work, to be completed at Tenant's sole expense.
SECTION (C) - GENERAL PROVISIONS:
(1) Landlord will permit Tenant and its agent to enter the Premises prior
to the date specified as the Commencement Date of the Term of the
Lease, allowing Tenant to perform through its own contractors (to be
first approved by Landlord) such other work and decorations as Tenant
may desire at the same time that Landlord's contractors are working in
the Premises. The foregoing license to enter prior to the Commencement
Date of the Lease Term, however, is conditioned upon Tenant's workmen
and mechanics working in harmony with and not interfering with the
labor employed by Landlord, Landlord's mechanics or contractors or by
any other Tenant(s) or their contractors, and not impeding or
interfering with the Landlord's work or the process thereof. Such
access shall at times be subject to the control and restrictions of the
Landlord. Such entry shall be deemed to be under all of the terms,
covenants, provisions and conditions of the Lease except Landlord shall
not be liable in any way for any injury, loss or damage which may occur
to any of Tenant's decorations or installations made prior to the
Commencement Date of the Term of the Lease, the making of any of same
being done solely at Tenant's risk.
(2) Workers' compensation and public liability insurance for bodily injury
and property damage, all in required amounts and with company's name
and on forms satisfactory to Landlord, shall be provided and at all
times maintained by Tenant's contractors engaged
61
in the performance of the work, and before proceeding with the work,
certificates of such insurance shall be furnished to Landlord.
(3) If Tenant's contractors or anyone employed by Tenant shall cause a
delay in completing Tenant's alterations, Tenant agrees that such delay
will constitute a "Tenant Delay."
(4) Should Landlord be unable to complete the work as scheduled as a result
of a "Tenant Delay", Tenant shall pay to Landlord, as Additional Rent,
one (1) day's base rent computed in accordance with the Lease for each
calendar day of "Tenant Delay", as liquidated damages and not as a
penalty, it being agreed that Landlord's damages and not as a penalty,
it being agreed that Landlord's damages for such delay would be
otherwise difficult to determine. Said Additional Rent will be due
within thirty (3) days of Tenant's receipt of Landlord's notice
therefore.
(5) Landlord, upon prior notice to Tenant, reserves the right to make
reasonable substitutions of equal or better quality and value for
building standard materials in the event of unavailability of materials
or due to field conditions.
(6) Tenant and Landlord acknowledge, by execution in their respective
spaces provided hereinbelow for that purpose; that the foregoing
correctly set forth all the obligations of Landlord and Tenant with
respect thereto are hereby extinguished and merged into this Agreement;
and that each has full authority and consent to bind the respective
contracting parties.
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IN WITNESS WHEREOF, the parties have executed this Leased
Premises Improvement Agreement this 25 day of October, 1995.
LANDLORD:
REGENCY PARK WEST ASSOCIATES
A Georgia General Partnership
By: AMERICAN RESURGENS
MANAGEMENT CORP.,
A Georgia Corporation
WITNESS/ATTEST:
[Illegible] By: /s/ Xxxxx X. XxXxxxx (L.S.)
------------------------- --------------------------------------
Xxxxx X. XxXxxxx
Its: Chairman
(Corporate Seal)
TENANT:
THERATX, INC.
A Delaware Corporation
By: /s/ Xxxx X. Xxxxxx (L.S.)
--------------------------------------
Its: Pres. & CEO
-------------------------------------
(Corporate Seal)
APPROVED:
GENERAL ELECTRIC REAL
ESTATE EQUITIES, INC.
By: [Illegible]
--------------------
63
EXHIBIT "D"
ESTOPPEL CERTIFICATE
(Lender's Name)
Gentlemen:
The undersigned, as Tenant under that certain lease (the "Lease") dated
__________, 19__, made with ______________________________, as Landlord (the
"Landlord"), does hereby agree and certify:
1. That the copy of the Lease attached hereto as Exhibit "A" is a true and
complete copy of the Lease, and there are no amendments, modifications or
extensions of or to the Lease except as set forth immediately below:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
2. That the term of the Lease commenced or began on __________, 19__, and the
Lease is now in full force and effect.
3. That its Leased Premises at the above location have been completed in
accordance with the terms of the Lease, that it has accepted possession of said
premises, that it now occupies the same and that Tenant is paying full lease
rental.
4. That it began paying rent on __________, 19__, and that, save only as may be
required by the terms of the Lease, no rental has been paid in advance, nor has
the undersigned deposited any sums with the Landlord as security except as set
forth immediately below:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
5. That there exist no defenses or offsets to enforcement of the Lease by the
Landlord and, so far as is known to the undersigned, the Landlord is not, as of
the date hereof, in default in the performance of the Lease, nor has the
Landlord committed any breach thereof, nor has any event occurred which, with
the passage of time or the giving of notice, or both, would constitute a default
or breach by the Landlord.
The undersigned acknowledges that you are relying on the above representations
of the undersigned in (advancing funds to purchase the existing first mortgage
loan covering the
64
building in which the Leased Premises are located)/(purchasing the building in
which the Leased Premises are located) and does hereby warrant and affirm to and
for your benefit, and that of your successors and assigns, that each of the
foregoing representations is true, correct and complete as of the date hereof.
DATED:
------------------------------
TENANT:
------------------------------
By:
----------------------------------
Its:
---------------------------------
65
EXHIBIT "E"
RULES AND REGULATIONS
1. Sidewalks, courts, ramps, parking facilities, loading docks
and areas, driveways, delivery, drop-off and pick-up areas, bus stops, halls,
passages, exits, entrances, elevators, escalators, stairways of the Building and
throughout the Common Area and other areas and improvements provided by Landlord
for the general use of tenants, their employees, visitors, invitees and
licensees, shall not be covered or obstructed by Tenant or used by it for any
purpose other than for ingress and egress from the Leased Premises, the Building
or the Common Area, as applicable. The walls, partitions, windows and doors that
reflect or admit light into passageways or into any other part of the Building
shall not be covered or obstructed. The halls, courts, parking facilities,
loading docks and areas, driveways, delivery, drop-off and pick-up areas,
passages, exits, entrances, elevators, escalators and stairways are not for the
use of the general public and Landlord shall in all cases retain the right to
control and prevent access thereto by all persons whose presence, in the
judgment of Landlord, may be prejudicial to the safety, character, reputation
and interests of the Common Area, the Building and its tenants; provided that
nothing herein contained shall be construed to prevent such access to persons
with whom any tenant normally deals in the ordinary course of such tenant's
business unless such persons are engaged in illegal or immoral activities.
Tenant, and its employees, visitors, invitees or licensees of any tenant, shall
not go upon the roof of the Building, except as previously authorized by
Landlord.
2. No sign, placard, picture, name, notice, decoration or
advertisement visible horizontally or vertically from the exterior of Leased
Premises shall be inscribed, painted, affixed, installed or otherwise displayed
by any tenant either on its Premises or any interior or exterior part of the
Building without the prior written consent of Landlord, and only then at the
sole cost and expense of Tenant. Landlord shall have the right to remove any
such sign, placard, picture, name, notice, decoration or advertisement without
notice to and at the sole cost and expense of tenant.
(a) If Landlord shall have given such consent to Tenant at any
time, whether before or after the execution of a lease, such
consent shall in no way operate as a waiver or release of any
of the provisions hereof or of such lease, and shall be deemed
to relate only to the particular sign, placard, picture, name,
notice, decoration or advertisement so consented to by
Landlord and shall not be construed as dispensing with the
necessity of obtaining the specific written consent of
Landlord with respect to any other such sign, placard,
picture, name, notice, decoration or advertisement.
(b) All approved signs or lettering on doors and walls shall be
printed, painted, affixed and inscribed at the sole expense or
Tenant by a person previously approved in writing by Landlord.
3. The directory of the Building will be provided exclusively for
the display of the name and location of tenants only, in such manner and
arrangement as may be from time
66
to time determined by Landlord, and Landlord reserves the right to exclude any
other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or
other coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on any premises
without the prior written consent of Landlord. In any event with the prior
written consent of Landlord, all such items shall be installed inside of
Landlord's standard window covering and shall in no way be visible from the
exterior of the Building. No articles shall be placed or kept on the windowsills
so as to be visible from the exterior of the Building. No articles shall be
placed against glass partitions or doors which might appear unsightly from
outside Tenant's Premises.
5. Landlord reserves the right to exclude from the Building
between the hours of 6:00 p.m. and 6:00 a.m. and at all hours on Saturdays,
Sundays and holidays all persons other than Tenant or its accompanied guests.
Tenant shall be responsible for all persons whom it allows to enter the Building
and shall be liable to Landlord for all acts of such persons.
(a) Landlord shall in no case be liable for damages or for error
with regard to the admission to or exclusion from the Building
of any person.
(b) During the continuance of any invasion, mob, riot, public
excitement or other circumstances rendering such action
advisable in Landlord's opinion, Landlord reserves the right
to prevent access to the Building by closing the doors, or
otherwise, for the safety of tenants and protection of the
Building and property in the Building.
6. Tenant shall not employ any person or persons other than the
janitor of Landlord for the purpose of cleaning Premises unless otherwise agreed
to by Landlord in writing. Except with the written consent of Landlord no person
or persons other than those approved by Landlord shall be permitted to enter the
Building for the purpose of cleaning same. Tenant shall not cause any
unnecessary labor by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness of Tenant's Premises. Landlord shall
in no way be responsible to any tenant for any loss of property on the Premises,
however occurring, or for any damage done to the effects of any tenant by the
Landlord's janitor or any other employee or any other person.
7. Tenant shall not obtain or maintain for use on its Premises
coin-operated vending machines or accept barbering or bootblacking services in
its Premises except from persons authorized by Landlord.
8. Tenant shall see that all doors of its Premises are closed and
securely locked and must observe strict care and caution that all water faucets
or water apparatus are entirely shut off before the tenant or its employees
leave such Premises, and that all utilities shall likewise be carefully shut off
so as to prevent waste or damage, and for any default or carelessness the tenant
shall make good all injuries sustained by other tenants or occupants of the
67
Building. On multiple tenancy floors, all Tenants shall keep the door or doors
to the Building corridors closed at all times except for ingress and egress.
9. Tenant shall not waste electricity, water or air-conditioning
and agrees to cooperate fully with Landlord to assure the most effective
operation of the Building's mechanical systems, and shall refrain from
attempting to adjust any controls.
10. No additional locks or bolts of any kind shall be placed on
any door in the building or the Premises and no lock on any door therein shall
be changed or altered in any respect. Landlord shall furnish two keys for each
lock on doors in the Premises and shall, on Tenant's request and at Tenant's
expense, provide additional duplicate keys.
11. The toilet-rooms, toilets, urinals, wash bowls, water
apparatus, and other plumbing facilities shall not be used any purpose other
than for those for which they were constructed or installed. All plumbing lines
shall be kept open and no sweepings, rubbish, chemical, or other unsuitable or
foreign substances of any kind shall be thrown or placed therein or in any of
the toilets, urinals, wash bowls, water apparatus or other plumbing facilities.
The expense of any breakage, stoppage or damage resulting from violation(s) of
this rule by Tenant or Tenant's agents, employees, invitee, licensees or
visitors, shall be borne by Tenant and shall be paid to Landlord immediately
upon Landlord's demand. No restrooms in the Common Areas shall be used as
smoking areas, clothes changing facilities, or lounging or meeting areas.
Furthermore, no bathing (other than the washing of hands and face) shall be done
in the restrooms, and no hair dryers, shavers (electric or manual) or other
appliances shall be used in the restrooms at any time. Tenant shall not allow or
permit its agents, employees, invitee, licensees or visitors to congregate in
the restrooms for any reason or to otherwise violate the above provisions of
this Rule 11.
12. Tenant shall not use, keep, store or permit in its Premises or
the Building any: (a) ether, naptha, phosphorous, benzol, gasoline, benzine,
petroleum, crude or refined earth or coal oils, kerosene or camphene, other than
in limited quantities necessary for the operation or maintenance of office
equipment; (b) any other flammable, combustible, explosive gas or material of
any kind; or (c) any other fluid, gas or material of any kind having an
offensive odor, unless previously obtaining written consent of the Landlord.
Tenant shall use no method of heating or air-conditioning other than that
supplied by Landlord.
13. No odors or vapors shall be caused or permitted to emanate
from the Premises. Tenant shall not use, keep, store or permit to be used or
kept in its Premises any foul or noxious gas or substance or permit or suffer
such Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors and/or
vibrations or interfere in any way with other tenants or those having business
therein, nor shall any live animals or birds other than seeing eye dogs be
brought or kept in or about the Premises or the Building.
14. Tenant shall not use, permit or suffer the use of the Premises
or the Building or the Common Areas of the office park for living, sleeping or
lodging; shall not do any cooking or conduct any restaurant, luncheonette, or
cafeteria business for the sale or service of
68
food or beverages to persons other than its own employees and guests (in which
event only equipment approved by Underwriters' Laboratory shall be used or
installed); and shall not permit the delivery of food or beverage to the
Premises, except by such persons delivering the same as shall be approved by
Landlord and only under regulations fixed by Landlord.
15. Except with the prior written consent of Landlord, Tenant
shall not sell, permit the sale, at retail, of newspapers, magazines,
periodicals, theatre tickets or any other goods or merchandise in or on any
Premises, nor shall tenant carry on, or permit or allow any employee or other
person to carry on, the business of stenography, typewriting or any similar
business in or from any Premises for the service or accommodation of occupants
of any other portion of the Building, nor shall the Premises of Tenant be used
for the storage of merchandise or for manufacturing of any kind, or the business
of a public xxxxxx shop, beauty parlor, or bootblacking parlor nor shall the
Premises of Tenant be used for any improper, immoral or objectionable purpose,
or any business activity other than that specifically provided for in Tenant's
Lease.
16. If Tenant requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain, and comply with, Landlord's instruction
in their installation. Landlord will direct electricians as to where and how
telephone, telegraph and electrical wires are to be introduced or installed. No
boring or cutting for wires will be allowed without the prior written consent of
Landlord. The location of burgular alarms, telephones, call boxes or other
office equipment affixed to all Premises shall be subject to the written
approval of Landlord.
17. Tenant shall not install any radio or television antenna,
loudspeaker or any other device on the exterior walls or the roof of the
Building. Tenant shall not use or permit operation of any musical or
sound-producing instruments or devices which may be heard outside the Premises,
or interfere with radio or television broadcasting or reception from or in the
Building or elsewhere. No signaling, telegraphic or telephonic instruments or
devices, no other wires, instruments or devices, shall be installed in
connection with the Premises without the prior written approval of Landlord.
Such installations, and the boring or cutting for wires, shall be made at the
sole cost and expense of Tenant and under the control and direction of Landlord.
Landlord retains in all cases the right to require (i) the installation and use
of such electrical protecting devices the prevent the transmission of excessive
currents of electricity into or through the Building, (ii) the changing of wires
and of their installation and arrangement underground or otherwise as Landlord
may direct, and (iii) compliance on the part of all using or seeking access to
such wires with such rules as Landlord may establish relating thereto. All such
wires used by Tenant must be clearly tagged at the Building, with (i) the number
of the Premises to which said wires lead, (ii) the purpose for which wires are
used, and (iii) the name of the company operating same.
18. Tenant shall lay no linoleum, tile, carpet or any other floor
covering so that the same shall be affixed to the floor of its Premises in any
manner except as approved in writing by Landlord. The expense of repairing any
damage resulting from a violation of this rule or the removal of any floor
covering shall be borne by Tenant if it or its contractors, employees or
invitees, shall have caused the damage.
69
19. No furniture, freight, equipment, materials, supplies,
packages, merchandise or other property will be received in the Building or
carried upon or down the elevators except between such hours and in such
elevators as shall be designated by Landlord. Landlord shall have the right to
prescribe the weight, size and position of all safes, furniture, files,
bookcases or other heavy equipment brought into the Building. Safes or other
heavy objects shall, if considered necessary by Landlord, stand on wood strips
of such thickness as determined by Landlord to be necessary to properly
distribute the weight thereof. Landlord will not be responsible for loss of or
damage to any such safe, equipment or property from any cause, and all damage
done to the Building by moving or maintaining any such safe, equipment or other
property shall be repaired at the expense of Tenant.
20. Business machines and mechanical equipment belonging to Tenant
which cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the Building shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed by Tenant to
move such equipment in or out of the Building must be acceptable by Landlord.
21. Tenant shall not place a load upon any floor of the Premises
which exceeds the load per square foot which such floor was designed to carry
and which is allowed by law. Tenant shall not xxxx, or drive nails, screws or
drill into, the partitions, woodwork or plaster or in any way deface such
Premises or any part thereof.
22. Tenant shall not install, maintain or operate upon the
Premises any vending machine without the written consent of the Landlord.
23. There shall not be used in the Premises, or in the public
areas of the Building, by Tenant or others, any hand trucks except those
equipped with rubber tires and side guards or such other material-handling
equipment as Landlord may approve. No other vehicles of any kind shall be
brought by Tenant into or kept in or about the Premises.
24. Tenant shall store all its trash and garbage within the
interior of its Premises. No materials shall be placed in the trash boxes or
receptacles if such material is of such nature that it may not be disposed of in
the ordinary and customary manner of removing and disposing of trash and garbage
in this area without violation of any law or ordinance governing such disposal.
All trash, garbage and refuse disposal shall be made only through entryways and
elevators provided for such purposes and at such times as Landlord may
designate.
25. Canvassing, soliciting, distributing of handbills or any other
written material, and peddling in the Building or in the Common Areas or in the
Office Park, are prohibited and each tenant shall cooperate to prevent the same.
Tenant shall not make room-to-room or telephonic solicitation of business from
other tenants in the Building.
26. Landlord reserves the right to exclude or expel from the
Building, the Common Areas and/or the Office Park any person who, in Landlord's
judgment, is or may be
70
intoxicated or under the influence of liquor or drugs or who is or may be in
violation of any of the Rules and Regulations of the Building.
27. Landlord shall have the right to prohibit any advertising by
Tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability for offices, and upon written notice from Landlord.
Tenant will refrain from or discontinue such advertising. No Tenant shall use
the name of the Building in connection with or in prompting or advertising the
business of said Tenant except for the purpose of identifying said Tenant's
address.
28. Tenant shall comply with all conservation, safety, fire
protection and evacuation procedures and regulations established by Landlord and
by any and all governmental agencies.
29. Tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes keeping doors locked
and other means of entry to the Premises closed.
30. The requirements of Tenant will be attended to only upon
application at the office of the Building by an authorized individual. Employees
of Landlord shall not perform any work or do anything outside of their regular
duties except upon special instructions from Landlord, and no employees of
Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
31. All wallpaper or vinyl fabric materials which any tenant may
install on painted walls shall be applied with a strippable adhesive. The use of
nonstrippable adhesives will cause damage to the walls when materials are
removed, and repairs made necessary thereby shall be made by Landlord at
Tenant's expense.
32. Tenant shall provide and maintain hard surface protective mats
under all desk chairs which are equipped with casters to avoid excessive wear
and tear to carpeting. If Tenant fails to provide such mats, the cost of carpet
repair or replacement made necessary by such excessive wear and tear shall be
charged to and paid for by Tenant.
33. Tenant will refer all contractors, contractors'
representatives and installation technicians rendering any service to Tenant to
Landlord for Landlord's supervision, approval, and control before performance of
any contractual service. This provision shall apply to all work performed in the
Building, including installations of telephones, telegraph equipment, electrical
devices and attachments and installations of any nature affecting floors, walls,
woodwork, trim, windows, ceilings, equipment or any other physical portions of
the Building.
34. Tenant shall give prompt notice to Landlord of any accidents
to or defects in plumbing, electrical facilities or fixtures, air conditioning
equipment, heating apparatus, or to any part or appurtenance of the Premises.
71
35. Only workmen employed, designated or approved by Landlord may
be employed for repairs, installations, alterations, painting, material moving,
and other similar work that may be done on the Premises.
36. Tenant shall not use the Premises, the Building or the Office
Park or permit any of same to be used for photographs, multilith or multigraph
reproductions except in connection with its own business and only with
Landlord's prior approval.
37. Smoking is prohibited at all times in all interior lobbies,
hallways, corridors, elevators, restrooms and other interior public areas of the
Building and of all Buildings in the Office Park. Tenant shall so advise its
employees and invitees and cooperate with Landlord in the enforcement of this
policy. Within the Premises, Tenant shall enforce the Xxxxxx County Clean Indoor
Air Ordinance of May 20, 1993, as same may be from time to time amended or
modified.
38. Tenant may utilize the Building's freight elevator only with
prior permission of Landlord's property manager and then upon such conditions
and at such times are designated thereby.
39. The consumption of food or beverage and the playing of radios,
tape recorders, records, or any other electronic playing devices is strictly
prohibited in all lobbies and other public areas of the Building.
40. Landlord reserves and shall have the right to make and adopt,
from time to time, such other and further reasonable rules and regulations, and
such amendments, modifications, supplements and additions to these Rules and
Regulations, and to revoke or rescind the same, as in Landlord's sole reasonable
judgment may be needed for the safety, security, care and cleanliness of the
Building, the Common Areas and the Office Park and for the occupancy of the
Building or for preservation of good order therein.
41. These Rules and Regulations are in addition to, and shall not
be construed to in any way modify, alter or amend, in whole or in part, the
terms, covenants, agreements and conditions of any lease of Premises in the
Building.
42. All tenants of the Building, as well as their respective
employees, agents, clients, customers, guests, invitees and licensees, shall
abide by and be responsible for the observance of all of these Rules and
Regulations, and such additional rules and regulations as are hereafter adopted
by Landlord.
43. Notwithstanding anything to the contrary in these Rules and
Regulations, all approvals needed of Landlord must be in writing. Landlord may
waive any one or more of these Rules and Regulations for the benefit of any
particular tenant or tenants, but no such waiver by Landlord shall be construed
as a waiver of such Rules and Regulations in favor of any other tenant or
tenants, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against that tenant or any or all tenants of the Building.
72
EXHIBIT "F"
SPECIAL STIPULATIONS
1. Early Access to Premises by Tenant. Tenant will have access, at no cost
to Tenant, to the Premises to install equipment and furnishings during
the period three (3) weeks prior to the Commencement Date. At such
time, the Premises shall be in condition to permit the installation of
phone lines, equipment and furniture (subject to Xxxxxx County Fire
Xxxxxxxx'x requirements).
2. Tenant Improvement Allowance. Landlord will provide a Tenant
Improvement Allowance, to be computed, expanded and applied in
accordance with a Leased Premises Improvement Agreement attached to the
Lease as Exhibit "C", slab-to-slab, of Fourteen Dollars ($14.00) per
rentable square foot of the Premises. Additionally, Landlord will
provide ceiling grid and slot diffusers in place, with ceiling tiles
stacked on the floors of the Premises. Any unused portion of the Tenant
Improvement Allowance may be used for tenant improvements in future
expansion areas.
3. Space Planning, Architectural and Engineering. Landlord shall provide
Tenant with an allowance of One Dollar ($1.00) per square foot of net
usable area ($73,059.00) for the preparation of final floor plans and
construction documents based on building standard finishes.
4. Option to Expand. For a period of twelve (12) months after the
Commencement Date, Tenant shall have the right to expand the Premises
by up to 20,000 square feet of net rentable area. The rental and other
charges under the Lease (on a per square foot basis) shall be
applicable to said expansion space and all other terms of the Lease
shall be applicable to said expansion space; provided, however, that
the term of the Lease as to any such expansion space shall expire or
otherwise terminate with the term of the Lease applicable to Tenant's
original Leased Premises. The option space shall be contiguous to
Tenant's original Leased Premises.
5. Right of First Offer. Upon the expiration of any other lease between
Landlord and any other tenant in the Building, Tenant shall have the
Right of First Offer to expand its facilities into any area as to which
such other lease is expiring, provided Tenant provides written notice
of exercising this Right of First Offer within thirty (30) days of
written notice from Landlord.
6. Tenant Day Care Facility. Tenant, at its sole cost and expense, shall
have the right to construct and operate a day care facility for primary
use by children of its employees within Tenant's Leased Premises;
provided that no more than twenty-five percent (25%) of the children
kept therein will be other than employee dependents. Tenant shall
assume all responsibility and liability for the operation of such a
facility, including playground, and shall indemnify, save and hold
harmless Landlord of and from all liability therefor. Landlord agrees
to designate a portion of the grounds adjacent to the office building
as a playground area for the children being cared for in Tenant's day
care center. Landlord agrees to enter into no agreement with any other
tenant which would prohibit or limit Tenant's ability to own and
operate such a day care facility.
73
7. Tenant's Physical Fitness Center. Tenant, at its sole cost and expense,
shall have the right to create a physical fitness center within its
Leased Premises. All responsibility and liability for the operation of
such a facility shall be borne by Tenant. Landlord agrees to contribute
to Tenant up to Ten Thousand Dollars ($10,000), to be expended by
Tenant solely to furnish machines and equipment to be used in the
physical fitness center.
8. Vehicular Access. Landlord shall complete construction, at least three
(3) weeks prior to the Commencement Date, of vehicular access to both
Rockmill and Old Roswell Roads.
9. Tenant's Employee Deli/Dining Facility. Tenant shall have the right to
create within its Leased Premises an employee dining facility for the
exclusive use of Tenant's employees. The cost of such facility shall be
borne entirely by Tenant, who shall assume all responsibility and
liability for the operation of such facility.
10. Building, Premises and Parking Access. Tenant will have twenty-four
(24) hours per day, seven (7) days per week, fifty-two (52) weeks per
year, access to its Premises, the Building and exterior parking
facilities. The building will contain four (4) elevators, one of which
will be designated as a dual use elevator for both freight and
passenger service. The use of the freight elevator will require prior
notice to the Building's management.
11. Security and Life Safety. The Building's security and life safety
system shall consist of a computerized card activated access control
system for twenty-four (24) hour, seven days a week entry into the
Building. In addition, Landlord or Office Park manager shall provide a
roving security patrol for surveillance in the Office Park from 6 P.M.
Monday through Friday and twenty-four (24) hours a day on weekends and
holidays.
12. Graphics and Exterior Signage. Tenant identification will be available
on the Building's lobby directory and at the Tenant's Premises primary
entrance. In addition, Landlord will provide Tenant an exterior
Building monument sign for Tenant's exclusive use, which sign shall
contain Tenant's corporate colors and logo and shall at all times be
larger than and not in proximity to any sign provided for any other
Tenant of the Building.
13. On-Site Management. Landlord will manage the Building with an on-site
management staff to be located within the Office Park.
14. Recreational Amenities. Landlord will construct walking/jogging trails
in the vicinity of the natural lake within the Office Park, for use by
tenants within the Office Park, and will also provide in the vicinity
of the lake, picnic tables and seating for outdoor eating. So long as
the privilege is not abused, Tenant's employees shall also have the
privilege of fishing in the natural lake. Landlord shall also
construct, at its expense, a softball diamond within the Office Park.
15. Tenant's Right to Sublease Premises. Notwithstanding the provisions of
Paragraph 10 of the Lease, Landlord's written consent to subletting or
assignment of all or part of the Premises shall not be unreasonably
withheld or delayed. Further, no consent of Landlord shall be required
for occupancy of the Premises by any subsidiary, affiliate, or related
entity of Tenant.
74
16. Heating, Ventilation & Air Conditioning. Notwithstanding the provisions
of Paragraph 13 of the Lease, Landlord shall provide heating,
ventilation, and air conditioning services to the Premises from 8:00
A.M. to 7:00 P.M. on weekdays and 8:00 A.M. to 2:00 P.M. on Saturdays.
After hours heating, ventilating and air conditioning will be provided
by Landlord to Tenant upon request on a floor-by-floor basis at a cost
of Fifty Dollars ($50.00) per hour per air handler unit per floor, such
amount to be adjusted annually in accordance with Paragraph 19 herein.
17. Legal Description of Property. Within sixty (60) days of the date of
this Lease, Landlord will obtain a complete survey of the boundaries of
the Property and will then develop therefrom a full metes and bounds
legal description of same that will thereafter become Exhibit "B" to
this Lease. The location therein of the Building to be constructed by
Landlord is shown on the "Conceptual Plan" attached as the first page
of Exhibit "B-1" to this Lease, wherein the Building is depicted as
"Pod 1-Office Building."
18. Floor Plan of Leased Premises. Within one hundred twenty (120) days of
the date of this Lease, Landlord will obtain, from an architect
licensed as such in the State of Georgia, a floor plan(s) depicting the
outline of the Leased Premises, which floor plan shall then become
Exhibit "A" to this Lease.
19. Further Explanation of CPI Adjustments. In elaboration of the
provisions of Paragraph 3(d), the initial CPI adjustment shall be made
as of July 1, 1997, which is one year after the Commencement Date of
the Lease. A second CPI adjustment will be made six months thereafter,
as of January 1, 1998. Thereafter, all CPI adjustments shall be made at
twelve-month intervals, on an annual basis, effective as of January 1
of each succeeding year following 1998. All CPI adjustments will be
made as to only that portion of Base Monthly Rental which is other than
initial Operating Expenses of the Building (as that figure increases
from time to time throughout the Lease Term due to the making of prior
CPI adjustments).
By way of illustration, the initial amount of the Base Monthly Rental
which represents Operating Expenses of the Building is Five Dollars ($5.00) per
rentable square foot; the initial Monthly Base Rental is Sixteen and 27/100
Dollars ($16.27) per rentable square foot; and the portion of initial Monthly
Base Rental which is exclusive of Initial Operating Expenses of the Building is
therefore Eleven and 27/100 Dollars ($11.27) per rentable square foot.
Thus, by way of further illustration only, and assuming that the CPI at
the Lease Commencement Date is four hundred (400), and increases to four hundred
ten (410) by the end of the month immediately preceding the date of the first
escalation computation, the escalation would be computed, and would be, as
follows:
[$16.27-$5.00 = $11.27] x .5 [410-400 10
------- ----
400 400 = .025%]
$11.27 x .0125% = .0125% = $0.14 (Escalation for CPI at Beginning of
Second Year of Lease Term)
75
$11.27 + $.14 = $11.41 (Escalated Portion of Monthly Base Rental for
Second Year of Lease Term)
20. Explanation of Operating Expense Escalation. In elaboration of the
provisions of Paragraph 3(f) of the Lease, that portion of initial
Monthly Base Rental representing Operating Expenses of the Building
(initially $5.00 per rentable square foot or $864,000.00) shall be
escalated, first, for the year next following the Commencement Date and
expiring June 30, 1997; then for the six month period running from July
1, 1997 to and through December 31, 1997, being effective January 1,
1998; and, thereafter, on an annual basis as of the first day of each
calendar year succeeding 1998.
The amount of the escalation shall be Tenant's proportionate share of
the actual amount of increase in Operating Expenses of the Building from period
to period. Thus, by way of illustration only, if during the course of the
initial year of the Lease Term the Operating Expenses of the Building increase
from one year to the next by Fifty Thousand Dollars ($50,000.00), and since
Tenant's Leased Premises will initially compromise 46.3% of the total rentable
area of the Building, then this component of Monthly Base Rental would be
escalated One Thousand Nine Hundred Twenty-Nine and 01/100 Dollars ($1,929.01),
effective July 1, 1997, and would be computed as follows:
Operating Expense $914,000
Base Rental ($5.00) $864,000
--------
Increase $ 50,000 x [ 80,000 RSF
------------
172,800 RSF = .462963 or 46.2963%]
= $23,148.15 - 12 = $1,929.01 per month (ESCALATION FOR OPERATING
EXPENSE INCREASE FOR SECOND
YEAR OF LEASE TERM)
76
EXHIBIT "G"
STATE OF GEORGIA
COUNTY OF XXXXXX
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the _____ day of April,
1995, by and among GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation
("Lender"), THERATX, INCORPORATED, a Delaware corporation ("Tenant") and REGENCY
PARK WEST ASSOCIATES, L. P., a Georgia limited partnership ("Landlord").
W I T N E S S E T H:
WHEREAS, Lender has made to Landlord a loan secured by that certain
Deed to Secure Debt recorded in Deed Book _____ at Page _____ in the Xxxxxx
County, Georgia, Records (the "Deed of Trust/Mortgage") conveying the property
described therein (the "Property");
WHEREAS, Landlord and Tenant made and entered into that certain Lease
(the "Lease"), dated the _____ day of April, 1995, with respect to certain
premises therein described (the "Leased Premises"); and
WHEREAS, the parties hereto desire to enter into this Subordination,
Non-Disturbance and Attornment Agreement;
NOW, THEREFORE, for Ten and 00/100 Dollars ($10.00) and other good and
valuable consideration, the receipt and, sufficiency of which are hereby
acknowledged, Lender, Tenant and Landlord hereby covenant and agree as follows:
1. SUBORDINATION. Tenant has subordinated and does hereby
subordinate the Lease, together with any and all rights, title, interest,
estates, options, liens and charges created thereby, to the Deed of
Trust/Mortgage, any and all advances made or secured thereunder, and any and all
renewals, modifications, consolidations, replacements, extension, transfers and
assignments thereof. The Dead of Trust/Mortgage shall be superior to the rights,
title, interest and estate of Tenant in and to the Leased Premises by virtue of
the Lease. The Deed of Trust/Mortgage may be amended from time to time without
the consent of Tenant.
2. NON-DISTURBANCE AGREEMENT. As long as there is no "event of
default" (as defined in the Lease) on the part of Tenant, Tenant's rights under
the Lease and its possession of the Leased Premises will not be interfered with
or disturbed by Lender during the term of the Lease (except in accordance with
the terms of the Lease) following acquisition of title to the property (a) by
Lender or any purchaser by reason of foreclosure of the Deed of Trust/Mortgage
or other proceedings to enforce the rights of the owner and holder of the Deed
of Trust/Mortgage or (b) by Lender or its designee pursuant to acceptance of a
deed in lieu of foreclosure or (c) by any other method (in any case, a "Transfer
of Ownership").
77
3. ATTORNMENT AGREEMENT. If a Transfer or Ownership occurs,
Lender and Tenant will be bound to each other, as Landlord and Tenant,
respectively, under all of the terms and conditions of the Lease for the
remainder of the term thereof, including any renewal or extension term, and
Tenant will attorn to Lender as its landlord, such attornment to be effective
and self-operative, without the execution of any other instruments on the part
of either party to this Agreement, to the extent of the then remaining balance
of the term of the Lease, including any extensions or renewals, shall be as are
now set forth in the Lease, subject to Paragraph 4 hereof. As used in this
Paragraph and in the subsequent provisions hereof, whenever the Agreement
allows, the term "Lender" will also include a purchaser of the Property at a
foreclosure sale.
4. LENDER'S LIABILITY. If Lender shall succeed to the interests
of Landlord under the Lease, Lender shall be bound to Tenant under all the terms
of the Lease, and Tenant shall have, from the time of Lender's succession to the
interest of Landlord under the Lease, the same remedies against Lender that it
would have had under the Lease against Landlord, but for the succession of
Lender to the interests of Landlord. In the event of such succession, Lender
shall not be:
4.1. liable for any act or omission of any prior landlord
under the Lease (including Landlord); or
4.2. subject to any offsets or defenses which Tenant might
have had against any prior landlord under the lease (including Landlord); or
4.3. bound by any rent or other charges which Tenant might
have paid in advance or above its current obligation to any prior landlord under
the same Lease (including Landlord): or
4.4. bound by any agreement or modification of the Lease
made without Lender's consent, which consent shall not be unreasonably withheld.
5. NOTICE OF DEFAULT BY LANDLORD. Tenant agrees to give to Lender
the same notice of any default by Landlord under the Lease that it gives to
Landlord. Tenant further agrees to give such notices to any successor in
interest of Lender provided that such successor in interest shall have given
written notice to Tenant of its acquisition of Lender's interest in the Deed of
Trust/Mortgage and designated the address to which such notices are to be sent.
Tenant further agrees that Lender shall have a reasonable time (not less than
thirty (30) days) to cure any such default in the event Landlord fails to cure
such default within the grace period, if any, allowed under the Lease, and to
accept all payments made or acts done by Lender on behalf of Landlord within
said reasonable time as though the same had been timely done and performed by
Landlord so that such acts or payments shall cure such default. For purposes
hereof, Lender's address is:
General Electric Capital Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Regional Manager
78
or such other address as Lender may designate to Tenant by giving
written notice to Tenant at the address set forth in the Lease, or to such other
address as Tenant may in writing designate.
6. ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties and i it may not be modified orally or in any other manner other
than by agreement in writing signed by the parties hereto or their respective
successors in interest.
7. PROVISIONS BINDING. This Agreement shall inure to the benefit
of and be binding upon the Tenant, and its successors and assigns, it being
expressly understood that all references herein to Tenant shall be deemed to
include not only Tenant, but also its successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION,
a New York corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxxx X. Xxxxxxx,
Authorized Signatory
[CORPORATE SEAL]
TENANT:
THERATX, INCORPORATED, a Delaware
Corporation
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
CEO & President
[CORPORATE SEAL]
79
LANDLORD:
REGENCY PARK WEST ASSOCIATES, L.P., a
Georgia Limited Partnership
By: AMERICAN RESURGENS MANAGEMENT CORP.,
a Georgia Corporation
As General Partner
By: [Illegible]
--------------------------------------
Its: [Illegible]
---------------------------------
[CORPORATE SEAL]
APPROVED:
GENERAL ELECTRIC REAL ESTATE
EQUITIES, INC., a Delaware Corporation
By: [Illegible]
-------------------------------------
Its: Vice President
[CORPORATE SEAL]
80
Exhibit "B"
to Landlord's Consent to Second Sublease
-------------------------------
SECOND SUBLEASE AGREEMENT
-------------------------------
May 28, 1999
81
LIST OF EXHIBITS
Exhibit A - Consent Form from Landlord
Exhibit B - Consent form from TheraTX
Exhibit C - Drawing showing location of Second Subleased Premises
Exhibit D - Copy of Lease and all Amendments
Exhibit E - Copy of Subleased and all Amendments
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TABLE OF CONTENTS
Section Page
1. Sublease...........................................................1
2. Term...............................................................2
3. Rent...............................................................2
4. Alterations........................................................3
5. Assignment and Subletting..........................................4
6. Brokers............................................................4
7. Obligations of the Parties.........................................4
8. Incorporation by Reference.........................................5
9. Indemnification....................................................5
10. Termination; Default; Remedies.....................................5
11. Charter Certification..............................................6
12. Miscellaneous......................................................6
12.1 Binding Effect............................................6
12.2 Notices...................................................7
12.3 Governing Law.............................................7
12.4 Entire Agreement..........................................7
12.5 Consent...................................................7
12.6 Counterparts..............................................7
12.7 Quiet Enjoyment...........................................7
12.8 Authority.................................................8
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SECOND SUBLEASE AGREEMENT
THIS SECOND SUBLEASE AGREEMENT ("Second Sublease") is made and entered
into as of the 28th day of May, 199, by and among: (i) Charter Behavioral Health
Systems, LLC, a Delaware limited liability company ("Charter"), and (ii) Witness
Systems, Incorporated, a Delaware Corporation ("Witness").
RECITALS:
A. Pursuant to that certain Lease dated as of April 25, 1995,
between TheraTx, Incorporated ("TheraTx") and Regency Park West Associates, L.P.
("Regency"), as amended by a First Amendment to Lease dated October 25, 1995, a
Second Amendment to Lease dated August 12, 1996, and a Third Amendment to Lease
dated March 12, 1997 (together, the "Lease"), Regency leased to TheraTx certain
real property consisting of a total of approximately 107,695 rentable square
feet located on the first, third and fourth floors of a multistory precast
concrete and glass office building (the "Building") situated at 0000 Xxxxxxxxx
Xxxxxxx in Alpharetta, Georgia (the "Leased Premises").
B. Sanctuary Park Realty Holding Company ("Landlord") is the
successor in interest to Regency as landlord.
C. Pursuant to that certain Sublease Agreement dated as of April
30, 1998, between Charter and TheraTx, TheraTx subleased to Charter certain of
the Lease Premises consisting of 47,846 rentable square feet (43,695 usable
square feet) in the location shown in Exhibit A to the Sublease Agreement
together with the nonexclusive use of all common areas pertaining thereto as
described in the Sublease Agreement (collectively, the "Subleased Premises").
D. Charter desires to sublet a portion of the Subleased Premises
to Witness, and Witness desires to sublet such portion of the Subleased Premises
from Charter, upon the terms and conditions contained in this Second Sublease.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the parties hereto hereby
agree as follows:
1. SUBLEASE. Charter hereby leases to Witness, and Witness hereby
leases from Charter, that portion of the Subleased Premises on the fourth floor
of the Building (Lake View I, at Sanctuary Park) consisting of 11,835 rentable
square feet (10,808 usable square feet in the location shown on the drawing
attached hereto and made a part hereof, at Exhibit A, together with the
nonexclusive use of all common areas pertaining thereto (including, but not
limited to Witness' proportionate share of all parking space rights of Charter
pursuant to the Lease, it being agreed and understood that such spaces consist
of four (4) unreserved and nondesignated spaces for each One Thousand (1,000)
feet of rentable square feet) (all of the foregoing is hereinafter collectively
referred to as the "Second Subleased Premises").
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2. TERM. The initial term (the "Initial Term") of this Second
Sublease shall commence on July 1, 1999 (the "Commencement Date") and shall
continue for a period of three (3) years, ending on June 30, 2002. In addition,
in the event Charter does not desire to utilize the Second Subleased Premises
for its own use following the expiration of the Initial Term, and providing
Witness is not then (i.e., as of the date of Charter's receipt of Witness'
notice of Witness' desire to negotiate mutually acceptable terms and conditions
applicable to the renewal of this Sublease) in default or threatened default,
and provided Witness has not assigned or sublet all or any portion of the Second
Subleased Premises, Witness shall have the right to extend this Second Sublease
for an additional term (the "Renewal Term") (the Initial Term and the Renewal
Term are sometimes hereinafter collectively referred to as the "Term") of five
(5) years, commencing on July 1, 2002, upon written notice to Charter given on
or before February 1, 2002, upon the same terms and conditions contained herein,
except that the "Base Rent" as hereinafter defined during the Renewal Term shall
increase as agreed upon by Charter and Witness. If Charter and Witness have not
reached an agreement regarding the amount of the Base Rent during the Renewal
Term by March 1, 2002, then this Second Sublease shall terminate upon expiration
of the Initial Term. Failure of Witness to provide the above described written
notice to Charter by February 1, 2002 shall be deemed a waiver by Witness of its
right to extend this Second Sublease for the Renewal Term.
3. RENT. Witness shall pay base rent ("Base Rent") in equal
monthly installments in advance, as follows:
July 1, 1999 121,308.72 ($20.50 per $20,218.12 per month
December 31, 1999 rentable square foot)
(Six months)
Thereafter, commencing on January 1, 2000, and continuing for the
remainder of the Initial Term, the Base Rent (as adjusted) shall be adjusted on
January 1 of each year to an amount equal to the Base Rent (as adjusted) in the
immediately preceding calendar year, adjusted by the percentage increase (if
any) in the "Consumer Price Index" (as hereinafter defined) which occurred over
the twelve (12) month period immediately preceding the date of each adjustment
(it being agreed and understood, that if the Consumer Price Index decreases,
there will be no such adjustment, and the Base Rent will remain the same as the
prior year).
The term, "Consumer Price Index" shall be the Consumer Price Index for
All Urban Consumers - U.S. City Average for All Items (1982-84 = 100) of the
Bureau of Labor Statistics of the United States Department of Labor. If the
Consumer Price Index published by the Department of Labor, Bureau of Labor
Statistics, is changed so that it affects the calculations achieved hereunder,
the Consumer Price Index shall be converted in accordance with a conversion
factor published by the United States Department of Labor, Bureau of Labor
Statistics. If the Consumer price Index is discontinued or revised during the
Term of the Second Sublease, such other government index or computation with
which it is replaced for purposes of the Lease or the Sublease shall be used for
purposes of this Second Sublease. Notwithstanding the foregoing, in
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no event shall the annual effective amount of the Base Rent increase from one
calendar year to the next by more than five percent (5%).
All Base Rent shall be payable in equal monthly installments, on or
before the first (1st) day of each month, in advance. witness shall pay the sum
of Forty Thousand Four Hundred Thirty-Six and 24/100 Dollars ($40,436.24) to the
Charter, at such time as this Second Sublease has been fully executed and
Landlord and TheraTx have consented to the same, which amount represents payment
of Base Rent for the months July and August of 1999, of the Initial Term.
In addition to the Base Rent, upon receipt of a written invoice from
Charter, Witness shall also pay, as and when due, to either Charter or to such
party as such amount shall be owed, Witness' Share (as that term is hereinafter
defined) of any and all increases over the "Base Amount" required to be paid by
Charter, as Charter's Share under the terms of the Sublease, including, without
limitation, all operating expenses, insurances, taxes, utilities and other
charges (the "Operating Expenses"). For purposes of this Sublease, the "Base
Amount" shall mean the amount of Operating Expenses of the Building for the
calendar year 1997, and the term, "Additional Rent" shall mean, in addition to
the definition ascribed to that term in the Lease or Sublease, Witness' Share of
(i) the increase (if any) in Landlord's Operating Expenses for the calendar year
2000 as compared with the calendar year 1999 (i.e., the Base Amount, as defined
herein), and (ii) Landlord's estimated increase in operating expenses for the
then current calendar year as compared with the previous calendar year. The
Additional Rent shall be estimated each year, beginning January 1, 2000, and
paid in equal monthly installments, in accordance with, and consistent with, the
Lease and the Sublease. The Additional Rent shall be reconciled by Charter at
the end of each calendar year, and Witness shall pay to Charter the amount of
any deficiency, or Charter shall reimburse Witness for any overpayment, as the
case may be in accordance with, and consistent with, the Lease and the Sublease.
Witness' Share shall be defined as a fraction, the numerator of which shall be
the then current rentable area of the Second Subleased Premises (i.e., 11,835
rentable square feet) and the denominator of which shall be 47,846 rentable
square feet (i.e., the size of the Witness Premises under the Lease). Thus
24.73% is defined as the Witness' Share, and Witness shall be obligated to pay
24.73% of Charter's Share, as that term is defined in the Sublease.
Charter agrees that it will cooperate with Witness, and assist Witness
as reasonably requested, in obtaining access to Landlord's and Witness's books
and records for the purpose of verifying the Operating Expenses, pursuant to,
and in accordance with, Section 3(f) of the Lease and Section 3 of the Sublease.
If any payment of Base Rent or other sum due hereunder from Witness to
Charter remains unpaid for a period of five (5) business days after such amount
is due, the amount of such unpaid Base Rent or other payment shall be increased
by a late charge to be paid to Charter by Witness in an amount equal to five
percent (5%) of the amount of the delinquent Base Rent or other payment.
4. ALTERATIONS. By the execution of this Second Sublease, Witness
acknowledges that it has examined and knows the condition of the Second
Subleased Premises,
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and that Witness accepts the Second Subleased Premises in its "as is, where is"
condition, with all faults. Any and all alterations t the Second Subleased
Premises shall be in accordance with Section 7 of the Lease and Section 4 of the
Sublease.
5. ASSIGNMENT AND SUBLETTING. Witness shall not assign, transfer
or further sublease all or any part of its interest in the Second Subleased
Premises without the consent of Landlord, TheraTx, and Charter. The parties
acknowledge and agree that Landlord's Witness', and Charter's consent to any
such subletting or assignment shall be in accordance with Section 10 of the
Lease, with the Section 15 of Exhibit F to the Lease, and with Section 5 of the
Sublease.
6. BROKERS. The parties acknowledge and agree that Tishman Real
Estate Services ("Tishman") represents Witness in connection with this Second
Sublease, and Xxxx Xxxxxxxx & Associates ("Xxxxxxxx") represents Charter in
connection with this Second Sublease.
Charter agrees that it shall pay Xxxxxxxx a real estate commission
equal to one and one-half times (1-1/2) the first full monthly payment of Base
Rent due under this Second Sublease, plus six percent (6%)of all Base Rent due
under this Second Sublease during the Initial Term. Charter shall pay fifty
percent (50%) of the foregoing commission to Xxxxxxxx, within thirty (30) days
following execution and delivery of this Second Sublease by Charter and Witness
and receipt of Landlord's and TheraTx's consents to sublease, and Charter shall
pay the remaining fifty percent (50%) of such commission on the Commencement
Date. Xxxxxxxx shall then pay within five (5) business days, two-thirds of such
commissions actually received from Charter to Tishman and Xxxxxxxx shall be
entitled to retain one-third of such commissions. Witness shall not be liable or
responsible for payment of an commissions payable under the Second Sublease.
Each party represents and warrants to the other that it has not had
dealings with any real estate broker, finder or other person with respect to
this Second Sublease except for Tishman and Xxxxxxxx (collectively referred to
herein as the "Brokers"). Each party agrees to indemnify, defend and hold the
other harmless from and against all claims for broker's commissions or finder's
fees in breach of the foregoing representation and warranty.
7. OBLIGATIONS OF THE PARTIES.
Witness. With respect to the Second Subleased Premises, after and
incurred from the Commencement Date and throughout the Term, Witness shall be
responsible for payment and/or performance(s) as applicable of all utility and
service charges, maintenance, and Charter's indemnification and insurance
obligations pursuant to the Lease.
Charter. Charter shall not do or permit to be done anything which would
constitute a violation or breach of any of the terms, conditions or provisions
of the Sublease as it applies to the Subleased Premises or which would cause the
Sublease, as it applies to the Premises, to be terminated or forfeited by virtue
of any risks of termination or forfeiture reserved by or vested in TheraTx or
Landlord.
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8. INCORPORATION BY REFERENCE. The sublease of the Second
Subleased Premises by Charter to Witness shall be controlled by the Lease, a
copy of which is attached hereto and made a part hereof, and incorporated herein
by this reference, as Exhibit D, and the Sublease, a copy of which is attached
hereto and made a part hereof, and incorporated herein by this reference, as
Exhibit D. After and incurred from the Commencement Date throughout the Term of
the Second Sublease. Witness agrees to abide by and perform each and every
obligation of Charter under the Sublease with respect to the Second Subleased
Premises. The Sublease by Charter to Witness shall be governed by this Second
Sublease; provided, however, that in the event of a conflict between the
Sublease and this Second Sublease, the Sublease shall control.
9. INDEMNIFICATION. Witness agrees that from and after the
Commencement Date and throughout the Term, it will indemnify Charter and hold
Charter, Witness, and Landlord harmless from and against any and all claims,
actions, damages, liability, losses and expenses (including reasonable
attorney's fees actually incurred) in connection with the loss of life, personal
injury, and/or damage to property arising from or out of any occurrence in, upon
or at the Second Subleased Premises, or the occupancy or use by Witness of the
Second Subleased Premises or any part thereof where occasioned wholly or in
partly by any act or omission of Witness, its agents, contractors, employees,
servants, or concessionaires. Charter agrees that from and after the
Commencement Date and throughout the Term, it will indemnify Witness and hold
Witness harmless from and against any and all claims, actions, damages,
liability, losses and expenses (including reasonable attorney's fees actually
incurred) in connection with the loss of life, personal injury, and/or damage to
property arising from or out of any acts or omissions occurring prior to the
Commencement Date and any acts of omission of Charter or its agents, employees,
successors or assigns, relating to the Lease, the Sublease, or this Second
Sublease.
10. TERMINATION; DEFAULT; REMEDIES. In the event Landlord
terminates the occupancy rights of TheraTx under the Lease, or TheraTx
terminates the occupancy rights of Charter under the Sublease, the right of
Witness to occupy the Second Subleased Premises shall also cease and terminate,
and this Second Sublease shall be null and void. In addition, in the event
Witness shall fail to pay any installment of Base Rent or other sums of money
payable to Charter within five (5) days after the same is due and payable under
this Second Sublease, or in the event Witness shall breach or fail to comply
with any other covenants or provisions of this Second Sublease, the Sublease, or
the Lease on its part to be performed and such failure continues for a period of
twenty (20 days after Charter's written notice thereof to Witness, Charter shall
have the right to terminate this Second Sublease and to bring an action against
Witness for damages occasioned by such breach or default, including, but not
limited to, reasonable attorney's fees.
If Charter fails to perform any of its obligations under the Sublease
or hereunder for a period of ten (10) days after the receipt of written notice
from Witness or TheraTx, as the case may be, in the event of a payment default
or for a period of thirty (30) days after receipt of written notice from Witness
or TheraTx, as the case may be, to Charter specifying a non-monetary default and
demanding Charter's cure thereof, Witness may, at is option, pay or perform such
obligations and Witness' reasonable cost of performance shall be paid to Witness
by Charter upon demand. In the event Charter does not reimburse Witness for the
reasonable cost of Witness' performance
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on behalf of Charter, Witness may offset against charges thereafter coming due
under this Second Sublease, the amounts due Witness from Charter as a result of
Witness' substitute performance.
11. CHARTER CERTIFICATION. Charter hereby certifies that:
(a) Annexed hereto as Exhibit E is a true and correct
copy of the Sublease Agreement; there are no other amendments or modifications
to the Sublease Agreement.
(b) The Sublease is in full force and effect and, neither
Charter nor TheraTx is in default under the Sublease and no event has occurred
and no condition exists which, with the giving of notice or with the passage of
time, or both, will constitute a default under the terms of the Sublease.
12. MISCELLANEOUS.
12.1 Binding Effect. All of the terms, conditions.
covenants, stipulations and agreements to be performed by any of the parties
hereto shall be binding upon their respective heirs, successors, legal
representatives and assigns. The parties hereto warrant that they have the
express authority to bind the respective parties to this Second Sublease.
12.2 Notices. All notices, mailings and communications
relative to this Second Sublease shall be in writing and shall be either
personally delivered and receipted, or delivered by registered U.S. mail,
postage prepaid, return receipt requested, or by overnight courier, in any event
delivered and addressed to the parties as follows (all notices shall be deemed
"received" on the date upon which receipt is acknowledged in writing, either
personally or by return receipt):
If to Charter: Charter Behavioral Health Systems, LLC
000 Xxxxxxxx Xx
X. X. Xxx 000
Xxxxx, Xx 00000
Attention: Mr. Xxxx Xxxxx
Direct Phone: 000-000-0000
Fax: 000-000-0000
cc: Xxxxx Xxxxxx, Esq.
Charter Behavioral Health Systems, LLC
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xx 00000
Phone: 000-000-0000
Fax: 000-000-0000
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If to Witness: Xxxx Xxxxxx
Chief Financial Officer
Witness Systems Inc.
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xx 00000
Phone: 000-000-0000
Fax: 000-000-0000
If to TheraTx: TheraTx, Incorporated
0000 Xxxxx Xxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Force, Esq., Vencor, Inc.
Phone: 000-000-0000
Fax: 000-000-0000
If to Landlord: Sanctuary Park Realty Holding Company
c/o X.X. Xxxxxx Investment Management, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxxx
Any party may change its address for receiving notices and communications by
giving the other appropriate written notice thereof.
12.3 Governing Law. The provisions of the Second Sublease shall be
construed, enforced and governed in all respect by the laws of the State of
Georgia.
12.4 Entire Agreement. This Second Sublease, together with the
exhibits attached hereto, constitutes the complete and entire understanding and
agreement between the parties hereto with regard to all matters involved in this
transaction and supersedes any and all prior or contemporaneous agreements,
whether written or oral.
12.5 Consent. This Second Sublease shall not become operative until
and unless TheraTx and Landlord shall each execute and deliver a written consent
to this Second Sublease within thirty (30) days from the date of this Second
Sublease.
12.6 Counterparts. This Second Sublease may contain more than one
counterpart of the signature page and this Second Sublease may be executed by
affixing the signature of each party to one of such counterpart signature pages;
all of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
12.7 Quiet Enjoyment. Charter represents and warrants that it has
full right and authority to enter into this Second Sublease and that Witness,
while paying the Rent and performing Witness' other covenants and agreements
herein set forth, shall peaceably and quietly
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have, hold and enjoy the Second Subleased Premises for the Second Sublease Term
without hindrance or molestation from Charter, its agents, contractor or
employee, or persons claiming by, through or under Charter, subject to the terms
and provisions of this Second Sublease.
12.8 Authority. If either party signs as a corporation, execution
hereof shall constitute a representation and warranty by such party to the other
that such party is a duly organized and existing corporation, that such party
has been and is qualified to do business in the State of Georgia and in good
standing with the State of Georgia, that the corporation has full right and
authority to enter into this Second Sublease, and that all persons signing on
behalf of the corporation were authorized to do so by appropriate corporate
action. If either party signs as a partnership, trust, or other legal entity,
execution hereof shall constitute a representation and warranty by such party to
the other that such party has complied with all applicable laws, rules, and
governmental regulations relative to such party's right to do business in the
State of Georgia, that such entity has the full right and authority to enter
into this Second Sublease, and that all persons signing on behalf of such entity
were authorized to do so by any and all necessary or appropriate partnership,
trust, or other legal entity action.
IN TESTIMONY WHEREOF, WITNESS the signatures of the parties hereto as
of the day, month and year first written above.
Charter Behavioral Health Systems, LLC
By: /s/ Xxx Xxxxxxx
------------------------------------------
Title: CHO
----------------------------------------
("Charter")
Witness Systems Incorporated
By: /s/ Xxx X. Xxxxxx
------------------------------------------
Title: CFO
----------------------------------------
("Witness")
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EXHIBIT A
Consent form from Landlord
[Document not attached]
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EXHIBIT B
Consent form from TheraTx
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TheraTx, Incorporated ("TheraTx") hereby certifies that:
(A) Annexed hereto as Exhibit D is a true and correct copy of the
Lease, as amended, and there are no other amendments or modifications to the
Lease.
(B) The Lease is in full force and effect and TheraTx is not in
default under the Lease and no event has occurred and no condition exists which,
with the giving of notice or with the passage of time, or both, will constitute
a default under the terms of the Lease.
(C) If TheraTx fails to perform any of its obligations under the
Lease for a period of ten (10) days after the receipt of written notice from
Regency in the event of a property default or for a period of thirty (30) days
after receipt of written notice from Regency specifying a non-monetary default
and demanding cure thereof, Witness may, at its option, pay or perform such
obligations and Witness' reasonable cost of performance shall be paid to Witness
by TheraTx upon demand.
(D) TheraTx shall not do or permit to be done anything which would
constitute a violation or breach of any of the terms, conditions or provisions
of the Sublease as it applies to the Subleased Premises or which would cause the
Sublease, as it applies to the subleased Premises, to be terminated or forfeited
by virtue of any risks of termination or forfeiture reserved by or vested in
Regency.
THERATX, INCORPORATED
BY:
------------------------------
TITLE:
----------------------------
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EXHIBIT C
Drawing showing location of Second Subleased Premises
MULTI - TENANT CORRIDOR PLAN
FOR
CHARTER BEHAVIORAL HEALTH SYSTEM
[Architectural Drawing Premises]
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EXHIBIT D
OFFICE LEASE AGREEMENT
THERSTX, INC.
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OFFICE LEASE AGREEMENT
THIS LEASE, is made as of this 25th day of April, 1995, between REGENCY
PARK WEST ASSOCIATES, L.P., a Georgia limited partnership (hereinafter called
"Landlord"), and THERATX, INCORPORATED, a Delaware corporation (hereinafter
called "Tenant").
W I T N E S S E T H:
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
those premises (thereinafter called "Premises" or "Leased Premises") shown on
Exhibit "A" attached hereto and made a part hereof, being located on the upper
two floors of a multi-story precast concrete and glass office building (the
"Building") constructed on a parcel of land (the "Property") described on
Exhibit "B" attached hereto and made a part hereof.
1. LEASED PREMISES
Net Usable Area of Leased Premises: 73,059 sq. ft.
Net Rentable Area of Leased Premises: 80,000 sq. ft.
Suite Number: 400
2. TERM AND POSSESSION
(a) The term of this Office Lease (the "Term" or "Lease Term")
shall be for two hundred forty (240) months (or until sooner terminated as
herein provided), beginning on the "Commencement Date" (as hereinafter defined),
except that if the Commencement Date is other than the first day of a calendar
month, the Term shall be extended for the remainder of the final calendar month
thereof.
(b) The "Commencement Date" shall be (i) July 1, 1996; or (ii)
such later date upon which the improvements in the Leased premises have been
substantially completed in accordance with the plans and specification therefor
(other than minor punch list items and any work which cannot be completed on
such date provided such incompletion will not substantially interfere with
Tenant's use of the Leased Premises) and a temporary certificate of occupancy
has been issued by the City of Alpharetta, Georgia, provided, however, the
Commencement Date and the payment of rent hereunder shall be accelerated by the
number of days of any delay resulting from Tenant's request(s) for materials,
finishes or installations, other than provided for in the plans agreed upon by
the parties in accordance with the Leased Premises Improvement Agreement
("Exhibit "C" hereto), which causes landlord to be delayed in delivering the
Leased Premises.
(c) landlord agrees to perform the "Improvement Work" to the
Premises as provided in the Leased Premises Improvement Agreement (Exhibit "C"
hereto) with diligence, subject to events and delays due to causes beyond its
reasonable control. Landlord agrees that the Leased Premises and the Building
shall at the Commencement Date comply with applicable building
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codes and the Americans With Disabilities Act (42 U.S.C. Sections 12101. et.
seq.). The Leased Premises shall be deemed substantially completed and
possession delivered when Landlord has substantially completed the work to be
constructed or installed pursuant to the provisions of said Leased Premises
Improvement Agreement, subject only to the completion of items on Landlord's
punch list (and exclusive of the installation of all telephone and other
communications facilities and equipment and other finish work to be performed by
or for Tenant).
(d) The taking of possession by Tenant shall (subject to any
limitations set forth in the Leased Premises Improvement Agreement) be deemed
conclusively to establish that the Leased Premises have been completed in
accordance with the plans and specifications and are in good and satisfactory
condition as of the date when possession was so taken, latent defects excepted.
3. MONTHLY RENTAL
(a) Tenant shall pay to Landlord, commencing on the Commencement
Date and continuing throughout the Lease Term, initial Monthly Rental of One
Hundred Eight Thousand Four Hundred Sixty-Six and 66/100 Dollars ($108,466.66),
said monthly Rental (hereinafter also referred to as "Base Rental") being
computed by multiplying "Net Usable Area") (as defined hereafter) by a factor of
1.095 (or, for multi-tenant floors, by a factor of 1.15), (ii) then further
multiplying the product thereof by Sixteen and 27/100 Dollars ($16.27) per
square foot, and then (iii) dividing the resulting product thereof by 12. Said
Monthly Rental shall be due and payable in equal installments as of the first
day of each month during every year of the Term hereof in lawful money of the
United States, without deduction or offset whatsoever, to Landlord or to such
other firm or person as Landlord may from time to time designate in writing.
Said Rental is subject to adjustment as provided hereinbelow, provided that in
no event shall Monthly Rental be at any time less than the original base Monthly
Rental stated hereinabove. If this Lease commences on a day other than the first
day of a calendar month, the Monthly Rental for the fractional month shall be
appropriate prorated. Landlord and Tenant agree that Tenant has paid in full in
advance the Monthly Rental for the initial month of the Lease Term, and that
full receipt thereof is acknowledged by Landlord.
(b) Tenant recognizes that late payment of any rent or other sum
due hereunder from Tenant to landlord will result in administrative expense to
landlord, the extent of which additional expense is extremely difficult and
economically impracticable to ascertain. Tenant therefore agrees that if rent or
any other payment due hereunder from Tenant to Landlord remains unpaid ten (10)
days after said amount is due, the amount of such unpaid rent or other payment
shall be increased by a late charge to be paid Landlord by Tenant in an amount
equal to five percent (5%) of the amount on the delinquent rent or other
payment. The amount of the late charge to be paid to Landlord by Tenant for any
month shall be computed on the aggregate amount of delinquent rents and other
payments, including all accrued late charges then outstanding. Tenant agrees
that such amount is a reasonable estimate of the loss and expense to be suffered
by Landlord as a result of such late payment by Tenant and may be charged by
Landlord to defray such loss and expense. The provisions of this Paragraph shall
not relieve Tenant of the obligation to pay rent or other payments on or before
the date on which they are due; nor do the terms of this Paragraph in
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any way affect Landlord's remedies pursuant to Paragraph 19 of this Lease or
otherwise at law in the event said rent or other payment is unpaid after the
date due.
(c) "Net Usable Area" is (i) in the case of a single tenancy
floor, all space measured from the inside surface of the outer wall of the
Building to the inside surface of the opposite outer wall, excluding only the
areas ("Service Area") within the outside walls used for building stairs, fire
towers, elevator shafts flues, vents, pipe shafts, vertical ducts, restrooms,
mechanical room, electrical/telephone room and custodial room, but including any
such areas which are for communications equipment rooms, and (ii) in the case of
a multi-tenancy floor, all space, excluding those Service Areas as defined in
(i) hereinabove, if any, within the inside surface of the outerwall of the
Building enclosing the tenant occupied portion of the floor and measured to the
midpoint of the walls separating areas leased by or held for lease to other
tenants or from areas devoted to corridors, elevator lobbies, restrooms and
other similar facilities for the use of all tenants on the particular floor.
No deductions from Net Usable Area are made for columns necessary to
the Building. The Net Usable Area in the Leased Premises and in the Building
have been calculated on the basis of the foregoing definition and are hereby
stipulated above as to the Leased Premises, whether the same should be more or
less as a result of minor variations resulting from actual construction and
completion of the Leased Premises for occupancy so long as such work is done
substantially in accordance with the approved plans.
(d) Commencing July 1, 1997, then on January 1, 1998 and on each
January 1 thereafter during the Lease Term or as soon thereafter as practicable,
the Monthly Rental specified in this Lease shall able increased by taking that
portion of the Monthly Rental which is not a part of the Operating Expenses of
the Building and multiplying said amount by fifty percent (50%) of the
percentage increase in the Consumer Price Index (the "Index" or "CPI") which
occurred over the early period (or, in the case of the second such adjustment
only, the six month period) between the applicable month of the calendar year
immediately preceding the calendar year as to which the adjustment is being made
and the applicable month of that year (except that in the case of the second
adjustment only, fifty percent (50%) of the percentage increase in said Index
occurring between the end of June, 1997 and the end of December, 1997). The
increase in Monthly Rental as determined above for each given calendar year or
other period shall be accumulated over the Lease Term, and the cumulative annual
additions to Monthly Rental shall be added to the Initial Base Rent figure set
out above to determine, for each succeeding calendar year, the annual increase
in Monthly Rental (See the further explanation and formula set out at Paragraph
19 of the Special Stipulations, Exhibit "F"). If the Monthly Rental cannot be
calculated by the end of any calendar year because of the unavailability of the
ten current index, Tenant shall continue to pay the then existing Monthly
Rental, and Landlord shall prepare as soon as practicable (but in no event later
than April 1 of each successive calendar year) a statement reflecting the
increase in Monthly Rental for the calendar year in question. within ten (10)
days following receipt of Landlord's statement, Tenant shall also pay any
amounts due from Tenant because of such adjustments for months in which Tenant
would have paid a greater Monthly Rental had such figure been calculated
earlier. If Tenant's payments have been in excess of the increased Monthly
Rental due, Tenant shall be provided a credit for such excess amount applied
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to the next installment of Monthly Rental due by Tenant; provided that, in no
event shall Monthly Rentals ever be less than Initial Monthly Rental.
(e) "Consumer Price Index" shall be the Consumer Price Index for
All Urban Consumers - U.S. City Average for All Items (1982-84 = 100) of the
Bureau of Labor Statistics of the United States Department of Labor. If the
Consumer Price index published by the Department of Labor, Bureau of Labor
Statistics, is changed so that it affects the calculations achieved hereunder,
the Consumer Price Index shall be converted in accordance with a conversion
factor published by the United States Department of Labor, Bureau of Lab
Statistics. If the Consumer Price Index is discontinued or revised during the
Term of this Lease, such other government index or computation with which it is
replaced or which is most closely resembles shall be used in order to obtain
substantially the same results as would have been obtained if the Consumer Price
Index had not been discontinued or revised. If the Consumer Price Index is
discontinued and no government index or computation then replaces or closely
resembles the same, Landlord and Tenant shall in good faith agree upon a
suitable substitute.
(f) "Operating Expenses of the Building" shall mean all expenses
of every kind, both fixed and variable and including, without limitation, any
and all federal, state and local taxes (except income taxes), fees and
assessments now or hereafter existing, as are incurred with respect to the
ownership, management, operation, or maintenance of the Building, all as
recorded on an accrual basis and in accordance with accepted principles of sound
management and accounting practices applicable to first-class office building
complexes. "Tenant's proportionate share of the Operating Expenses of the
Building" (hereinafter "Tenant's Share") shall mean, for any period, the amount
in excess of Five Dollars ($5.00) per rentable square foot of the Leased
Premises determined by multiplying the Operating Expenses of the Building for
such period by a fraction, the numerator of which shall be the then current Net
Rentable Area of the Leased Premises, and the denominator of which shall be
172,800 square feet, which is represented by Landlord to be the total rentable
area of the Building. Provided, however in no event shall operating expenses
include: (A) the cost of any service, e.g., electricity, that Landlord sells to
tenants and for which Landlord is entitled to be reimbursed by such tenants: (B)
leasing commissions, attorney fees and other costs and expenses incurred in
connection with negotiations or disputes with tenants or other occupants of the
Building or prospective tenants: (C) the cost of any work or service performed
for any specific tenant of the Building (as distinguished from work or services
performed generally for all tenants): (D) management fees in excess of four
percent (4%) of gross annual collections for the Building: (E) any other
interest or amortization of debt except as specified in the Agreement; (F)
compensation paid to clerks or attendants in concessions or newsstands: (G) any
cost or expense for which Landlord is separately reimbursed or to which Landlord
receives a credit from any other party; or (H) any costs, fines or penalties
incurred due to violations to landlord of any governmental rule or authority.
Commencing July 1, 1997, then on January 1, 1998 and on or about each
January 1 thereafter, (or as soon thereafter as practicable), Landlord shall
provide Tenant with statements of estimated Operating Expenses for the calendar
year (or, in the case of the second such adjustment only, the six month period)
just ended and the projected Operating Expenses for the current calendar year or
other period, and Tenant shall pay as "additional rent" Tenant's Share of the
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projected increase thereon from the prior year or period to the current year or
period . One-twelfth (1/12th) of such projected increase (or, in the case of the
second such adjustment only, one-sixth (1/6th) of such projected increase in
Operating Expenses shall be payable to Tenant monthly in advance. If Landlord
has not furnished Tenant with Landlord's projected Operating Expenses for the
then current year by January 1, (or, in the case of the first such adjustment
only, by July 1, 1997) Tenant shall continue to pay any additional rent on the
basis of the prior year's or period's projected Operating Expenses until the
month after the current year's or period's projected Operating Expenses have
been provided by Landlord. Landlord shall, within one hundred twenty (12) days
(or as son thereafter as practicable) after the close of each calendar year or
period, provide Tenant an unaudited statement of such year's actual Operating
Expenses compared to the actual initial Operating Expenses. If actual Operating
Expenses are greater than the projected Operating Expenses. Tenant shall pay
Landlord, within thirty 930) days of such statement's receipt, Tenant's Share of
the difference thereof. If such year's or period's projected Operating Expenses
are greater than actual Operating Expenses. Landlord shall credit Tenant with
Tenant's Share of the difference between projected Operating Expenses and the
greater of actual Operating Expenses or initial Operating Expenses. If such
year's actual Operating Expenses are less than the actual Operating Expenses for
the previous year. Tenant's Monthly Rental shall be correspondingly reduced. In
no event, however, shall the Five Dollar ($5.00) factor mentioned hereinabove
ever be reduced, or the Monthly Rental be less than Initial Monthly Rental. (See
the formula set out a paragraph 20 of the Special Stipulations, Exhibit "F")
Landlord shall make Landlord's books and records available to Tenant, during
normal business hours and upon reasonable notice by Tenant for review by Tenant;
the cost of said review shall be born by Tenant unless the actual Operating
Expenses as reported by Landlord are found to have been overstated by an amount
in excess of five percent (5%), in which event the cost of such review shall be
borne by Landlord.
4. SECURITY DEPOSIT [OMITTED]
5. OCCUPANCY AND USE
(a) Tenant shall use and occupy the Premises for general office
purposes and for no other use or purpose without the prior written consent of
Landlord.
(b) Tenant shall not do or permit anything to be done in or about
the Premises which will in anyway obstruct or interfere with the rights of other
tenants or occupants of the Building or injure or annoy them; nor shall Tenant
use or allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purposes or for any business, use or purpose reasonably deemed to
be disreputable or inconsistent with the operation of a first class office
building nor shall Tenant cause or maintain or permit any nuisance or breach of
the peace, in, on, or about the Premises. Tenant shall not commit or suffer the
commission of any waste in, on, or about the Premises.
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6. COMPLIANCE WITH LAWS
Tenant shall be solely responsible for, and shall pay promptly and
before delinquent, all federal, state, city, county, and other taxes, license
fees and assessments due or coming due during or after the Term of this lease
against Tenant. Tenant's interest in this Lease or Tenant's personal property or
intangibles owned, placed in or generated in, upon, or about the Premises by
Tenant. Tenant shall not use the Premises in a manner which will in any conflict
with any law, statute, ordinance, or governmental rule or regulation now in
force or which may hereafter be enacted or promulgated. Tenant shall not do or
permit anything to be done on or about the Premises or bring or keep anything
therein which will in any way increase the rate of any insurance upon the
Building or any of its contents or cause a cancellation of said insurance or
otherwise affect said insurance in any manner. Tenant shall at its sole cost and
expense promptly comply with all laws, statutes, ordinances, recommendations,
rules, regulations and requirements of governmental, public or private
authorities and agencies, which are now in force or which may hereafter be in
force and with the requirements of any board of fire underwriters or other
similar body now or hereafter constituted as may apply in relation to or
affecting the condition, use, or occupancy of the Premises, including without
limitation the occupational Safety and Health Act (29 U.S.C. Sections 651,et.
seq. as amended) and the Americans With Disabilities Act (42 U.S.C. Sections
12101, et seq. as amended). Upon demand, Tenant shall pay to Landlord as
additional rent, to be added to any installment of rent thereafter becoming due,
any cost incurred by Landlord in curing any default or meeting any obligation of
Tenant under this Paragraph, and Landlord shall have the same remedies for a
default in payment of such sums as for a default in the payment of rent.
7. ALTERATIONS
Tenant shall not make or suffer to be made any alterations, additions,
changes or improvements in, on, or to the Premises or any part thereof without
the prior written consent of Landlord; and any such alterations, additions,
changes, or improvements in, on or to said Premises except for Tenant's movable
furniture and equipment, shall immediately become Landlord's property and, at
the end of the Term hereof, shall remain on the Premises without compensation to
Tenant, unless Tenant elects to remove same, in which event Tenant shall do so,
and also restore the Premises to its pre-existing condition at Tenant's sole
cost and expense. In the event Landlord consents to the making of any such
alterations, additions, changes or improvements by Tenant, the same shall be
made by Tenant, at Tenant's sole cost and expense, in accordance with all
applicable laws, statutes, ordinances, rules and regulations public and private,
and all requirements of landlord's and Tenant's insurance policies, and in
accordance with plans and specifications approved by Landlord (such approval not
to be unreasonably withheld, delayed or conditioned). Any contractor or person
selected by Tenant to make the same, and all subcontractors, must first be
approved in writing by Landlord, or at Landlord's option, the alteration,
addition or improvement shall be made by Landlord for Tenant's account and
Tenant shall reimburse Landlord for the cost thereof upon demand; provided, that
should Landlord elect to perform to Tenant's account, the cost thereof to Tenant
shall be competitive with any preferred estimate previously obtained by Tenant
and provided to Landlord for such alteration, addition or improvement. Upon the
expiration or sooner termination of the Term herein provided, Tenant
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may opt to remove any improvement or alteration at Tenant's sole cost and
expense, and Tenant shall forthwith and with all due diligence, at its sole cost
and expense, thereupon repair and restore the Premises to their original
condition.
8. REPAIR
By taking possession of the Premises, Tenant accepts the Premises as
being in the condition in which Landlord is obligated to deliver them and
otherwise in good order, condition, and repair, latent defects excepted. Tenant
shall, at all times during the Term hereof at tenant's sole cost and expense
keep the Premises and every part thereof in good order, condition and repair,
excepting ordinary wear and tear, damages thereto by fire, earthquake, act of
God or the elements. Tenant shall upon the expiration or sooner termination of
the Term hereof, unless Landlord demands otherwise as in this paragraph
provided, surrender to landlord the Premises and all repairs, changes,
alterations, additions and improvements thereto in the same condition as when
received, or when first installed, ordinary wear and tear, damage by fire,
earthquake, act of God, or the elements excepted. It is hereby understood and
agreed that Landlord has no obligation to alter, remodel, improve, repair,
decorate, or paint the Premises or any part thereof except as specified in
Exhibit "C" attached hereto and made a part hereof, and that no representations
respecting the condition of the Premises or the Building have been made by
Landlord to Tenant, except as specifically herein set forth.
9. LIENS
Tenant shall keep the Premises free from any liens arising out of work
performed, material furnished, or obligations incurred by Tenant. In the event
that Tenant shall not, within thirty 930) days following the imposition of any
such lien, cause the same to be released of record by payment or posting of a
proper bond. Landlord shall have, in addition to all other remedies provided
herein and by law, the right, but not the obligation, to cause the same to be
released by such means as it shall deem proper, including payment of the claim
giving rise to such lien. All such sums paid by Landlord and all expenses
incurred by it in connection therewith shall be considered additional rent and
shall be payable to Landlord by Tenant on demand and with interest at the rate
per annum of four percent higher than the prime commercial lending rate from
time to time of Sun Trust bank in Atlanta, Georgia; provided, however, that if
such rate exceeds the maximum rate permitted by law the maximum lawful rate
shall apply; the interest rate so determined is hereinafter called the "Agreed
Interest Rate." Landlord shall have the right at all times to post and keep
posted on the Premises any notices permitted or required by law, or which
Landlord shall deem proper, for the protection of Landlord, the Premises, the
Building, and any other party having an interest therein, from mechanics and
materialmen's liens, and Tenant shall give to Landlord at least five (5)
business days prior written notice of commencement of any construction on the
Premises.
10. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not sell, assign, encumber or otherwise transfer by
operation of law or otherwise this Lease or any interest herein, sublet the
Premises or any portion thereof, or suffer
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any other person to occupy or use the Premises or any portion thereof, without
the prior written consent of Landlord as provided for herein, nor shall Tenant
permit any lien to be placed on Tenant's interest by operation of law; provided
that Landlord's consent to assignment or subletting shall not unreasonably be
withheld, delayed or conditioned. Tenant shall (i) by written notice, advise
Landlord of its desire from and after a stated date (which shall not be less
than thirty (30) days or more than ninety (90) days after the date of Tenant's
notice) to assign this Lease or to sublet the Premises or any portion thereof
for any part of the Term hereof; said notice by Tenant shall state the name and
address of the proposed assignee or subtenant and Tenant shall deliver to
Landlord a true and complete copy of the proposed sublease with said notice; and
(ii) supply Landlord with such information, financial statements, verifications
and related materials as Landlord may request or desire to evaluate the written
request to sublet or assign. Within ten (10) business days after Landlord's
receipt from Tenant of all the items specified in the immediately preceding
sentence. Landlord shall have the right, exercisable in its sole discretion, to
consent to the proposed subletting or assignment or to disapprove the proposed
subletting or assignment. Tenant shall, at Tenant's own cost and expense
discharge in full any outstanding commission obligation on the part of the
Landlord with respect to this Lease, and any commission which may be due and
owing as a result of any proposed assignment or subletting.
(b) Any subletting or assignment hereunder by Tenant shall not
results in Tenant's being released or discharged from any liability under this
Lease. As a condition to Landlord's prior written consent as provided for in
this paragraph the assignee or subtenant shall agree in writing to comply with
and be bound by all of the terms, covenants, conditions, provisions and
agreements of this Lease, and Tenant shall deliver to Landlord promptly after
execution an executed copy of each sublease or assignment and an agreement of
said compliance by each subtenant or assignee.
(c) Tenant shall reimburse Landlord with ten (10) days from
receipt of Landlord's invoice, all Landlord's administrative costs and expenses,
including legal fees, for reviewing and processing any requests for Landlord's
consent made by Tenant with respect to the subject matter of this Paragraph.
(d) Landlord's consent to any sale, assignment, encumbrance,
subletting, occupation, lien or other transfer shall not release Tenant from any
of Tenant's obligations hereunder or be deemed to be a consent to any such
subsequent occurrence. Any sale, assignment, encumbrance, subletting,
occupation, lien or other transfer of this Lease which does not comply with the
provisions of this Paragraph shall be void.
11. INSURANCE AND INDEMNIFICATION
(a) Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury or damage to any person or
property in or about the Leased Premises by or from any cause whatsoever,
without limiting the generality of the foregoing whether caused by gas, fire or
explosion of the Building or the Office Park of which it is a part or any part
thereof, except as caused by Landlord's negligence or willful misconduct as to
which landlord shall indemnify, save and hold Tenant harmless.
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(b) Tenant shall hold Landlord harmless form and defend the Landlord
against any and all claims or liability for any injury or damage to any person
or property whatsoever; (i) occurring in on or about the Premises or any part
thereof; (ii) occurring in on or about any facilities (including, without
limitation, elevators, stairways, passageways or hallways), the use of which
Tenant may have in conjunction with other tenants of the Building, when such
injury or damage shall be caused in part or in whole by the act, neglect, fault
of or omission of any duty with respect to the same by Tenant, its agents,
servants, employees, or invitees. Tenant further agrees to indemnify and save
harmless Landlord against and from any and all claims by or on behalf of any
work or thing whatsoever done by Tenant in or about or from transactions of
Tenant concerning the Premises, and will further indemnify and save landlord
harmless against and from any and all claims arising from any breach or default
on the part of Tenant in the performance of any covenant or agreement on the
part of Tenant to be performed pursuant to the terms of this Lease or arising
from any act or negligence of Tenant, or any of its agents, contractors,
servants, employees and licensees and from and against all cost counsel fees
expenses and liabilities incurred in connection with any such claim or action or
proceeding brought thereon. Furthermore, in case any action or proceeding be
brought against Landlord by reason of any claims or liability for which Tenant
must indemnify Landlord hereunder. Tenant agrees to defend such action or
proceeding at Tenant's sole expense by counsel reasonably satisfactory to
landlord. The provisions of this lease with respect to any claims or liability
occurring prior to expiration or termination of this Lease shall survive any
such expiration or termination.
(c) Tenant agrees to purchase agrees to purchase at its own expense and
to keep in force during the term of this lease a policy or policies of workers'
compensation and commercial general liability insurance including personal
injury and property damage, with contractual liability endorsement in the amount
of at least One Million Five Hundred Thousand Dollars ($1,500,000.00) to be
adjusted annually as Landlord and Tenant may agree each acting reasonably
combined single limit per occurrence for personal injuries or deaths of persons
occurring in or about the Premises. Said policies shall (i) name landlord as an
additional insured and insure Landlord's contingent liability under this Lease
(except for the workers' compensation policy, which shall instead include waiver
of subrogation endorsement in favor of Landlord); (ii) be issued by an insurance
company which is acceptable to landlord and licensed to do business in the State
of Georgia and (iii) provide that said insurance shall not be cancelled unless
thirty (30) days' prior written notice shall have been given to Landlord. Said
policy or policies or certificates thereof shall be delivered to Landlord by
Tenant upon commencement of the Term of this Lease and upon each renewal of said
insurance.
(d) Landlord agrees to purchase at its own expense and to maintain
throughout the Lease Term a policy or policies of commercial property and
casualty insurance covering the full insurable value of the Building.
12. WAIVER OF SUBROGATION
Each of Landlord and Tenant hereby release the other from any and all
liability or responsibility to the other or to anyone claiming through or under
them by way of subrogation or
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otherwise for any loss or damage to property caused by fire or any other perils
insured in policies of insurance covering such property even if such loss or
damage shall have been caused by fault or negligence of the other party, or by
anyone for whom such party may be responsible; provided, however, that this
release shall be applicable and in force and effect only to such extent that
such releases shall be lawful at that time and in any event only with respect to
loss or damage occurring during such time as the releasor's policies of
insurance shall contain a clause or endorsement to the effect that any such
release shall not adversely affect or impair said policies or prejudice the
right of the releasor to coverage thereunder and then only to the extent of the
insurance proceeds payable under such policies. Landlord and Tenant each hereby
covenant and agree to cause their respective insurance carriers to include in
their policies such a clause or endorsement.
13. SERVICES AND UTILITIES
(a) Landlord shall maintain the public and common areas of the
Building, including lobbies, stairs, elevators, escalators, parking facilities,
loading docks and areas, corridors and restrooms, the windows in the Building,
the mechanical plumbing and electrical equipment serving the Building and the
structure itself in reasonably good order and condition except for damage
occasioned by the act of Tenant which damage shall be repaired by Landlord at
Tenant's expense. In the event Tenant requires or needs to have one or more
separate systems of either heating ventilating air-conditioning or other similar
systems over and above that provided by Landlord the installation care expense
and maintenance of each such system shall be borne by and paid for by Tenant.
(b) Subject to the provisions elsewhere herein contained and to the
Rules and Regulations of the Building, Landlord agrees to furnish to the
Premises during ordinary business hours of generally recognized business days to
be conditioning required in Landlord's judgment for the comfortable use and
occupation of the Premises, janitorial services during the times and in the
manner that such services are, in Landlord's judgment customarily furnished in
comparable office buildings in the immediate market area and elevator service.
(c) Landlord shall provide additional or after-hours heating or
air-conditioning, at Tenant's reasonable request Tenant shall pay to Landlord a
reasonable charge for such services as determined from time to time by Landlord
Tenant agrees to keep and cause to be kept closed all window coverings, if any,
when necessary because of the sun's position and Tenant also agrees at all times
to cooperate fully with Landlord and to abide by all rules, regulations and
requirements which Landlord may prescribe for the proper functioning and
protection of lighting, heating, ventilating and air-conditioning systems and to
comply with all laws, ordinances and regulations respecting the conservation of
energy. In the event heat-generating machines excess lighting or equipment used
in the Premises affect the temperature normally maintained by the
air-conditioning units in the Premises. Tenant shall pay to Landlord, upon
demand by Landlord all costs incurred by Landlord in excess of the ordinary
costs of maintaining the normal temperature of the Premises. Landlord agrees to
furnish to the Leased premises electricity for general office purposes and hot
and cold water for a lavatory and drinking purposes, subject to the provisions
of subparagraph 13(d) below. Landlord shall in no event be liable for any
interruption or failure of
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utility services on the Premises but Landlord will exercise commercially
reasonable efforts to furnish uninterrupted service.
(d) Tenant will not without the written consent of Landlord use any
apparatus or device in the Premises including without limitation electronic data
processing machines, punch card machines, and machines using excess lighting or
electrical current which will in any way increase the amount of electricity or
water usually furnished or supplied for use of the Premises as general office
space: nor will Tenant without landlord's prior written consent connect with
electrical current except through existing electrical outlets in the Premises or
water pipes in the Premises any apparatus or device for the purpose of using
electrical current or water provided that Tenant may rely upon any such consents
or approvals by Landlord as satisfying all obligations of Tenant hereunder. If
Tenant in Landlord's judgment shall require water or electrical current or any
other resource in excess of that usually furnished or supplied for use of the
Premises as general office space (it being understood that such an excess may
result from the number of fixtures, apparatus and devices in use, the nature of
such fixtures, apparatus and devices, the hours of use or any combination of
such factors). Tenant shall first procure the consent of Landlord which landlord
may refuse to the use of thereof, and Landlord may cause a special meter to be
installed in the Premises in order to measure the amount of water, electrical
current or other resource consumed for any such other use. The cost of any such
meters and of installation, maintenance, and repair thereof shall be paid for by
Tenant and Tenant agrees to pay Landlord promptly upon demand by Landlord for
all such water, electrical current or other resource consumed as shown by said
meters at the rates charged by the local public utility furnishing the same plus
any additional expense incurred in keeping account of the water, electrical
current or other resource so consumed Landlord shall not be in default hereunder
or be liable for any damages directly or indirectly resulting from nor shall the
rental herein reserved by abated by reason of (i) the installation, use or
interruption of use of any equipment in connection with the furnishing of any of
the foregoing utilities and service (ii) failure to furnish or delay in
furnishing any such utilities or services when such failure or delay is caused
by acts of God or the elements, labor disturbances of any character, any other
accidents or other conditions beyond the reasonable control of Landlord, or by
the making of repairs or improvements to the Premises or to the Building; (iii)
the limitation, curtailment, rationing or restriction on use of water,
electricity gas or any other form of energy or any other service or utility
whatsoever serving the Premises or the Building. Furthermore, Landlord shall be
entitled to cooperate voluntarily in a reasonable manner with the efforts of
national, state or local governmental agencies or utilities suppliers in
reducing energy or other resources consumption.
(e) Any sums being payable under this Paragraph shall be considered
additional rent and shall be added to the next installment of rent thereafter
becoming due and Landlord shall have the same remedies for a default in payment
of such sums as for a default in the payment of rent.
(f) Tenant shall not provide any janitorial services without Landlord's
written consent and then only through a janitorial contractor or employees at
all times satisfactory to and under supervision of Landlord. Any such services
provided by Tenant shall be at Tenant's sole expense, risk and responsibility.
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14. ESTOPPEL CERTIFICATE
Within ten (10) days following any written request which Landlord may
make from time to time. Tenant shall execute and deliver to Landlord in
recordable form and Estoppel Certificate substantially as attached hereto as
Exhibit "D" and made a part hereof, indicating thereon any exceptions thereto
which may exist at that time. Failure of Tenant to execute and deliver such
certificate shall constitute an acceptance of the Premises and acknowledgment by
Tenant that the statements included in Exhibit "D" are true and correct without
exception. Landlord and Tenant intend that any statement delivered pursuant to
the paragraph may be relied upon by Landlord or by any mortgages, beneficiary
purchaser or prospective purchaser of the Building or any interest therein, or
by anyone to whom Landlord may provide said certificate.
15. HOLDING OVER
Tenant will at the termination of this Lease by lapse of time or
otherwise yield up immediate possession to Landlord. If Tenant retains
possession of the Leased Premises or any part thereof after such termination,
then Landlord may, at its option, serve written notice upon Tenant that such
holding over constitutes: (i) creation of a month to month tenancy, upon the
terms and conditions set forth in this lease; or (ii) creation of a tenancy at
sufferance in any case upon the terms and conditions set forth in this Lease;
provided, however, that the Monthly Rental for daily rental under (iii) shall,
in addition to all sums which are to be paid by Tenant hereunder, whether or not
as additional rent be equal to one hundred fifty percent (150%) of the rental
being paid monthly to Landlord under this Lease immediately prior to such
termination (prorated in the case of (ii) on the basis of a 365 day year for
each day Tenant remains in possession). If no such notice is served, then a
tenancy at sufferance shall be deemed to be created at the rent in the
proceeding sentence. Tenant shall also pay to Landlord, as additional rent due
and payable, all damages sustained by Landlord resulting from retention of
possession by Tenant, including the loss of any proposed subsequent tenant for
any portion of the Leased Premises. In any such events, Tenant shall vacate the
Leased Premises and deliver full possession to Landlord upon the giving to
Tenant by Landlord of ten (10) days' written notice and demand therefor. The
provisions of this Paragraph shall not constitute a waiver by Landlord of any
right of re-entry as herein set forth nor shall receipt of any rent or any other
act in apparent affirmance of the tenancy operate as a waiver of the right to
terminate this lease for a breach of any of the terms, covenants, or obligations
herein on Tenant's part to be performed by Tenant or of any other right of
Landlord.
16. SUBORDINATION
Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, this Lease shall be subject
and subordinate at all times to: (a) all ground leases or underlying leases
which may now exist or hereafter be executed affecting the Building or the
Property upon which the Building is situated or both; and (b) the lien or
interest of any mortgage or deed to secure debt which may now exist or hereafter
be executed in any amount for which said Building, Property, ground leases or
underlying leases, or Landlord's interest or estate in any of said items is
specified as security. Notwithstanding the foregoing, Landlord shall
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have the right to subordinate or cause to be subordinated to this Lease any such
ground leases or underlying leases or any such liens or interests of mortgages
or deeds to secure debt. In the event that any ground lease or underlying lease
is terminated for any reason or any mortgage or deed to secure debt is
foreclosed or a conveyance in lieu of foreclosure is made for any reason. Tenant
shall, notwithstanding any subordination, attorn to and become the tenant of the
successor in interest to Landlord at the option of such successor in interest.
Tenant agrees to execute such subordination, non-disturbance and attornment
agreements as the holder of any mortgage or deed to secure debt may reasonably
require. Tenant covenants and agrees to execute and deliver, upon demand by
landlord and in the form requested by Landlord, any additional documents
evidencing the priority or subordination of this lease with respect to any
tenant of the successor in interest to landlord at the option of such successor
in interest. Tenant's obligation to subordinate and attorn may reasonably be
conditioned upon an agreement of non-disturbance by any such successor in
interest to landlord but shall not otherwise be conditioned or withheld.
17. RE-ENTRY BY LANDLORD
Landlord reserves and shall at all times have the right to re-enter the
Premises to inspect the same, to supply janitor service and any other service
provided by Landlord to Tenant hereunder, to show said Premises to prospective
purchasers, mortgagees or tenants to post notices of nonresponsibility, and to
alter, improve, or repair the Premises and any portion of the Building of which
the Premises are a part or to which access is conveniently made through the
Premises without abatement of rent, and may for that purpose erect, use and
maintain scaffolding, pipes, conduits and other necessary structures in and
through the Premises where reasonably required by the character of the work to
be performed, provided that entrance to the Premises shall not be blocked
thereby, and further provided that Landlord shall provide Tenant twenty-four
(24) hours prior notice of entry except in cases of emergency or the making of
repairs requested by Tenant, and that the business of Tenant shall not be
interfered with unreasonably. Tenant hereby waives any claim for damages for any
injury or inconvenience to or interference with Tenant's business, any loss of
occupancy or quiet enjoyment of the Premises, and any other loss occasioned
thereby, provided that Landlord shall indemnify, save and hold harmless Tenant
for any liability to Tenant or third parties for damage to person or property
caused by Landlord's entry, except when acting in response to emergency. For
each of the aforesaid purposes. Landlord shall all times have and retain a key
with which to unlock all of the doors in upon and about the premises and
Landlord shall have the right to use any and all means which Landlord may deem
necessary or proper to open said doors in an emergency, in order to obtain entry
to any portion of the premises, and any entry to the premises, or portions
thereof obtained by Landlord by any of said means, or otherwise shall not under
any circumstances be construed or deemed to be a forcible or unlawful entry into
or a detainer of the Premises or any eviction actual or constructive of Tenant
from the Premises or any portions thereof. Landlord shall also have the right at
any time, without the same constituting an actual or constructive eviction and
without incurring any liability Tenant therefor to change the arrangement and/or
location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets, parking facilities, loading docks and areas,
delivery and pick-up areas or other public parts of the Building and to change
the name, number, or designation by which the Building is commonly known.
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18. INSOLVENCY OR BANKRUPTCY
The appointment of a receiver to take possession of all or
substantially all of the assets of Tenant, or an assignment by Tenant for the
benefit of creditors, or any action taken or suffered by Tenant under any
insolvency bankruptcy, or reorganization act shall at Landlord's option
constitute a breach of this Lease by Tenant. Upon the happening of any such
event or at any time thereafter, this Lease shall terminate after written notice
of termination from landlord to Tenant. In no event shall this Lease be assigned
or assignable by operation of law or by voluntary or involuntary bankruptcy
proceedings or otherwise an in no event shall this lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency, or
reorganization proceedings.
19. DEFAULT AND REMEDIES
(a) The following events shall be deemed to be events of default by
Tenant under this Lease:
(1) Tenant shall fail to pay when or before due any sum of
money in whole or in part becoming due to be paid to Landlord hereunder whether
such sum be any installment of the rent herein reserved any other treated as
additional rent hereunder or any other payment or reimbursement to Landlord
required herein whether or not treated as additional rent hereunder and such
failure shall continue for a period of ten (10) days from the date such payment
was due; or
(2) Tenant shall fail to comply with any term, provision or
covenant of this Lease other than by failing to pay when or before due any sum
of money becoming due to be paid to Landlord hereunder and shall not cure such
failure within thirty (30) days (except immediately and forthwith if the default
involves a hazardous condition) after written notice thereof to Tenant except
that should completion of such cure not be possible within such thirty (30) day
period Tenant shall have ninety (90) days to effect same so long as Tenant has
within such thirty (30) day period commenced cure and pursues same with due and
continuous diligence; or
(3) Tenant shall fail to vacate the Leased Premises
immediately and forthwith upon termination of this Lease by lapse of time or
otherwise or upon termination of Tenant's right to possession only; or
(4) If in spite of the provisions hereof, the interest of
Tenant shall be levied upon under execution or be attached by process of law or
Tenant shall fail to contest diligently the validity of any lien or claimed lien
upon the Leased Premises and give sufficient security to Landlord to insure
payment thereof and such default shall continue for ten (10) days after written
notice thereof to Tenant.
(b) Upon the occurrence of any such events of default described in
subparagraph (a) above or elsewhere in this Lease, Landlord shall have the
option, at its election, to terminate this lease or to terminate Tenant's right
to possession only, without terminating this lease and to
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pursue any one or more of the following remedies without any further notice or
demand whatsoever, provided that, upon any termination of this Lease or upon any
termination of Tenant's right to possession without termination of this Lease.
Tenant shall in either event surrender possession and vacate the leased Premises
immediately upon the expiration of five (5) days next following the giving by
Landlord to Tenant of written notice demanding same and deliver possession
thereof to landlord, and tenant hereby grants to Landlord full and free license
to enter into and upon the Leased Premises in such event with or without process
of law and to repossess Landlord of the Leased Premises and to expel or remove
Tenant and any others who may be occupying or within the Leased Premises and to
remove any and all property therefrom without being deemed in any manner guilty
of trespass, eviction or forcible entry or detainer and without incurring any
liability for any damage resulting therefrom. Tenant hereby waiving any right to
claim damage for such re-entry and expulsion and without relinquishing any right
given to Landlord hereunder or by operation of law:
(1) Upon termination of this Lease, Landlord shall be entitled
to recover as damages all rent including any amount treated as additional rent
hereunder and other sums due and payable by Tenant on the date of termination,
plus the sum of: (i) an amount equal to the then present value of the rent
including any amounts treated as additional rent hereunder and other sums
provided herein to be paid by Tenant for the residue of the stated Term hereof
less the fair rental value of the Leased Premises for such residue (taking into
account the time and expense necessary to obtain a replacement tenant or
tenants, including expenses hereinafter described in subparagraph (b)(2)
hereinbelow relating to recover of the Leased Premises, preparation for
reletting and for reletting itself, and (ii) the cost of performing any other
covenants which otherwise would have been performed by Tenant; or
(2) Alternatively to the remedy provided in subparagraph
(b)(1) hereinabove, upon any termination of Tenant's right to possession only
without termination of this Lease, Landlord may at Landlord's option enter into
the Leased Premises remove Tenant's signs and other evidences of tenancy and
take and hold possession thereof as provided in subparagraph (b)(1) above,
without such entry and possession terminating the Lease or releasing Tenant in
whole or in part, from any obligation, including Tenant's obligation to pay the
rent, including any amounts treated as additional rent hereunder for the full
Term: and Landlord shall then or thereafter use commercially reasonable efforts
to sublet the Premises or any part thereof, on such occasions and terms as may
be determined in Landlord's sole discretion and, in such event, if the
consideration collected by Landlord upon any such reletting plus any sums
previously collected from Tenant are not sufficient to pay the full amount of
all rent, including any amounts treated as additional rent hereunder and other
sums reserved in this Lease for the remaining Term hereof together with the
costs of repairs, alterations, additions, redecorating, and Landlord's expenses
of reletting and the collection of the rent accruing therefrom (including
attorneys' fees and broker's commissions). Tenant shall pay to Landlord the
amount of such deficiency upon demand and Tenant agrees that Landlord may file
suit to recover any sums falling due under this subparagraph from time to time.
(3) In either of the events set forth in subparagraphs (b)(1)
and (b)(2) hereinabove, Landlord may, but need not, relet or sublet the premises
or any part thereof, as the
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case may be, for such rent and upon such terms as Landlord in its sole
discretion shall determine including the right to relet the Premises for a
greater or lesser than that remaining under this Lease, the right to relet the
Leased Premises as a part of a larger area, and the right to change the
character and use made of the Leased Premises and Landlord shall not be required
to accept any tenant offered by Tenant or to observe any instructions given by
Tenant about such reletting. In any such case, Landlord may make repairs,
alterations and additions in or to the Leased Premises and redecorate the same
to the extent Landlord deems necessary or desirable and Tenant shall, upon
demand, pay the cost thereof, together with Landlord's expenses for reletting
including, without limitation any broker's commission incurred by Landlord.
(c) Should Landlord, acting reasonably and in good faith, determine
that Tenant is not acting within a commercially reasonable time to maintain,
repair or replace anything for which Tenant is responsible hereunder, Landlord
may, in Landlord's option, upon Tenant's continued failure to so maintain,
repair or replace after twenty (20) days notice from Landlord, enter into and
upon the Leased Premises, with or without process of law and correct the same,
without being deemed in any manner guilty of trespass, eviction or forcible
entry and detainer and without incurring any liability for any damage resulting
therefrom; and Tenant agrees to reimburse Landlord on demand additional rent for
any expenses which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease.
(d) Any and all property which may be removed from the Leased premises
by Landlord pursuant to the authority of this Lease or of law, to which Tenant
is or may be entitled may be handled removed and stored, as the case may be, by
or at the direction of Landlord at the risk, cost and expense of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay to Landlord, upon demand, any and all
expenses incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under Landlord's
control. Any such property of Tenant not retaken by Tenant from storage within
thirty (30) days after removal from the Leased Premises shall, at Landlord's
option, be deemed conveyed by Tenant to landlord under this Lease as by a xxxx
of sale without further payment or credit by Landlord to Tenant.
(e) In exercising any of the remedies set forth in this Lease with
respect to entry or reentry of the Leased Premises, Landlord shall not be
civilly or otherwise liable to Tenant for any damage to Tenant's property unless
same is solely caused by the intentional or wanton, willful and reckless conduct
of Landlord.
(f) Pursuit by Landlord of any of the foregoing remedies shall not,
except as set forth in the alternative in the case of those remedies provided in
subparagraphs (b)(1) and (b)(2) hereinabove, preclude pursuit of any of the
other remedies herein provided or any other remedies provided by law or
available in equity (all such remedies being cumulative), nor shall pursuit of
any remedy herein provided constitute a forfeiture or waiver of any rent due to
Landlord hereunder or of any damages accruing to landlord by reason of the
violation of any of the terms, provisions and covenants herein contained. No act
or thing done by Landlord or its agents during the Term hereby granted shall be
deemed a termination of this Lease or an acceptance of the surrender of the
Leased premises, and no agreement to terminate this Lease or accept a surrender
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of said premises shall be valid unless in writing signed by Landlord. No waiver
by Landlord of any violation or breach of any of the terms, provisions and
covenants herein contained shall be deemed or construed to constitute a waiver
of any other violation or breach of any of the terms, provisions and covenants
herein contained. Landlord's acceptance of the payment of rental or other
payments hereunder after the occurrence of an event of default shall not be
construed as a waiver of such default, or as accord and satisfaction of any
liability of Tenant unless Landlord expressly so notifies Tenant in writing.
Forbearance by Landlord in enforcing one or more of the remedies herein provided
upon any event of default shall not be deemed or construed to constitute a
waiver of such default or of landlord's right to enforce any such remedies with
respect to such default or any subsequent default. If, on account of any breach
or default by Tenant in Tenant's obligations under the terms and conditions, of
this Lease, it shall become necessary or appropriate for Landlord to employ or
consult with any attorney concerning or to enforce or defend any of Landlord's
rights or remedies hereunder. Tenant agrees to pay all reasonable attorneys'
fees so incurred said attorneys' fees being deemed additional rent due hereunder
upon the next date the payment by Tenant of rent or any installment thereof is
due.
(g) Without limiting the foregoing:
(i) Service of process upon Tenant may be had by serving any
registered agent or any officer of director of Tenant at or upon the Leased
Premises and Landlord or anyone acting therefor shall at all times have the
right to enter seek out and locate any appropriate person for such purpose;
(ii) Service of process upon Landlord may be had by serving
any registered agent or partner of Landlord, or any person acting therefor, at
Landlord's offices in the Building or elsewhere;
(iii) Provided, however, neither Landlord nor Tenant hereby
waive the right to serve each other with process by any other lawful means:
(iv) Landlord and Tenant expressly waive any right to trial
by jury; and
(v) To the extent permitted by existing or future law of the
State of Georgia. Tenant expressly waives any and all rights of redemption
granted by or under any existing or future laws if Tenant is evicted or
dispossessed for any cause or if Landlord obtains possession of the Premises due
to Tenant's default hereunder or otherwise.
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20. DAMAGE BY FIRE OR OTHER CASUALTY
(a) If the Building, Improvements, or Leased Premises are rendered
partially or wholly untenable by fire or other casualty, at any time prior to
the end of the fifteenth (15th) year next following the Commencement Date,
Landlord shall reasonably proceed to rebuild, repair and or materially restore
same and Tenant shall thereupon reoccupy the Premises for the remainder of the
Term of the Lease.
(b) If such untenantability occurs by fire or other casualty occurring
between the end of the ten (10th) year next following the Commencement Date of
the Lease and the end of the fifteenth (15th) year next following same, the Term
for the Lease shall then be extended from the date of Tenant's reoccupancy for a
time sufficient to extend the remaining portion of the Term to a period of ten
(10) years next following the date of Tenant's reoccupancy. During the period of
time the Term of the Lease is thereby extended past what would have been the
expiration date of the original Term. Tenant Monthly Rental shall be equal to
the prevailing competitive market rental rate appertaining as to similar
commercial office buildings in the Alpharetta, Georgia, area as of the
expiration date of the original Term. As used herein, the phase "prevailing
competitive market rental rate" shall mean the rental rate (projected from the
date of the expiration of the original Term) which Tenant would expect to pay
and Landlord would expect to receive under Leases for space at comparable size
and quality to the Premises and as provided for in, and on terms and conditions
comparable to this Lease covering premises similar to the Premises. If Landlord
and Tenant have not reached agreement and executed an amendment to this Lease
setting forth such agreement on or before the date three (3) months following
the expiration of the original Term, then within ten (10) days after that date
each party shall appoint and employ, at its cost, a real estate appraiser who
shall be a member of the American Institute of Real Estate Appraisers (MAI) with
at least ten (10) years of full-time commercial appraisal and real estate
marketing experience in metropolitan Atlanta, Georgia to appraise and establish
the "prevailing competitive market rental rate." The two appraisers, thus
appointed, shall meet promptly and attempt to agree upon and designate a third
appraiser meeting the qualifications set forth above within ten (10) days after
the date of the appointment of the last two appraisers. If they are unable to
agree on the third appraiser, either of the parties, after giving five (5) days
notice to the other, may apply to a judge of the United States District Court
for the district in which the Premises are located for the selection of a third
appraiser meeting the qualifications stated above. Each of the parties shall
bear one-half of the cost of appointment of the third appraiser and of the third
appraiser's fee. Within thirty (30) after the selection of the third appraiser,
a majority of the appraiser shall agree upon the "prevailing competitive market
rental rate." If a majority of the appraisers are unable to agree within the
stipulated time, then each appraiser shall render his separate appraisal within
such time, and the three appraisals shall be averaged in order to establish such
rate; provided however, if the low appraisal and/or the high are more than ten
percent (10%) lower and or higher than the middle appraisal, the low appraisals
and/or the high appraisal shall be disregarded. If only one appraisal is
disregarded, the remaining two appraisals shall be averaged in order to
establish such rate. If both the low appraisal and the high appraisal are
disregarded, the middle appraisal shall establish the rate. During the period of
time between Tenant's reoccupancy and the date the "prevailing competitive
market rental rate" is established, Tenant will
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continue to pay Monthly Rental at the rate that appertained at the time the fire
or other casualty occurred.
(c) If the Building, Improvements, or Leased Premises are rendered
partially or wholly untenantable by fire or other casualty at a time when less
than five (5) years remain in the Lease Term, and if such damage, in Landlord's
reasonable estimation, cannot be materially restored within one hundred-fifty
(150) days of such damage, then either Tenant or Landlord may, at its option,
terminate this lease as of the date of such fire or casualty by written notice
to the other within sixty (60) days of such fire or casualty. For purposes
hereof, the Building, Improvements, or Leased premises shall be deemed
"materially restored" if they are in such condition as would not prevent or
materially interfere with Tenant's use of the Leased premises for the purpose
for which the Premises were being used at the time of such fire or casualty.
(d) If this Lease is not terminated pursuant to this Paragraph, then
Landlord shall proceed with all due diligence to rebuild, repair and/or
materially restore the Building, Improvements or Leased Premises, as the case
may be and thereafter to return same as near to the condition in which same
existed prior to the casualty as is reasonably feasible under all the
circumstances.
(e) If this Lease shall be terminated pursuant to this Paragraph, the
Term of this Lease shall end on the date of such damage as if that date had been
originally fixed in this Lease for the expiration of the Term hereof. If this
lease shall not be terminated pursuant to this paragraph and if the Leased
premises is untenantable in whole or in part following such damage, the Monthly
Rental payable during the period in which the Leased Premises is untenantable
shall be reduced to such extent, if any, as may be fair and reasonable under all
of the circumstances.
(f) In no event shall Landlord be required to rebuild, repair or
replace any part of the partitions, fixtures, additions or other improvements
which may have been placed in or about the Leased Premises by Tenant. Any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Building or the Leased Premises shall be for the sole benefit of the party
carrying such insurance and under its sole control.
(g) In the event of any damage or destruction to the Building, the
Leased Premises or the Property by any peril covered by the provisions of this
Paragraph. Tenant shall, upon notice from Landlord, remove forthwith, at its
sole cost and expense such portion or all of the property belonging to Tenant or
his licensees from such portion or all of the Building or the leased premises as
Landlord shall request and Tenant hereby indemnifies and holds Landlord harmless
from any loss, liability, costs, and expenses, including attorneys' fees,
arising out of any claim of damage or injury as a result of any alleged failure
to properly secure the Leased Premises prior to such removal.
21. CONDEMNATION
(a) If any substantial part of the Building, Improvements, available
parking area or Leased Premises should be taken for any public or quasi-public
use under governmental law,
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ordinance or regulation or by right of eminent domain or by private purchase in
lieu thereof and the taking would prevent or materially interfere with the use
of the Building or the Leased premises for the purpose for which it is then
being used, this Lease shall terminate on the date title vests in the taking
authority in the same manner as if the date of such taking were the date
originally fixed in this Lease for the expiration of the Term hereof. Any
decrease in available parking spaces, as provided for in Paragraph 26 below a
ration of 3.75 cars per 1,000 rentable square feet of the Premises shall be
deemed to materially interfere with the use by Tenant of the Building and the
Premises.
(b) If part of the Building Improvements, or Leased Premises shall be
taken for any public or quasi-public use under any governmental law, ordinance
or regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and this Lease is not terminated as provided in subparagraph (a) above,
this Lease shall not terminate but the rent payable hereunder during the
unexpired portion of the Term of this Lease shall be reduced to such extent, if
any as may be fair and reasonable under all of the circumstances and Landlord
shall undertake to restore the Building Improvements and Leased Premises to a
condition suitable for Tenant's use as near to the condition thereof immediately
prior to such taking as is reasonably feasible under all circumstances. In no
event, however, shall Landlord be required under this Lease to incur any
expenses in excess of available proceeds from any taking contemplated hereby for
the purposes of restoring the Building or the Premises after any such taking.
(c) Tenant shall not share in any condemnation award or payment in lieu
thereof or in any award for damages resulting from any grade change of streets
outside the Office Park of which the Building is a part, the same being hereby
assigned to Landlord by Tenant; provided, however, that Tenant may separately
claim and receive from the condemning authority, if legally payable,
compensation for Tenant's removal and relocation costs for Tenant's loss of
business and/or business interruption, and for any other cost, loss, damage or
expense suffered by Tenant.
(d) Notwithstanding anything to the contrary contained in this
Paragraph, if the temporary use of occupancy of any part of the Premises shall
be taken or appropriate under power of eminent domain during the Term of this
Lease, this Lease shall be and remain unaffected by such taking or appropriation
and Tenant shall continue to pay in full all rent payable hereunder by Tenant
during the Term of this Lease; in the event of any such temporary appropriation
or taking, Tenant shall be entitled to receive that portion of any award which
represents compensation for the use or occupancy of the Premises during the Term
of this lease and Landlord shall be entitled to receive that portion of any
award which represents the costs of restoration of the Premises and the use and
occupancy of the Premises after the end of the Term of this Lease.
(e) Notwithstanding anything to the contrary contained in this
Paragraph 21 or elsewhere in this Lease in the event of any condemnation,
Landlord shall be entitled to receive its entire award without deduction
therefrom for any estate vested in Tenant by the Lease, but Tenant shall have
the right to make a separate claim with the condemning authority for, and to
receive therefrom: (i) any moving expenses incurred by Tenant as a result of
such condemnation, (ii) any costs incurred or paid by Tenant in connection with
any alteration or improvement made by Tenant to the Premises; (iii) the value of
any of Tenant's property taken; and (iv) any other
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separate claim which Tenant may hereafter be permitted to make under applicable
law provided, however, that such other separate claim shall not reduce or
adversely affect the amount of the Landlord's award.
22. SALE BY LANDLORD
In the event of a sale, conveyance or assignment by Landlord of all or
any portion of the Building or Landlord's interest therein, or in or of the
Leased Premises, or if the Building or the Leased Premises comes under the
control of a mortgagee, ground lessor or similar party, the same shall operate
to release Landlord from any future liability upon any of the covenants or
conditions, express or implied, herein contained in favor of Tenant, and in such
event Tenant agrees to look solely to the responsibility of the successor in
interest of Landlord in and to this Lease and to recognize such successors as
new Landlord or to attorn thereto and execute at this Landlord's request, an
attornment agreement therewith.
23. RIGHT OF LANDLORD TO PERFORM
All covenants and agreements to be performed by the Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If the Tenant shall fail to pay any
sum of money or incur any expense, other than rent, required to be paid by
Tenant hereunder, whether or not such failure constitutes a breach of this
Lease, and such failure shall continue for twenty (20) days after notice thereof
by the Landlord, then Landlord may, but shall not be obligated to do so, and
without waiving or releasing the Tenant from any obligations of the Tenant make
any such payment or incur any such expense or perform any such act on the
Tenant's part to be made or performed as in this Lease required to be adopted by
Tenant. All sums so paid by the Landlord and as necessary incidental costs
together with interest thereon at the rate of one and one-half percent (1 1/2%)
per month, which is eighteen percent (18%) per annum, from the date of such
payment by the Landlord, shall be payable as additional rent to the Landlord on
demand, and the Tenant covenants to pay any such sums, and the Landlord shall
have, in addition to any other right or remedy of the Landlord, the same rights
and remedies in the event of nonpayment thereof by the Tenant as in the case of
default by the Tenant in the payment of rent.
24. SURRENDER OF PREMISES
(a) Unless Tenant shall, at least one hundred-eighty (180) days before
the last day of the Term hereof, give to Landlord a written notice of any desire
to remain in occupancy of the Premises after that date. Landlord shall presume
an intention by Tenant to surrender the Premises on that date. Nothing contained
herein or in the failure of Tenant to give such notice shall be construed as an
extension of the Term hereof or as consent of Landlord to any holding over by
Tenant.
(b) At the end of the Term or any renewal thereof or another sooner
termination of this Lease, the Tenant will peaceably deliver up to the Landlord
possession of the Premises in the same condition as received, ordinary wear and
tear, damage by fire, earthquake, act of God or the
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elements alone excepted. So long as Tenant is not in default hereunder, Tenant
may upon the termination of this Lease remove all movable furniture and
equipment belonging to Tenant at Tenant's sole cost, title to same remaining in
Tenant until such termination, repairing any damage caused y such removal. Upon
requests by Landlord, unless otherwise then or previously agreed to in writing
by landlord, Tenant shall remove at Tenant's sole cost, all movable furniture
and equipment belonging to Tenant and repair any damage resulting from such
removal. Property not so removed by the last day of the Term shall be deemed
abandoned by Tenant and title to the same shall thereupon pass to Landlord.
(c) The voluntary or other surrender of this Lease by Tenant or a
mutual cancellation thereof shall, as the option of Landlord terminate all or
any existing subleases or subtenancies or may at the option of Landlord operate
as an assignment to Landlord of any or all such subleases or subtenancies.
25. WAIVER
If either Landlord or Tenant waives the performance of any term,
covenant or condition contained in this Lease, such waiver shall not be deemed
to be a waiver of any subsequent breach of the same or any other term, covenant
or condition contained herein. Furthermore, the acceptance of rent by Landlord
shall not constitute a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, regardless of Landlord's knowledge of such
preceding breach at the time landlord accepted such rent. Failure by Landlord to
enforce any of the terms, covenants or conditions of this Lease for any length
of time shall not be deemed to waive or to decrease the right of Landlord to
insist thereafter upon strict performance by Tenant. Waiver by Landlord or
Tenant of any term, covenant or condition contained in this lease may only be
made by a writing, shall be effective only with respect to the subject manner
stated therein, and only for such time and to such extent as provided therein.
26. PARKING
Landlord shall provide for the non-assigned use of Tenant up to the
greater of (a) 320 parking spaces or (b) four (4) spaces per 1,000 net rentable
area of the Leased Premises. Said spaces shall not be reserved or otherwise
designated.
27. NOTICES
Each notice required or permitted to be given under this Lease shall be
sent by hand delivery or by depositing it with the United States Postal Service
or the official successor thereto, certified or registered mail, return receipt
requested with adequate postage prepaid, addressed to the appropriate party as
hereinafter provided. Each such notice shall be effective upon being hand
delivered or deposited with the United States Postal Service, as the case may
be, but the time period in which a response to any such notice must be given or
any action taken with respect thereto shall commence to run from the date of
receipt of the notice by the address thereof, as evidenced by the delivery
record of the messenger or courier service or by the return receipt of the
United States Postal Service, as the case may be Rejection or other refusal by
the addressee to
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accept or the inability of the messenger or courier service or the United States
Postal Service to deliver because of a changed address of which no notice was
given, shall in any case be deemed to be the receipt of the notice sent. The
addresses of Landlord and Tenant are as follows:
Landlord: Regency Park West Associate
0000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
With a copy to: GE Capital
One Georgia Center
000 Xxxx Xxxxxxxxx Xxxxxx; Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxx
Tenant: TheraTx, Incorporated From and after July 1, 1997
000 Xxxxxxxxxx Xxxx "At the Premises"
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Mr. B. Xxxxx Xxxxx, Vice President-Administrative Services
Any party shall have the right from time to time to change the address
to which notices to it shall be sent and to specify up to two additional
addresses to which copies of notices to it shall be sent by giving to the other
party or parties at least thirty (30) days prior notice of the changed address
or additional addresses.
28. CERTAIN RIGHTS RESERVED TO LANDLORD
Landlord reserves and may exercise the following rights without
affecting Tenant's obligations hereunder:
(a) To change the name of the Building;
(b) To designate all sources furnishing sign painting and lettering;
and, while obtaining competitive pricing from multiple sources for same, to also
designate all sources for towels, valet service and toilet supplies, lamps and
bulbs used in the Leased Premises;
(c) To retain at all times pass keys to the Leased Premises;
(d) To grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building;
(e) To close the Building after regular work hours and on legal
holidays subject, however to Tenant's right to admittance, under such reasonable
regulations as Landlord may prescribe from time to time, which may include by
way of example but not of limitation, that
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persons entering or leaving the Building identify themselves to a watchmen by
registration or otherwise and that said persons establish their right to enter
or leave the Building; and
(f) To take any and all measures, including inspections, repairs,
alterations, decorations, additions and improvements to the Leased Premises or
the Building and identification and admittance procedures for access to the
Building as may be necessary or desirable for the safety, protection,
preservation or security of the Leased Premises or the Building or Landlord's
interest or as may be necessary or desirable in the operation of the Building.
Landlord may enter upon the Leased Premises and may reasonably exercise
any or all of the foregoing rights hereby reserved without being deemed guilty
of an eviction or disturbance of Tenant's use of possession and without being
liable in any manner to the Tenant and without abatement of rent or affecting
any of the Tenant's obligations
29. ABANDONMENT
Tenant shall not vacate or abandon the Premises at any time during the
Term, and if Tenant shall abandon, vacate, or surrender said Premises or be
dispossessed by process of law, or otherwise, any personal property belonging to
Tenant and left on the Premises shall, at the option of Landlord be deemed to be
abandoned and title thereto shall, at the option of Landlord, thereupon pass to
Landlord.
30. SUCCESSORS
Subject to the provisions of Paragraph 10 hereof, the terms, covenants,
and conditions contained herein shall be binding upon and inure to the benefit
of the heirs, successors, executors, administrators and assigns of the parties
hereto.
31. ATTORNEYS' FEES
In the event that any action or proceeding is brought to enforce any
term, covenant or condition of this Lease on the part of Landlord or Tenant, the
prevailing party shall be entitled to reasonable attorneys' fees to be fixed by
the court in such action or proceeding.
32. CORPORATE AUTHORITY
If Tenant signs as a corporation, each of the persons executing this
Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a duly
authorized and existing corporation that Tenant has and is qualified to do
business in Georgia, that the corporation has full right and authority to enter
into this Lease, and that each and every one of the persons signing on behalf of
the corporation are authorized to do so. Upon Landlord's request, Tenant shall
provide Landlord with evidence reasonably satisfactory to Landlord confirming
the foregoing covenants and warranties.
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33. MORTGAGEE APPROVALS
Any approvals or consents of Landlord required under any provisions of
this Lease shall not be deemed to have been unreasonably withheld if any
mortgagee (which shall include the holder of any deed to secure debt) of the
Premises. Building or Property or any portion thereof shall refuse or withhold
its approval or consent thereto. Any requirement of Landlord pursuant to this
Lease which is imposed pursuant to the direction of any such mortgagee shall be
deemed to have been reasonably imposed by Landlord if made in good faith.
34. LANDLORD'S LIEN
In addition to any statutory lien for rent in Landlord's favor,
Landlord shall have and Tenant thereby grants to Landlord a continuing security
interest for all rentals and other sums of money becoming due hereunder from
Tenant, upon all goods, wares, equipment, fixtures, furniture, inventory,
accounts, contract rights, chattel paper and other personal property of Tenant
situated on the Leased Premises, and such property shall not be removed
therefrom without the consent of Landlord until all arrearage in rent as well as
any and all other sums of money then due to Landlord hereunder shall first have
been paid and discharged. In the event of a default under this Lease, Landlord
shall have, in addition to any other remedies provided herein or by law, all
rights and remedies under the Uniform Commercial Code, including without
limitation the right to sell the property described in this Paragraph at public
or private sale upon providing the notice called for by the Uniform Commercial
Code, or if none is so supplied by providing five (5) days' written notice to
Tenant. Tenant hereby agrees that Landlord may record this Lease or a memorandum
thereof at Landlord's discretion. Tenant further agrees that this lease shall
constitute a security agreement and further agrees to execute for recordation,
simultaneously with execution of this Lease or at such other time designated by
Landlord at its sole discretion, such financing statements and other instruments
deemed necessary or desirable in the sole discretion of Landlord to perfect the
security interest hereby created. Any statutory lien for rent is not hereby
waived, the express contractual lien herein granted being in addition and
supplementary thereto.
35. QUIET ENJOYMENT
Landlord represents and warrants that it has full right and authority
to enter into this Lease and that Tenant, while paying the Rentals and
performing its other covenants and agreements herein set forth, shall peaceably
and quietly have, hold and enjoy the Leased Premises for the Term hereof without
hindrance or molestation from Landlord subject to the terms and provisions of
this Lease. In the event this Lease is a sublease, then Tenant agrees to take
the Leased Premises subject to the provisions of the prior leases. Landlord
shall not be liable for any interference or disturbance by other tenants or
third persons, nor shall Tenant be released from any of the obligations of this
Lease because of such interference or disturbance; provided, Landlord shall
enforce all Rules and Regulations of the Building even-handedly upon all Tenants
of the Building.
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36. LIMITATION OF LANDLORD'S LIABILITY AND EXCULPATION OF PARTNERS
In no event shall Landlord's liability for breach of this Lease exceed
the amount of rent then remaining unpaid for the then current Term (exclusive of
any renewal periods which have not then actually commenced). This provision is
not intended to be a measure or agreed amount of Landlord's liability with
respect to any particular breach, and shall not be utilized by any court or
otherwise for the purpose of determining any liability of Landlord hereunder,
except only as a maximum amount not to be exceeded in any event. Furthermore,
any liability of Landlord hereunder shall be enforceable only for and out of the
interest of Landlord in the Building. Anything to the contrary contained in this
Lease notwithstanding there shall in no event be any personal or derivative
liability with respect to, arising from or related in any manner to the terms,
covenants, conditions and provisions of this Lease or their application, south
or enforced against any persons, firms or other entities who constitute the
partners of Landlord, and Tenant hereby exculpates each and all partners of
Landlord from any and all liability arising from or relating to this Lease and
its provisions or from Landlord's status as such hereunder. Tenant shall,
subject to the rights of any ground lessor, mortgagee or holder of any security
interest, look solely to the interest of Landlord, its successors and assigns,
in the Building for the satisfaction of each and every remedy, if any, of Tenant
as against Landlord herein, including default by Landlord hereunder, and shall
in no event have or seek such satisfaction out of the separate assets of, or
from, any partner of Landlord.
37. RIGHT TO RELOCATE [OMITTED]
38. DISCLAIMER OF CREATION OF PARTNERSHIP OR JOINT VENTURE
This Lease shall not be deemed to create or constitute a partnership or
joint venture of and between Landlord and Tenant for any purpose: nor is
Landlord to be deemed for any purpose as master, servant, employer, employee,
principal or agent of Tenant.
39. LEASE EFFECTIVE DATE
Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and is not effective
as a lease or otherwise until execution by both Landlord and Tenant.
40. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the Rules and
Regulations printed on Exhibit "E" annexed to this Lease and all reasonable
additions thereto as are from time to time now or hereafter at any time put into
effect by Landlord. Landlord shall not be responsible for the nonperformance by
any other tenant or occupant of the Building or Office Park of any obligation
under said Rules and Regulations, but shall apply and enforce same uniformly as
to all Tenants.
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41. NO BROKERS
Tenant represents and warrants to Landlord that, except for Xxxxxxx
Xxxxxx & Company no broker, agent, commission salesman or other person has
represented Tenant in the negotiations for and procurement of this Lease and
that, except for the commission payable in connection herewith to any person or
entity. Tenant and Landlord hereby acknowledge and agree that the commission
payable to the said Xxxxxxx Xxxxxx & Company in connection with the Lease is the
sole responsibility of Landlord, and that said commission shall be paid by
Landlord to the said Xxxxxxx Xxxxxx & Company in accordance with the terms of a
separate agreement. Tenant and Landlord also acknowledge that American Resurgens
Management Corp. has acted as agent for Landlord in this transaction and is to
be compensated for its services in connection therewith in accordance with a
separate agreement with Landlord. American Resurgens Management Corp. has not
acted as agent for Tenant in this transaction.
42. RECORDING
Neither this Lease, nor any memorandum hereof, shall be recorded by
Tenant without Landlord's prior written consent to such recording, which shall
not be unreasonably withheld as to a Memorandum of Lease.
43. MISCELLANEOUS
(a) The Paragraph numbers and Paragraph headings herein, and
designations of subparagraphs, are for convenience of reference only and shall
in no way define, increase, limit, or describe the scope or intent of any
provision of this Lease, which shall be construed without reference thereto.
(b) If this Lease is signed by more than one person, or if Tenant is a
partnership, joint venture, or other business organization the members of which
are subject to personal liability, the obligations and liability of each such
person or member hereunder shall be joint and several.
(c) The term "Landlord" in this Lease shall include Landlord and its
successors and assigns.
(d) The term "Tenant" or any pronoun used in place thereof shall
indicate and include the masculine, feminine or neuter genders, the singular or
plural number, individuals, firms or corporations, and each of their respective
successors, executors, administrators, and permitted assigns, according to the
context hereof.
(e) "Office Park" means the business park owned by Lessor and
comprising approximately 150 acres located situate to Rock Mill Road in Land
Lots 592, 605, 606 and 639 of the 1st District, 2nd Section, Alpharetta, Xxxxxx
County, Georgia, all as more particularly described in Exhibit "B" attached
hereto and by this reference made a part hereof.
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(f) "Common Areas" means those portions of the Office Park lying
outside the Building which are designated as "common areas" for the use,
enjoyment and benefit of all owners or tenants of property located within the
Office Park and their lessees, sublessees and invitees.
(g) Time is of the essence of this Lease and each and all of its
provisions.
(h) This Lease shall in all respects be governed by and construed under
the laws of the State of Georgia.
(i) Tenant shall have no right to hold back, offset or otherwise fail
to pay any rent, including additional rent, due to any other charges assessed
under any provision of this Lease, for or on account of any claim or
counterclaim alleged against Landlord, save and except pursuant to an order
issued with prior notice to Landlord and after a hearing by a court of record of
competent jurisdiction in the State of Georgia.
(j) This Lease, together with its Exhibits and riders, if any, contains
all the agreements of the parties hereto and supersedes any previous
negotiations or agreements, whether oral or written. There have been no
representatives made by the Landlord or understandings made between the parties
other than those set forth in this Lease and its Exhibits.
(k) This Lease may not be modified except by a written instrument
executed by all the parties hereto or their successors and assigns.
(l) All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the Term of this Lease shall survive the
expiration or earlier termination of the Term hereof.
(m) If, for any reason whatsoever, any clause, phrase, provision or
portion of this Lease, or the application thereof to any person or
circumstances, shall be or become invalid, unenforceable or ineffective, such
event shall not affect, impair or render invalid, unenforceable or ineffective
the remainder of this Lease or any other clause, phrase, provision or portion
hereof, nor shall it affect the application of any clause, phrase, provision or
portion hereof to other persons or circumstances. It is also the intention of
the parties to this Lease that in lieu of each such clause, phrase, provision or
portion of this Lease that is or may become invalid, unenforceable or
ineffective, there be added as a part of this Lease a clause, phrase, provision
or portion as like and similar in terms to such invalid, unenforceable or
ineffective clause, phrase, provision or portion as may be valid, enforceable
and effective.
(n) Whenever a period of time is herein prescribed for action to be
taken by Landlord or Tenant, the party so charged shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to causes of any kind whatsoever including,
without limitation, acts or events of force majeure, which are beyond the
control of that party. The period for performance of any such delayed action by
the party so charged shall be extended for a period equivalent to the period of
such delay.
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(o) Notwithstanding any other provisions of this Lease to the contrary,
if the Commencement Date hereof shall not have occurred before the twentieth
(20th) anniversary of the date hereof, this Lease shall be null and void and
neither party shall have any liability or obligation to the other hereunder. The
purpose and intent of this provision is to avoid the application of the Rule
Against Perpetuities to this Lease.
44. SPECIAL STIPULATIONS
Additional provisions of this Lease are set forth in the Special
Stipulations attached hereto and made a part hereof as Exhibit "F". In the event
of a conflict between the preceding provisions of this Lease and the provisions
of the Special Stipulations, Exhibit "F", the provisions of the Special
Stipulations shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Lease under
their hands and seals the day and year first above written, each warranting to
the other that it has the authority to do so and the capacity to bind the
respective entities identified as Landlord and Tenant hereunder.
LANDLORD:
REGENCY PARK WEST ASSOCIATES, L.P.,
A Georgia Limited Partnership
By: AMERICAN RESURGENS MANAGEMENT
CORP.
A Georgia Corporation
As General Partner
WITNESS/ATTEST:
/s/ [Illegible] By: /s/ [Illegible]
------------------------------------ --------------------------------
Its: [Illegible]
-------------------------------
(CORPORATE SEAL)
TENANT:
THERATX, INCORPORATED
A Delaware Corporation
By: /s/ [Illegible]
--------------------------------
Its: [Illegible]
-------------------------------
(CORPORATE SEAL)
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APPROVED:
GENERAL ELECTRIC REAL
ESTATE EQUITIES, INC.
By: /s/ [Illegible]
-------------------------------
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EXHIBIT "A"
LEASED PREMISES FLOOR PLAN
TO BE PROVIDED
(per Special Stipulation #18, Exhibit "F")
[No Document Attached]
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EXHIBIT "B"
OFFICE PARK LEGAL DESCRIPTION
TO BE PROVIDED
(per Special Stipulation #17, Exhibit "F")
[No Document Attached]
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EXHIBIT "B-1"
Conceptual Plan for
GE Capital and
American Resurgens Management Corp.
[Office Site Design]
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EXHIBIT "C"
LEASED PREMISES IMPROVEMENT AGREEMENT
In consideration of Tenant's execution of the Lease to which this
Agreement forms an Exhibit, and for the mutual considerations hereinafter
recited, Landlord shall provide o the Premises and Tenant shall receive, accept
and provide the following:
SECTION (A) - ARCHITECTURAL, ENGINEERING AND OTHER SERVICES:
(1) Landlord shall provide Tenant with an allowance of Seventy Three
Thousand Fifty-Nine Dollars ($73,059.00), equivalent to One Dollar
($1.00) per usable square foot of the Lease Premises, for use by Tenant
in obtaining architectural and engineering services prior and incident
to construction of Tenant Improvements therein. Tenant, at its sole
cost and expense and through Landlord's designated Architect and/or
Engineer, shall then cause to be prepared Plans and Specifications for
Tenant's Premises as follows:
(a) Detailed architectural drawings and specifications for
Tenant's partition plan, reflected ceiling plan, power,
communication, and telephone plan (location of data and
telephone outlets with pull boxes only), electrical outlets,
finish plan, elevations, details and sections;
(b) Mechanical, electrical, plumbing and lighting plans and
specifications where necessary for installation to Base
Building heating and air conditioning systems. (Landlord shall
provide the Architectural and Mechanical services with respect
to completing the improvements outlined in Section B).
(2) Landlord and Tenant hereby agree that time is of the essence and that
the following sequence and schedule shall be strictly adhered to with
respect to the design and development of construction of Improvements
to Tenant's Premises:
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(a) Tenant shall select a coordinator who provides Architect with
information for development of initial space plan within
twelve (12) weeks from execution of Lease.
(b) Architect shall then prepare initial space plan within four
(4) weeks of receipt of Tenant information;
(c) Upon receipt of space plan, Tenant's coordinator, as required,
shall provide additional information for development of
schematic pricing drawings, in not later than two (2) weeks;
(d) Architect shall then prepare schematic pricing drawings and
specifications within two (2) weeks from receipt of
information provided for in (2)(c) above;
(e) Landlord, or its designated agent shall prepare a cost
estimate based upon the drawings referred to in (2)(d) above
within two (2) weeks of receipt of schematic pricing drawings;
(f) Tenant reviews and approves or adjusts the schematic pricing
drawings and the cost estimate, as outlined in (2)(d) and
(2)(e) above, and provides Landlord all remaining information
needed to develop final Plans and specifications by no later
than one week thereafter;
(g) Landlord, based upon all information previously provided and
approved by Tenant, authorizes Architect to prepare final
Plans and Specifications within four (4) weeks;
(h) Tenant reviews and signs off on the final Plans and
Specifications prepared in accordance with (2)(g) above within
one (1) week;
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Upon receipt from Tenant of the approved final Plans and Specifications
referred to in (2)(h) above, Landlord shall obtain a minimum of three
(3) competitive bids and select a contractor, who shall substantially
complete Tenant" Premises by June 30, 1996. Landlord shall provide
Tenant with a Tenant Improvement Allowance of One Million One Hundred
Twenty Thousand Dollars ($1,120,000.00), equivalent to Fourteen Dollars
($14.00) per rentable square foot of the Leased Premises. Should the
cost of all improvements to Tenant's premises exceed Tenant's
Improvements Allowance, Tenant shall pay Landlord such excess costs
prior to the time payment of any sum including same is due to be made
by Landlord to the contractor under the contract for improvements. Said
excess costs shall be deemed Additional Rent under the Lease. Failure
by Tenant to pay any sums when due will constitute a failure to pay
rent when due and be, at Landlord's option, an event of default by
Tenant under the Lease. Any contractor-initiated change order must be
reviewed and approved by Landlord and Tenant, which review and approval
will not e unreasonably withheld. Should cost of improvements to Tenant
be less than the Tenant Improvement Allowance, Tenant may apply the
remainder thereof to the cost of future Tenant improvements to
expansion areas.
(3) Should Tenant, subsequent to commencement of construction of
Improvements to its Premises, modify the Plans and Specifications in
any way, Tenant shall pay all additional costs thereby incurred by
Landlord plus a fee of twenty-one percent (21%) of the additional cost
for Landlord's cost of coordination, supervision and overhead resulting
from the revisions to said Plans and Specifications, excluding any
additional architectural and/or engineering fees. All revised or
additional Plans and Specifications are subject to Landlord's prior
review and written approval. Should any revisions or additions to the
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original Plans and Specifications result in a delay of substantial
completion of the Premises, Tenant agrees that such shall constitute a
"Tenant Delay".
SECTION (B) - LANDLORD'S IMPROVEMENTS:
Preliminary to completion of construction of the Tenant Improvement
Work provided for elsewhere in this Agreement, the following improvements to the
Premises (herein called "Base Building Work") shall have been or be completed by
Landlord at its expense
(1) Perimeter walls and core walls completed, taped and
bedded, ready for paint finish;
(2) Floor - Unfinished concrete slab floor at the
interior of the Leased Premises ready to receive
carpeting or other floor covering;
(3) Building Standard 110-volt power supplied to the
building core, together with building standard power
grid installed in ceiling;
(4) Men's and women's restroom facilities;
(5) Sprinkler riser and main loop;
(6) Building standard voice communication speakers, exit
lights, fire extinguishers and cabinets within common
areas, including the core area;
(7) 2' x 2' ceiling grid system installed throughout with
2' x 2' ceiling tiles stacked on the floors;
(8) Perimeter HVAC system installed from mixing boxes
including ductwork and perimeter slot diffusers;
(9) Building standard sprinkler distribution from main
loop to sprinkler heads, and building standard chrome
semi-recessed sprinkler heads;
(11) Thin line (1") aluminum horizontal blinds to cover
all exterior windows;
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(12) Electrical Service - Provision of up to 3.5 xxxxx
(but no more that 3.5 xxxxx) per usable square foot
of the Leased Premises. This service shall provide
power for lighting fixtures, base and floor outlets
and/or miscellaneous equipment. All additional
electrical service exceeding 3.5 xxxxx per usable
square foot shall be separately connected and metered
at the power source. Tenant shall pay for any and all
costs to submeter and all excess power as metered on
a monthly basis;
(13) Heating, Ventilating and Air Conditioning Engineering
and installation of the base building HVAC system to
provide cool and warm air exterior zones supplied
though slot diffusers in accordance with the
following specifications:
Summer Conditions
Inside Temperature Outside Temperature
75 d.F dry bulb 92 d.F dry bulb
50% relative humidity 78 wet bulb
Winter Conditions
Inside Temperature Outside Temperature
72 d.F dry bulb 14 d.F dry bulb
Any relocation of sprinklers or addition of
sprinklers will be at Tenant's cost.
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All remaining preparation of the Leased
Premises shall be considered as Tenant's Work, to be completed
at Tenant's sole expense.
SECTION (C) - GENERAL PROVISIONS:
(1) Landlord will permit Tenant and its
agent to enter the premises prior to the date specified as the
Commencement Date of the Term of the Lease, allowing Tenant to
perform through its own contractors (to be first approved by
Landlord) such other work and decorations as Tenant may desire
at the same time that Landlord's contractors are working in
the Premises. The foregoing license to enter prior to the
Commencement Date of the Lease Term, however, is conditioned
upon Tenant's workmen and mechanics working in harmony with
and not interfering with the labor employed by Landlord,
Landlord's mechanics or contractors or by any other Tenant(s)
or their contractors, and not impeding or interfering with
Landlord's work or the progress thereof. Such access shall at
times be subject to the control and restrictions of the
Landlord. Such entry shall be deemed to be under all of the
terms, covenants, provisions and conditions of the Lease
except Landlord shall not be liable in any way for any injury,
loss or damage which may occur to any of Tenant's decorations
or installations made prior to the Commencement Date of the
Term of the Lease, the making of any of same being done solely
at Tenant's risk.
(2) Workers' compensation, and pubic
liability insurance for bodily injury and property damage, all
in required amounts and with company's name and on forms
satisfactory to Landlord, shall be provided and at all times
maintained by Tenant's contractors engaged in the performance
of the work,
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and before proceeding with the work, certificates of such
insurance shall be furnished to Landlord.
(3) If Tenant's contractors or anyone
employed by Tenant shall cause a delay in completing Tenant's
alterations, Tenant agrees that such delay will constitute a
"Tenant Delay."
(4) Should Landlord be unable to complete
the work as scheduled as a result of a "Tenant Delay", Tenant
shall pay to Landlord, as Additional Rent, one (1) day's base
rent computed in accordance with the Lease for each calendar
day of "Tenant Delay", as liquidated damages and not as a
penalty, it being agreed that Landlord's damages and not as a
penalty, it being agreed that Landlord's damages for such
delay would be otherwise difficult to determine. Said
Additional Rent will be due within thirty (30) days of
Tenant's receipt of Landlord's notice therefor.
(5) Landlord, upon prior notice to Tenant,
reserves the right to make reasonable substitutions of equal
or better quality and value for building standard materials in
the event of unavailability of materials or due to field
conditions.
(6) Tenant and Landlord acknowledge, by
execution in their respective spaces provided hereinbelow for
that purpose; that the foregoing correctly set forth all the
obligations of Landlord and Tenant with respect thereto are
hereby extinguished and merged into this Agreement; and that
each has full authority and consent to bind the respective
contracting parties.
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IN WITNESS WHEREOF the parties have executed
this Lease Premises Improvement Agreement this ____ day of
[Illegible], 1995.
LANDLORD:
REGENCY PARK WEST ASSOCIATES
A Georgia General Partnership
By: AMERICAN RESURGENS
MANAGEMENT CORP.,
A Georgia Corporation
WITNESS/ATTEST:
/s/ [Illegible]
------------------- By: /s/ Xxxxx X. XxXxxxx
-------------------------------------
Xxxxx X. XxXxxxx
Its: Chairman
(CORPORATE SEAL)
TENANT:
THERATX, INC.
A Delaware Corporation
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Its: President and CEO
APPROVED:
GENERAL ELECTRIC REAL
ESTATE EQUITIES, INC.
By: [/s/ Illegible]
-------------------------
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EXHIBIT "D"
ESTOPPEL CERTIFICATE
(Lender's Name)
Gentlemen:
The undersigned, as Tenant under that certain lease (the "Lease") dated
__________________, 19,_, made with____________________________, as Landlord
(the "Landlord"), does hereby agree and certify:
1. That the copy of the Lease attached hereto as Exhibit "A" is a true and
complete copy of the Lease, and there are no amendments, modifications or
extensions of or to the Lease except as set forth immediately below:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
2. That the term of the Lease commenced or began on ______________, 19 ___, and
the Lease is now in full force and effect.
3. That its Leased Premises at the above location have been completed in
accordance with the terms of the Lease, that it has accepted possession of said
premises, that it now occupies the same and that Tenant is paying full lease
rental.
4. That it began paying rent on , 19__, and that, save only as may be required
by the terms of the Lease, no rental has been paid in advance, nor has the
undersigned deposited any sums with the Landlord as security except as set forth
immediately below:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
5. That there exist no defenses or offsets to enforcement of the Lease by the
Landlord and, so far as is known to the undersigned, the Landlord is not, as of
the date hereof, in default in the performance of the Lease, nor has the
Landlord committed any breach thereof, nor has any event occurred which, with
the passage of time or the giving of notice, or both, would constitute a default
or breach by the Landlord.
The undersigned acknowledges that you are relying on the above representations
of the undersigned in (advancing funds to purchase the existing first mortgage
loan covering the building in which the Leased Promises
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138
are located)/(purchasing the building in which the Leased Premises are located)
and does hereby warrant and affirm to and for your benefit, and that of your
successors and assigns, that each of the foregoing representations is true,
correct and complete as of the date hereof.
DATED: ______________________________________________
TENANT: _____________________________________________
BY: _________________________________________________
ITS: ________________________________________________
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EXHIBIT "E"
RULES AND REGULATIONS
1. Sidewalks, courts, ramps, parking facilities, loading docks and
areas, driveways, delivery, drop-off and pick-up areas, bus stops, halls,
passages, exits, entrances, elevators, escalators, stairways of the Building and
throughout the Common Area and other areas and improvements provided by Landlord
for the general use of tenants, their employees, visitors, invitees and
licensees, shall not be covered or obstructed by Tenant or used by it for any
purpose other than for ingress and egress from the Leased Premises, the Building
or the Common Area, as applicable. The walls, partitions, windows and doors that
reflect or admit light into passageways or into any other part of the Building
shall not be covered or obstructed. The halls, courts, parking facilities,
loading docks and areas, driveways, delivery, drop-off and pick-up areas,
passages, exits, entrances, elevators, escalators and stairways are not for the
use of the general public and Landlord shall in all cases retain the right to
control and prevent access thereto by all persons whose presence, in the
judgment of Landlord, may be prejudicial to the safety, character, reputation
and interests of the Common Area, the Building and its tenants; provided that
nothing herein contained shall be construed to prevent such access to persons
with whom any tenant normally deals in the ordinary course of such tenant's
business unless such persons are engaged in illegal or immoral activities.
Tenant, and its employees, visitors, invitees or licensees of any tenant, shall
not go upon the roof of the Building, except as previously authorized by
Landlord.
2. No sign, placard, picture, name, notice, decoration or advertisement
visible horizontally or vertically from the exterior of Leased Premises shall be
inscribed, painted, affixed, installed or otherwise displayed by any tenant
either on its Premises or any interior or exterior part of the Building without
the prior written consent of Landlord, and only then at the sole cost and
expense of Tenant. Landlord shall have the right to remove any such sign,
placard, picture, name, notice, decoration or advertisement without notice to
and at the sole cost and expense of tenant.
(a) If Landlord shall have given such consent to Tenant at any
time, whether before or after the execution of a lease, such consent
shall in no way operate as a waiver or release of any of the provisions
hereof or of such lease, and shall be deemed to relate only to the
particular sign, placard, picture, name, notice, decoration or
advertisement so consented to by Landlord and shall not be construed as
dispensing with the necessity of obtaining the specific written consent
of Landlord with respect to any other such sign, placard, picture,
name, notice, decoration or advertisement.
(b) All approved signs or lettering on doors and walls shall
be printed, painted, affixed and inscribed at the sole expense of
Tenant by a person previously approved in writing by Landlord.
3. The directory of the Building will be provided exclusively for the
display of the name and location of tenants only, in such manner and arrangement
as may be from time to time determined by Landlord, and Landlord reserves the
right to exclude any other names therefrom.
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4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or placed
in, or used in connection with, any window or door on any premises without the
prior written consent of Landlord. In any event with the prior written consent
of Landlord, all such items shall be installed inside of Landlord's standard
window covering and shall in no way be visible from the exterior of the
Building. No articles shall be placed or kept on the window xxxxx so as to be
visible from the exterior of the Building. No articles shall be placed against
glass partitions or doors which might appear unsightly from outside Tenant's
Premises.
5. Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 6:00 a.m. and at all hours on Saturdays, Sundays and
holidays all persons other than Tenant or its accompanied guests. Tenant shall
be responsible for all persons whom it allows to enter the Building and shall be
liable to Landlord for all acts of such persons.
(a) Landlord shall in no case be liable for damages or for
error with regard to the admission to or exclusion from the Building of
any person.
(b) During the continuance of any invasion, mob, riot, public
excitement or other circumstances rendering such action advisable in
Landlord's opinion, Landlord reserves the right to prevent access to
the Building by closing the doors, or otherwise, for the safety of
tenants and protection of the Building and property in the Building.
6. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning Premises unless otherwise agreed to by
Landlord in writing. Except with the written consent of Landlord no person or
persons other than those approved by Landlord shall be permitted to enter the
Building for the purpose of cleaning same. Tenant shall not cause any
unnecessary labor by reason of Tenant's carelessness or indifference in the
preservation of good order and cleanliness of Tenant's Premises. Landlord shall
in no way be responsible to any tenant for any loss of property on the Premises,
however occurring, or for any damage done to the effects of any tenant by the
Landlord's janitor or any other employee or any other person.
7. Tenant shall not obtain or maintain for use on its Premises
coin-operated vending machines or accept barbering or bootblacking services in
its Premises except from persons authorized by Landlord.
8. Tenant shall see that all doors of its Premises are closed and
securely locked and must observe strict care and caution that all water faucets
or water apparatus are entirely shut off before the tenant or its employees
leave such Premises, and that all utilities shall likewise be carefully shut off
so as to prevent waste or damage, and for any default or carelessness the tenant
shall make good all injuries sustained by other tenants or occupants of the
Building. On multiple tenancy floors, all Tenants shall keep the door or doors
to the Building corridors closed at all times except for ingress and egress.
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9. Tenant shall not waste electricity, water or air-conditioning and
agrees to cooperate fully with Landlord to assure the most effective operation
of the Building's mechanical systems, and shall refrain from attempting to
adjust any controls.
10. No additional locks or bolts of any kind shall be placed on any
door in the building or the Premises and no lock on any door therein shall be
changed or altered in any respect. Landlord shall furnish two keys for each lock
on doors in the Premises and shall, on Tenant's request and at Tenant's expense,
provide additional duplicate keys. All keys shall be returned to Landlord upon
the termination of this lease. Landlord may at all times keep a pass key to the
Premises.
11. The toilet-rooms, toilets, urinals, wash bowls, water apparatus,
and other plumbing facilities shall not be used any purpose other than for those
for which they were constructed or installed. All plumbing lines shall be kept
open and no sweepings, rubbish, chemical, or other unsuitable or foreign
substances of any kind shall be thrown or placed therein or in any of the
toilets, urinals, wash bowls, water apparatus or other plumbing facilities. The
expense of any breakage, stoppage or damage resulting from violation(s) of this
rule by Tenant or Tenant's agents, employees, invitee, licensees or visitors,
shall be borne by Tenant and shall be paid to Landlord immediately upon
Landlord's demand. No restrooms in the Common Areas shall be used as smoking
areas clothes changing facilities, or lounging or meeting areas. Furthermore, no
bathing (other than the washing of hands and face) shall be done in the
restrooms, and no hair dryers, shavers (electric or manual) or other appliances
shall be used in the restrooms at any time. Tenant shall not allow or permit its
agents, employees, invitee, licensees or visitors to congregate in the restrooms
for any reason or to otherwise violate the above provisions of this Rule 11.
12. Tenant shall not use, keep, store or permit in its Premises or the
Building any: (a) ether, naptha, phosphorous, benzol, gasoline, benzine,
petroleum, crude or refined earth or coal oils, kerosene or camphene, other than
in limited quantities necessary for the operation or maintenance of office
equipment; (b) any other flammable, combustible, explosive gas or material of
any kind; or (c) any other fluid, gas or material of any kind having an
offensive odor, unless previously obtaining written consent of the Landlord.
Tenant shall use no method of heating or air-conditioning other than that
supplied by Landlord.
13. No odors or vapors shall be caused or permitted to emanate from the
Premises. Tenant shall not use, keep, store or permit to be used or kept in its
Premises any foul or noxious gas or substance or permit or suffer such Premises
to be occupied or used in a manner offensive or objectionable to Landlord or
other occupants of the Building by reason of noise, odors and/or vibrations or
interfere in any way with other tenants or those having business therein, nor
shall any live animals or birds other than seeing eye dogs be brought or kept in
or about the Premises or the Building.
14. Tenant shall not use, permit or suffer the use of the Premises or
the Building or the Common Areas of the office park for living, sleeping or
lodging; shall not do any cooking or conduct any restaurant, luncheonette, or
cafeteria business for the sale or service of food or beverages to persons other
than its own employees and guests (in which event only equipment
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approved by Underwriters' Laboratory shall be used or installed); and shall not
permit the delivery of food or beverage to the Premises, except by such persons
delivering the same as shall be approved by Landlord and only under regulations
fixed by Landlord.
15. Except with the prior written consent of Landlord, Tenant shall not
sell, permit the sale, at retail, of newspapers, magazines, periodicals, theatre
tickets or any other goods or merchandise in or on any Premises, nor shall
tenant carry on, or permit or allow any employee or other person to carry on,
the business of stenography, typewriting or any similar business in or from any
Premises for the service or accommodation of occupants of any other portion of
the Building, nor shall the Premises of Tenant be used for the storage of
merchandise or for manufacturing of any kind, or the business of a public xxxxxx
shop, beauty parlor, or bootblacking parlor nor shall the Premises of Tenant be
used for any improper, immoral or objectionable purpose, or any business
activity other than that specifically provided for in Tenant's Lease.
16. If Tenant requires telegraphic, telephonic, burglar alarm or
similar services, it shall first obtain, and comply with, Landlord's instruction
in their installation. Landlord will direct electricians as to where and how
telephone, telegraph and electrical wires are to be introduced or installed. No
boring or cutting for wires will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call boxes or other office
equipment affixed to all Premises shall be subject to the written approval of
Landlord.
17. Tenant shall not install any radio or television antenna,
loudspeaker or any other device on the exterior walls or the roof of the
Building. Tenant shall not use or permit operation of any musical or
sound-producing instruments or devices which may be board outside the Premises,
or interfere with radio or television broadcasting or reception from or in the
Building or elsewhere. No signalling, telegraphic or telephonic instruments or
devices, or other wires, instruments or devices, shall be installed in
connection with the Premises without the prior written approval of Landlord.
Such installations, and the boring or cutting for wires, shall be made at the
sole cost and expense of Tenant and under the control and direction of Landlord.
Landlord retains in all cases the right to require (i) the installation and use
of such electrical protecting devices that prevent the transmission of excessive
currents of electricity into or through the Building, (ii) the changing of wires
and of their installation and arrangement underground or otherwise as Landlord
may direct, and (iii) compliance on the part of all using or seeking access to
such wires with such rules as Landlord may establish relating thereto. All such
wires used by Tenant must be clearly tagged at the Building, with (i) the number
of the Premises to which said wires lead, (ii) the purpose for which wires are
used, and (iii) the name of the company operating same.
18. Tenant shall lay no linoleum, tile, carpet or any other floor
covering so that the same shall be affixed to the floor of its Premises in any
manner except as approved in writing by Landlord. The expense of repairing any
damage resulting from a violation of this rule or the removal of any floor
covering shall be borne by Tenant if it or its contractors, employees or
invitees, shall have caused the damage.
19. No furniture, freight, equipment, materials, supplies, packages,
merchandise or other property will be received in the Building or carried upon
or down the elevators except
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between such hours and in such elevators as shall be designated by Landlord.
Landlord shall have the right to prescribe the weight, size and position of all
safes, furniture, files, bookcases or other heavy equipment brought into the
Building. Safes or other heavy objects shall, if considered necessary by
Landlord, stand an wood strips of such thickness as determined by Landlord to be
necessary to properly distribute the weight thereof. Landlord will not be
responsible for loss of or damage to any such safe, equipment or property from
any cause, and all damage done to the Building by moving or maintaining any such
safe, equipment or other property shall be repaired at the expense of Tenant.
20. Business machines and mechanical equipment belonging to Tenant
which cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the Building shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The persons employed by Tenant to
move such equipment in or out of the Building must be acceptable by Landlord.
21. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. Tenant shall not xxxx, or drive nails, screws or drill
into, the partitions, woodwork or plaster or in any way deface such Premises or
any part thereof.
22. Tenant shall not install, maintain or operate upon the Premises any
vending machine without the written consent of the Landlord.
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