EXHIBIT 10.1
WATERSTONE
Atlanta, Georgia
THIS LEASE AGREEMENT, (the "Lease") is made 15 day of April, 1991, by and
among XXXXXXXX/BEST JOINT VENTURE, a joint venture created pursuant to the laws
of the State of Georgia (the "Landlord"); and AERONOMICS INCORPORATED, a
Delaware corporation (the "Tenant").
WITNESSETH:
1. PREMISES
Landlord does hereby rent and lease to the Tenant the space (the
"Premises") outlined on the floor plan attached hereto as Exhibit A and
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incorporated hereby by this reference, together with all pipes, ducts, conduits,
wires and equipment exclusively serving said space, which space contains 12,412
square foot of net rentable area (subject to adjustment as provided in Paragraph
4 below) located on the 3rd floor of the office building owned by Landlord known
as "Waterstone" and situated on the real property described on Exhibit B,
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attached hereto and incorporated herein (the "Building"). Landlord excepts and
reserves to itself from the demise of the Premises (i) the exterior faces of all
exterior walls, windows and doors and (ii) all hallways, stairways, shaftways,
service rooms, common toilets, and elevators serving other part of the Building,
except access by common areas and elevators as is necessary for Tenant's
enjoyment of the Premise.
2. TERM
The term of this Lease shall be for a period of seventy two (72) months
commencing on the Commencement Date (as defined in Exhibit C, attached hereto
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and incorporated herein) (the "Commencement Date") and ending on the 31 day of
May, 1997, at 12:00 Midnight, unless sooner terminated as hereinafter provided
(the "Term").
3. COMPLETION OF IMPROVEMENTS
Landlord agrees to proceed with due diligence to prepare the Premises for
Tenant's occupancy in accordance with the terms of the work letter attached
hereto as Exhibit C.
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4. POSSESSION
If this Lease is executed before the Premises herein are ready for
occupancy and the Landlord cannot deliver possession of the Premises on the
Commence Date for any reasons, other than an omission, delay or default, caused
by Tenant, all rental payable hereunder shall xxxxx until Landlord can deliver
possession of the Premises and Tenant hereby accepts such abatement in full
settlement of any and all claims Tenant may have against Landlord arising from
Landlord's inability to deliver possession on the Commencement Date. In such
event, the Term shall be extended for the number of days equal to the number of
days of such rental abatement
under this Paragraph 4. Within ten (10) days after the Commencement Date,
Landlord shall calculate the actual square footage of net rentable area within
the Premises and Tenant and Landlord shall execute a letter agreement setting
forth (i) such actual square footage, (ii) the date of commencement of the
payment of Base Rental by Tenant, (iii) the expiration date of the Term, (iv)
Tenant's acceptance of the condition of the Premises subject to any punchlist
items and latent defects, (v) the annual Base Rental payable hereunder, (vi) the
Tenant's Share (as defined in Paragraph 5 [b] below, and (vii) such other
matters as Landlord may request, in Landlord's reasonable discretion.
5. RENTAL
(a) Commencing on the Commencement Date, Tenant shall pay in advance to
Landlord, at Landlord's address for notices set out in Paragraph 24 hereof, or
at such other place as Landlord shall designate in writing, promptly, without
demand, on the first day of each month during the Term, an amount equal to the
product obtained by multiplying the total square footage of net rentable area
within the Premises (calculated in accordance with Paragraph 4 above) by (See
Special Stipulation #1) Dollars ($XXXXX) (the "Base Rental"), which, based on
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the initial estimate of the total square footage of net rentable area within the
Premises set forth in Paragraph 1 above, would be XXXXXXXXXXXXXXXXX Dollars
($XXXXXX) per annum. In the event the Term shall commence or terminate on a day
other than the first day of a month, the rental for the first and last partial
month shall be prorated. The Base Rental shall be due and payable in all
events, without any set-off or deduction whatsoever.
(b) Tenant shall pay to Landlord, as additional rental hereunder, Tenant's
Share (defined below) of any increases in the annual total cost of ownership,
operation, and maintenance of the Building and the surrounding land and parking
facilities (including, without limitation, taxes, water, sewer, electricity,
lightning, janitorial services and supplies, management fees, landscaping,
window cleaning, insurance, maintenance, painting, decorating, trash, snow and
ice removal, security services, heating, ventilating and air conditioning
maintenance and repair, elevator maintenance and repair, resurfacing, patching,
restriping and sweeping of drives, parking areas and walkways, policing and
regulating traffic, accounting and legal fees, administrative costs, wages,
salaries, taxes, insurance and all other similar payments made to or on behalf
of Landlord's employees, agents or contractors engaged in the maintenance and
operation of the Building, the cost [amortized over the useful life thereof, as
determined by Landlord in its reasonable judgement] of any capital improvements
(i) made to the Building during the Term for the purpose of reducing total
operating costs, and (ii) all other costs associated with the operation and
maintenance of a first-class office building) over an annual amount equal to the
product of $5.10, per square foot times the total net rentable square footage of
the Building. Increases in the annual total costs on which such additional
rental (as defined above in paragraph 5b) is based shall be limited to seven and
one half (7.5%) percent of the prior year's amount, with the exception of real
estate taxes and insurance which shall not be limited. Landlord will
specifically exclude income tax, capital expenditures on behalf of other tenants
and expenses reimbursed by a third party from being passed through to Tenant as
additional rental. Commencing with the first day of January first following the
Commencement Date and for each calendar year thereafter, if Landlord shall
render a statement of Tenant's Share of such increases,
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as estimated by Landlord in Landlord's reasonable judgment, for such calendar
year, Tenant shall pay to Landlord such estimated Tenant's Share of such
increases in advance, in equal monthly installments, on the first day of each
month. Such estimated Tenant's Share shall be subject to adjustment at the end
of each such calendar year on the basis of the actual Tenant's Share of such
increases for such calendar year. Any additional amounts owing from Tenant to
Landlord due to such adjustment shall be due and payable within thirty (30) days
after Tenant's receipt of Landlord's statement setting forth Landlord's
calculation of Tenant's Share of such increases. Any amounts owing from Landlord
to Tenant due to such adjustment shall be credited against the payment(s) of
Tenant's Share of such increases or Landlord's estimate of Tenant's Share of
such increases, as the case may be, next coming due. Landlord will furnish such
statement to Tenant within ninety (90) days after the end of each such calendar
year. For purposes hereof, "Tenant's Share" shall mean the fraction obtained by
dividing the net rentable area of the Premises by ninety-five percent (95%) of
the net rentable area of the Building.
The provisions of this Paragraph 5 shall survive the expiration or earlier
termination of this Lease. Within ninety (90) days following such expiration of
earlier termination, Landlord shall render a final statement, setting forth all
amounts due Landlord pursuant to this Lease, including any amounts owing under
this Paragraph 5. Tenant shall pay such final statement to Landlord within
thirty (30) days following the date Landlord renders such final statement.
6. RENTAL ADJUSTMENT
[Deleted]
The provisions of this Paragraph 6 shall survive the expiration or earlier
termination of this Lease. Within ninety (90) days following such expiration of
earlier termination, Landlord shall render a final statement, setting forth all
amounts due Landlord pursuant to this Lease, including any amounts owing under
this Paragraph 6. Tenant shall pay such final statement to Landlord within ten
(10) days following the date Landlord renders such final statement.
7. COMMISSION
Tenant represents and warrants to Landlord that, except with respect to Tri
City Commercial Sales, Inc. (hereinafter referred to as the "Broker"), no
broker, agent, commission salesman, or other person has represented Tenant in
the negotiations for and procurement of this Lease and of the Premises and that
no commissions, fees, or compensation of any kind are due and payable in
connection herewith to any broker, agent, commission salesman, or other person
(except Broker). Tenant and Landlord agree to indemnify and hold each harmless
from any and all claims, suits, demands, costs, liability, or judgments
(including, without limitation, attorneys' fees and court costs incurred in
connection with any such claims, suits, or judgments or in the enforcement of
this indemnity) for any fees, commissions or compensation of any kind which
arise out of or in any way connected with any claimed agency relationship with
Tenant (except with respect to Broker). Tenant further agrees that, in the
event (i) this Lease shall terminate prior to the last day of the Term as a
result of any default hereunder by Tenant, or (ii) Landlord shall exercise any
of Landlord's rights and remedies pursuant to Paragraph 15 as a result of
Tenant's default, whether or not this Lease is terminated, then in either of
such events Tenant
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shall reimburse Landlord for the amount of any commission owing or paid to any
such broker or brokers with respect to this Lease, or any portion of the term
hereof, after such default. Landlord will pay all commissions associated with
the Lease dated March __, 1991 between Aeronomics Incorporated and Xxxxxxxx/Best
Joint Venture.
8. USE
Tenant shall occupy and use the Premises for general office space,
administrative purposes, related use and other lawful uses. The Premises shall
not be used for illegal purposes; nor in violation of any regulation of any
governmental body; nor in any manner to create any nuisance or trespass; nor in
any manner to vitiate the insurance or increase the rate of insurance on the
Premises or the Building. Tenant agrees, at its own expense, to promptly comply
with any and all municipal county, state and federal statutes, regulations,
and/or requirements applicable or in any way relating to matters arising solely
from Tenant's unique occupancy of the Premises.
9. TENANT'S ACCEPTANCE
Tenant acknowledges that it has been afforded an opportunity to inspect the
Premises and accepts the Premises "as is" and as suited for Tenant's intended
use thereof, subject only to the provisions of Paragraph 3. Upon the tenth
(10th) day after completion of the improvements contemplated by Paragraph 3, or
occupancy of the Premises by Tenant, whichever first occurs, Tenant shall be
deemed to have accepted all improvements made to the Premises, subject to
punchlist items and latent defects.
10. ASSIGNMENT AND SUBLETTING
Tenant shall not voluntarily or involuntarily, whether by operation of law
or otherwise, assign, transfer, hypothecate or otherwise encumber this Lease or
any interest herein other than by corporate merger, name change or transfer to
any other entity under common control of Tenant and shall not sublet the
Premises or any portion thereof without obtaining in each instance Landlord's
prior written consent, which consent shall be granted or withheld as provided
below. Landlord's consent shall not be unreasonably withheld. Landlord's consent
to one assignment, sublease, transfer or hypothecation shall not be deemed or
construed as a consent to any other or further assignment, sublease, transfer or
hypothecation. Any such assignment, sublease, transfer or hypothecation without
Landlord's prior written consent shall be void and shall, at Landlord's option,
constitute a material breach of Tenant's obligations under this Lease. No
acceptance by Landlord of any rent or any other sum of money from any assignee,
sublessee or other category of transferee shall release Tenant from any of its
obligations hereunder or be deemed to constitute Landlord's consent to any
assignment, sublease, transfer or hypothecation, and in any event, Tenant shall
remain primarily liable on this Lease for the entire Term hereof and shall in no
way be released from the full and complete performance of all the terms,
conditions, covenants and agreements contained herein. A transfer of a fifty
percent (50%) or greater interest (whether stock, partnership interest, or
otherwise) in Tenant, either in a single transaction or in any series of
transactions within a fourteen (14) consecutive month period, shall be deemed to
be an assignment of this Lease except for transfers to spouses, trusts or heirs.
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In the event Tenant should desire to assign this Lease or sublet the
Premises or any part thereof, Tenant shall give Landlord prior written notice,
which shall specify (a) the date on which Tenant desires to make such assignment
or sublease, (b) the name and business of the proposed assginee or sublessee,(c)
the amount and location of the space affected, (d) the proposed effective date
and duration of the subleting or assignment,(e) the proposed rental to be paid
to Tenant by such sublease or assignee, and (f) the full financial statements of
the proposed assignee or sublessee. Landlord shall then have a period of thirty
(30) days following receipt of such notice within which to notify Tenant in
writing that Landlord elects (i) to terminate this Lease as to the space so
affected as of the date so specified by Tenant, in which event Tenant shall, on
that date, immediately surrender possession of such space to be relieved of all
further obligations to pay rent hereunder as to such space, or (ii) to permit
Tenant to assign or sublet such space, in which event if the proposed rental
between Tenant and sublesse is greater than the Base Rental as adjusted under
this Lease, then fifty (50%) percent of such excess rental shall be deemed
additional rent owned by Tenant to Landlord under this Lease and the amount of
such excess shall be paid by Tenant to Landlord in the same manner that Tenant
pays the Base Rental hereunder and in addition thereto, Tenant will not be
responsible for sharing excess rental with Landlord unless nore than fifty (50%)
percent of the Premises is subleased or (iii) to withhold consent to Tenant's
assigning or subleasing such space and to continue this Lease in full force and
effect as to the entire Premises. If Landlord should fail to notify Tenant in
writing of such election within said thirty (30) day period, Landlord shall be
deemed to have elected the option provided in clause (iii) above. Tenant agrees
to reimburse Landlord for Landlord's reasonable attorney's fees and costs
incurred in connection with the processing and documentation of any request made
pursuant to this paragraph 10.
11. HOLDING OVER
Tenant agrees to surrender the Premises to Landlord at the end of the Term
in as good condition as existed at the commemcement of Tenant's occupancy,
ordinary wear and tear, and damage by fire, casualty and condemnation expected.
Tenant shall pay to Landlord upon request, all damages that Landlord may suffer
on account of Tenant's failure to surrender possession as and when aforesaid and
shall indemnify Landlord against all claims, demands, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees and costs)
arising out of Tenant's delay in so delivering possession, including, but not
limited to, claims of any other tenants or prospective tenants of the Building.
Without limiting Landlord's rights and remedies, if Tenant holds over in
possession of the Premises beyond the end of the Term, Tenant shall pay, not as
rent but for Tenant's use and occupancy of the Premises, for each day that
Tenant shall hold over, a sum equal to two (2) times the Base Rental previously
payable by Tenant under the terms of this Lease divided by thirty (30), plus all
additional rental previously payable under the terms of this Lease.
12. ALTERATIONS AND IMPROVEMENTS
(a) Tenant shall have the right to make cosmetic improvements to the space
without Landlord's written consent. However, any structual changes
(i.e. new walls or demolition) must be approved by Landlord and
Landlord agrees that its consent
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will not be unreasonably withheld or delayed. Landlord will perform
all work associated with the improvements and Tenant shall be
responsible for all costs associated with the improvements.
(b) In the event that Tenant's actions, omissions or occupancy of the
Premises shall cause the rate of fire or other insurance either on Building or
the Premises to be increased, Tenants shall pay, as additional rent, the amount
of any such increase promptly upon demand by landlord.
(c) All permanent erections, additions, fixtures and improvements, whether
temporary or permanent in character (except only the movable office further
movable partitions, equipment, business and trade fixtures, other personal
property and office furniture of the Tenant) made in or upon the Premises, shall
be and remain the Landlord's property, and shall remain upon the Premises at the
termination or expiration of this Lease, with no compensation to the Tenant.
Landlord reserves the right to require Tenant to remove any such improvements or
additions upon the termination or expiration hereof. Landlord will repair any
damage to the Premises or the Building caused by or in connection with the
removal of any articles of personal property, business or trade fixtures,
alterations, improvements and installations and all costs for such repairs shall
be at Tenant's expense.
13. REPAIRS TO THE PREMISES
Landlord shall not be required to make any repairs or improvements to the
Premises, except structural repairs necessary for safety and tenantability.
Tenant shall, keep in good repair all portions of the Premises, including but
not limited to windows, glass and plate glass, doors, hallway doors providing
access to the Premises, ceiling and light fixtures, signage (if permitted by
Landlord), interior walls and finish work, floor coverings, and shall take good
care of the Premises and its fixtures and permit no waste, except normal wear
and tear with due consideration for the purpose for which the Premises is
leased. Tenant will notify Landlord immediately of any failure of building
services.
14. INSPECTIONS
Landlord hereby reserves to itself and its agents the right to exhibit the
Premises to prospective purchasers or tenants at reasonable hours, to inspect
the Premises to see that Tenant is complying with all its obligations hereunder,
to make repairs required of Landlord or Tenant under the terms hereof, to make
repairs or modifications to any adjoining space, to maintain, use, repair, and
replace pipes, ducts, wires, meters and any other equipment, machinery,
apparatus, and fixtures located within or without the Premises which service the
Building or the Premises, to make alterations in and additions to the Building,
and to enter upon the Premises for the foregoing purposes.
15. DEFAULT AND REMEDIES
In addition to the circumstances hereinbefore set forth, the occurrence of
any of the following shall constitute a material breach and default of this
Lease by Tenant:
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(a) The filing of any voluntary petition or similar pleading under any
section or sections of any bankruptcy or insolvency act by or against Tenant,
the institution of any voluntary or involuntary proceeding in any court or
tribunal to declare Tenant insolvent or unable to pay Tenant's debts and, solely
in the case of any insolvency petition or proceeding, such petition or
proceeding is not dismissed within thirty (30) days from the date it is filed,
the making of an assignment for the benefit of its creditors by Tenant, or the
appointment of a trustee or receiver for Tenant or the Tenant's property.
(b) Tenant's failure to pay the Base Rental or any other sum due
hereunder if such non-payment continues for ten (10) or more days after the same
be due and payable or Tenant's default in the prompt and full performance of any
other provision of this Lease and (unless such default involves a hazardous
condition, in which event such default shall be cured forthwith upon Landlord's
demand) such Tenant fails to cure such default within twenty (20) days after
written demand by Landlord that the default be cured. After ten (10) days,
Landlord will provide written notice to Tenant of its delinquent Base Rental (or
any other sum due hereunder) twice in any given twelve (12) month period and
Landlord further agrees that Tenant will have ten (10) days from the receipt of
Landlord's notice to satisfy the delinquent account. Landlord will not place
Tenant in default unless the delinquent account is no satisfied within said ten
(10) day period.
(c) The levy upon Tenant's interest under this Lease or in the Premises
or the attachment thereof by process of law.
In the event of any default as aforesaid by Tenant, the Landlord, in
addition to other rights or remedies it may have at law or in equity, shall have
the option of pursuing any one or more of the following non-exclusive remedies:
(i) Landlord shall have the immediate right of re-entry and may remove
all property from the Premises to a warehouse or elsewhere at the cost of, and
for the account of, Tenant, all without being deemed guilty of trespass, or
becoming liable for any loss, damage or damages which may be occasioned thereby;
(ii) Landlord may, from time to time without terminating this Lease, and
without releasing Tenant in whole or in part from Tenant's obligation to pay
Base Rental and all other amounts due under this Lease and to perform any and
all of the covenants, conditions and agreements to be performed by Tenant as
provided in this Lease, make such alterations and repairs as may be necessary in
order to relet the Premises. Landlord may, but shall not be obligated to, relet
the Premises or any part thereof for such term or terms (which may be for a term
extending beyond the Term of this Lease) at such rental or rentals and upon such
other terms and conditions as Landlord in its sole discretion may deem advisable
or acceptable. Tenant shall pay Landlord as soon as ascertained and upon demand
all costs and expenses incurred by Landlord in connection with such reletting
and in making any alterations and repairs, including, without limitation, the
value of any "free rent" and rental concessions and the unamortized cost of
tenant improvements or allowances given to Tenant or made at Landlord's expense.
Upon each reletting all rentals received by Landlord from such reletting shall
be applied; first, to the payment of any indebtedness other than rent due
hereunder from Tenant to
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Landlord; second, to the payment of any unpaid costs and expenses of such
reletting, including brokerage fees and attorney's fees and the costs of such
alterations and repairs; third, to the payment of the Base Rental due and unpaid
hereunder; and, fourth, the residue, if any, shall be held by Landlord and
applied in payments of future Base Rental and other additional rent or charges
as the same may become due and payable hereunder. In no event shall Tenant be
entitled to any excess rental received by Landlord over and above that which
Tenant is obligated to pay hereunder, including Base Rental, additional rent and
all other charges. If such rentals received from such reletting during any
month be less than that to be paid during such month by Tenant hereunder,
including Base Rental, additional rent and all other charges, Tenant shall pay
any such deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. Notwithstanding any such reletting without termination, Landlord may
at any time thereafter terminate this Lease for such previous breach;
(iii) Landlord may terminate this Lease, in which event Tenant shall
immediately surrender possession of the Premises, and Landlord may recover from
Tenant all damages it may incur by reason of such breach, including the cost of
recovering the Premises, reasonable attorneys' fees and costs, the value of any
"free rent" and rental concessions, the unamortized cost of tenant improvements
or allowances given to Tenant or made at Landlord's expense, and the present
value of all rentals payable under this Lease to Landlord for the remainder of
the Term, all of which amounts shall be immediately due and payable from Tenant
to Landlord.
Landlord's re-entry, demand for possession, notice that the tenancy hereby
created will be terminated on the date therin named, institution of an action
of forcible detainer, or ejectment or the entering of a judgment for possession
in such action or any other act or acts resulting of a judgment for possession
in such action or any other act or acts resulting in the termination of Tenant's
right to possession of the Premises shall not relieve Tenant from Tenant's
obligation to pay all sums due hereunder during the balance of the Term, except
as herein expressly provided. Landlord may collect and receive any Base Rental,
additional rent, or charges due from Tenant, and the payment thereof shall not
constitute a waiver of or affect any notice or demand given, and instituted or
judgment obtained by Landlord, or be held to waive, affect, change, modify or
alter the rights or remedies which Landlord has in equity or at law or by virtue
of this Lease.
All sums past due under this Lease shall bear interest at the lesser of a
per annum rate of eighteen percent (18%) or the maximum lawful rate, from due
date thereof until paid-in-full.
Except as expressly provided in this Lease, Tenant hereby waives any and
every form of demand and notice prescribed by statute or other law, including
without limitation the notice of any elections or remedies made by Landlord
under this Paragraph, demand for payments of any rent, or demand for possession.
All rights and remedies of Landlord created or otherwise existing at law
are cumulative and the exercise of one or more rights or remedies shall not be
taken to exclude or waive the right to exercise any other.
Tenant shall and hereby agrees to pay all costs and expenses incurred by
Landlord in enforcing any of the covenants and agreements of this Lease, or as a
result of an action brought
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by Landlord against Tenant for an unlawful detainer of the Premises, and all
such costs, expenses and attorney's fees shall, if paid by Landlord, be paid
by Tenant to Landlord within fifteen (15) days of Landlord's written demand
therefor, together with interest at the lesser of a per annum rate of eighteen
percent (18%) or the maximun lawful rate from the date of Landlord's payment
thereof until payment in full by Tenant.
16. SERVICES
(a) Landlord shall provide janitorial and cleaning services for the
Premises and the common areas of the Building and non-exclusive elevator
service. Landlord shall furnish electric facilities to the Premises sufficient
for lighting and small business machinery only (e.g., typewriter, dictating
machines, adding machines, calculators, copiers, postage machines, teletypes and
any other equipment that uses 110 volt power source). Tenant will not use any
electrical equipment which in Landlord's opinion will overload the wiring
installations or interfere with the reasonable use thereof by other users in the
Building. Tenant will not, without Landlord's prior written consent in each
instance, connect any additional items (e.g., electric heaters, vending
equipment, printing, or duplicating machines, auxiliary air-conditioners) to the
Building's electrical system, or make any alteration or addition to the system.
Should Landlord grant such consent, all additional circuits or equipment
required thereof shall be installed by Landlord and the cost of installation,
equipment and metering devices shall be paid by Tenant within five (5) days of
receipt of a xxxx thereof. The consumption of electricity for such additional
equipment shall be paid monthly to Landlord at the prevailing utility company
rates, within thirty (30) days of receipt of invoice by Tenant. Landlord shall
furnish seasonable air conditioning and heating during normal business hours
(8:00 A.M. to 6:00 P.M.) Monday through Friday and 8:00 A.M. until 1:00 P.M.
Saturday, said heating and air-conditioning shall not be furnished Sunday or
holidays observed by Landlord. Landlord and Tenant agree that in the event
Tenant adds additional equipment which in Landlord's opinion produces enough
heat to cause comfort problems in the Premises, the Building, or any part
thereof, then Landlord shall install a supplemental air conditioner and Tenant
agrees to pay Landlord for such equipment, installation and consumption of
electricity for supplemental air conditioning. Landlord shall not be liable for
any damages directly or indirectly resulting from the installation, use or
interruption of use of any equipment in connection with the furnishing of
services referred to in this Paragraph, or any interruption in services supplied
by Landlord hereunder provided Landlord shall use its good faith efforts to
restore such services.
(b) Notwithstanding anything to the contrary in subparagraph 5(b),
Landlord shall have the right, at any time, to install an electrical metering
device to monitor electrical consumption on the Premises. Should Landlord
install such a device, Tenant shall, from time to time, pay upon receipt of
an invoice thereafter, all direct charges for supplying electricity to the
Premises. All costs incurred by Landlord to install such device and related
equipment shall be borne by Tenant. Landlord's right to install a metering
device pursuant to this subparagraph 16(b) shall be in addition to Landlord's
right to install such a device pursuant to subparagraph 16(a) of this Lease.
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17. DESTRUCTION OF PREMISES
(a) If the Premises or the Building is rendered partially or wholly unfit
for occupancy by fire, the elements, act of God or other casuality (fire, the
elements, acts of God or other casualties hereinafter referred to as the
"Casualty"), and if such damage including Tenant Improvements cannot, in
Landlord's reasonable opinion, be materially restored within ninety (90) days of
the date of such Casualty or if Landlord elects to demolish, susbstantially
alter, or cease operating the Building, then, in either such case, Landlord or
Tenant may, terminate this Lease as of the date of such Casualty and the Term
shall end as of such date. For purposes hereof, the 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 Premises for the purpose for which
it was then being used. If this Lease is not terminated pursuant to the above
provisions of this Paragraph 17(a), then Landlord shall proceed with all due
diligence, upon receipt of all insurance proceeds due to Landlord, to repair and
restore the Premises. In no event shall Landlord be required to rebuild, repair,
or replace any part of the partitions, fixtures, additions, or other property
and improvements which may have been placed in or about the Premises by Tenant.
If this Lease shall not be terminated by Landlord pursuant to this Paragraph 17
(a) and if the Premises are unfit for occupancy in whole or in part following
such Casualty, the rent payable during the period in which the Premises are
unfit for occupancy shall xxxxx in proportion to the percentage of the rentable
area of the Premises rendered unusable by such Casualty; provided, however, that
no such abatement shall be made in the event such Casualty shall have been
caused through the negligence or willful misconduct of Tenant, its agents,
employees, contractors, invitees, licensees, tenants, or assignees. If any such
Casualty occurs, Landlord shall not be liable to Tenant for inconvenience,
annoyance, loss of profits, expenses, or an other type of injury or damage
resulting from the repair of any such Casualty, or from any repair,
modification, arranging, or rearranging of any portion of the Premises or any
part of all of the Building or for termination of this Lease as provided in this
Paragraph 17(a). Notwithstanding any language contained in this Lease to the
contrary, Landlord's obligations to repair and restore such damage shall be
limited to the amount of insurance proceeds made available to Landlord for such
repair and restoration (after any right of any mortgages to said proceeds);
provided, that if, in Landlord's reasonable judgement, the amount of such
insurance proceeds is not sufficient to materially restore the Premises and the
Building (except for any improvements, fixtures, finishing, or personalty that
may have been placed in or about the Premises by Tenant), Landlord shall have
the right to terminate this Lease as of the date of such Casualty and the Lease
Term shall end as of such date. In the event of any Casualty during the final
year of the Lease Term of this Lease, Landlord, at Landlord's sole option, shall
have the right to terminate this Lease as of the date of such Casualty and the
Lease Term shall end of such date.
(b) If all of the Premises should be taken for any public or quasi-public
use under governmental law, ordinance, or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, this Lease shall, at either
Landlord's or Tenant's option, terminate effective as of the date of such actual
physical taking. If part of the Premises is 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, or if any part of the Building
is so taken and Landlord's elects to demolish, substantially alter, or cease
operation of the Building, then, in
-10-
either such case, Landlord shall have the right to terminate this Lease
effective as of the date of such actual physical taking. In the event that this
Lease is not terminated as provided above in this Paragraph 17(b), the rent
payable hereunder during the unexpired portion of this Lease shall be reduced in
proportion to the percentage of the rentable area of the premises rendered
unusable by such taking and Landlord shall undertake materially to restore the
Premises. Landlord or Tenant, as the case may be, shall exercise its right to
terminate this Lease provided above in this Paragraph 17(b) by actual physical
taking. Notwithstanding any language contained in this Lease to the contrary,
landlord's, obligation to materially restore the Premises shall be limited to
the amount of condemnation proceeds made available to the Landlord for such
restoration and repair (after any right of any mortgages to said proceeds);
provided, that if, in Landlord's reasonable judgment, the amount of such
proceeds is not sufficient to materially restore the Premises and the Building
(except for any improvements, fixtures, finishes, or personalty that may have
been placed in or about the Premise by Tenant), Landlord shall have the right to
terminate this Lease effective as of the date of such actual physical taking.
Tenant shall not share in condemnation aware or payment in lieu thereof or in
any award for damages resulting from any grade change of adjacent streets, the
same being hereby assigned to Landlord by Tenant; however, Tenant may separately
claim and receive from the condemning authority (but not from Landlord), of
legally payable, compensation for Tenant's removal and relocation costs and for
Tenant's loss of business and/or business interruption, provided that such claim
and recovery shall in no way diminish Landlord's recovery. Notwithstanding
anything to the contrary contained in this Paragraph 17(b), if during the Term
the use or occupancy of any part of the Building or Premises shall be taken or
appropriated temporarily for any public or quasi-public use under any
governmental law, ordinance, or regulation, or by right of eminent domain, or by
private agreement in lieu thereof, 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 or private agreement
in lieu thereof; 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 loss of 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 and compensation for the loss of use or
occupancy of the Premises after the end of the term of this Lease and of the
Building.
18. INSURANCE
(a) Tenant shall carry fire and extended coverage insurance insuring the
Premises, all partitions, fixtures, additions, plate glass, tenant improvements,
and property placed in or about the Premises, and any and all furniture,
equipment, supplies, and other property contained therein, such insurance
coverage to be in the full replacement value thereof, with reasonable deductible
amounts.
(b) Tenant also agrees to carry a policy or policies of worker's
compensation and comprehensive general liability insurance, including personal
injury and property damage, with contractual liability insurance, including
personal injury and property damage, with contractual liability endorsement, in
the amount of Two Million Dollars ($2,000,000) for property damage
-11-
and One Million Dollars ($1,000,000) per occurrence for personal injuries or
deaths of persons occurring in or about the Premises.
(c) Said insurance policies as described in the foregoing subparagraphs
18(a) and 18(b) shall: (i) name Landlord and Landlord's agent as an additional
insured and insure Landlord's and Landlord's agent's contingent liability under
this Lease (except for the worker's compensation policy, which shall instead
include a waiver of subrogation endorsement in favor of Landlord), (ii) be
issued by an insurance company which is reasonably acceptable to Landlord and
licensed to do business in the State of Georgia, (iii) provide that said
insurance shall not be canceled or amended unless thirty (30) days prior written
notice shall have been given to Landlord, and (iv) provide that the insurance
company issuing such policy waives all rights of subrogation against Landlord.
Said policy or policies, or certificates thereof, shall be delivered to Landlord
by Tenant upon commencement of the term of the Lease and upon each renewal of
said insurance. Tenant hereby waives any right of recovery against Landlord for
loss or injury to the extent Tenant would have been protected by the insurance
required to be maintained by Tenant under the terms of this Lease.
19. RULES AND REGULATIONS
The rules and regulations set forth in the attached Exhibit D, incorporated
---------
herein by this reference, shall be and are hereby made a part of this Lease.
Tenant, its employees, and agents, will perform and abide by said rules and
regulations, and any amendments or additions to said rules and regulations as
may be made from time to time by Landlord.
20. USUFRUCT ONLY
This contract shall create the relationship of Landlord and Tenant between
Landlord and Tenant; no estate shall pass out of Landlord; Tenant has only a
usufruct, not subject to levy and sale.
21. WAIVER
The waiver by Landlord of any breach of any term, covenant or condition
herein contained shall not be deemed to be a waiver of any other term, covenant
or any subsequent breach of the same or any other term, covenant or condition
herein contained. The subsequent acceptance of Base Rental, or additional
rent or other sums due hereunder by Landlord shall not be deemed to be a waiver
of any preceding breach by Tenant of any term, covenant or condition of this
Lease, regardless of Landlord's knowledge of such preceding breach at the time
of acceptance of such payment. No covenant, term or condition of this Lease
shall be deemed to have been waived by Landlord, unless such waiver be in
writing by Landlord.
22. ENTIRE AGREEMENT
This Lease, sets forth all the covenants, promises, agreements, conditions
and undertakings between Landlord and Tenant concerning the Premises and there
are no covenants, promises, agreements, other than are herein set forth. No
subsequent alteration, amendment,
-12-
change or addition to this Lease, except as to changes or additions to the Rules
and Regulations, shall be binding upon Landlord or Tenant unless reduced to
writing and signed by authorized representatives.
23. LANDLORD'S CONSENT
In every instance herein in which the Landlord is called upon to give its
consent, such consent may be withheld at Landlord's sole discretion, or if
granted, may be subject to those conditions which Landlord deems appropriate.
24. NOTICES
Every notice, demand or request hereunder shall be in writing, and shall be
deemed to have been properly given if hand delivered or if deposited with the
United States Postal Service (or any official successor thereto) designated
certified mail, return receipt requested, bearing adequate postage and addresses
as follows:
If to Tenant: Aeronomics Incorporated and Xxxxxx X. Xxxxx
4751 Best 00 Xxxxxxxxxx Xxxxxx
Xxxxx 000 Xxxxxx, Xxxxxxx 00000
Xxxxxxx, Xxxxxxx 00000
or
The current President/CEO at
the time.
If to Landlord: Xxxxxxxx/Best Joint Venture
c/x Xxxxxxxx Management Company
000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Lease Administrator
The foregoing addresses may be changed by thirty (30) days prior written
notice from time to time.
Tenant hereby appoints as his agent to receive the service of all
dispossessory or distraint proceedings and notices thereunder, and all notices
required under this Lease, the person in charge of the Premises at the time. A
copy of all notices under this Lease shall also be sent to Tenant's last known
address, if different from the Premises.
25. RELOCATION.
[Deleted]
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26. SUCCESSORS AND ASSIGNS, ATTORNMENT.
The covenants, conditions and agreements herein contained shall inure
to the benefit of and be binding upon landlord, its successors and assigns, and
shall be binding upon Tenant, its heirs, executors, administrators, successors
and assigns, and shall inure to the benefit of Tenant and only such assigns of
Tenant to whom the assignment by Tenant has been consented to by Landlord.
Nothing contained in this Lease shall in any manner restrict Landlord's right to
assign or encumber this Lease in its sole discretion. Should Landlord assign
this Lease as provided for above, or should Landlord enter into a security deed
or other mortgage affecting the Premises and should the holder of such deed or
mortgage succeed to the interest of Landlord, Tenant shall be bound to said
assignee or any such holder under all the terms, covenants and conditions of
this Lease for the balance of the Term hereof remaining after such succession
and Tenant shall attorn to such succeeding party as its Landlord under this
Lease promptly after any such succession. Tenant agrees that should any party so
succeeding to the interest of Landlord require a separate agreement of
attornment regarding the xxxxxx covered by this lease, then Tenant shall enter
into any such "attornment agreement," provided the same does not modify any of
the provisions of this lease and has no adverse effect upon Tenant's continued
occupancy of the Premises. If landlord's interest in the Building shall
terminate by operation of law, sale, or excecution or foreclosure sale, Landlord
shall thereupon be released from all further liability to Tenant under this
Lease and Landlord's successor shall thereupon become liable to Tenant for all
further obligations of Landlord under this Lease.
27. SECURITY DEPOSIT.
Upon full execution of this lease, Tenant shall pay to Landlord an ,amount
equal to the average annual rental divided by twelve (12) (the "Security
Deposit"), which amount shall be security for the full and faithful
performance and observance by Tenant of its covenants and obligations under this
Lease. No interest shall be payable on the Security Deposit, and it is agreed
and acknowledged by Tenant that the Security Deposit is not an advance payment
of rent or a measure of landlord's damages in the case of default by Tenant.
Landlord shall be entitled to commingle the Security Deposit with other funds of
Landlord. Upon the occurrence of an event of default under this Lease, Landlord
may use, apply, or retain the whole or any part of the Security Deposit so
deposited to the extent required for the payment of any Base Rental and
additional rent or any other sum as to which Tenant is in default or the payment
of any other damage, injury, expense, or liability resulting from any event of
default. Following any such application of the Security Deposit, Tenant shall
pay to landlord on demand the amount necessary to restore the Security Deposit,
to its original amount. In the event that Tenant shall fully and faithfully
comply with all of its covenants and obligations under this lease, the Security
Deposit shall be returned to Tenant within thirty (30) days after the expiration
of the Term (or any permitted extensions thereof) and after delivery of
possession of the Premises to Landlord in accordance with the terms hereof.
-14-
28. TIME IS OF THE ESSENCE.
Time is of the essence with respect to the performance of each of the
covenants and agreements of this Lease.
29. GOVERNING LAW.
The Laws of the State of Georgia shall govern the validity, performance and
enforcement of this Lease.
30. SEVERABILITY.
If any clause or provision of this Lease is or becomes illegal, invalid, or
unenforceable because of present or future laws or any rule or regulation of any
governmental body or entity, effective during its term, the intention of the
parties hereto is that the remaining parts of this Lease shall not be affected
thereby, unless such invalidity is, in the sole determination of Landlord
essential to the rights of Landlord, in which event Landlord has the right to
terminate this Lease on written notice to Tenant.
31. SUBORDINATION.
Tenant agrees that this Lease shall remain subject and subordinate to all
present and future mortgages, deeds to secure debt or other security instruments
(the "Security Deeds") affecting the Building or the Premises, and Tenant, shall
promptly execute and deliver to Landlord such certificate or certificates in
writing as Landlord may request, showing the subordination of the Lease to such
Security Deeds, and in default of Tenant so doing, Landlord shall be and is
hereby authorized and empowered to execute such certificate in the name of and
as the act and deed of Tenant, this authority being hereby declared to be
coupled with an interest and to be irrevocable, Tenant shall upon request from
Landlord at any time and from time to time execute, acknowledge and deliver to
Landlord a written statement certifying as follows: (a) that this Lease is
unmodified and in full force and effect (or if there has been modification
thereof, that the same is in full force and effect as modified and stating the
nature thereof); (b) that to the best of its knowledge there are no uncured
defaults on the part of Landlord (or if any such default exists, the specific
nature and extent thereof); (c) the date to which any rents and other charges
have been paid in advance, if any; and (d) such other matters as Landlord may
request. Tenant irrevocably appoints Landlord as its attorney-in-fact, coupled
with an interest, to execute and deliver, for and in the name of Tenant, any
document or instrument provided for in this Paragraph. Any holder of a mortgage
or security deed encumbering property which includes the Premises may, at any
time, subordinate such mortgage or security deed to this lease, without Tenant's
consent, by notice to Tenant, and thereupon this Lease shall be deemed prior in
lien to such mortgage or security deed without regard to the respective dates of
execution, delivery and recordation thereof. In that event, such holder shall
have the same rights with respect to this lease as though this Lease had been
executed and delivered prior to the execution and delivery of such mortgage or
security deed and had been assigned to such mortgagee or security deed holder.
The above right is supplementary to and not in derogation of any rights such
mortgagee or security deed holder may otherwise have.
-15-
32. ATTORNEY'S FEES.
Tenant agrees to pay all reasonable and actual attorney's fees and expenses
the Landlord incurs in enforcing any of the obligations of Tenant under this
Lease, or in any litigation or negotiation in which the Landlord shall, without
his fault, become involved through or on account of this Lease.
33. INDEMNITY.
Tenant agrees to and does hereby indemnify and hold harmless Landlord and
shall defend Landlord from and against any and all claims, actions, damages,
liabilities, demands, and expenses, including, without limitation, attorney's
fees and other professional fees and costs, incurred in connection with loss of
life, personal injury, or damage to property arising from or out of the
occupancy or use by Tenant of the Premises or any part thereof or any other
part of the Building or surrounding area, occasioned wholly or in part by an act
or omission of Tenant, its officers, agents, invitees, contractors, or
employees. Tenant's comprehensive general liability insurance required pursuant
to subparagraph 18(a) of this Lease shall insure Tenant against assumed or
contractual liability under this Lease.
34. RIGHT TO CURE.
Tenant hereby permits Landlord to cure any and all defaults hereunder (but
Landlord shall have no obligation to cure such defaults) and to charge to Tenant
as additional rent Landlord's costs and expenses (including attorney's fees and
costs and a reasonable allowance for administrative and overhead expenses) of
curing such defaults. Tenant shall pay to Landlord such costs immediately upon
receipt of an invoice therefor.
35. LIABILITY.
Anything in this Lease to the contrary notwithstanding, Tenant agrees that
it shall look solely to the estate and property of Landlord in the land and
buildings comprising the Building (subject to the prior rights of any mortgagee
or security deed holder) for the collection of any judgment or other judicial
process requiring a payment of money by Landlord in the event of any default or
breach by Landlord with respect to the terms, covenants and conditions of this
Lease to be observed and/or performed by Landlord and no other assets of
Landlord shall be subject to levy, execution or other procedures for the
satisfaction of Tenant's remedies. In the event Landlord transfers or assigns
this Lease, except as collateral security for a loan, upon such transfer or
assignment, Landlord shall thereupon be released of all further liability and
obligations hereunder.
36. SECURITY INTEREST.
In order to secure the performance of Tenant's covenants, obligations and
agreements contained in this Lease, Tenant hereby grants to Landlord a security
interest in all furniture, fixtures, and equipment of Tenant used or employed on
or in the Premises, now owned or hereafter acquired by Tenant, and all increases
and accessions thereto and proceeds therefrom
-16-
(the "Collateral"). Tenant covenants that it has the right to grant this
security interest and that it will at no time grant a subsequent or prior
security interest in any of the Collateral without the prior written consent of
Landlord. The security interest granted herein may be perfected by Landlord and
tenant hereby agrees to execute such reasonable documents as are reasonably
necessary or desirable to perfect such security interest. Tenant shall pay the
cost of filing any financing statements and amendments, modifications and
extensions thereof.
37. MISCELLANEOUS.
This Lease shall be governed by the laws of the State of Georgia and shall
be effective only when executed by both parties and may be amended or modified
only by a writing executed by both parties. The titles to the paragraphs are for
convenience only and are not to be considered in construing this Lease. Unless
repugnant to the context, "Landlord" and "Tenant" shall be construed as to each
provision of this Lease to mean the person named in the preamble to this Lease
as Landlord and Tenant, respectively, and their respective heirs, executors,
administrators, successors, and permitted assigns, and those claiming through or
under any of them, but this Paragraph shall not be construed as permitting any
transfer of all or any part of Tenant's interest in this Lease or the Premises.
This writing is intended by the parties as a final expression of their agreement
and as a complete and exclusive statement of the terms thereof, all
negotiations, considerations and representations between the parties having
been incorporated herein. No course of prior dealings between the parties or
their officers, employees, agents or affiliates shall be relevant or admissible
to supplement, explain or vary any of the terms of this Lease. Acceptance of, or
acquiescence in, a course of performance rendered under this or any other prior
agreement between the parties or with their affiliates shall not be relevant
or admissible to determine the meaning of any of the terms of this lease. No
representations, understandings, agreements have been made or relied upon in the
making of this Lease other than those specifically set forth herein.
38. SPECIAL STIPULATIONS.
Insofar as the special stipulations set forth on Exhibit E, attached hereto
---------
and incorporated herein conflict with any of the foregoing provisions, said
Special Stipulations shall control.
-17-
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seal, the day and year first above written:
LANDLORD:
XXXXXXXX/BEST JOINT VENTURE, a joint
venture created pursuant to the Laws of the
State of Georgia
By: MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, a corporation
created pursuant to the Laws of the
Commonwealth of Massachusetts, Joint
Venturer
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------------
Title: Director of Real Estate Investment
----------------------------------
[CORPORATE SEAL]
By: BEST ROAD OFFICE BUILDING
ASSOCIATES 1, LTD., a limited partnership
created pursuant to the Laws of the
State of Georgia, Joint Venturer
By: XXXXXXXX LIMITED #8, a limited
partnership created pursuant to the
Laws of the State of Georgia,
General Partner
By: /s/ Xxxxxx Xxxxxxxx (SEAL)
-------------------------
Xxxxxx X. Xxxxxxxx
General Partner
TENANT:
AERONOMICS INCORPORATED
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Its: President
-------------------------------------
Attest: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Its: Secretary
-------------------------------------
-18-
FIRST AMENDMENT TO LEASE
------------------------
THIS FIRST AMENDMENT TO LEASE (the "First Amendment") made and entered into this
23rd day of July, 1993, by and between MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation ("Landlord") and AERONOMICS INCORPORATED, a
Delaware corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a lease Agreement dated April 15,
1991, (collectively, the "Lease") for certain premises located in Waterstone,
0000 Xxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 incorporating 12,412 rentable
square feet (the "Premises") and,
WHEREAS, Landlord and Tenant desire to further amend the Lease in certain
respects and to ratify and confirm all of the provisions of the Lease:
NOW, THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00) in hand paid
by Tenant to Landlord and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Area of the Leased Premises is hereby amended to increase the Leased
Area of the Premises by 13,472 rentable square feet. The total rentable
------
square footage shall be 25,884. The Lease Expiration Date shall be August
------
31, 1998.
2. Commencement Date Agreement
Landlord shall, not later than thirty (30) days after Tenant takes
possession of the Premises prepare and deliver to Tenant an agreement
(hereinafter the "Commencement Date Agreement") which shall fix the date
upon which the term commenced, the date upon which the obligation to pay
Rent and Additional Rent commenced and the date upon which the Term shall
expire. Provided Tenant agrees with the information contained in the
Commencement Date Agreement, it shall properly execute and return said
agreement to Landlord. When fully executed and delivered, the Commencement
Date Agreement shall supersede any inconsistent terms contained in this
Amendment as Exhibit B.
3. Paragraph 1 of Exhibit E of the Lease shall be deleted in its entirety, and
in lieu thereof, the following new paragraph l shall be inserted:
Tenant agrees to pay Landlord Base Rental for the Leased Premises in
accordance with the following Base Rental Schedule:
First Amendment to Lease
AERONOMICS INCORPORATED
Page 2
Per Rentable
Square Foot Monthly Base
From To Per Annum Rental
---- -- --------- ------
09/01/93 to 06/30/94 $15.88 $34,251.61
07/01/94 to 08/31/94 $16.36 $35,285.61
09/01/94 to 06/30/95 $16.88 $36,408.27
07/01/95 to 08/31/95 $17.36 $37,442.27
09/01/95 to 06/30/96 $17.88 $38,564.94
07/01/96 to 08/31/96 $18.36 $39,599.94
09/01/96 to 06/30/97 $18.88 $40,722.61
07/01/97 to 08/31/97 $17.92 $38,653.44
09/01/97 to 08/31/98 $17.92 $38,653.44
4. Tenant shall continue to reimburse Landlord for all increases in operating
expenses above $5.10 per rentable square foot in accordance with Paragraph
5(b) of the Lease. For Operating Cost purposes, "Tenant's Share" shall be
increased to 25,884 / 92,076 = 28%.
5. First Right to Lease - Landlord hereby grants Tenant throughout the term of
this Amendment hereof a first right to lease (herein called the "First
Right to Lease") any portion of the space (herein called the "Expansion
Space") located on the third and fourth floors of the building, which is
not subject to a (A) written lease agreement or (B) renewal option by the
tenant currently in occupancy. Landlord agrees to notify Tenant of the
status of the tenants located on the third and fourth floors of the
Building with renewal options and the future availability of space located
on the third and fourth floors of the Building. If Landlord notifies Tenant
of the availability of the Expansion Space, Tenant shall notify Landlord on
or before five (5) business days after receipt of Landlord's notice whether
or not Tenant elects to lease the Expansion Space. If Tenant fails to
notify Landlord within such five (5) business day period, Tenant shall be
deemed to have elected not to lease the Expansion Space.
If Tenant desires to lease the Expansion Space, Landlord and Tenant shall
proceed to make and enter into an amendment to this Lease with respect to
the Expansion Space. The base rent, the additional rent and any allowances
with respect to the Expansion Space on the fourth floor shall be negotiated
at that time by Landlord and Tenant.
The term of the Lease with respect to the Expansion Space shall be
coterminous with the term of this Lease except that in no event shall the
term be less than three (3) years.
The obligation to pay the rent, the additional rent and all other charges
shall commence not later than the date which is sixty (60) days after the
lease for the Expansion Space is executed by Landlord and Tenant. If
Landlord and Tenant fail to enter into a Letter of Intent based on terms
and conditions satisfactory to each on or before thirty (30) days after the
date Tenant notifies Landlord that Tenant desires to lease the Expansion
Space,
-2-
First Amendment to Lease
AERONOMICS INCORPORATED
Page 3
the rights of Tenant hereunder shall lapse and expire and Landlord may
lease the Expansion Space to any other person or entity without any
liability to Tenant by reason thereof. Furthermore, if Landlord and Tenant
fail to execute the amendment to this lease or a new lease on terms and
conditions satisfactory to each, inclusive of all construction drawings,
"Improvements", and all other details necessary to execute the aforesaid
document within ninety (90) days after the date Tenant notifies Landlord
that Tenant desires to lease the Expansion Space, the Rights of Tenant
shall lapse and expire and for any term Landlord may lease the Expansion
Space to any other person or entity within a one hundred and twenty (120)
day period without notice or any liability to Tenant. Landlord and Tenant
agree to exercise good faith in negotiating the terms and conditions of the
lease for the Expansion Space.
In the event Tenant does not lease the Expansion Space within the above
described period and Landlord receives a bona fide offer (excluding,
however, any offer arising out of or relating to an existing expansion
option, renewal option, or first right to lease (the "Offer"), Landlord
shall submit written notice to Tenant specifying the terms of the Offer.
The Tenant shall have the right (the "Right of First Refusal"), exercisable
at any time within five (5) business days from the date of such notice, to
lease said portion of the said floor that is the subject of the Offer
pursuant to the terms and provisions set forth in the Offer. If Tenant
elects to exercise the Right of First Refusal, it shall, prior to the end
of said five (5) business day period deliver written notice of such
exercise to the Landlord, and the leasing of said portion of said floor
shall commence on the last day of said five (5) business day period or upon
completion of the Tenant improvements, whichever is later and shall be
evidenced by a lease amendment executed by Tenant and Landlord. If the
Tenant does not exercise such Right of First Refusal within said five (5)
business day period or shall fail to deliver written notice of such
exercise as provided above, the Landlord shall be free to lease said
portion of the Building, or any part thereof, to the Offeror upon the same
terms and conditions as contained in the Offer.
6. TENANT IMPROVEMENTS:
(A) Attached hereto and incorporated herein as Exhibit "A" are the construction
documents with respect to the Additional Premises ("Final Plans"). Landlord
agrees to construct the tenant improvements, which shall include space
planning and design ("Tenant Improvements"), to the Additional Premises in
accordance with the Final Plans on or before 09-15-93 ("Completion Date"),
--------
at Landlord's sole cost and expense.
(B) If Tenant desires to make any changes to the Final Plans, Tenant shall
request said change in writing to Landlord. If said change, together with
all other changes in the aggregate, should increase the time required to
construct the Tenant Improvements, then the Completion Date shall be
extended by the number of additional days required because of said change.
Any changes which, in the aggregate, increase the cost above the Fixed
Amount (as hereinafter defined) shall be at Tenant's expense, and Tenant
shall pay all such amounts to Landlord within thirty (30) days after
receipt of invoice.
-3-
First Amendment to Lease
AERONOMICS INCORPORATED
Page 4
(C) In connection with the construction of the Tenant Improvements, Landlord
agrees to prosecute such work with due diligence, and with minimal
interference with the Tenant's normal business operations.
(D) For each $1,000.00 saved in the cost of the Tenant Improvements below
$226,750.00 ("Fixed Amount"), the rent per rentable square foot per annum
shall be reduced by $.01025, and Paragraph 3 of this Amendment shall be
adjusted accordingly. Landlord shall certify the construction cost to
Tenant and Tenant shall have the right to inspect and audit Landlord's
books and records at Tenant's sole costs with respect thereto.
7. Security Deposit:
As security for Tenant's performance of its obligations under this Lease,
Tenant shall provide to Landlord a certificate of deposit in Tenant's name
and assigned as security to Landlord in the amount of $94,878; provided
however that on the anniversary of each lease year beginning September 1,
1994, the amount of such security shall be reduced by $18,975.00, provided
that Tenant is not then in default, or has not been in default of this
Lease after written notice and the appropriate opportunity to cure provided
by Landlord to Tenant. Landlord agrees to provide documentation as required
by the issuer of the certificate of deposit, as described in Exhibit C, to
permit the release of the certificate of deposit in the appropriate amount
as contemplated in this section.
8. Subordination, Nondisturbance and Attornment
To the best of Landlord's actual knowledge, the building of which the
Premises are a part ("Building"), and the land upon which the Building is
located ("Land", the land and building, the "Property") are not encumbered
by any lien, claims, encumbrance, ground lease or security deed the
foreclosure of which would affect the Lease as amended hereby (the "Lease"
including such amendment), and that notwithstanding anything contained in
the Lease to the contrary, Landlord will use best efforts to insure the
Lease shall not be subject and subordinate to any deed to secure debt
placed upon the Property, or any ground lease of the Land, Landlord shall
use best efforts to obtain from the grantee of such security deed or ground
lease a Subordination, Nondisturbance and Attornment Agreement in a form
reasonably acceptable to Tenant, which Agreement shall provide, among other
things, that so long as Tenant is not in default under the Lease, which
default remains uncured after written notice and an opportunity to cure,
the Lease and Tenant's rights thereunder shall not be affected as a result
of any action by the grantee under such security deed, assignment of rents
and leases or other document given in connection therewith.
9. This Amendment shall take effect when executed by both Landlord and
Tenant.
10. Except as expressly amended hereby, the Lease shall remain in full force
and effect, and the same is hereby ratified and confirmed.
-4-
First Amendment to Lease
AERONOMICS INCORPORATED
Page 5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their duly authorized officers under seal, as of the day, month and year
first above written.
LANDLORD:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxx X. Eschols
-----------------------------------------
Its: Director of Real Estate Investment
----------------------------------------
Attest: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Its: Director of Real Estate Investment
----------------------------------------
(CORPORATE SEAL)
(Additional Signatures on following page)
-5-
First Amendment to Lease
AERONOMICS INCORPORATED
Page 6
TENANT:
AERONOMICS INCORPORATED
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Its: President
------------------------------------
Attest: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Its: Secretary
------------------------------------
(CORPORATE SEAL)
-6-
SECOND AMENDMENT TO LEASE AGREEMENT
-----------------------------------
THIS SECOND Amendment to Lease Agreement is made and entered into this 18th of
February, 1994, by and between MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
("Landlord") and AERONOMICS INCORPORATED, a Delaware corporation ("Tenant").
W I T N E S S E T H, THAT:
--------------------------
Whereas, Landlord and Tenant have entered into that certain Lease Agreement,
dated April 15, 1991, which lease provided for the leasing of approximately
12,412 square feet of net rentable area within the Building, and a First
Amendment dated July 23, 1993 increasing Tenant's size to 25,884 rentable square
feet within the Building (said lease, as amended, is hereinafter referred to as
the "Lease"); and
Whereas, the Commencement Date under the Lease occurred on June 8, 1991; and
Whereas, Landlord and Tenant desire to amend the Lease as hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises, TEN AND NO/100
($10.00) DOLLARS and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Lease is hereby amended by adding 1,686 rentable square feet on
the second floor of the Building (the "Additional Premises") to the
Premises leased to Tenant.
2. Notwithstanding anything to the contrary contained in Paragraph 5(a)
of the Lease, Tenant's Base Rental shall be paid in accordance with
the following table:
PERIOD MONTHLY BASE RENTAL
------ -------------------
05/01/94 to 06/30/94 $36,423.74
07/01/94 to 08/31/94 $37,525.18
09/01/94 to 06/30/95 $37,720.90
07/01/95 to 08/31/95 $39,822.34
09/01/95 to 06/30/96 $41,018.07
PERIOD MONTHLY BASE RENTAL
------ -------------------
07/01/96 to 08/31/96 $42,120.51
09/01/96 to 06/30/97 $43,316.24
07/01/97 to 08/31/97 $41,112.19
09/01/97 to 08/31/98 $41,112.19
Tenant's Base Rental with respect to the original Premises for the time period
prior to the Expansion shall be unaffected by this paragraph and shall be paid
as currently provided under the Lease.
3. Tenant's Share as described in Paragraph 5(b) of the Lease and
Paragraph 4 of the First Amendment, is hereby increased to
27,570/92,076 = 30% effective May 1, 1994 throughout the term of the
Lease.
4. TENANT IMPROVEMENTS
-------------------
A. Attached hereto and incorporated herein as Exhibit "A-1" are the
construction documents with respect to the Additional Premises
("Final Plans"), which shall be approved and initialed by
Landlord and Tenant and incorporated herein this Second
Amendment. Landlord agrees to construct the tenant improvements,
which shall include space planning and design, ("Tenant
Improvements") to the Additional Premises in accordance with the
Final Plans on or before May 1994 ("Completion Date"), at
Landlord' sole cost and expense. In no instance shall Landlord's
contribution exceed $18,377.40 (the "Fixed Amount") inclusive of
space planning and design.
B. If Tenant desires to make any changes to the Final Plans, Tenant
shall request said change in writing to Landlord. If said change,
together with all other changes in the aggregate, should increase
the time required to construct the Tenant Improvements, then the
Completion Date shall be extended by the number of additional
days required because of said change. Any changes which, in the
aggregate, increase the cost above the Fixed Amount shall be at
Tenant's expense, and Tenant shall pay all such amounts to
Landlord within thirty (30) days after receipt of notice of such
increased costs.
C. In connection with the construction of the Tenant Improvements,
Landlord agrees to prosecute such work with reasonable diligence,
and with minimal interference with the Tenant's normal business
operations.
-2-
5. Both Landlord and Tenant acknowledge and confirm that the Lease, as
amended hereby, is in full force and effect and the other party is not
in default under the Lease. This Amendment shall inure to the benefit
of and be binding upon the parties hereto and their respective
successors and assigns. This Amendment shall be governed by and
construed under the laws of the state of Georgia. Time is of the
essence hereof.
6. This Amendment shall take effect when executed by both Landlord and
Tenant.
7. Terms utilized in this Amendment but not defined herein shall have the
meanings attributed to them in the Lease.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers and have caused their seals to be
affixed hereto as of the date and year first above written.
LANDLORD:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation
By: /s/ Xxxxxxxx X. Eschols
--------------------------------
Its: Director of Real Estate Investment
------------------------------------
[CORPORATE SEAL]
TENANT:
AERONOMICS INCORPORATED, a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Its: Corporate Secretary
-------------------------------
Attest: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Its: Corporate Secretary
-----------------------------
DATE: 2/18/94
-3-
THIRD AMENDMENT TO LEASE AGREEMENT
This THIRD AMENDMENT TO LEASE AGREEMENT (the "Third Amendment'') is made
and entered into this 31st day of January, 1995, by and between MASSACHUSETTS
MUTUAL LIFE INSURANCE COMPANY ("Landlord") and AERONOMICS INCORPORATED
("Tenant").
R E C I T A L S
A. Landlord is the owner of certain improved real property located in
Atlanta, Xxxxxx County, Georgia, commonly known as Waterstone (the "Property").
X. Xxxxxxxx/Best Joint Venture, a Georgia joint venture (the "Former
Owner"), leased a portion of the Property to Tenant by means of a Lease
Agreement dated April 15, 1991, as amended by a First Amendment to Lease dated
July 23, 1993 (the "First Amendment''), as further amended by a Second Amendment
to Lease Agreement dated February 18, 1994 (the "Second Amendment"), as the same
may have been further amended. All of the foregoing are sometimes collectively
referred to in this Third Amendment as the "Lease".
C. Landlord acquired the Property from the Former Owner, and in
connection therewith Landlord acquired all or the Former Owner's right, title
and interest in and to all leases affecting the Property, including the Lease.
Landlord is the successor-in-interest to the Former Owner.
D. Landlord and Tenant desire to amend certain terms of the Lease, for
their mutual benefit.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Paragraph 2 of the Second Amendment is hereby superseded and replaced
in its entirety by the following:
Any provision of Paragraph 5(a) of the Lease to the contrary
notwithstanding, Tenant shall pay Base Rental to Landlord as follows:
Monthly Base
Period: Rental Payment
------ --------------
5/1/94 - 6/30/94 $36,423.74
7/1/94 - 8/31/94 $37,525.18
9/1/94 - 6/30/95 $38,720.90
7/1/95 - 8/31/95 $39,822.34
9/1/95 - 6/30/96 $41,018.07
7/1/96 - 8/31/96 $42,120.51
9/1/96 - 6/30/97 $43,316.24
7/1/97 - 8/31/98 $41,112.19
2. Paragraph 7 of the First Amendment is hereby superseded and replaced
in its entirety by the following:
As security for Tenant's performance of its obligations under the Lease,
Tenant shall provide to Landlord four certificates of deposit in Tenant's
name and assigned as security to Landlord, each in the amount of
$18,975.00. The maturity dates of the four certificates of deposit shall
be September 1, 1995, September 1, 1996, September 1, 1997, and September
1, 1998, respectively. Provided that Tenant is not then in default under
the Lease and has not been in default under the Lease after any written
notice and opportunity to cure provided in the Lease to be given by
Landlord to Tenant, Landlord shall relinquish its interest in each
certificate of deposit, effective as of such certificate's maturity date,
by executing and delivering to Tenant on or before such maturity date a
certificate in the form of Exhibit A attached to this Third Amendment.
3. Exhibit C to the First Amendment is hereby superseded and replaced in
its entirety by Exhibit C attached hereto. Contemporaneous with the execution
of this Third Amendment, Tenant shall deliver to Landlord an Acknowledgment in
the form of Exhibit C, duly executed by The Bank of Coweta.
4. Any provision of the Lease to the contrary notwithstanding, any notice
required or permitted to be given to Landlord under the Lease shall hereafter be
given to Landlord at the following address, unless changed in accordance with
the notice provisions of the Lease:
Massachusetts Mutual Life Insurance Company
c/o Cornerstone Real Estate Advisers, Inc.
0000 Xxxxx Xxxxxx Xxxxxxx , Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
-2-
5. All terms, covenants and conditions of the Lease not expressly amended
by this Third Amendment shall be and remain unchanged and in full force and
effect. Capitalized terms utilized in this Third Amendment and not defined
herein shall have the meanings attributed to them in the Lease.
Executed by Landlord and Tenant under seal as of the date first above
written.
Witnesses: LANDLORD
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: CORNERSTONE REAL ESTATE
/s/ Xxxxxxxx X. Xxxxx ADVISERS, INC., its agent
-----------------------------
By: /s/ Xxxxxxx X. Xxxxxx
_____________________________ --------------------------------
Its: Vice President
Witnesses: TENANT
AERONOMICS INCORPORATED
______________________________
______________________________ By: /s/ Xxxxxx Xxxxx
--------------------------------
Its: Chairman
-3-
300 One Xxxxxxx Place
000 Xxxx Xxxxxxx Xxxxxx XXX XXXXXXX COMPANY Xxxx Xxxxxx Xxx 00000
Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000-0000
--------------------------------------------------------------------------------
(000) 000-0000 Facsimile (601) 949-4077
April 23, 1996
Xx. Xxxxxxxx X. Xxxx
President
Aeronomics Incorporated
0000 Xxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
RE: Lease Agreement dated April 15, 1991, and Amendments to Lease dated July
23, 1993, February 18, 1994 and January 31,1995, by and between Aeronomics
Incorporated (Tenant) and Xxxxxxxx/Best Joint Venture and Massachusetts
Mutual Life Insurance Company (collectively known as prior landlords) and
Parkway Atlanta, Inc. (Landlord), as successor in interest to
Massachusetts Mutual Life Insurance Company
Dear Xxxxx:
This letter, when fully executed, shall amend and modify the above
referenced Lease Agreement and Amendments to Lease as follows:
1. The Premises shall be increased by 814 square feet of Rentable Area on
the first (1st) floor of the Building, increasing Tenant's Premises to 28,384
square feet of Rentable Area.
2. The Term for this increased area shall be for a period of seven (7)
months and twenty-six (26) days commencing on May 6, 1996 and terminating on
December 31, 1996.
3. Tenant shall pay rent to Landlord for the increased area at a monthly
rental of $796 for May and $950 commencing June 1 through December 31, 1996.
4. Tenant shall occupy the increased area on an "as is" basis; however,
Landlord shall fund approximately $200-$300 for Tenant's network cabling.
Except as to the extent modified herein, the Lease Agreement and Amendments
to Lease are hereby confirmed.
XX. XXXXXXXX X. XXXX
April 23, 1996
Page 2
If the foregoing accurately sets forth our agreement as to modifications of
the Lease Agreement and Amendments to Lease, please indicate your acceptance and
approval by signing in the space provided.
Sincerely,
/s/ Xxx Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
Vice President
AERONOMICS INCORPORATED
By: /s/ Xxxxxxxx X. Xxxx
---------------------------
Its: President
-2-
300 One Xxxxxxx Place
000 Xxxx Xxxxxxx Xxxxxx XXX XXXXXXX COMPANY Xxxx Xxxxxx Xxx 00000
Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000-0000
--------------------------------------------------------------------------------
(000) 000-0000 Facsimile (000) 000-0000
June 18, 1996
Mr. Xxxxx Xxxxxxx
Chief Financial Officer
Aeronomics Incorporated
0000 Xxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
RE: Lease Agreement dated April 15, 1991, and Amendments to Lease dated July
23, 1993, February 18, 1994, and January 31, 1995, by and between
Aeronomics Incorporated (Tenant) and Xxxxxxxx/Best Joint Venture and
Massachusetts Mutual Life Insurance Company (collectively known as prior
landlords) and Amendment to Lease dated April 23, 1996, by and between
Tenant and Parkway Atlanta, Inc. (Landlord), as successor in interest to
Massachusetts Mutual Life Insurance Company
Dear Xxx:
This letter, when fully executed, shall amend and modify the above
referenced Lease Agreement and Amendments to Lease as follows:
1. The Premises shall be increased by 9,741 square feet of Rentable Area
on the second (2nd) floor of the Building, increasing Tenant's Premises to
38,125 square feet of Rentable Area effective July 1, 1996.
2. Tenant shall accept the increased Premises, consisting of 9,741 square
feet of Rentable Area, in its "as is" condition.
3. Tenant shall pay Base Rent to Landlord pursuant to the following
schedule:
July 1, 1996-August 31, 1996 $56,870.00 monthly
September 1, 1996 - December 31, 1996 $58,066.00 monthly
January 1, 1997 - June 30, 1997 $57,116.00 monthly
July 1, 1997 - August 31, 1998 $54,912.00 monthly
Except as to the extent modified herein, the Lease Agreement and Amendments
to Lease are hereby confirmed.
MR. XXXXX XXXXXXX
June 18, 1996
Page 2
If the foregoing accurately sets forth our agreement as to modifications of
the Lease Agreement and Amendments to Lease, please indicate your acceptance and
approval by signing in the space provided.
Sincerely,
/s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
Vice President
JMI/wsf
AERONOMICS INCORPORATED
By:/s/ Xxxxx X. Xxxxxxx
---------------------------
Its: Chief Financial Officer
-2-
