Exhibit 10.16
LEASE AGREEMENT
by and between
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
("Landlord")
and
FOCAL COMMUNICATION CORPORATION
("Tenant")
dated
Feb. 5, 1999
for
Suite Number L-200
containing
21,948 square feet of Rentable Floor Area
Term: 120 months
TABLE OF CONTENTS
Page
1. Certain Definitions 1
2. Lease of Premises 2
3. Term 2
4. Possession 2
5. Rental Payments 2
6. Base Rental 3
7. Rental Adjustment 3
8. Additional Rental 3
9. Operating Expenses 3
10. Tenant Taxes 5
11. Payments 5
12. Late Charges 5
13. Uses 5
14. Alterations 6
15. Repairs 6
16. Landlord's Right of Entry 6
17. Insurance 6
18. Waiver of Subrogation 7
19. Default 7
20. Waiver of Breach 8
21. Assignment and Subletting 8
22. Destruction 8
23. Landlord's Lien 9
24. Services by Landlord 9
25. Attorneys' Fees and Homestead 9
26. Time 9
27. Subordination and Attornment 9
28. Estoppel Certificates 10
29. No Estate 10
30. Cumulative Rights 10
31. Holding Over 10
32. Surrender of Premises 10
33. Notices 10
34. Damage or Theft of Personal Property 11
35. Eminent Domain 11
36. Parties 11
37. Liability of Tenant 11
38. Relocation of the Premises 12
39. Force Majeure 12
40. Landlord's Liability 12
41. Landlord's Covenant of Quiet Enjoyment 12
42. Security Deposits 12
43. Hazardous Substances 13
44. Submission of Lease 13
45. Severability 13
46. Entire Agreement 13
47. Headings 13
48. Broker 13
49. Governing Law 14
50. Authority 14
51. Joint and Several Liability 14
52. Special Stipulations 14
Rules and Regulations
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Exhibit "A" - Legal Description
Exhibit "B" - Floor Plan
Exhibit "C" - Supplemental Notice
Exhibit "D" - Landlord's Construction
Exhibit "E" - Building Standard Services
Exhibit "F" - Guaranty
Exhibit "G" - Special Stipulations
Exhibit "H" - Subordination, Non-Disturbance and Attornment Agreement
LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT ("Lease") is made and entered into this 5th day of
February, 1999, by and between Landlord and Tenant.
W I T N E S S E T H:
--------------------
1. Certain Definitions. As used in this Lease, the following terms
shall have the meanings hereinafter ascribed thereto:
(a) Landlord: THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED
STATES
(b) Landlord's Address:
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
(c) Tenant: Focal Communication Corporation, a Delaware
corporation
(d) Tenant's Address:
Tenant's Additional Notice Address:
000 Xxxxxxxx Xxxxxx
Xxxxx X-000 with copies sent simultaneously to:
Xxxxxxx, Xxxxxxx 00000 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Director of Real Estate
and
Focal Communications Corporation
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Executive Vice President
(e) Building Address:
INFORUM
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
(f) Suite Number: L-200
(g) Rentable Floor Area of the Premises:
21,948 square feet. Landlord and Tenant agree that
when the tenant improvements to the Premises are completed, Landlord or Tenant
may have the same remeasured by a firm reasonably acceptable to Landlord. If the
measurement (subject to verification by the other party) proves the Premises
contain more or less than 21,948 rentable square feet, Landlord and Tenant agree
to modify this Lease to reflect the accurate amount of rentable square feet and
correct the associated calculations hereunder which are based on rentable square
feet provided that such remeasurement shall not affect or impact the conversion
factor used to calculate usable square feet within the Premises or the Building.
(h) Rentable Floor Area of Building:
Currently 720,161 square feet, however, Landlord will
increase the Rentable Floor Area of the Building following the year each of the
Bridge level and the Lobby level of the Building have been converted to office
space. Landlord shall use the same method of measurement for measuring the
Building as it used for measurement of the Premises.
(i) Lease Term: one hundred twenty (120) months, beginning on
an estimated term commencement date of June 1, 1999; provided, however,
that the actual date of commencement of the term of this Lease (the
"Term Commencement Date") shall be the earlier of: (i) the date on
which the Premises are "ready for occupancy" as described in Exhibit
"D" hereof or, if such date on which the Premises would otherwise have
been ready for occupancy is postponed due to delays caused by Tenant or
its employees, agents or contractors, the date the Premises would
reasonably have been expected to be ready for occupancy absent such
delays, or (ii) the date on which Tenant takes possession and occupies
the Premises for its business use. If for any reason the Term
Commencement Date is postponed for more than one (1) year, Landlord
shall have the right to terminate this Lease by written notice to
Tenant. On or before February 1, 1999, Landlord shall give Tenant
written permission to enter the Premises for the purpose of installing
equipment therein or making improvements thereto but not for the
purpose of occupying the Premises, Tenant shall comply with all terms,
provisions and conditions of this Lease except those requiring the
payment of Rent. The Lease Term shall end at midnight on the last day
of the period of months hereinabove described (the "Term Expiration
Date").
(j) Base Rental Rate: $19.50 per square foot of Rentable Floor
Area of the Premises per year for years one (1) through five
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(5) of the Lease Term; $22.50 per square foot of Rentable Floor Area of
the Premises per year for years six (6) through ten (10) of the Lease
Term.
(k) Rental Commencement Date: Unless specifically agreed to
the contrary in this Lease, the Rental Commencement Date shall be the
same as the Term Commencement Date described in 1(i) above; provided,
however, that, if Tenant is given written permission by Landlord to
occupy a portion (but not all) of the Premises prior to the Term
Commencement Date, the Rent payable by Tenant under this Lease shall
commence but shall be prorated based on the number of square feet
occupied by Tenant from time to time within the Premises until Tenant
has occupied the entire Premises and the Term Commencement Date has
occurred.
(l) Tenant Improvement Allowance: Landlord's sole obligation
to improve the Premises shall be to demolish the existing tenant improvements in
the Premises and provide Tenant a slab to slab Premises with a sprinkler system
that meets the NFPA guidelines for an unfinished floor. Landlord will provide
Tenant with a tenant improvement allowance of $5.00 per rentable square foot,
per year, for each of the initial five (5) years of the Lease Term, provided
Tenant is not in default hereunder after applicable periods of notice and cure
and provided Tenant has installed improvements of a value no less than $25.00
per rentable square foot in the Premises, excluding furniture, fixtures and
equipment. Said payment shall be made to Tenant no later than sixty (60) days
after each anniversary date of the Rental Commencement Date for the first five
(5) years of the Lease Term, not to exceed a total payment of $548,700.00. In
the event any installment of the Tenant Improvement Allowance is not paid when
due, following ten (10) days notice to Landlord, Tenant may offset such amount
from future Rent payments. Upon request, Landlord will provide Tenant up to an
additional $5.00 per rentable square foot tenant improvement allowance which
will be amortized over the Lease Term at an interest rate of ten percent (10%)
per annum.
(m) Security Deposits:
(i) $35,665.00 [Article 42(a)]
(ii) $38,409.00 [Article 42(b)]
(n) Broker(s): Landlord and Tenant acknowledge that Tenant is
represented in this transaction by Tishman Real Estate Services
("Broker") and that Landlord is represented in this transaction by
COMPASS Management and Leasing, Inc. ("Landlord's Agent") and that
Landlord shall be responsible for the real estate commission payable to
both Broker and Landlord's Agent, with said commissions to be
documented by an agreement which shall be separate from this Lease.
2. Lease of Premises. Landlord, in consideration of the covenants and
agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain premises (the "Premises") in the
building (the "Building") located on that certain tract of land (the "Land")
more particularly described on Exhibit "A" attached hereto and by this reference
made a part hereof, which the Premises are outlined in red or cross-hatched on
the floor plan attached hereto as Exhibit "B" and by this reference made a part
hereof, with no easement for light, view or air included in the Premises or
being granted hereunder. The "Project" is comprised of the Building, the Land,
the Building's parking facilities, any walkways, covered walkways, tunnels or
other means of access to the Building and the Building's parking facilities, all
common areas, including any lobbies or plazas, and any other improvements or
landscaping on the Land.
3. Term. The term of this Lease (the "Lease Term") shall commence on
the Term Commencement Dates described in Article 1(i) above, and, unless sooner
terminated or extended as provided in this Lease, shall end on the Term
Expiration Date set forth in said Article 1(i). Promptly after the Term
Commencement Date, Landlord or Landlord's agent shall send to Tenant a
Supplemental Notice in the form of Exhibit "C" attached hereto and by this
reference made a part hereof, specifying the Rental Commencement Date set forth
in Article 1(k) above, the Term Expiration Date and certain other matters as
therein set forth.
4. Possession. The obligations of Landlord and Tenant with respect to
the initial leasehold improvements to the Premises are set forth in Exhibit "D"
attached hereto and by this reference made a part hereof. Taking of possession
by Tenant shall be deemed conclusively to establish that Landlord's construction
obligations with respect to the Premises have been completed in accordance with
the plans and specifications approved by Landlord and Tenant and that the
Premises, to the extent of Landlord's construction obligations with respect
thereto, are in good and satisfactory condition.
5. Rental Payments.
(a) Commencing on the Rental Commencement Date, and continuing
thereafter throughout the Lease Term, Tenant hereby agrees to pay all Rent due
and payable under this Lease. As used in this Lease, the term "Rent" shall mean
the Base Rental, the Rental Adjustment, Tenant's Forecast Additional Rental,
Tenant's Additional Rental, all as hereinafter described, and any other amounts
that Tenant assumes or agrees to pay under the provisions of this Lease that are
owed to Landlord, including, without limitation, any and all other sums that may
become due by reason of any default of Tenant or failure on Tenant's part to
comply with the agreements, terms, covenants and conditions of this Lease to be
performed by Tenant. Base Rental, together with the portion of Tenant's Forecast
Additional Rental described hereinbelow, shall be due and payable in twelve (12)
equal installments on the first day of each calendar month, commencing on the
Rental Commencement Date and continuing thereafter throughout the Lease Term and
any extensions or renewals thereof. Tenant hereby agrees to pay such Rent to
Landlord at Landlord's address as provided herein (or such other address as may
be designated by Landlord from time to time) monthly in advance. Tenant shall
pay all Rent and other sums of money as shall become due from and payable by
Tenant to Landlord under this Lease at the times and in the manner provided in
this Lease (including, without limitation, all installments of Additional Rental
described hereinbelow), without demand, set-off or counterclaim except as set
forth herein.
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(b) If the Rental Commencement Date is other than the first
day of a calendar month or if this Lease terminates on a day other than the last
day of a calendar month, then the installments of Base Rental forecast for such
month or months shall be prorated on a daily basis and the installment or
installments so prorated shall be paid in advance. Also, if the Rental
Commencement Date occurs on a day other than the first day of a calendar year,
or if this Lease expires or is terminated on a day other than the last day of a
calendar year, Tenant's Additional Rental shall be prorated for such
commencement or termination year, as the case may be, by multiplying such
Tenant's Additional Rental by a fraction, the numerator of which shall be the
number of days of the Lease Term (from and after the Rental Commencement Date)
during the commencement or expiration or termination year, as the case may be,
and the denominator of which shall be 365, and the calculation described in
Article 7 hereof shall be made as soon as possible after the expiration or
termination of this Lease, Landlord and Tenant hereby agreeing that the
provisions relating to said calculation shall survive the expiration or
termination of this Lease.
6. Base Rental. From and after the Rental Commencement Date, Tenant
shall pay to Landlord a base annual rental (herein called "Base Rental") equal
to the Base Rental Rate set forth in Article 1(j) above multiplied by the
Rentable Floor Area of the Premises as set forth in Article 1(g) above, as said
Base Rental shall increase and be adjusted pursuant to the provisions of
Sections 7 and 8 hereinbelow.
7. Rental Adjustment. [INTENTIONALLY DELETED]
8. Additional Rental.
(a) For purposes of this Lease, "Tenant's Forecast Additional
Rental" shall mean Landlord's reasonable estimate of Tenant's Additional Rental
for each calendar year or portion thereof during the Lease Term starting with
calendar year 2000. If at any time it appears to Landlord that Tenant's
Additional Rental for any calendar year following calendar year 2000 will vary
from Landlord's estimate, Landlord shall have the right to revise, by notice to
Tenant, its estimate for such year, and subsequent payments by Tenant for such
year shall be based upon such revised estimate of Tenant's Additional Rental.
Failure to make a revision contemplated by the immediately preceding sentence
shall not prejudice Landlord's right to collect the full amount of Tenant's
Additional Rental. Prior to the first day of January, 2000, and thereafter prior
to the beginning of each subsequent calendar year during the Lease Term,
including any extensions or renewals thereof, Landlord shall present to Tenant a
statement of Tenant's Forecast Additional Rental for such calendar year;
provided, however, that if such statement is not given prior to the beginning of
any calendar year as aforesaid, Tenant shall continue to pay during the next
ensuing calendar year on the basis of the amount of Tenant's Forecast Additional
Rental payable during the calendar year just ended until the month after such
statement is delivered to Tenant.
(b) For purposes of this Lease, "Tenant's Additional Rental"
shall mean for each calendar year (or portion thereof) during the Lease Term
starting with calendar year 2000 the excess of (x) the Operating Expense Amount
(defined below) multiplied by the number of square feet of Rentable Floor Area
of the Premises, over (y) the Base Operating Expenses (defined below) multiplied
by the number of square feet of Rentable Floor Area of the Premises. As used
herein, "Operating Expense Amount" shall mean the amount of Operating Expenses
(as defined below) for such calendar year divided by the greater of (i)
ninety-five percent (95%) of the number of square feet of Rentable Floor Area of
the Building, or (ii) the total number of square feet of Rentable Floor Area
occupied in the Building for such calendar year on an average annualized basis;
provided, however, if the amount is calculated under (i) above, the Operating
Expenses actually incurred with respect to such calendar year shall be adjusted
to reflect the amount of Operating Expenses which would have been incurred if
the Building were ninety-five percent (95%) occupied throughout such calendar
year. As used herein, the term "Base Operating Expenses" shall mean the
Operating Expenses paid or incurred by Landlord in the Base Year (as hereinafter
defined) as if the Building was ninety-five percent (95%) occupied throughout
the Base Year, divided by ninety-five percent (95%) of the number of square feet
of Rentable Floor Area of the Building. If the Building was not ninety-five
percent (95%) occupied throughout the Base Year, then the Base Operating
Expenses shall be an amount which fairly reflects what the Operating Expenses
would have been in the Base Year had the Building been ninety-five percent (95%)
occupied throughout the Base Year, as determined by Landlord in its reasonable
opinion. As used herein, "Base Year" shall mean calendar year 1999.
(c) Within one hundred fifty (150) days after the end of
calendar year 2000 occurs and for each calendar year thereafter during the Lease
Term, or as soon thereafter as practicable, Landlord shall provide Tenant a
statement showing the Operating Expenses for said calendar year, as prepared by
an authorized representative of Landlord, and a statement prepared by Landlord
comparing Tenant's Forecast Additional Rental with Tenant's Additional Rental.
In the event Tenant's Forecast Additional Rental exceeds Tenant's Additional
Rental for said calendar year, Landlord shall credit such amount against the
Forecast Additional Rental next due hereunder or, if the Lease Term has expired
or is about to expire, refund such excess to Tenant within thirty (30) days of
such statement if Tenant is not in default under this Lease (in the instance of
a default, such excess shall be held as additional security for Tenant's
performance, may be applied by Landlord to cure any such default, and shall not
be refunded until any such default is cured). In the event that the Tenant's
Additional Rental exceeds Tenant's Forecast Additional Rental for said calendar
year, Tenant shall pay Landlord, within thirty (30) days of receipt of the
statement, an amount equal to such difference. The provisions of this Lease
concerning the payment of Tenant's Additional Rental shall survive the
expiration or earlier termination of this Lease.
(d) Provided Tenant is not in default hereunder, Landlord's
books and records pertaining to the calculation of Operating Expenses for any
calendar year within the Lease Term may be audited by Tenant or its
representatives at Landlord's office where Operating Expense records are kept,
at Tenant's expense, at any time within one hundred fifty (150) days after
Landlord's annual statement is delivered to Tenant for such calendar year;
provided that Tenant shall give Landlord not less than thirty (30) days' prior
written notice of any such audit. If Landlord's calculations of Tenant's
Additional Rental for the audited calendar year was incorrect, then Tenant shall
be entitled to a prompt refund of any overpayment or Tenant shall promptly pay
to Landlord the amount of any underpayment, as the case may be. In the event
that Landlord's calculation of Operating Expenses is in error in excess of five
percent (5%) of such amount, Landlord shall pay Tenant for the actual and
reasonable costs of Tenant's audit.
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9. Operating Expenses.
(a) For the purposes of this Lease, "Operating Expenses" shall
mean all expenses, costs and disbursements (but not specific costs billed to
specific tenants of the Building) of every kind and nature, computed on an
accrual basis, relating to or incurred or paid in connection with the ownership,
management, operation, repair and maintenance of the Project, including but not
limited to, the following:
(1) wages, salaries and other costs of all on-site
and off-site employees engaged either full or part time in the
operation, management, maintenance or access control of the Project,
including taxes, insurance and benefits relating to such employees,
allocated based upon the time such employees are engaged directly in
providing such services;
(2) the cost of all supplies, tools, equipment and
materials used in the operation, management, maintenance and access
control of the Project;
(3) the cost of all utilities for the Project,
including but not limited to the cost of electricity, gas, water, sewer
services and power for lighting, air conditioning and ventilating;
(4) the cost of all maintenance and service
agreements for the Project and the equipment therein, including, but
not limited to, security service, garage operators, window cleaning,
elevator maintenance, HVAC maintenance, janitorial service, landscaping
maintenance and customary landscaping replacement;
(5) the cost of inspections, repairs and general
maintenance of the Project;
(6) amortization (together with reasonable financing
charges, whether or not actually incurred) of the cost of acquisition
and/or installation of capital investment items (including security
equipment), amortized over their respective useful lives, which are
installed for the purpose of reducing operating expenses, promoting
safety, complying with governmental requirements, or maintaining the
first-class nature of the Project;
(7) the cost of casualty, rental loss, liability and
other insurance applicable to the Project and Landlord's personal
property used in connection therewith;
(8) the cost of trash and garbage removal, vermin
extermination, and snow, ice and debris removal;
(9) the cost of legal and accounting services
incurred by Landlord in connection with the management, maintenance,
operation and repair of the Project, excluding the owner's or
Landlord's general accounting, such as partnership statements and tax
returns, and excluding services described in Article 9(b)(14) below;
(10) all taxes, assessments and governmental charges,
whether or not directly paid by Landlord, whether federal, state,
county or municipal and whether they be by taxing districts or
authorities presently taxing the Project or by others subsequently
created or otherwise, and any other taxes and assessments attributable
to the Project or its operation (and the costs of monitoring and
contesting any of the same), including business license taxes and fees
(all of the foregoing are herein sometimes collectively referred to as
"Taxes"), excluding, however, taxes and assessments imposed on the
personal property of the tenants of the Project, federal and state
taxes on income, death taxes, franchise taxes, and any taxes (other
than business license taxes and fees) imposed or measured on or by the
income of Landlord from the operation of the Project; provided,
however, that if at any time during the Lease Term, the present method
of taxation or assessment shall be so changed that the whole or any
part of the taxes, assessments, levies, impositions or charges now
levied, assessed or imposed on real estate and the improvements thereon
shall be discontinued and as a substitute therefor, or in lieu of or in
addition thereto, taxes, assessments, levies, impositions or charges
shall be levied, assessed and/or imposed wholly or partially as a
capital levy or otherwise on the rents received from the Project or the
rents reserved herein or any part thereof, then such substitute or
additional taxes, assessments, levies, impositions or charges, to the
extent so levied, assessed or imposed, shall be deemed to be included
within the Operating Expenses to the extent that such substitute or
additional tax would be payable if the Project were the only property
of the Landlord subject to such tax; and it is agreed that Tenant will
be responsible for ad valorem taxes on its personal property and on the
value of the leasehold improvements in the Premises to the extent that
the same exceed Building standard allowances, if said taxes are based
upon an assessment which includes the cost of such leasehold
improvements in excess of Building standard allowances (and if the
taxing authorities do not separately assess Tenant's leasehold
improvements, Landlord may make an appropriate allocation of the ad
valorem taxes allocated to the Project to give effect to this
sentence);
(11) the cost of operating the management office for
the Project, including cost of office supplies, telephone expenses and
non-capital investment equipment and amortization (together with
reasonable financing charges) of the cost of capital investment
equipment; and
(12) management fees not to exceed five percent (5%)
of rents paid by tenants of the Building.
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(b) For purposes of this Lease, and notwithstanding anything in any
other provision of this Lease to the contrary, "Operating Expenses" shall not
include the following:
(1) the cost of any special work or service performed
for any tenant (including Tenant) at such tenant's cost;
(2) the cost of installing, operating and maintaining
any specialty service, such as an observatory, broadcasting facility,
luncheon club, restaurant, cafeteria, retail store, sundry shop,
newsstand, or concession, but only to the extent such costs exceed
those which would normally be expected to be incurred had such space
been general office space;
(3) the cost of correcting defects in construction;
(4) compensation paid to officers and executives of
Landlord (but it is understood that the on-site Building manager and
other on-site employees below the grade of Building manager may carry a
title such as vice president and the salaries and related benefits of
these officers/employees of Landlord would be allowable Operating
Expenses under Article 9[a][1] above);
(5) the cost of any items for which Landlord is
reimbursed by insurance, condemnation or otherwise, except for costs
reimbursed pursuant to provisions similar to Articles 7 and 9 hereof.
(6) the cost of any additions, changes, replacements
and other items which are made in order to prepare for a new tenant's
occupancy;
(7) the cost of repairs incurred by reason of fire or
other casualty;
(8) insurance premiums to the extent Landlord may be
directly reimbursed therefor, except for premiums reimbursed pursuant
to provisions similar to Articles 7 and 9 hereof;
(9) interest on debt or amortization payments on any
mortgage or deed to secure debt (except to the extent specifically
permitted by Article 9[a]) and rental under any ground lease or other
underlying lease;
(10) any real estate brokerage commissions or other
costs incurred in procuring tenants or any fee in lieu of such
commission;
(11) any advertising expenses incurred in connection
with the marketing of any rentable space;
(12) rental payments for base Building equipment such
as HVAC equipment and elevators;
(13) any expenses for repairs or maintenance which
are covered by warranties and service contracts, to the extent such
maintenance and repairs are made at no cost to Landlord;
(14) legal expenses arising out of the construction
of the improvements on the Land or the enforcement of the provisions of
any lease affecting the Land or Building, including without limitation
this Lease;
(15) Costs of capital improvements except as set
forth in paragraph 9(a)(6) above;
(16) Salaries or fringe benefits or personnel above
the grade of Building Manager;
(17) The cost of any items to the extent to which
such cost is reimbursed or reimbursable to Landlord by tenants of the
Building (other than by virtue of the pass through of "Operating
Expenses" to other tenants of the Building);
(18) Advertising and promotional expenses incurred in
connection with the leasing of the Building;
(19) Costs incurred in connection with making repairs
which are the obligation of another tenant of the Building.
(20) Costs incurred by Landlord as a result of
Landlord's breach of this Lease or any other lease with a tenant of the
Building; and
(21) Costs associated with the removal or
encapsulation of asbestos or asbestos-containing materials or the
management, removal or remediation of any Hazardous Substances.
10. Tenant Taxes. Tenant shall pay promptly when due all taxes directly
or indirectly imposed or assessed upon Tenant's gross sales, business
operations, machinery, equipment, trade fixtures and other personal property or
assets, whether such taxes are assessed against Tenant, Landlord or the
Building. In the event that such taxes are imposed or assessed against Landlord
or the Building, Landlord shall furnish Tenant with all applicable tax bills,
public charges and other assessments or impositions and Tenant shall forthwith
pay the same either directly to the taxing authority or, at Landlord's option,
to Landlord.
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11. Payments. All payments of Rent and other payments to be made to
Landlord shall be made on a timely basis and shall be payable to Landlord or as
Landlord may otherwise designate. All such payments shall be mailed or delivered
to Landlord's Address designated in Article 1(b) above or at such other place as
Landlord may designate from time to time in writing. If mailed, all payments
shall be mailed in sufficient time and with adequate postage thereon to be
received in Landlord's account by no later than the due date for such payment.
Tenant agrees to pay to Landlord Fifty Dollars ($50.00) for each check presented
to Landlord in payment of any obligation of Tenant which is not paid by the bank
on which it is drawn, together with interest from and after the due date for
such payment at the rate of eighteen percent (18%) per annum on the amount due.
12. Late Charges. Any Rent or other amounts payable to Landlord under
this Lease, if not paid by the fifth day of the month for which such Rent is
due, or by the due date specified on any invoices from Landlord for any other
amounts payable hereunder, shall incur a late charge of Fifty Dollars ($50.00)
for Landlord's administrative expense in processing such delinquent payment and
in addition thereto shall bear interest at the rate of eighteen percent (18%)
per annum from and after the due date for such payment. Notwithstanding anything
to the contrary contained in this Lease, in no event shall the rate of interest
payable on any amount due under this Lease exceed the legal limits for such
interest enforceable under applicable law.
13. Uses. The Premises may be used for a 24-hour telecommunications
switch facility executive, general administrative and office space purposes and
no other purposes and in accordance with all applicable laws, ordinances, rules
and regulations of governmental authorities and the Rules and Regulations
attached hereto and made a part hereof. Tenant shall have twenty-four (24) hours
a day, seven (7) days a week access to the Premises subject to reasonable
security procedures implemented by Landlord. Tenant covenants and agrees that it
will, at its expense, comply with all laws, ordinances, orders, directions,
requirements, rules and regulations of all governmental authorities (including
Federal, State, county and municipal authorities), now in force or which may
hereafter be in force, which shall impose any duty upon Landlord or Tenant with
respect to the use, occupancy or alteration (made by Tenant) of the Premises,
and of all insurance bodies applicable to the Premises or to the Tenant's use or
occupancy thereof. Tenant covenants and agrees to abide by the Rules and
Regulations in all respects as now set forth and attached hereto or as hereafter
promulgated by Landlord. Landlord shall have the right at all times during the
Lease Term to publish and promulgate and thereafter enforce such rules and
regulations or changes in the existing Rules and Regulations as it may
reasonably deem necessary in its sole discretion to protect the tenantability,
safety, operation, and welfare of the Premises and the Project. Tenant
acknowledges that portions of the Building (currently consisting of portions of
Showroom Levels 1 and 2) may be used as a technology mart and that the tenants
on the technology mart floors of the Building may have showrooms used for the
display of such tenants' technology products and services. In addition, the
conference, meeting, exhibition, atrium lobby and theater facilities of the
Building may also be used for meetings and expositions. Tenant does hereby
acknowledge that it has been fully informed of this intended use of the Building
and that Tenant will not contend that any such use of the Building violates any
terms or provisions of this Lease or diminishes Tenant's obligations hereunder
in any way whatsoever.
14. Alterations. Except for any initial improvement of the Premises
pursuant to Exhibit "D", which shall be governed by the provisions of said
Exhibit "D", Tenant shall not make, suffer or permit to be made any alterations,
additions or improvements to or of the Premises or any part thereof, or attach
any fixtures thereto except for Tenant's trade fixtures and equipment, without
first obtaining Landlord's written consent. With respect to any alteration,
addition or improvement which does not affect the structure of the Building,
does not affect any of the Building's systems (e.g., mechanical, electrical or
plumbing), does not diminish the capacity of such Building systems available to
other portions of the Building, is not visible from the common areas or exterior
of the Building, and is in full compliance with all laws, orders, ordinances,
directions, requirements, rules and regulations of all governmental authorities,
Landlord's consent shall not be unreasonably withheld. Any such alterations,
additions or improvements to the Premises consented to by Landlord shall be made
by Landlord or under Landlord's supervision for Tenant's account and Tenant
shall reimburse Landlord for all costs thereof (including a reasonable charge
for Landlord's overhead), as Rent, within thirty (30) days after receipt of a
statement. All such alterations, additions and improvements shall become
Landlord's property at the expiration or earlier termination of the Lease Term
and shall remain on the Premises without compensation to Tenant unless Landlord
elects by notice to Tenant at the time Landlord grants its approval to have
Tenant remove such alterations, additions and improvements, in which event,
notwithstanding any contrary provisions respecting such alterations, additions
and improvements contained in Article 32 hereof, Tenant shall promptly restore,
at its sole cost and expense, the Premises to its condition prior to the
installation of such alterations, additions and improvements, normal wear and
tear excepted.
15. Repairs.
(a) Landlord shall maintain in good order and repair, subject
to normal wear and tear and subject to casualty and condemnation, the Building
(excluding the Premises and other portions of the Building leased to other
tenants), the Building parking facilities, the public areas and the landscaped
areas. Notwithstanding the foregoing obligation, the cost of any repairs or
maintenance to the foregoing necessitated by the intentional acts or negligence
of Tenant or its agents, contractors, employees, invitees, licensees, tenants or
assigns, shall be borne solely by Tenant and shall be deemed Rent hereunder and
shall be reimbursed by Tenant to Landlord upon demand. Landlord shall not be
required to make any repairs or improvements to the Premises except structural
repairs.
(b) Tenant covenants and agrees that it will take good care of
the Premises and all alterations, additions and improvements thereto and will
keep and maintain the same in good condition and repair, except for normal wear
and tear. Tenant shall at once report, in writing, to Landlord any defective or
dangerous condition known to Tenant. To the fullest extent permitted by law,
Tenant hereby waives all rights to make repairs at the expense of Landlord or in
lieu thereof to vacate the Premises as may be provided by any law, statute or
ordinance now or hereafter in effect. Landlord has no obligation and has made no
promise to alter, remodel, improve, repair, decorate or paint the Premises or
any part thereof, except as specifically and expressly herein set forth.
6
16. Landlord's Right of Entry. Landlord shall retain duplicate keys to
all doors of the Premises and Landlord and its agents, employees and independent
contractors shall have the right to enter the Premises at reasonable hours to
inspect and examine same, to make repairs, additions, alterations and
improvements, to exhibit the Premises to mortgagees, prospective mortgagees,
purchasers or tenants, and to inspect the Premises to ascertain that Tenant is
complying with all of its covenants and obligations hereunder, all without being
liable to Tenant in any manner whatsoever for any damages arising therefrom;
provided, however, that (a) Landlord shall, except in case of emergency, afford
Tenant such prior notification of an entry into the Premises as shall be
reasonably practicable under the circumstances, and (b) Landlord will not enter
(or provide entrance) to Tenant's designated high security areas except in case
of an emergency. Landlord shall be allowed to take into and through the Premises
any and all materials that may be required to make such repairs. During such
time as such work is being carried on, in or about the Premises, the Rent
provided herein shall not xxxxx, and Tenant waives any claim or cause of action
against Landlord for damages by reason of interruption of Tenant's business or
loss of profits therefrom because of the prosecution of any such work or any
part thereof. Notwithstanding the foregoing, Landlord shall use its best efforts
not to interfere with Tenant's business or use of the Premises.
17. Insurance. Tenant shall procure at its expense and maintain
throughout the Lease Term a policy or policies of commercial property insurance,
issued on an "all risks" basis insuring the full replacement cost of its
furniture, equipment, supplies and other property owned, leased, held or
possessed by it and contained in the Premises, together with the excess value of
the improvements to the Premises over the Tenant Improvement Allowance (with a
replacement cost endorsement sufficient to prevent Tenant from becoming a
co-insurer), and workmen's compensation insurance as required by applicable law.
Tenant shall also procure at its expense and maintain throughout the Lease Term
a policy or policies of commercial general liability insurance, written on an
occurrence basis and insuring Tenant, Landlord and any other person designated
by Landlord, against any and all liability for injury to or death of a person or
persons and for damage to property occasioned by or arising out of any
construction work being done on the Premises, or arising out of the condition,
use or occupancy of the Premises, or in any way occasioned by or arising out of
the activities of Tenant, its agents, contractors, employees, guests or
licensees in the Premises, or other portions of the Building or the Project, the
limits of such policy or policies to be in combined single limits for both
damage to property and personal injury and in amounts not less than Three
Million Dollars ($3,000,000.00) for each occurrence. Such insurance shall, in
addition, extend to any liability of Tenant arising out of the indemnities
provided for in this Lease , together with business interruption insurance which
is designed to afford Tenant protection up to a maximum amount of coverage which
Tenant in its reasonable discretion shall determine to be satisfactory to Tenant
in the event the Premises for any reason become unusable or for any other reason
covered by such policy Tenant's operation its business is interrupted. All
insurance policies procured and maintained by Tenant pursuant to this Article 17
shall name Landlord and any additional parties designated by Landlord as
additional insured, shall be carried with companies licensed to do business in
the State of Georgia reasonably satisfactory to Landlord and shall be
non-cancelable and not subject to material change except after twenty (20) days'
written notice to Landlord. Such policies or duly executed certificates of
insurance with respect thereto, accompanied by proof of payment of the premium
therefor, shall be delivered to Landlord prior to the Rental Commencement Date,
and renewals of such policies shall be delivered to Landlord at least thirty
(30) days prior to the expiration of each respective policy term.
18. Waiver of Subrogation. Landlord and Tenant shall each have included
in all policies of commercial property insurance, commercial general liability
insurance, and business interruption and other insurance respectively obtained
by them covering the Premises, the Building and contents therein, a waiver by
the insurer of all right of subrogation against the other in connection with any
loss or damage thereby insured against. Any additional premium for such waiver
shall be paid by the primary insured. To the full extent permitted by law,
Landlord and Tenant each waives all right of recovery against the other for, and
agrees to release the other from liability for, loss or damage to the extent
such loss or damage is covered by valid and collectible insurance in effect at
the time of such loss or damage or, in the event of self-insurance or a failure
to insure, would be covered by the insurance required to be maintained under
this Lease by the party seeking recovery.
19. Default.
(a) The following events shall be deemed to be events of
default by Tenant under this Lease: (i) Tenant shall fail to pay any installment
of Rent or any other charge or assessment against Tenant pursuant to the terms
hereof and such failure shall continue for five (5) days after written notice of
such failure of payment; provided, however, such notice and such grace period
shall be required to be provided by Landlord and shall be accorded Tenant, if
necessary, only two (2) times during any calendar year of the Lease Term, and an
event of default shall be deemed to have immediately occurred upon the third
(3rd) failure by Tenant to make a timely payment aforesaid within any calendar
year of the Lease Term; (ii) Tenant shall fail to comply with any term,
provision, covenant or warranty made under this Lease by Tenant, other than the
payment of the Rent or any other charge or assessment payable by Tenant, and
shall not cure such failure within thirty (30) days after notice thereof to
Tenant (provided, however, if such default is not capable of being cured within
such period, Tenant shall not be in default hereunder if Tenant commences to
cure such default and diligently proceeds to cure such default with such
period); (iii) Tenant or any guarantor of this Lease shall make a general
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts as they become due, or shall file a petition in bankruptcy, or
shall be adjudicated as bankrupt or insolvent, or shall file a petition in any
proceeding seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, or shall file an answer admitting or fail timely to contest
the material allegations of a petition filed against it in any such proceeding;
(iv) a proceeding is commenced against Tenant or any guarantor of this Lease
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, and such proceeding shall not have been dismissed within sixty (60)
days after the commencement thereof; (v) a receiver or trustee shall be
appointed for the Premises or for all or substantially all of the assets of
Tenant or of any guarantor of this Lease; (vi) Tenant shall abandon or vacate
all or any portion of the Premises or fail to take possession thereof as
provided in this Lease; (vii) Tenant shall do or permit to be done anything
which creates a lien upon the Premises or the Project and such lien is not
removed or discharged or bonded over within fifteen (15) days after the filing
thereof; (viii) Tenant shall fail to return a properly executed instrument to
Landlord in accordance with the provisions of
7
Article 27 hereof within the time period provided for such return following
Landlord's request for same as provided in Article 27 and after five (5) days
notice to Tenant; or (ix) Tenant shall fail to return a properly executed
estoppel certificate to Landlord in accordance with the provisions of Article 28
hereof within the time period provided for such return following Landlord's
request for same as provided in Article 28 and after five (5) days notice to
Tenant.
(b) Upon the occurrence of any of the aforesaid events of
default, Landlord shall have the option to pursue any one or more of the
following remedies without any notice or demand whatsoever: (i) terminate this
Lease, in which event Tenant shall immediately surrender the Premises to
Landlord and if Tenant fails to do so, Landlord may without prejudice to any
other remedy which it may have for possession or arrearages in Rent, enter upon
and take possession of the Premises and expel or remove Tenant and any other
person who may be occupying the Premises or any part thereof, by force, if
necessary, without being liable for prosecution or any claim of damages
therefor; Tenant hereby agreeing to pay to Landlord on demand the amount of all
loss and damage which Landlord may suffer by reason of such termination, whether
through inability to relet the Premises on satisfactory terms or otherwise; (ii)
terminate Tenant's right of possession (but not this Lease) and enter upon and
take possession of the Premises and expel or remove Tenant and any other person
who may be occupying the Premises or any part thereof, by entry (including the
use of force, if necessary), dispossessory suit or otherwise, without thereby
releasing Tenant from any liability hereunder, without terminating this Lease,
and without being liable for prosecution or any claim of damages therefor and,
if Landlord so elects, make such alterations, redecorations and repairs as, in
Landlord's judgment, may be necessary to relet the Premises, and Landlord may,
but shall be under no obligation to do so, relet the Premises or any portion
thereof in Landlord's or Tenant's name, but for the account of Tenant, for such
term or terms (which may be for a term extending beyond the Lease Term) and at
such rental or rentals and upon such other terms as Landlord may deem advisable,
with or without advertisement, and by private negotiations, and receive the rent
therefor, Tenant hereby agreeing to pay to Landlord the deficiency, if any,
between all Rent reserved hereunder and the total rental applicable to the Lease
Term hereof obtained by Landlord re-letting, and Tenant shall be liable for
Landlord's expenses in redecorating and restoring the Premises and all costs
incident to such re-letting, including broker's commissions and lease
assumptions, and in no event shall Tenant be entitled to any rentals received by
Landlord in excess of the amounts due by Tenant hereunder; or (iii) enter upon
the Premises by force, if necessary, without being liable for prosecution or any
claim of damages therefor, and do whatever Tenant is obligated to do under the
terms of this Lease; and Tenant agrees to reimburse Landlord on demand for any
expenses including, without limitation, reasonable attorneys' fees which
Landlord may incur in thus effecting compliance with Tenant's obligations under
this Lease and Tenant further agrees that Landlord shall not be liable for any
damages resulting to Tenant from such action, whether caused by negligence of
Landlord or otherwise. If this Lease is terminated by Landlord as a result of
the occurrence of an event of default, Landlord may declare due and payable
immediately an amount determined as follows: (x) the entire amount of Rent and
other charges and assessments which would have become due and payable during the
remainder of the Lease Term (including, without limitation, increases in Rent
pursuant to Article 8 hereof), discounted to present value by using a discount
factor of eight percent (8%) per annum, plus (y) all of Landlord's costs and
expenses (including, without limitation, Landlord's expenses in redecorating and
restoring the Premises and all costs relating to such reletting, including
broker's commissions and lease assumptions) reasonably incurred in connection
with or related to the reletting of the Premises, minus (z) the market rental
value of the Premises for the remainder of the Lease Term, discounted to present
value by using a discount factor of eight percent (8%) per annum. Such payment
shall not constitute a penalty or forfeiture but shall constitute liquidated
damages for Tenant's failure to comply with the terms and provisions of this
Lease (Landlord and Tenant agreeing that Landlord's exact damages in such event
are impossible to ascertain and that the amount set forth above is a reasonable
estimate thereof). For purposes of determining what could be collected by
Landlord by reletting under this subsection, Landlord is not required to relet
when other comparable space in the Building is available. The term "remaining
Lease Term" as used in this subsection shall mean the period which otherwise
would have (but for the termination of this Lease) constituted the balance of
the Lease Term from the date of the termination of this Lease.
(c) Pursuit of any of the foregoing remedies shall not
preclude pursuit of any other remedy herein provided or any other remedy
provided by law or at equity, nor shall pursuit of any remedy herein provided
constitute an election of remedies thereby excluding the later election of an
alternate remedy, or a forfeiture or waiver of any Rent or other charges and
assessments payable by Tenant and due to Landlord hereunder or of any damages
accruing to Landlord by reason of violation of any of the terms, covenants,
warranties and provisions herein contained. No reentry or taking possession of
the Premises by Landlord or any other action taken by or on behalf of Landlord
shall be construed to be an acceptance of a surrender of this Lease or an
election by Landlord to terminate this Lease unless written notice of such
intention is given to Tenant. Forbearance by Landlord to enforce one or more of
the remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default. In determining the amount of
loss or damage which Landlord may suffer by reason of termination of this Lease
or the deficiency arising by reason of any reletting of the Premises by Landlord
as above provided, allowance shall be made for the expense of repossession.
Tenant agrees to pay to Landlord all costs and expenses incurred by Landlord in
the enforcement of this Lease, including without limitation, the fees of
Landlord's attorneys as provided in Article 25 hereof.
20. Waiver of Breach. No waiver of any breach of the covenants,
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach thereof, and if any breach shall occur and
afterwards be compromised, settled or adjusted, this Lease shall continue in
full force and effect as if no breach had occurred.
21. Assignment and Subletting. Tenant shall not, without the prior
written consent of Landlord, assign this Lease or any interest herein or in the
Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or
sublet the Premises or any part thereof or permit the use of the Premises by any
party other than Tenant. Consent to one or more such transfers or subleases
shall not destroy or waive this provision, and all subsequent transfers and
subleases shall likewise be made only upon obtaining the prior written consent
of Landlord. Without limiting the foregoing prohibition, in no event shall
Tenant assign this Lease or any interest herein, whether directly, indirectly or
by operation of law, or sublet the Premises or any part thereof or permit the
use of the Premises or any part thereof by any party if such proposed
8
assignment, subletting or use would contravene any restrictive covenant
(including any exclusive use) granted to any other tenant of the Building or
would contravene the provisions of Article 13 of this Lease. Sublessees or
transferees of the Premises for the balance of the Lease Term shall become
directly liable to Landlord for all obligations of Tenant hereunder, without
relieving Tenant (or any guarantor of Tenant's obligations hereunder) of any
liability therefor, and Tenant shall remain obligated for all liability to
Landlord arising under this Lease during the entire remaining Lease Term
including any extensions thereof, whether or not authorized herein. If Tenant is
a partnership, a withdrawal or change, whether voluntary, involuntary or by
operation of law, of partners owning a controlling interest in the Tenant shall
be deemed a voluntary assignment of this Lease and subject to the foregoing
provisions. If Tenant is a corporation, any dissolution, merger, consolidation
or other reorganization of Tenant, or the sale or transfer of a controlling
interest in the capital stock of Tenant, whether in a single transaction or in a
series of transactions, shall be deemed a voluntary assignment of this Lease and
subject to the foregoing provisions. Landlord may, as a prior condition to
considering any request for consent to an assignment or sublease, require Tenant
to obtain and submit current financial statements of any proposed subtenant or
assignee and such other financial documentation relative to the proposed
subtenant or assignee as Landlord may reasonably require. In the event Landlord
consents to an assignment or sublease, Tenant shall pay to Landlord a fee to
cover Landlord's reasonable accounting costs plus any legal fees incurred by
Landlord as a result of the assignment or sublease. The consent of Landlord to
any proposed assignment or sublease may be withheld by Landlord in its sole and
absolute discretion, and in no event will Landlord be required to agree to any
subleasing of all or part of the Premises or any assignment of any rights of
Tenant under this Lease to any other tenant of the Building. Landlord may
require an additional security deposit from the assignee or subtenant as a
condition of its consent. Any consideration, in excess of the Rent and expenses
of Tenant and other charges and sums due and payable by Tenant under this Lease,
paid to Tenant by any assignee of this Lease for its assignment, or by any
sublessee under or in connection with its sublease, or otherwise paid to Tenant
by another party for use and occupancy of the Premises or any portion thereof,
shall be promptly remitted by Tenant to Landlord as additional rent hereunder
and Tenant shall have no right or claim thereto as against Landlord. No
assignment of this Lease consented to by Landlord shall be effective unless and
until Landlord shall receive an original assignment and assumption agreement, in
form and substance satisfactory to Landlord, signed by Tenant and Tenant's
proposed assignee, whereby the assignee assumes due performance of this Lease to
be done and performed for the balance of the then remaining Lease Term of this
Lease. No subletting of the Premises, or any part thereof, shall be effective
unless and until there shall have been delivered to Landlord an agreement, in
form and substance satisfactory to Landlord, signed by Tenant and the proposed
sublessee, whereby the sublessee acknowledges the right of Landlord to continue
or terminate any sublease, in Landlord's sole discretion, upon termination of
this Lease, and such sublessee agrees to recognize and attorn to Landlord in the
event that Landlord elects under such circumstances to continue such sublease.
Upon Landlord's receipt of a request by Tenant to assign this Lease or any
interest herein or in the Premises or to transfer or sublet the Premises or any
part thereof or permit the use of the Premises by any party other than Tenant,
Landlord shall have the right, at Landlord's option, to exercise in writing any
of the following options: (a) To terminate this Lease as to the portion of the
Premises proposed to be assigned or sublet; (b) to consent to the proposed
assignment or sublease, subject to the other terms and conditions set forth in
this Article 21; or (c) to refuse to consent to the proposed assignment or
sublease, which refusal shall be deemed to have been exercised unless Landlord
gives Tenant written notice providing otherwise within ten (10) days of Tenant's
request to sublease or assign.
Notwithstanding the foregoing, in no event shall any co-location of any
portion of the Premises be considered a sublease or assignment.
22. Destruction.
(a) If the Premises are damaged by fire or other casualty, the
same shall be repaired or rebuilt as speedily as practical under the
circumstances at the expense of Landlord, unless this Lease is terminated as
provided in this Article 22, and during the period required for restoration, a
just and proportionate part of Base Rental shall be abated until the Premises
are repaired or rebuilt.
(b) If the Premises are (i) damaged to such an extent that
repairs cannot, in Landlord's reasonable judgment, be completed within one
hundred eighty (180) days after the date of the casualty, or (ii) damaged or
destroyed as a result of a risk which is not insured under the insurance
policies required hereunder, or (iii) damaged or destroyed during the last
eighteen (18) months of the Lease Term, or (iv) if the Building is damaged in
whole or in part (whether or not the Premises are damaged) to such an extent
that the Building cannot, in Landlord's reasonable judgment, be operated
economically as an integral unit, then and in any such event Landlord may at its
option terminate this Lease by notice in writing to Tenant within sixty (60)
days after the day of such occurrence. If the Premises are damaged to such an
extent that repairs cannot, in Landlord's reasonable judgment, be completed
within one hundred eighty (180) days after the date of the casualty or if the
Premises are substantially damaged during the last eighteen (18) months of the
Lease Term, then in either such event Tenant may elect to terminate this Lease
by notice in writing to Landlord within sixty (60) days after the date of such
occurrence. Unless Landlord or Tenant elects to terminate this Lease as
hereinabove provided, this Lease will remain in full force and effect and
Landlord shall repair such damage at its expense to the extent required under
subparagraph (c) below as expeditiously as possible under the circumstances.
(c) If Landlord should elect or be obligated pursuant to
subparagraph (a) above to repair or rebuild because of any damage or
destruction, Landlord's obligation shall be limited to the original Building and
any other work or improvements which were originally performed or installed at
Landlord's expense as described in Exhibit "D" hereto or with the proceeds of
the Tenant Improvement Allowance. If the cost of performing such repairs exceeds
the actual proceeds of insurance paid or payable to Landlord on account of such
casualty, or if Landlord's mortgagee or the lessor under a ground or underlying
lease shall require that any insurance proceeds from a casualty loss be paid to
it, Landlord may terminate this Lease unless Tenant, within fifteen (15) days
after demand therefor, deposits with Landlord a sum of money sufficient to pay
the difference between the cost of repair and the proceeds of the insurance
available to Landlord for such purpose.
(d) In no event shall Landlord be liable for any loss or
damage sustained by Tenant by reason of casualties mentioned
9
hereinabove or any other accidental casualty.
23. Landlord's Lien. [INTENTIONALLY DELETED].
24. Services by Landlord. Landlord shall provide the Building Standard
Services described on Exhibit "E" attached hereto and by this reference made a
part hereof.
25. Attorneys' Fees and Homestead. If any Rent or other debt owing by
Tenant to Landlord hereunder is collected by or through an attorney-at-law,
Tenant agrees to pay any reasonable attorney's fees actually incurred by
Landlord. If Landlord uses the services of any attorney in order to secure
compliance with any other provisions of this Lease, to recover damages for any
breach or default of any other provisions of this Lease, or to terminate this
Lease or evict Tenant, and Landlord prevails in such action, Tenant shall
reimburse Landlord upon demand for any and all attorneys' fees and expenses so
incurred by Landlord. If Tenant uses the services of any attorney in order to
secure Landlord's compliance with any provisions of this Lease, to recover
damages for any breach or default by Landlord of any other provisions of this
Lease, and Tenant prevails in such action, Landlord shall reimburse Tenant upon
demand for any and all attorney's fees and expenses so incurred by Tenant.
Tenant waives all homestead rights and exemptions which it may have under any
law as against any obligation owing under this Lease, and assigns to Landlord
its homestead and exemptions to the extent necessary to secure payment and
performance of its covenants and agreements hereunder.
26. Time. Time is of the essence of this Lease and whenever a certain
day is stated for payment or performance of any obligation of Tenant or
Landlord, the same enters into and becomes a part of the consideration hereof.
27. Subordination and Attornment.
(a) Landlord represents and warrants to Tenant that the
Project, and each component thereof, is not, and at the Commencement Date will
not be, subject to or encumbered by any deed to secure debt, mortgage or other
similar security instrument. Tenant agrees on and subject to the terms and
conditions of this Article 27, to subordinate its interest hereunder to, and to
attorn to the holder of, any mortgage hereafter encumbering the Premises or the
Project or any component thereof, to all advances hereafter to be made upon the
security of such mortgage, to all amendments, modifications, renewals,
consolidations, extensions and restatements of such mortgage, and to any
replacements and substitutions for such mortgage, provided that Landlord
provides Tenant with a fully executed Subordination, Non-Disturbance and
Attornment Agreement in substantially the same form as Exhibit "H" attached
hereto from any ground lessors or mortgage holders of Landlord who later come
into existence with respect to the Project, or any component thereof, at any
time prior to the expiration of the Term (or any renewal) of the Lease in
consideration of, and as a condition precedent to, Tenant's agreement under this
Article 27.
(b) If any mortgagee elects to have this Lease superior to its
mortgage and signifies its election in the instrument creating its lien or lease
or by separate recorded instrument, then this Lease shall be superior to such
mortgage, as the case may be. The term "mortgage", as used in this Lease,
includes any deed to secure debt, deed of trust or security deed and any other
instrument creating a lien in connection with any other method of financing or
refinancing. The term "mortgagee", as used in this Lease, refers to the
holder(s) of the indebtedness secured by a mortgage.
28. Estoppel Certificates. Within ten (10) days after request therefor
by Landlord, Tenant agrees to execute and deliver to Landlord in recordable form
an estoppel certificate addressed to Landlord, any mortgagee or assignee of
Landlord's interest in, or purchaser of, the Premises or the Building or any
part thereof, certifying (if such be the case) that this Lease is unmodified and
is in full force and effect (and if there have been modifications, that the same
is in full force and effect as modified and stating said modifications); that
there are no defenses or offsets against the enforcement thereof or stating
those claimed by Tenant; and stating the date to which Rent and other charges
have been paid. Such certificate shall also include such other information as
may reasonably be required by such mortgagee, proposed mortgagee, assignee,
purchaser or Landlord. Any such certificate may be relied upon by Landlord, any
mortgagee, proposed mortgagee, assignee, purchaser and any other party to whom
such certificate is addressed.
29. No Estate. This Lease shall create the relationship of landlord and
tenant only between Landlord and Tenant and no estate shall pass out of
Landlord. Tenant shall have only an usufruct, not subject to levy and sale and
not assignable in whole or in part by Tenant except as herein provided.
30. Cumulative Rights. All rights, powers and privileges conferred
hereunder upon the parties hereto shall be cumulative to, but not restrictive
of, or in lieu of those conferred by law.
31. Holding Over. If Tenant remains in possession after expiration or
termination of the Lease Term with or without Landlord's written consent, Tenant
shall become a tenant-at-sufferance, and there shall be no renewal of this Lease
by operation of law. During the period of any such holding over, all provisions
of this Lease shall be and remain in effect except that the monthly rental shall
be one hundred fifty percent (150%) of the amount of Rent (including any
adjustments as provided herein) payable for the last full calendar month of the
Lease Term including renewals or extensions. The inclusion of the preceding
sentence in this Lease shall not be construed as Landlord's consent for Tenant
to hold over.
32. Surrender of Premises. Upon the expiration or other termination of
this Lease, Tenant shall quit and surrender to Landlord the Premises and every
part thereof and all alterations, additions and improvements thereto, broom
clean and in good condition and state of repair,
10
reasonable wear and tear only excepted. If Tenant is not then in default, Tenant
shall remove all personalty and equipment not attached to the Premises and all
trade fixtures which it has placed upon the Premises, and Tenant shall repair
any damage to the Premises caused by such removal. If Tenant shall fail or
refuse to remove all of Tenant's effects, personalty and equipment from the
Premises upon the expiration or termination of this Lease for any cause
whatsoever or upon Tenant being dispossessed by process of law or otherwise,
such effects, personalty and equipment shall be deemed conclusively to be
abandoned after five (5) days written notice from Landlord and may be
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord
without written notice to Tenant or any other party and without obligation to
account for them. Tenant shall pay Landlord on demand any and all expenses
incurred by Landlord in the removal of such property, including, without
limitation, the cost of repairing any damage to the Building or Project caused
by the removal of such property and storage charges (if Landlord elects to store
such property). The covenants and conditions of this Article 32 shall survive
any expiration or termination of this Lease.
33. Notices. All notices required or permitted to be given hereunder
shall be in writing and shall be sent by certified mail, return receipt
requested, in which case the same shall be deemed delivered three (3) business
days after deposit, postage prepaid in the U.S. Mail, (ii) sent by overnight
delivery using a nationally recognized overnight courier, in which case the same
shall be deemed delivered one (1) business day after deposit with such courier,
(iii) delivered personally; or (iv) sent by electronic transfer or facsimile, in
which case the same shall be deemed delivered on the date of the electronic
answerback receipt confirmation and followed by a delivery described in (ii) or
(iii) above. The above addresses of a party may be changed by such party by
written notice to the other party; provided, however, that no notice of a change
of address shall be effective until actual receipt of such notice.
34. Damage or Theft of Personal Property. All personal property brought
into the Premises by Tenant, or Tenant's employees, agents, or business
visitors, shall be at the risk of Tenant only, and Landlord shall not be liable
for theft thereof or any damage thereto occasioned by any act of co-tenants,
occupants, invitees or other users of the Building or any other person. Landlord
shall not at any time be liable for damage to any property in or upon the
Premises, which results from gas, smoke, water, rain, ice or snow which issues
or leaks from or forms upon any part of the Building or from the pipes or
plumbing work of the same, or from any other place whatsoever except to the
extent caused by the negligence or willful misconduct of Landlord.
35. Eminent Domain.
(a) If all or part of the Premises shall be taken for any
public or quasi-public use by virtue of the exercise of the power of eminent
domain or by private purchase in lieu thereof, this Lease shall terminate as to
the part so taken as of the date of taking, and, in the case of a partial
taking, either Landlord or Tenant shall have the right to terminate this Lease
as to the balance of the Premises by written notice to the other within thirty
(30) days after such date; provided, however, that a condition to the exercise
by Tenant of such right to terminate shall be that the portion of the Premises
taken shall be of such extent and nature as substantially to handicap, impede or
impair Tenant's use of the balance of the Premises. If title to so much of the
Project is taken that a reasonable amount of reconstruction thereof will not in
Landlord's sole reasonable discretion result in the Building being a practical
improvement and reasonably suitable for use for the purpose for which it is
designed, then this Lease shall terminate on the date that the condemning
authority actually takes possession of the part so condemned or purchased.
(b) If this Lease is terminated under the provisions of this
Article 35, Rent shall be apportioned and adjusted as of the date of
termination. Tenant shall have no claim against Landlord or against the
condemning authority for the value of any leasehold estate or for the value of
the unexpired Lease Term provided that the foregoing shall not preclude any
claim that Tenant may have against the condemning authority for the unamortized
cost of leasehold improvements, to the extent the same were installed at
Tenant's expense (and not with the proceeds of the Tenant Improvement
Allowance), or for loss of business, moving expenses or other consequential
damages, in accordance with subparagraph (d) below.
(c) If there is a partial taking of the Project and this Lease
is not thereupon terminated under the provisions of this Article 35, then this
Lease shall remain in full force and effect, and Landlord shall, within a
reasonable time thereafter, repair or reconstruct the remaining portion of the
Building to the extent necessary to make the same a complete architectural unit;
provided, that in complying with its obligations hereunder, Landlord shall not
be required to expend more than the net proceeds of the condemnation award which
are paid to Landlord. Upon any such partial taking, Landlord shall have the
right to reduce the Operating Expense Base Amount by an amount equal to the
product of (x) the amount of property tax savings to Landlord arising from such
partial taking, as determined by Landlord in its sole but reasonable discretion,
divided by the number of square feet of Rentable Office Floor Area of the
Building, multiplied by (y) the number of square feet of Rentable Floor Area of
the Premises.
(d) All compensation awarded or paid to Landlord upon a total
or partial taking of the Premises or the Project shall belong to and be the
property of Landlord without any participation by Tenant. Nothing herein shall
be construed to preclude Tenant from prosecuting any claim directly against the
condemning authority for loss of business, for damage to, and cost of removal
of, trade fixtures, furniture and other personal property belonging to Tenant,
and for the unamortized cost of leasehold improvements to the extent the same
were installed at Tenant's expense (and not with the proceeds of the Tenant
Improvement Allowance); provided, however, that no such claim shall diminish or
adversely affect Landlord's award.
(e) Notwithstanding anything to the contrary contained in this
Article 35, if, during the Lease Term, the use or occupancy of any part of the
Project or the 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, this Lease shall be and remain unaffected by such
taking or appropriation and
11
Rent shall xxxxx during such period. 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 Lease Term, 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 Lease
Term.
36. Parties. The term "Landlord", as used in this Lease, shall include
Landlord and its successors and assigns. It is hereby covenanted and agreed by
Tenant that should Landlord's interest in the Premises cease to exist for any
reason during the Lease Term, then notwithstanding the happening of such event,
this Lease nevertheless shall remain in full force and effect, and Tenant hereby
agrees to attorn to the then owner of the Premises. The term "Tenant" shall
include Tenant and its heirs, legal representatives and successors, and shall
also include Tenant's assignees and sublessees, if this Lease shall be validly
assigned or the Premises sublet for the balance of the Lease Term or any
renewals or extensions thereof. In addition, Landlord and Tenant covenant and
agree that Landlord's right to transfer or assign Landlord's interest in and to
the Premises, or any part or parts thereof, shall be unrestricted, and that in
the event of any such transfer or assignment by Landlord which includes the
Premises, Landlord's obligations to Tenant hereunder shall cease and terminate,
and Tenant shall look only and solely to Landlord's assignee or transferee for
performance thereof.
37. Liability of Landlord/Tenant.
(a) Tenant hereby indemnifies Landlord from and agrees to hold
Landlord harmless against, any and all liability, loss, cost, damage or expense,
including, without limitation, court costs and reasonable attorneys' fees,
imposed on Landlord by any person whomsoever, caused by the negligence or
willful misconduct of Tenant, or any of its employees and for its negligence in
selecting or monitoring the actions of its contractors, agents, subtenants or
invitees, or otherwise occurring in connection with any default of Tenant
hereunder. The provisions of this Article 37 shall survive any termination of
this Lease.
(b) Landlord hereby indemnifies Tenant from and agrees to hold
Tenant harmless against, any and all liability, loss, cost, damage or expense,
including, without limitation, court costs and reasonable attorneys' fees
actually incurred, imposed on Tenant by any person whomsoever, caused by the
negligence or willful misconduct of Landlord or any of its employees or for its
negligence in selecting or monitoring the actions or its agents, contractors or
invitees, or otherwise occurring in connection with any default of Landlord
hereunder.
(c) The provisions of this Article 37 shall survive the
expiration or any termination of this Lease.
38. Relocation of the Premises. [INTENTIONALLY DELETED].
39. Force Majeure. In the event of strike, lockout, labor trouble,
civil commotion, Act of God, or any other cause beyond a party's control
(collectively "force majeure") resulting in Landlord's inability to supply the
services or perform the other obligations required of Landlord hereunder, this
Lease shall not terminate and Tenant's obligation to pay Rent and all other
charges and sums due and payable by Tenant shall not be affected or excused and
Landlord shall not be considered to be in default under this Lease. If, as a
result of force majeure, Tenant is delayed in performing any of its obligations
under this Lease, other than Tenant's obligation to pay Rent and all other
charges and sums payable by Tenant hereunder, Tenant's performance shall be
excused for a period equal to such delay and Tenant shall not during such period
be considered to be in default under this Lease with respect to the obligation,
performance of which has thus been delayed. 40. Landlord's Liability. Landlord
shall have no personal liability with respect to any of the provisions of this
Lease. If Landlord is in default with respect to its obligations under this
Lease, Tenant shall look solely to the equity of Landlord in and to the Building
and the Land and the proceeds thereof for satisfaction of Tenant's remedies, if
any. It is expressly understood and agreed that Landlord's liability under the
terms of this Lease shall in no event exceed the amount of its interest in and
to said Land and Building. In no event shall any partner of Landlord nor any
joint venturer in Landlord, nor any officer, director or shareholder of Landlord
or any such partner or joint venturer of Landlord be personally liable with
respect to any of the provisions of this Lease.
41. Landlord's Covenant of Quiet Enjoyment. Provided Tenant performs
the terms, conditions and covenants of this Lease, and subject to the terms and
provisions hereof, Landlord covenants and agrees to take all necessary steps to
secure and to maintain for the benefit of Tenant the quiet and peaceful
possession of the Premises, for the Lease Term, without hindrance, claim or
molestation by Landlord or any other person lawfully claiming under Landlord.
42. Security Deposits.
(a) As security for Tenant's obligations to take possession of
the Premises in accordance with the terms of this Lease and to comply with all
of Tenant's covenants, warranties and agreements hereunder, Tenant shall deposit
with Landlord the sum set forth in Article 1(m(i) above on the date Tenant
executes and delivers this Lease to Landlord. Such amount shall be applied by
Landlord, without interest, to the first monthly installment(s) of Base Rental
as they become due hereunder. In the event Tenant fails to take possession of
the Premises as aforesaid, said sum shall be retained by Landlord for
application in reduction, but not in satisfaction, of damages suffered by
Landlord as a result of such breach by Tenant.
(b) As additional security for the faithful performance by
Tenant throughout the Lease Term, and any extensions or renewals thereof, of all
the terms and conditions of the Lease on the part of Tenant to be performed,
Tenant shall deposit with Landlord the sum set forth in Article 1(m)(ii) above
on the date Tenant executes and delivers this Lease to Landlord. Such amount
shall be returned to
12
Tenant, without interest, within twenty (20) days after the day set for the
expiration of the Lease Term, or any extension or renewal thereof, provided
Tenant has fully and faithfully observed and performed all of the terms,
covenants, agreements, warranties and conditions hereof on its part to be
observed and performed. Landlord shall have the right to apply all or any part
of said deposit toward the cure of any default of Tenant. If all or any part of
said security deposit is so applied by Landlord, then Tenant shall immediately
pay to Landlord an amount sufficient to return said security deposit to the
balance on deposit with Landlord prior to said application.
(c) In the event of a sale or transfer of Landlord's interest
in the Premises or the Building or a lease by Landlord of the Building, Landlord
shall have the right to transfer the within described security deposits to the
purchaser or lessor, as the case may be, and Landlord shall be relieved of all
liability to Tenant for the return of such security deposits. Tenant shall look
solely to the new owner or lessor for the return of said security deposits. The
security deposits shall not be mortgaged, assigned or encumbered by Tenant. In
the event of a permitted assignment under this Lease by Tenant, the security
deposits shall be held by Landlord as a deposit made by the permitted assignee
and Landlord shall have no further liability with respect to the return of said
security deposits to the original Tenant.
(d) Neither Landlord nor its agents shall be required to keep
the security deposits separate from their general accounts, it being agreed that
the security deposits may be commingled with other funds of Landlord or of its
agents. It is further agreed and acknowledged by Tenant that Landlord or its
agents shall have the right to deposit the security deposits in an
interest-bearing account, and all interest accrued on the security deposits
shall belong to Landlord and will be retained by Landlord as its property.
43. Hazardous Substances. Tenant hereby covenants and agrees that
Tenant shall not cause or permit any "Hazardous Substances" (as hereinafter
defined) to be generated, placed, held, stored, used, located or disposed of at
the Project or any part thereof, except for Hazardous Substances as are commonly
and legally used or stored as a consequence of using the Premises for general
office and administrative purposes, but only so long as the quantities thereof
do not pose a threat to public health or to the environment or would necessitate
a "response action", as that term is defined in CERCLA (as hereinafter defined),
and so long as Tenant strictly complies or causes compliance with all applicable
governmental rules and regulations concerning the use or production of such
Hazardous Substances. For purposes of this Article 43, "Hazardous Substances"
shall mean and include those elements or compounds which are contained in the
list of Hazardous Substances adopted by the United States Environmental
Protection Agency (EPA) or the list of toxic pollutants designated by Congress
or the EPA which are defined as hazardous, toxic, pollutant, infectious or
radioactive by any other federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to or imposing liability
(including, without limitation, strict liability) or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material, as
now or at any time hereinafter in effect (collectively "Environmental Laws").
Tenant hereby agrees to indemnify Landlord and hold Landlord harmless from and
against any and all losses, liabilities, including strict liability, damages,
injuries, expenses, including reasonable attorneys' fees, costs of settlement or
judgment and claims of any and every kind whatsoever paid, incurred or suffered
by, or asserted against, Landlord by any person, entity or governmental agency
for, with respect to, or as a direct or indirect result of, the presence in, or
the escape, leakage, spillage, discharge, emission or release from, the Premises
of any Hazardous Substances caused by Tenant (including, without limitation, any
losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorneys' fees, costs of any settlement or judgment or
claims asserted or arising under the Comprehensive Environmental Response,
Compensation and Liability Act ["CERCLA"], any so-called federal, state or local
"Superfund" or "Superlien" laws or any other Environmental Law); provided,
however, that the foregoing indemnity is limited to matters arising solely from
Tenant's violation of the covenant contained in this Article. The obligations of
Tenant under this Article shall survive any expiration or termination of this
Lease. Landlord acknowledges that Tenant intends to keep gel cell batteries in
the Premises and intends to store and use diesel fuel in customary quantities in
order to operate Tenant's generator. Landlord agrees that the storage and use of
such items shall not constitute a violation of this paragraph 43 of the Lease.
Landlord represents that to the best of Landlord's knowledge the
Premises, the Building and the real property on which the Building is located
are free from asbestos and other Hazardous Substances and that, to the best of
Landlord's knowledge, there has never been environmental pollution on the real
property on which the Building is located. A Phase I Environmental Audit Report
on the Building and said real property was prepared in 1992 and is available to
Tenant for review. Tenant is hereby notified of a tenant's material testing lab
located on Level "C" (Loading Decks) of the Building; the lab is leased and
operated by a tenant in the Building. Landlord shall promptly remediate any
Hazardous Substances in the Project, Building or Premises and not released by
Tenant.
44. Submission of Lease. The submission of this Lease for examination
does not constitute an offer to lease and this Lease shall be effective only
upon execution hereof by Landlord and Tenant and upon execution of any required
Guaranty Agreement annexed hereto and incorporated herein as Exhibit "F".
45. Severability. If any clause or provision of the Lease is illegal,
invalid or unenforceable under present or future laws, the remainder of this
Lease shall not be affected thereby, and in lieu of each clause or provision of
this Lease which is illegal, invalid or unenforceable, there shall be added as a
part of this Lease a clause or provision as nearly identical to the said clause
or provision as may be legal, valid and enforceable.
46. Entire Agreement. This Lease contains the entire agreement of the
parties and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein shall be of any force or
effect. No failure of Landlord to exercise any power given Landlord hereunder,
or to insist upon strict compliance by Tenant with any obligation of Tenant
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver of Landlord's right to demand exact compliance
with the
13
terms hereof. This Lease may not be altered, waived, amended or extended except
by an instrument in writing signed by Landlord and Tenant. This Lease is not in
recordable form, and Tenant agrees not to record or cause to be recorded this
Lease or any short form or memorandum thereof.
47. Headings. The use of headings herein is solely for the convenience
of indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of this Lease.
48. Broker. Broker(s) [as defined in Article 1(p)] is(are) entitled to
a leasing commission from Landlord by virtue of this Lease, which leasing
commission shall be paid by Landlord to Broker(s) in accordance with the terms
of a separate agreement between Landlord and Broker(s). Tenant hereby authorizes
Broker(s) and Landlord to identify Tenant as a tenant of the Building and to
state the amount of space leased by Tenant in advertisements and promotional
materials relating to the Building. Tenant represents and warrants to Landlord
that [except with respect to any Broker(s) identified in Article 1(p)
hereinabove, which has(have) acted as agent for Tenant (and not for Landlord) in
this transaction] no broker, agent, commission salesperson, or other person has
represented Tenant in the negotiations for and procurement of this Lease and of
the Premises and that [except with respect to any Broker(s) identified in
Article 1(p) hereinabove] no commissions, fees or compensation of any kind are
due and payable in connection herewith to any broker, agent, commission
salesperson or other person as a result of any act or agreement of Tenant.
Tenant agrees to indemnify and hold Landlord harmless from all loss, liability,
damage, claim, judgment, cost or expense (including reasonable attorneys' fees
and court costs) suffered or incurred by Landlord as a result of a breach by
Tenant of the representation and warranty contained in the immediately preceding
sentence or as a result of Tenant's failure to pay commissions, fees or
compensation due to any broker who represented Tenant, whether or not disclosed,
or as a result of any claim for any fee, commission or similar compensation with
respect to this Lease made by any broker, agent or finder [other than the
Broker(s) identified in Article 1(p) hereinabove] claiming to have dealt with
Tenant, whether or not such claim is meritorious. The parties hereto do hereby
acknowledge and agree that COMPASS Management and Leasing, Inc., a subsidiary of
Equitable Real Estate Investment Management, Inc., has acted as agent for
Landlord in this transaction and shall be paid a commission by Landlord in
connection with this transaction pursuant to the terms of a separate written
commission agreement. COMPASS Management and Leasing, Inc. has not acted as
agent for Tenant in this transaction. Landlord hereby warrants and represents to
Tenant that Landlord has not dealt with any broker, agent or finder other than
COMPASS Management and Leasing, Inc. in connection with this Lease, and,
Landlord hereby agrees to indemnity and hold Tenant harmless from and against
any and all loss, damage, liability, claim, judgment, cost or expense
(including, but not limited to, reasonable attorneys' fees and court costs) that
may be incurred or suffered by Tenant because of any claim for any fee,
commission or similar compensation with respect to this Lease made by any
broker, agent or finder claiming to have represented Landlord.
49. Governing Law. The laws of the State of Georgia shall govern the
validity, performance and enforcement of this Lease.
50. Authority. If Tenant executes this Lease as a corporation, each of
the persons executing this Lease on behalf of Tenant does hereby personally
represent and warrant that Tenant is a duly incorporated or a duly qualified (if
a foreign corporation) corporation and is fully authorized and qualified to do
business in the State in which the Premises are located, that the corporation
has full right and authority to enter into this Lease, and that each person
signing on behalf of the corporation is an officer of the corporation and is
authorized to sign on behalf of the corporation. If Tenant signs as a
partnership, joint venture or sole proprietorship or other business entity (each
being herein called "Entity"), each of the persons executing on behalf of Tenant
does hereby covenant and warrant that Tenant is a duly authorized and existing
Entity, that Tenant has full right and authority to enter into this Lease, that
all persons executing this Lease on behalf of the Entity are authorized to do so
on behalf of the Entity, and that such execution is fully binding upon the
Entity and its partners, joint venturers or principal, as the case may be. Upon
the request of Landlord, Tenant shall deliver to Landlord documentation
satisfactory to Landlord evidencing Tenant's compliance with this Article, and
Tenant agrees to promptly execute all necessary and reasonable applications or
documents as reasonably requested by Landlord, required by the jurisdiction in
which the Premises is located, to permit the issuance of necessary permits and
certificates for Tenant's use and occupancy of the Premises.
51. Joint and Several Liability. If Tenant comprises more than one
person, corporation, partnership or other entity, the liability hereunder of all
such persons, corporations, partnerships or other entities shall be joint and
several.
52. Special Stipulations. The special stipulations attached hereto as
Exhibit "G" are hereby incorporated herein by this reference as though fully set
forth (if none, so state). To the extent the special stipulations conflict with
or are inconsistent with the foregoing provisions of this Lease or any exhibit
to this Lease, the special stipulations shall control.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the day, month and year first above written.
LANDLORD:
THE EQUITABLE LIFE ASSURANCE SOCIETY OF
THE UNITED STATES
Date executed by Landlord:
2-5-99
------------ By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxx X. Xxxxxx
Title: Investment Officer
--------------------------
14
[SEAL]
TENANT:
[Corporate tenant]
FOCAL COMMUNICATIONS CORPORATION, a
Delaware corporation
Date executed by Tenant:
Feb 2nd 1999
------------ By: /s/ Xxxxx ????????????
-------------------------------
Title: Executive Vice President
----------------------------
Attest: /s/ Xxxxxx ???????
---------------------------
Title: Administrative Assistant
----------------------------
[CORPORATE SEAL]
15
RULES AND REGULATIONS
---------------------
In the event of a conflict between the Rules and Regulations and the
Lease, the Lease shall control.
1. No sign, picture, advertisement or notice visible from the exterior of
the Premises shall be installed, affixed, inscribed, painted or
otherwise displayed by Tenant on any part of the Premises or the
Building unless the same is first approved by Landlord. Any such sign,
picture, advertisement or notice approved by Landlord shall be painted
or installed for Tenant at Tenant's cost by Landlord or by a party
approved by Landlord. No awnings, curtains, blinds, shades or screens
shall be attached to or hung in, or used in connection with any window
or door of the Premises without the prior consent of Landlord,
including approval by Landlord of the quality, type, design, color and
manner of attachment. Landlord will not unreasonably withhold its
consent to Tenant's covering certain exterior windows in the Premises.
2. Tenant agrees that its use of electrical current shall never exceed the
capacity of existing feeders, risers or wiring installation.
3. The Premises shall not be used for storage of merchandise held for sale
to the general public. Tenant shall not do or permit to be done in or
about the Premises or Building anything which shall increase the rate
of insurance on said Building or obstruct or interfere with the rights
of other lessees of Landlord or annoy them in any way, including, but
not limited to, using any musical instrument, making loud or unseemly
noises, or singing, etc. The Premises shall not be used for sleeping
or lodging. No cooking or related activities shall be done or
permitted by Tenant in the Premises except with permission of Landlord.
Tenant will be permitted to use for its own employees within the
Premises a small microwave oven and Underwriters' Laboratory approved
equipment for brewing coffee, tea, hot chocolate and similar beverages,
provided that such use is in accordance with all applicable federal,
state, county and city laws, codes, ordinances, rules and regulations.
No vending machines of any kind will be installed, permitted or used on
any part of the Premises without the prior consent of Landlord. No
part of said Building or the Premises shall be used for gambling,
immoral or other unlawful purposes. No intoxicating beverage shall be
sold in said Building or the Premises without the prior written consent
of Landlord. No area outside of the Premises shall be used for storage
purposes at any time.
4. Tenant must obtain Landlord's approval of all contractors, contractors'
representatives, major sub-contractors and installation technicians
rendering any service on or to the Premises for Tenant, before
performance of any contractual service. This provision shall apply to
all work performed on or about the Premises, including without
limitation installation of telephones, facsimile equipment, electrical
devices and attachments and installations of any nature affecting
floors, walls, woodwork, trim, windows, ceilings and equipment or any
other physical portion of the Premises or the Building, and any
contractor or sub-contractor performing work in the Premises or the
Building for Tenant shall be subject to these Rules and Regulations.
Any alterations, additions or improvements to the Premises made by
Tenant must conform to all applicable governmental codes and
regulations.
5. No birds or animals of any kind shall be brought into the Building
(other than trained seeing-eye dogs required to be used by the visually
impaired). No bicycles, motorcycles or other motorized vehicles shall
be brought into the Building.
6. The sidewalks, entrances, passages, corridors, halls, elevators and
stairways in the Building shall not be obstructed by Tenant or used for
any purposes other than those for which same were intended as ingress
and egress. No windows, floors or skylights that reflect or admit light
into the Building shall be covered or obstructed by Tenant. Toilets,
wash basins and sinks shall not be used for any purpose other than
those for which they were constructed, and no sweeping, rubbish or
other obstructing or improper substances shall be thrown therein. Any
damage resulting to them, or to heating apparatus, from misuse by
Tenant or its employees, shall be borne by Tenant.
7. Only three (3) keys for the Premises will be furnished to Tenant
without charge. Landlord may make a reasonable charge for any
additional keys. Only one (1) access card for the Building will be
furnished to Tenant without charge. Landlord may make a reasonable
charge for any additional access cards. No additional lock, latch or
bolt of any kind shall be placed upon any door nor shall any changes be
made in existing locks without written consent of Landlord and Tenant
shall in each such case furnish Landlord with a key for any such lock.
At the termination of the Lease, Tenant shall return to Landlord all
keys and access cards furnished to Tenant by Landlord, or otherwise
procured by Tenant, and in the event of loss of any keys or access
cards so furnished, Tenant shall pay to Landlord the cost thereof.
8. Landlord shall have the right to prescribe the weight, position and
manner of installation of heavy articles such as safes, machines,
batteries, generators and other equipment brought into the Building. No
safes, furniture, boxes, large parcels or other kind of freight shall
be taken to or from the Premises or allowed in any elevator, hall or
corridor except at times allowed by Landlord. No deliveries shall be
made in passenger elevators. Tenant shall make prior arrangements with
Landlord for use of freight elevator for the purpose of transporting
such articles and such articles may be taken in or out of said Building
only between or during such hours as may be arranged with and
designated by Landlord. The persons employed to move the same must be
approved by Landlord. No hand trucks, except those equipped with
rubber tires and side guards, shall be permitted in the Building. No
hand trucks shall be permitted in any passenger elevator. In no event
shall any weight be placed upon any floor by Tenant so as to exceed the
design conditions of the floors at the applicable locations.
Rule and Regulations
--------------------
Page 1 of 3
9. Tenant shall not cause or permit any gases, liquids or odors to be
produced upon or permeate from the Premises, and no flammable,
combustible or explosive fluid, chemical, substance or item (including,
without limitation, natural Christmas trees) shall be brought into the
Building. No acids, vapors or other harmful materials shall be
discharged or permitted to be discharged into the waste lines, vents or
flues of the Building. The water closets and other water fixtures shall
not be used for any purpose other than those for which they were
designed or constructed. No person shall waste water by interfering
with the faucets or otherwise.
10. Every person, including Tenant, its employees and visitors, entering
and leaving the Building may be questioned by a watchman as to that
person's business therein and may be required to sign such person's
name on a form provided by Landlord for registering such person;
provided that, except for emergencies or other extraordinary
circumstances, such procedures shall not be required between the hours
of 7:00 a.m. and 6:00 p.m., on all days except Saturdays, Sundays and
Holidays. Landlord may also implement a card access security system to
control access during such other times. Landlord shall not be liable
for excluding any person from the Building during such other times, or
for admission of any person to the Building at any time, or for damages
or loss for theft resulting therefrom to any person, including Tenant.
11. Tenant's moving in or out of the Building of furniture or office
supplies and equipment, or dispatch or receipt of any bulky merchandise
or materials, which require use of elevators or stairways or movement
through the Building entrances or lobby, shall be restricted to hours
designated by Landlord. Tenant must provide Landlord with at least two
(2) business days' prior written notice of Tenant's desire to move any
such furniture, supplies or equipment. All such movement shall be
under supervision of Landlord and carried out in a manner which has
been prearranged between Tenant and Landlord before performance. Such
prearrangement will include a determination by Landlord of the time,
method and routing of such movement and limitations imposed by safety
or other concerns, which determination may prohibit any article,
equipment or any other item from being brought into the Building.
12. Unless agreed to in writing by Landlord, Tenant shall not employ any
person other than Landlord's contractors for the purpose of cleaning
and taking care of the Premises. Cleaning service will not be furnished
on nights when rooms are occupied after 6:30 p.m., unless, by agreement
in writing, service is extended to a later hour for specifically
designated rooms. Landlord shall not be responsible for any loss,
theft, mysterious disappearance of or damage to, any property, however
occurring. Only persons authorized by Landlord may furnish ice,
drinking water, towels, and other similar services within the Building
and only at hours and under regulations fixed by Landlord.
13. No connection shall be made to the electric wires or gas or electric
fixtures, without the consent in writing on each occasion of Landlord.
All glass, locks and trimmings in or upon the doors and windows of the
Premises shall be kept whole and in good repair. Tenant shall not
injure, overload or deface the Building, the woodwork or the walls of
the Premises, nor permit any noisome, noxious, noisy or offensive
business.
14. If Tenant requires wiring for a xxxx or buzzer system, such wiring
shall be done by the electrician of Landlord only, and no outside
wiring persons shall be allowed to do work of this kind unless by the
written permission of Landlord or its representatives. If telegraph or
telephonic service is desired, the wiring for same shall be approved by
Landlord, and no boring or cutting for wiring shall be done unless
approved by Landlord or its representatives, as stated. The electric
current shall not be used for power or heating unless written
permission to do so shall first have been obtained from Landlord or its
representatives in writing, and at an agreed cost to Tenant.
15. Tenant and its employees and invitees shall observe and obey all
parking and traffic regulations as imposed by Landlord. All vehicles
shall be parked only in areas designated therefor by Landlord. Parking
in a parking garage or area shall be in compliance with all parking
rules and regulations including any sticker or other identification
system established by Landlord. Failure to observe the rules and
regulations shall terminate the rights of any Tenant's employees,
agents, guests or invitees so violating said rules and regulations to
use the parking garage or area and subject the vehicle in violation of
the parking rules and regulations to removal and impoundment. No
termination of parking privileges or removal or impoundment of a
vehicle shall create any liability on Landlord or be deemed to
interfere with Tenant's right to possession of the Premises. Vehicles
must be parked entirely within the stall lines, and all directional
signs, arrows and posted speed limits must be observed. Parking is
prohibited in areas not striped for parking, in aisles where "No
Parking" signs are posted, on ramps, in cross hatched areas, and in
other areas as may be designated by Landlord. Parking stickers or
other forms of identification supplied by Landlord shall remain the
property of Landlord and not the property of Tenant and are not
transferable. Every person is required to park and lock his or her
vehicle. All responsibility for damage to vehicles or persons is
assumed by the owner of the vehicle or the driver thereof.
16. Canvassing, peddling, soliciting and distribution of handbills or any
other written materials in the Building are prohibited, and Tenant
shall cooperate to prevent the same.
17. Landlord shall have the right to change the name of the Building and to
change the street address of the Building, provided that in the case of
a change in the street address, Landlord shall give Tenant not less
than 180 days' prior notice of the change, unless the change is
required by governmental authority. Tenant shall not use the name of
the Building or of Landlord in any advertising (except to identify the
location of Tenant's business), without the prior written consent of
Landlord.
Rule and Regulations
--------------------
Page 2 of 3
18. The directory of the Building will be provided for the display of the
name and location of the tenants. Any additional name which Tenant
shall desire to place upon said directory must first be approved by
Landlord, and if so approved, a reasonable charge will be made
therefor.
19. Smoking is prohibited in the main Building lobby, public corridors,
elevator lobbies, service elevator vestibules, parking levels,
stairwells, restrooms and other common areas within the Building.
20. The employees, licensees and guests of Tenant shall wear appropriate
attire at all times in or about the Premises and the Building. This
shall not prevent Tenant from having "casual days," but any such casual
dress shall be appropriate for an office environment and shall not
disrupt the decorum and professional atmosphere of the Building.
21. Tenant shall not contract for placement, installation or maintenance on
the Premises of any vending machine for the sale of food or beverages,
without having first provided the restaurant operator presently located
within the Building an opportunity to negotiate with Tenant for the
right to place such machines in the Premises and without having first
obtained the written consent of Landlord. Tenant shall enter into such
negotiations with any such restaurant operator in good faith.
Notwithstanding the foregoing, Tenant shall not place or have placed on
the Premises any vending machine for the sale of sandwich products.
22. No person shall disturb occupants of the Building by the use of any
radios, record players, tape recorders, musical instruments or similar
equipment, the making of unseemly noises or any unreasonable use, nor
in any manner create any nuisance.
23. Tenant will comply with all reasonable security measures instituted by
Landlord so as to provide the necessary security for the Premises and
the Building, it being acknowledged that tenants of the Building may
from time to time have differing needs with regard to security and that
reasonable security measures applicable to some or all tenants may be
instituted by Landlord in its attempt to cooperate in meeting such
needs. All personal property (including but not limited to automobiles
and their contents) and money brought into the Building or on the
Premises by Tenant, its agents, employees, invitees, visitors and
contractors shall be at Tenant's sole risk except with respect to
matters arising out of the negligence or willful misconduct of the
direct employees of Landlord or Landlord's managing agent or if
Landlord was negligent in its hiring or failing to discharge the
security company. Provided Landlord uses due care in hiring or
discharging the security company Landlord shall have no liability
arising out of the actions of the employees of the security company or
out of the failure of such security company or its employees to provide
security services as described herein.
24. Tenant and its employees, agents, contractors, licensees and invitees
shall comply with reasonable rules and regulations promulgated by
Landlord for the Building parking areas. Landlord agrees to apply and
enforce such rules and regulations uniformly as to all tenants of the
Building. If Tenant or any of Tenant's employees, agents, contractors,
licensees, invitees, guests or visitors fail to comply with such
reasonable rules and regulations, Landlord, after giving written notice
to Tenant of such violation, shall have the right to remove such
vehicle at Tenant's expense.
25. All requests for after hours air conditioning must be submitted in
writing to Landlord by 12:00 p.m. on the day desired for weekday
requests and by 12:00 p.m. on Friday for weekend requests.
26. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular lessee, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor
of any other lessee, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the other lessees of
the Building.
27. These Rules and Regulations are supplemental to, and shall not be
construed to in any way modify or amend, in whole or in part, the
terms, covenants, agreements and conditions of any lease of any
premises in the Building.
28. Landlord reserves the right to make such other and reasonable Rules and
Regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building and the Land, and for the
preservation of good order therein.
29. Landlord reserves the right to require Tenant to temporarily evacuate
the Premises and the Project, or temporarily restrict Tenant's access
thereto, if Landlord, in its sole discretion, deems such action
necessary to protect or otherwise safeguard the health or safety of
Tenant, any other Building tenant, or any other Building occupant from
any threat or perceived threat of any kind made upon the Building, the
Project or any tenant of Landlord. Any such action taken by Landlord
shall not be deemed an actual or constructive eviction of Tenant, a
breach of the covenant of quiet enjoyment or an interruption of
Tenant's business, and Tenant shall not be entitled to any abatement of
rent, loss or profits or damages for any injury or inconvenience
occasioned thereby.
Rule and Regulations
--------------------
Page 3 of 3
EXHIBIT "A"
-----------
LEGAL DESCRIPTION
-----------------
Tract I
-------
ALL THAT TRACT OR PARCEL OF LAND lying and being in the City of Atlanta in Land
Xxx 00, 00xx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and being more particularly
described as follows:
BEGINNING at a P.K. nail at the intersection of the northern right-of-way line
of Xxxxxx Street (60-foot right-of-way) and the eastern right-of-way line of
Techwood Drive (60-foot right-of-way) and running along said Techwood Drive
right-of-way line North 00 degrees 44' 41" East, a distance of 407.09 feet to a
point at the intersection of said eastern right-of-way line of Techwood Drive
and the southern right-of-way line of Xxxxx Street (60-foot right-of-way);
thence leaving said eastern right-of-way line of Techwood Drive and running
along said southern right-of-way line of Xxxxx Street the following courses and
distances: South 89 degrees 31' 21" East, a distance of 185.21 feet to a point;
South 89 degrees 30' 00" East, a distance of 75.23 feet to an iron pin; and
South 89 degrees 40' 44" East, a distance of 124.77 feet to a point at the
intersection of said Xxxxx Street southern right-of-way line with the western
right-of-way line of Xxxxxxxx Street (60-foot right-of-way); thence leaving said
southern right-of-way line of Xxxxx Street and running along said western
right-of-way line of Xxxxxxxx Street South 00 degrees 31' 33" West, a distance
of 145.22 feet to an iron pin; thence leaving said Xxxxxxxx Street right-of-way
line and running North 89 degrees 32' 53" West, a distance of 115.00 feet to a
point; running thence South 00 degrees 27' 07" West, a distance of 31.34 feet to
a point; running thence North 89 degrees 32' 53" West, a distance of 9.94 feet
to a point; running thence South 00 degrees 33' 47" West, a distance of 33.42
feet to a point; running thence South 89 degrees 03' 03" East, a distance of
125.03 feet to a point on said western right-of-way line of Xxxxxxxx Street;
running thence along said Xxxxxxxx Street right-of-way line the following
courses and distances: South 00 degrees 57' 00" West, a distance of 54.01 feet
to a point; South 20 degrees 27' 07" East, a distance of 34.00 feet to a point;
and South 00 degrees 24' 39" West, a distance of 106.00 feet to a bolt found at
the intersection of said Xxxxxxxx Street western right-of-way line and said
Xxxxxx Street northern right-of-way line; thence leaving said Xxxxxxxx Street
right-of-way line and running along said Xxxxxx Street right-of-way line the
following courses and distances; South 89 degrees 59' 50" West, a distance of
100.00 feet to an iron pin; North 89 degrees 42' 18" West, a distance of 50.02
feet to an iron pin; North 89 degrees 48' 37" West, a distance of 49.85 feet to
an iron pin; and North 89 degrees 46' 24" West, a distance of 187.43 feet to a
P.K. nail, being the POINT OF BEGINNING; according to that certain Boundary
Survey for Inforum Limited/Equitable Life Assurance Society of the United States
Joint Venture, by Construction & Land Surveys, Inc., bearing the seal of Xxxxxx
X. Xxxxxx, Georgia Registered Land Surveyor No. 1896, dated August 5, 1987,
which date is identified as Revision 5 on said boundary survey.
Tract II
--------
ALL THAT TRACT OR PARCEL OF LAND lying and being in the City of Atlanta in Land
Xxx 00, 00xx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and being more particularly
described as follows:
BEGIN at an iron pin on the western right-of-way line of Xxxxxxxx Street
(60-foot right-of-way), said iron pin being measured South 00 degrees 31' 33"
West, a distance of 145.22 feet from the intersection of said western
right-of-way line of Xxxxxxxx Street and the southern right-of-way line of Xxxxx
Street (60-foot right-of-way); thence leaving said western right-of-way line of
Xxxxxxxx Street and running North 89 degrees 32' 53" West, a distance of 115.00
feet to a point; running thence South 00 degrees 27' 07" West, a distance of
31.34 feet to a point; running thence North 89 degrees 32' 53" West, a distance
of 9.94 feet to a point; running thence South 00 degrees 33' 47" West, a
distance of 33.42 feet to a point; running thence South 89 degrees 03' 03" East,
a distance of 125.03 feet to a point on said Xxxxxxxx Street western
right-of-way line; running thence along said Xxxxxxxx Street right-of-way line
the following courses and distances; North 00 degrees 24' 56" East, a distance
of 34.50 feet to a point; and North 00 degrees 24' 39" East, a distance of 31.34
feet to an iron pin, being the POINT OF BEGINNING; in accordance with that
certain Boundary Survey for Inforum Limited/Equitable Life Assurance Society of
the United States Joint Venture, by Construction & Land Surveys, Inc., bearing
the seal of Xxxxxx X. Xxxxxx, Georgia Registered Land Surveyor No. 1896, dated
August 5, 1987, which date is identified as Revision 5 on said boundary survey.
EXHIBIT "B"
FLOOR PLAN
[FLOOR PLAN APPEARS HERE]
INFORIUM
LOBBY LEVEL
EXHIBIT "C"
-----------
SUPPLEMENTAL NOTICE
-------------------
RE: Lease dated as of ______________, 19__, by and between
_____________________ , as Landlord, and _______________________, as Tenant.
Dear Sirs:
Pursuant to Article 3 of the captioned Lease, please be advised as
follows:
1. The Term Commencement Date is the ________________ day of
____________, 19__, and the Term Expiration Date is the
____________ day of _________________, __________, subject
however to the terms and provisions of the Lease.
2. The Rentable Floor Area of the Premises is square feet.
3. Terms denoted herein by initial capitalization shall have the
meanings ascribed thereto in the Lease.
LANDLORD:
---------
THE EQUITABLE LIFE ASSURANCE SOCIETY OF
THE UNITED STATES
By:
------------------------------------
Title:
------------------------------
[SEAL]
[FIRST GENERATION SPACE]
EXHIBIT "D"
-----------
TENANT'S CONSTRUCTION
---------------------
1. Tenant, at Tenant's sole cost and expense, shall cause to be prepared
by its architect and/or designer the following:
(a) One (1) schematic partition layout sufficient in detail for
Landlord's approval of the location of partitions.
2. Tenant, at Tenant's sole cost and expense, shall cause to be prepared
by its architect and/or designer and/or engineer the following:
(a) Any additional modification desired by Tenant to the schematic
partition plan described in Paragraph 1 above.
(b) Complete, finished, detailed construction documents and
specifications for Tenant's partition layout, reflected
ceiling and other installations for the work to be done by
Tenant under Paragraph 4 hereof, which shall be prepared by
Tenant's architect and/or designer.
(c) Complete mechanical and electrical plans and specifications
where necessary for installation of air conditioning system
and ductwork, electrical, plumbing and other engineering plans
for the work to be done by Tenant under Paragraph 4 hereof,
which shall be prepared by Tenant's architect and/or designer
and/or engineer.
(d) Any subsequent modifications to the construction documents and
specifications desired by Tenant.
All such plans and specifications are expressly subject to Landlord's
approval and shall comply with all applicable laws, rules and
regulations. Tenant covenants and agrees to cause said plans and
specifications to be delivered to Landlord by April 1, 1999 (a)
approved by Tenant and Tenant's architect (if applicable) and (b) in a
form acceptable for issuance of a building permit and sufficient to be
released for construction. Upon approval by Landlord, Tenant will cause
said plans to be filed, if necessary, at Tenant's sole cost and expense
with the appropriate governmental agencies in such form (building
permit, alteration or other form) as Landlord may direct. Landlord
shall not unreasonably withhold or delay its consent to Tenant's plans.
Landlord shall have ten (10) days from receipt of Tenant's plan to
review such plans (the "Plan Review Period"). In the event that
Landlord disapproves of such plans, Landlord shall provide written
notice of the plans within the Plan Review Period along with specific
comments as to why the plans are unacceptable ("Landlord's Notice of
Disapproval"). Within the ten (10) day period following Tenant's
receipt of Landlord's Notice of Disapproval, Tenant and Landlord shall
meet in good faith to resolve any objections to the plans.
The Premises shall be deemed "ready for occupancy" [as that term is
used in Article 1(i) of the Lease] when Tenant's construction, as
provided in Paragraph 4 hereof, is substantially completed. In the
event of any dispute as to when Tenant's construction has been
substantially completed as aforesaid, the determination of Landlord's
architect and/or designer shall be final and binding upon the parties.
3. Landlord agrees, at its sole cost and expense, to supply and install
(except where indicated to the contrary) the following work in the
Premises in accordance with Landlord's standard specification:
(a) A sprinkler system at a rate of not more than one (1)
sprinkler head for 000 xxxxxx xxxx xx xxxxxx xxxx installed in
accordance with Landlord's Standard grid pattern that meets
NFPA guidelines. Tenant shall be responsible for the cost,
material and labor for the relocation of any sprinkler
components or the addition of any new sprinkler components
that are necessitate by Tenant's plan.
(b) Life Safety Equipment is Building Standard fire alarm devices,
including speakers and strobes, fire sprinkler loops,
including drops and smoke detectors as required by code.
Building fire alarm, enunciators, fire extinguishers, exit
light and ADA compliant strobes installed per Tenant's
occupancy requirements will be charged as part of the Tenant
Improvement Allowance.
(c) Building Standard Window covering installed on the West side
of the building only, which blinds shall be pulled to the top
and bagged in polyethylene until the completion of Tenant's
work.
(d) All exterior windows are floor to ceiling.
(e) Inside face of all demising walls shall be ready to accept
drywall, installation, spackle finish, tape, sanded and
eggshell paint.
(f) Core walls shall be framed drywalls, spackled finish, taped
and sanded from slab to ceiling level, ready to accept a wall
finish.
Exhibit "D"
-----------
Page 1 of 3
(g) Building columns in INFORUM are concrete and are not dry
walled. If Tenant requires columns to be dry wall finished
taped, and bedded, it will be charged against the Tenant's
Improvement Allowance.
(h) The base building HVAC system is designed for a capacity of
one (1) person/150/USF, to cool four (4) xxxxx/USF, (separate
from base building HVAC systems), 20 CFM outside air per
person per the following criteria. Building Operating hours
are Monday to Friday 7:00 a.m. to 6:00 p.m. and Saturday 7:30
a.m. to 1:00 p.m. During building operating hours, Landlord
will maintain 75 degrees inside at 92 degrees dry bulb outside
in summer and 72 degrees inside at 17 degrees dry bulb outside
in winter.
(i) Landlord will provide partially completed air conditioning
system to include the supply ductwork, and one (1) Calibrated
thermostat or sensor (uninstalled). The air distribution duct
work is in place in the down stream side of the mixing boxes
(or fan coil units for the 5th and 6th floors). Spin-ins,
flex, interior supply diffusers and return air grids with slot
diffusers are stacked on the floor for Tenant's installation
at the perimeter for each zone. Final testing, adjustment and
balancing of Tenant's HVAC shaft be charged as part of Tenant
Improvement Allowance.
(j) Plumbing is available on the floor for installation of a
coffee bar/station, but the configuration of the floor below
shall dictate the exact location.
(k) Cabling rooms and cable risers are available for installation
of telephones and computer networks. All building cable
facilities are sufficient to support either an internally
operated PBX system or a local telephone provider's system, or
both.
(l) Electricity is supplied underground by the Georgia Power
Company from the Xxxxxx Street Network Substation on four
separate parallel circuits. Four, 3,000 KVA transformers
reduce the voltage to 4.16 KV for distribution to the
building.
(m) Tenant shall be allowed to install, maintain and operate its
own internal voice and data communication systems. There are
no Shared Tenant Services available in INFORUM.
(n) INFORUM has Electrical Capacity of three phase, four wire
120/208 or 277/480 Volt.
(o) Ceiling Heights on the 5th and 6th floors are 14 feet slab, 12
1/2 to the beam. The Bridge Level is 22 feet slab to slab to
accommodate a finished ceiling of 14 feet. The Lobby Level is
26 feet slab to slab, with finished ceiling heights varying
from 10 to 17 feet depending on the location.
(p) Tenant will not be subject to a restocking charge if Tenant
elects to utilize its own materials. Landlord must approve all
materials used by Tenant prior to construction. Tenant will
receive credit by using its own materials, in lieu of
Landlord's Building Standard materials.
(q) Landlord will supply to Tenant all necessary floor plans,
including dimensional, structural, mechanical and electrical.
(r) The floor load in the Premises will be one hundred (100)
pounds per square foot which Tenant may upgrade at its expense
provided any additional support is installed on the floor
surface of the Premises.
4. Tenant will cause its contractor to construct the improvements within
the Premises in accordance with the construction drawings and
specifications previously approved by Landlord.
Landlord retains the right to approve said general contractor's
subcontractors and insist that said general contractor use the
building's approved electrical, sprinkler and mechanical subcontractor.
In all cases, Tenant will be required to adhere to Building standard
requirements for construction and standard operating procedures and to
indoor air quality procedures throughout the construction period.
Tenant's General Contractor will be required to perform the following
procedures during construction:
Prior to starting construction, Tenant must supply to Landlord:
(i) Cost estimation of buildout and bid results on Landlord's Bid
Breakdown format.
(ii) Complete set of Architectural and Engineered drawings (i.e.
Structural, Mechanical, Fire Protection and Electrical)
stamped "Release for Construction" by an architect registered
in the State of Georgia. Landlord will have seven (7) business
days to review and approve drawings prior to start of
construction.
(iii) Schedule for project.
(iv) Certificate of Insurance and Builders Risk Policy naming
Landlord and COMPASS Management and Leasing, Inc. as
additional insureds.
Exhibit "D"
-----------
Page 2 of 3
(v) Performance and Payment Bond from general contractor and all
subcontractors.
(vi) Copy of Building Permit.
(vii) Letter of Indemnification holding Landlord and COMPASS
harmless for any and all claims resulting from construction,
including In-Door Air Quality.
(viii) Copy of Contract between Tenant and all contractors, including
architectural and MEP design firms.
(ix) List of all contractors who will be working on the project for
Landlord's review and approval.
During construction, Tenant will:
(i) Hold weekly job meetings and notify Landlord of time and
place.
(ii) Provide Landlord copies of all executed change orders
affecting the cost of the project.
(iii) Notify Landlord of all job safety meetings.
(iv) Adhere to all Building Rules, Regulations and Requirements for
construction.
Close-Out of Construction:
(i) Tenant will provide to Landlord:
(a) Copy of Certificate of Occupancy.
(b) Certified Test and Balance Report from Independent
Test and Balance Company.
(c) Fire Alarm Certification Letter.
(d) Final Lien Waivers from all architect, engineers
vendors, contractors and material suppliers.
(e) Letter from Tenant certifying that all contractors
and vendors have been paid in full and that there are
no outstanding claims.
(f) Signed-off punchlist from architect and Tenant.
(g) Architectural and MEP As-Built Drawings on cad disk.
(h) Sign-off from Landlord that all public areas and
other areas the contractors used during the course of
construction are free from damages as a result of
construction. The Landlord reserves the right to stop
all work if Tenant or it's construction manager or
it's contractor fails to comply with above standards.
The Landlord will not allow work to continue until
Tenant or it's manager or it's contractor comply with
Landlord's requirements.
Any fee collected by Tenant's construction management service provider
will be paid out of the Tenant Improvement Allowance. In addition,
Landlord will pay to COMPASS Management and Leasing, Inc. a
construction management fee of one percent (1%) (not to exceed
$10,000.00) of the total cost of construction which will be deducted
from the first installment of the Tenant Improvement Allowance.
5. Landlord and Tenant hereby appoint COMPASS Management and Leasing, Inc.
to perform all construction management services for the work to be
performed in the Premises as described in Paragraph 4.
6. Tenant shall not make any alterations, additions or improvements in or
to the Premises without Landlord's prior written consent, which consent
shall not be unreasonably withheld. Except for construction as provided
in Paragraph 4 hereof, the Premises are delivered to Tenant "as is"
without any warranty or representation whatsoever. Any alterations,
additions or improvements requested by Tenant and approved by Landlord
shall be performed (i) by Tenant's contractor or another contractor
approved by Landlord, (ii) in a good and workmanlike manner, and (iii)
in accordance with all applicable laws, ordinances, rules and
regulations of governmental authorities having jurisdiction over the
Premises.
7. Any approval by Landlord of or consent by Landlord to any plans,
specifications or other items to be submitted to and/or reviewed by
Landlord pursuant to this Lease shall be deemed to be strictly limited
to an acknowledgment of approval or consent by Landlord thereto and,
whether or not the work is performed by Landlord or by Tenant's
contractor, such approval or consent shall not constitute the
assumption by Landlord of any responsibility for the accuracy,
sufficiency or feasibility of any plans, specifications or other such
items and shall not imply any acknowledgment, representation or
warranty by Landlord that the design is safe, feasible, structurally
sound or will comply with any legal or governmental requirements, and
Tenant shall be responsible for all of the same.
8. If all or any portion of the Tenant Improvement Allowances shall not be
used by Tenant, Landlord shall be entitled to the savings and Tenant
shall receive no credit therefore.
Exhibit "D"
-----------
Page 3 of 3
EXHIBIT "E"
-----------
BUILDING STANDARD SERVICES
--------------------------
Landlord shall furnish the following services to Tenant during the
Lease Term (the "Building Standard Services"):
(a) Hot and cold domestic water and common-use restrooms and toilets at
locations provided for general use and as reasonably deemed by Landlord to be in
keeping with the first-class standards of the Building.
(b) Subject to curtailment as required by governmental laws, rules or
mandatory regulations and subject to the design conditions set forth in
Paragraph 3(a) of Exhibit "D" attached hereto, central air conditioning in
season, at such temperatures and in such amounts as are reasonably deemed by
Landlord to be in keeping with the first-class standards of the Building. Such
air conditioning shall be furnished between 7:00 a.m. and 6:00 p.m. on weekdays
(from Monday through Friday, inclusive) and between 9:00 a.m. and 1:00 p.m. on
Saturdays, all exclusive of Holidays, as defined below (the "Building Operating
Hours"). During Building Operating Hours Landlord shall provide at Landlord's
expense permanent air conditioning and ventilating capacity for the entire
Premises sized to accommodate a cooling load of four (4) xxxxx per square foot
with an occupancy of one (1) person per 150 usable square feet to maintain 75
degrees inside at 92 degrees dry bulb outside in Summer and 72 degrees inside at
17 degrees dry bulb outside in winter.
The following dates shall constitute "Holidays", as that term is used
in this Lease: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Friday following Thanksgiving Day, Christmas, and any other
holiday generally recognized as such by landlords of office space in the
metropolitan Atlanta office market, as determined by Landlord in good faith. If,
in the case of any specific holiday mentioned in the preceding sentence, a
different day shall be observed than the respective day mentioned, then that day
which constitutes the day observed by national banks in Atlanta, Georgia on
account of said holiday shall constitute the Holiday under this Lease.
(c) Electric lighting service for all public areas and special service
areas of the Building in the manner and to the extent reasonably deemed by
Landlord to be in keeping with the first-class standards of the Building.
(d) Janitor service shall be provided five (5) days per week, exclusive
of Holidays (as hereinbelow defined), in a manner that Landlord reasonably deems
to be consistent with the first-class standards of the Building.
(e) Security services for the Building comparable as to coverage,
control and responsiveness (but not necessarily as to means for accomplishing
same) to other similarly situated first-class, multi-tenant office buildings in
Atlanta, Georgia; provided, however, Landlord shall have no responsibility to
prevent, and shall not be liable to Tenant for, any liability or loss to Tenant,
its agents, employees and visitors arising out of losses due to theft, burglary,
or damage or injury to persons or property caused by persons gaining access to
the Premises, and Tenant hereby releases Landlord from all liability for such
losses, damages or injury.
(f) Sufficient electrical capacity to operate (i) incandescent lights,
typewriters, calculating machines, photocopying machines and other machines of
the same low voltage electrical consumption (120/208 volts); and (ii) lighting
(277/480 volts), provided that the total rated electrical design load for said
lighting and machines of low electrical voltage shall not exceed four (4) xxxxx
per square foot of usable area (each such rated electrical design loan to be
hereinafter referred to as the "Building Standard Rated Electrical Design
Load").
Should Tenant's total rated electrical design load for the
entire Premises or any portion thereof (including, but not limited to, computer
or telephone rooms) exceed the Building Standard Rated Electrical Design Load
for either low or high voltage electrical consumption, or if Tenant's electrical
design requires low voltage or high voltage circuits in excess of Tenant's share
of the Building standard circuits, Tenant will (at Tenant's expense) install
such additional circuits and associated high voltage panels and/or additional
low voltage panels with associated transformers (which additional circuits,
panels and transformers shall be hereinafter referred to as the "Additional
Electrical Equipment"). If the Additional Electrical Equipment is installed
because Tenant's low voltage or high voltage rated electrical design load
exceeds the applicable Building Standard Rated Electrical Design Load, then a
meter shall also be added (at Tenant's expense) to measure the electricity used
through the Additional Electrical Equipment.
The design and installation of any Additional Electrical
Equipment (or any related meter) required by Tenant shall be subject to the
prior approval of Landlord (which approval shall not be unreasonably withheld).
All expenses incurred by Landlord in connection with the review and approval of
any Additional Electrical Equipment shall also be reimbursed to Landlord by
Tenant. Tenant shall also pay on demand the actual metered cost of electricity
consumed through the Additional Electrical Equipment (if applicable), plus any
actual accounting expenses incurred by Landlord in connection with the metering
thereof.
If any of Tenant's electrical equipment requires conditioned
air in excess of Building standard air conditioning, the same shall be installed
by Landlord (on Tenant's behalf), and Tenant shall pay all design, installation,
metering, operating and maintenance costs relating thereto.
Exhibit "E"
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Page 1 of 2
If Tenant requires that certain areas within the Premises must
operate in excess of the normal Building Operating Hours (as hereinabove
defined), the electrical service to such areas shall be separately circuited and
metered (at Tenant's expense) such that Tenant shall be billed the costs
associated with electricity consumed during hours other than Building Operating
Hours.
(g) All Building standard fluorescent bulb replacement in all areas and
all incandescent bulb replacement in public areas, toilet and restroom areas,
and stairwells.
(h) Non-exclusive multiple cab passenger service to the Premises during
Building Operating Hours (as hereinabove defined) and at least one (1) cab
passenger service to the floor(s) on which the Premises are located twenty-four
(24) hours per day and non-exclusive freight elevator service during Building
Operating Hours (all subject to temporary cessation for ordinary repair and
maintenance and during times when life safety systems override normal Building
operating systems) with such freight elevator service available at other times
upon reasonable prior notice and the payment by Tenant to Landlord of any
additional expense actually incurred by Landlord in connection therewith.
(i) Landlord shall provide route for four (4), 4" conduits from the
telephone service point of entrance into the building premises. Tenant will
provide four (4) 4" conduits for installation by Tenant's contractor. Landlord
will not unreasonably withhold permission to provide Tenant with additional
risers.
To the extent the services described above require electricity and
water supplied by public utilities, Landlord's covenants thereunder shall only
impose on Landlord the obligation to use its reasonable efforts to cause the
applicable public utilities to furnish same. Except for deliberate and willful
acts of Landlord, failure by Landlord to furnish the services described herein,
or any cessation thereof, shall not render Landlord liable for damages to either
person or property, nor be construed as an eviction of Tenant, nor work an
abatement of rent, nor relieve Tenant from fulfillment of any covenant or
agreement hereof. In addition to the foregoing, should any of the equipment or
machinery, for any cause, fail to operate or function properly, Tenant shall
have no claim for rebate of rent or damages on account of an interruption in
service occasioned thereby or resulting therefrom; provided, however, Landlord
agrees to use reasonable efforts to promptly repair said equipment or machinery
and to restore said services during normal business hours.
Exhibit "E"
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Page 2 of 2
EXHIBIT "F"
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GUARANTY
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[INTENTIONALLY DELETED]
Exhibit "F"
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Page 1 of 1
EXHIBIT "G"
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SPECIAL STIPULATIONS
--------------------
1. Americans With Disabilities Act.
--------------------------------
If and to the extent Landlord is required to comply with the
provisions of Title III of the Americans With Disabilities Act (the "ADA") with
respect to the common areas of the Project, Landlord agrees that it will use
reasonable efforts to comply in every material respect with the applicable
provisions of the ADA concerning the common areas of the Project; provided,
however, Landlord shall not be required to comply with the provisions of the ADA
if and to the extent the requirement of compliance therewith arises from or
extends to (a) the use or occupancy of the Project, or any portion thereof, by
any lessee, tenant, sublessee, subtenant, licensee or occupant (including
Tenant), or (b) any alteration, improvement, addition, remodeling or renovation
made, or proposed to be made, to any space in the Project leased or available
for lease (including the Premises). All costs, expenses and disbursements of
every kind and nature in connection with the Landlord's obligations under this
Section shall be included in Operating Expenses. Tenant hereby agrees that
Tenant's sole remedy against Landlord for any claim that Landlord has breached
its obligations under this Section shall be a suit for specific performance and
Tenant hereby waives any claim against Landlord for damages, whether actual,
consequential or otherwise.
2. Parking.
--------
(a) Landlord has allocated, and shall make available, for (and
only for) persons regularly employed by Tenant in the Premises, up to one (1)
non-reserved parking spaces per thousand feet by rentable square footage in the
Premises, or such parking to be located in the parking facilities located in the
Building, subject to the provisions set forth below. The cost of such parking
will be at the normal monthly rates established from time to time by the
Landlord, which rate is currently $95.00 per space per month, which sum shall be
due and payable on or before the first day of each month to Landlord or its
parking manager, as Landlord may direct.
(b) Tenant's right to the number of parking spaces allocated
to Tenant hereunder are personal to Tenant and may not be transferred to other
tenants in the Building or any other person or entity with the exception of the
potential assignees and sublessees described in Paragraph 5(b) of this Exhibit
"G". Landlord, at all times, shall have sole and exclusive control of all
parking facilities and common areas, including without limitation, driveways,
entrances and exits, sidewalks and pedestrian passageways and pylon signs, and
Landlord may at any time exclude any person from the use and occupancy thereof,
except those persons using the parking facilities in accordance with all rules
and regulations established by Landlord from time to time. Tenant agrees that
Landlord assumes no responsibility of any kind whatsoever in reference to said
automobile parking facilities or the use there of by Tenant, its employees,
agents or invitees, or by anyone else. Landlord may, at any time, and from time
to time, limit access to the parking facilities by means of attendants and/or
other devices, and may make other changes in the layout and operation of the
parking facilities including, without limiting the generality of the foregoing,
changes in locations of entrances, exits and parking spaces and changes in the
direction of traffic flow. The rental and use of all parking spaces made
available hereunder shall be subject to rules and regulations as may have been
or may be established by Landlord or its parking manager from time to time. No
delay or failure by Landlord to enforce its parking rules and regulations or its
other rights hereunder, and no waiver by Landlord of any breach thereof, shall
be deemed to be a waiver of any succeeding breach or prevent any subsequent or
other enforcement thereof by Landlord.
3. First Renewal Option.
---------------------
(a) As long as an event of default by Tenant has not occurred
and is continuing after applicable notice and cure periods, Landlord shall grant
and does hereby grant Tenant the option to renew (the "First Renewal Option")
the term of this Lease for a period of sixty (60) additional months (the "First
Renewal Term"). Tenant shall exercise the First Renewal Option by delivering
written notice of such election to Landlord at least twelve (12) months prior to
the expiration of the initial term of this Lease. The renewal of this Lease
shall be upon the same terms and conditions of this Lease, except (i) the Base
Rental Rate during the First Renewal Term shall be calculated based on the
prevailing Market Base Rental Rate (as hereinafter defined) at the time the
First Renewal Term commences; (ii) with the exception of the potential assignees
and sublessees described in Paragraph 5(b) of this Exhibit "G", Tenant shall not
have the right to assign its renewal rights to any sublessee of the Demised
Premises or any portion thereof or to any assignee of the Lease, nor may any
such sublessee or assignee exercise or enjoy the benefit of such renewal rights;
(iii) the leasehold improvements will be provided in their then-existing
condition at the time the First Renewal Term commences, and (iv) there shall not
be any rent abatement period and Tenant shall not be entitled to cash payment,
concessions or allowance of any nature or amount whatsoever. Notwithstanding the
foregoing, Tenant shall have no right to exercise such option to renew, and
Landlord shall have no obligation to renew this Lease, unless (A) this Lease
shall be in full force and effect upon the date of the exercise of the First
Renewal Option and upon the date of the expiration of the original term, and (B)
on the date of the exercise of the First Renewal Option and on the date of the
expiration of the original term there shall exist no event of default on the
part of Tenant under this Lease for which Landlord has given notice and which
remains uncured by Tenant after the expiration of any applicable period of grace
or cure. If Tenant shall fail to exercise the First Renewal Option within the
time permitted or conditions (A) and (B) set forth above are not entirely
satisfied, the First Renewal Option shall automatically terminate, this Lease
shall expire at the expiration of the original term and Tenant shall have no
further right thereafter to renew this Lease or to acquire any interest
whatsoever in the Demised Premises. If Tenant shall remain in possession of the
Demised Premises after the expiration of the original term without there having
been executed between
Exhibit "G"
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Page 1 of 5
Landlord and Tenant an amendment to this Lease as contemplated by the terms of
this Section, then Tenant shall be a Tenant holding over as provided in this
Lease.
(b) Whenever used in this First Renewal Option, the term
"Market Base Rental Rate" shall mean the then fair market rental of the Demised
Premises as of the date of commencement of the First Renewal Term, determined in
accordance with the provisions set forth below. The fair market rental of the
Demised Premises shall mean the rental that would be agreed to by a landlord and
renewing tenant, each of whom is willing, but neither of whom is compelled, to
enter into the lease transaction. The fair market rental shall be determined on
the basis of the assumptions that (1) the Base Year shall be updated to the
first year under the First Renewal Term, and (2) the fair market rental shall
begin on the commencement date of the First Renewal Term. The fair market rental
to be determined shall take into account any existing tenant improvements and
any special uses or rights afforded to the Tenant under this Lease in connection
with the Demised Premises and the following factors: (i) rental for renewing
tenants for comparable premises in comparable Class "A" office buildings in
comparable submarkets of Atlanta, Georgia (taking into consideration, but not
limited to, use, location and/or floor level within the applicable building,
definition of rental area, quality, age and location of the applicable office
buildings); (ii) the rentable area of the premises being leased; (iii) the
length of the pertinent rental term; (iv) any tenant improvement allowance, rent
credit, moving allowance, space planning allowance or other similar inducements
given to renewing tenants or lack thereof; (v) the quality and credit worthiness
of the tenant; (vi) the expense pass-through provisions provided to such
renewing tenants; and (vii) commissions payable to brokers or lack thereof.
(c) If Landlord and Tenant are unable to agree upon the fair
market rental within thirty (30) days of Landlord's proposal to Tenant, the
determination of fair market rental shall be determined by three (3) appraisers
selected according to the provisions established by the American Arbitration
Association, said appraisers to have the MAI designation and a minimum of ten
(10) years experience in the Atlanta office market. The market rate will be
determined per this section following Tenant's exercise of the First Renewal
Option. The cost of arbitration shall be shared equally by Landlord and Tenant.
In the event Base Rental is to be paid in accordance with the Market Base Rental
Rate and such Market Base Rental Rate is then subject to dispute or arbitration
as provided herein, Tenant shall nevertheless pay an amount of Market Base
Rental equal to the Base Rental Rate as determined by Landlord during the
pendency of any such dispute or arbitration; provided that Landlord shall
promptly refund any amounts subsequently determined to have been overpaid by
Tenant.
4. Second Renewal Option.
----------------------
(a) As long as an event of default by Tenant has not occurred
and is continuing, Landlord shall grant and does hereby grant Tenant the option
to renew (the "Second Renewal Option") the term of this Lease for a period of
sixty (60) additional months (the "Second Renewal Term"). Tenant shall exercise
the Second Renewal Option by delivering written notice of such election to
Landlord at least twelve (12) months prior to the expiration of the First
Renewal Term of this Lease. The renewal of this Lease shall be upon the same
terms and conditions of this Lease, except (i) the Base Rental Rate during the
Second Renewal Term shall be calculated based on the prevailing Market Base
Rental Rate (as hereinafter defined) at the time the Second Renewal Term
commences, (ii) with the exception of the potential assignees or sublessees
described in Paragraph 5(b) of this Exhibit "G", Tenant shall have no option to
renew this Lease beyond the expiration of the Second Renewal Term, and (iii)
Tenant shall not have the right to assign its renewal rights to any sublessee of
the Demised Premises or any portion thereof or to any assignee of the Lease, nor
may any such sublessee or assignee exercise to enjoy the benefit of such renewal
rights, and (iv) the leasehold improvements will be provided in their
then-existing condition at the time the Second Renewal Term commences, and there
shall not be any rent abatement period and Tenant shall not be entitled to cash
payment, concessions or allowance of any nature or amount whatsoever.
Notwithstanding the foregoing, Tenant shall have no right to exercise such
option to renew, and Landlord shall have no obligation to renew this Lease,
unless (A) this Lease shall be in full force and effect upon the date of the
exercise of the Second Renewal Option and upon the date of the expiration of the
First Renewal Term, and (B) on the date of the exercise of the Second Renewal
Option and on the date of the expiration of the First Renewal Term there shall
exist no event of default on the part of Tenant under this Lease for which
Landlord has given notice and which remains uncured by Tenant after the
expiration of any applicable period of grace or cure. If Tenant shall fail to
exercise the Second Renewal Option within the time permitted or conditions (A)
and (B) set forth above are not entirely satisfied, the Second Renewal Option
shall automatically terminate, this Lease shall expire at the expiration of the
First Renewal Term and Tenant shall have no further right thereafter to renew
this Lease or to acquire any interest whatsoever in the Demised Premises. If
Tenant shall remain in possession of the Demised Premises after the expiration
of the First Renewal Term without there having been executed between Landlord
and Tenant an amendment to this Lease as contemplated by the terms of this
Section, then Tenant shall be a Tenant holding over as provided in this Lease.
(b) Whenever used in this Second Renewal Option, the term
"Market Base Rental Rate" shall mean the then fair market rental of the Demised
Premises as of the date of commencement of the Second Renewal Term, determined
in accordance with the provisions set forth below. The fair market rental of the
Demised Premises shall mean the rental that would be agreed to by a landlord and
renewing tenant, each of whom is willing, but neither of whom is compelled, to
enter into the lease transaction. The fair market rental shall be determined on
the basis of the assumptions that (1) the Base Year shall be updated to the
first year under the Second Renewal Term or if the commencement of the Second
Renewal Term falls in the 4th quarter of a year then the Base Year shall be
updated to the next full calendar year under the Second Renewal Term, and (2)
the fair market rental shall begin on the commencement date of the Second
Renewal Term. The fair market rental to be determined shall take into account
any existing tenant improvements and any special uses or rights afforded to the
Tenant under this Lease in connection with the Demised Premises the following
factors: (i) rental for renewing tenants for comparable premises in comparable
Class "A" office buildings in comparable submarkets of Atlanta, Georgia (taking
into consideration, but not limited to, use, location and/or floor level within
the applicable building, definition of rental area, quality, age and location of
the applicable office buildings); (ii) the rentable area of the premises being
leased; (iii) the length of the pertinent rental term; (iv) any tenant
improvement allowance, rent
Exhibit "G"
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Page 2 of 5
credit, moving allowance, space planning allowance or other similar inducements
given to renewing tenants; (v) the quality and credit worthiness of the tenant;
(vi) the expense pass-through provisions provided to such renewing tenants; and
(vii) commissions payable to brokers
(c) If Landlord and Tenant are unable to agree upon the fair
market rental within thirty (30) days of Landlord's proposal to Tenant, the
determination of fair market rental shall be determined by three (3) appraisers
selected according to the provisions established by the American Arbitration
Association, said appraisers to have the MAI designation and a minimum of ten
(10) years experience in the Atlanta office market. The market rate will be
determined per this section following Tenant's exercise of the Second Renewal
Option. The cost of arbitration shall be shared equally by Landlord and Tenant.
In the event Base Rental is to be paid in accordance with the Market Base Rental
Rate and such Market Base Rental Rate is then subject to dispute or arbitration
as provided herein, Tenant shall nevertheless pay an amount of Market Base
Rental equal to the Base Rental Rate as determined by Landlord during the
pendency of any such dispute or arbitration; provided that Landlord shall
promptly refund any amounts subsequently determined to have been overpaid by
Tenant.
5. Landlord's Consent to Assignment and Subletting Requests.
---------------------------------------------------------
(a) Notwithstanding anything contained in Article 21 to the contrary, provided
Tenant is not in default hereunder, Landlord shall not unreasonably withhold its
consent to Tenant's request to assign this Lease or to sublease the Premises. In
determining the reasonableness of Landlord's approval of or failure to consent
to Tenant's assignment of this Lease or the subleasing of the Premises, Landlord
may take into consideration all relevant factors surrounding the proposed
sublease and assignment, including without limitation, the following:
(i) the business reputation of the proposed assignee or
subtenant and its partners, officers, directors, and
stockholders;
(ii) the nature of the business and the proposed use of the
Premises by the proposed assignee or subtenant;
(iii) the financial condition of the proposed assignee or
subtenant;
(iv) the effect that the proposed assignee or subtenant would
have on the operations and maintenance of the Building and
Landlord's investment therein;
(v) whether or not the assignee or subtenant is reputable and of
a kind customarily found in a "Class A" office building;
(vi) whether or not the proposed assignee or subtenant is
presently a tenant (or subsidiary, affiliate or parent of a
tenant) in the Building;
(vii) restrictions, if any, contained in other leases or
agreements affecting the Building;
(viii) the extent to which the proposed subtenant or assignee and
Tenant provide Landlord with assurances reasonably
satisfactory to Landlord as to the satisfaction of Tenant's
obligations hereunder, including the payment of rent;
(ix) restrictions, if any, imposed by the holder of any mortgage
encumbering the Building or any portion thereof; and
(x) whether or not the proposed assignee or subtenant is willing
to agree in the assignment of lease agreement or sublease
agreement, as the case may be, to comply at its expense,
with all laws, ordinances, orders, directions, requirements,
rules and regulations of all governmental authorities, then
in force and which may thereafter be in force, which impose
any duty on Landlord or the assignee or subtenant, as the
case may be, with respect to the use, occupancy or
alteration of the Premises or any portion thereof.
(b) Notwithstanding anything contained in Article 21 to the contrary,
provided Tenant is not in default hereunder after notice and cure periods, if
any, Tenant shall have the right, upon at least ten (10) days' prior written
notice to Landlord and the delivery of the executed copy of the proposed
assignment agreement or sublease as provided below, to assign this Lease or to
sublet all or any portion of the Premises to any entity resulting from a merger
or consolidation with Tenant, (2) any entity succeeding to substantially all the
business and assets of Tenant at the Premises, (3) any subsidiary or parent of
Tenant, or (4) any entity resulting from the reorganization of Tenant outside of
a bankruptcy organization. In such case Landlord shall not have any right to
recapture any portion of the Premises or share in any excess rents.
6. Cap on Controllable Operating Expenses. For purposes of calculating
Tenant's Additional Rental pursuant to Article 8 of the Lease, Landlord and
Tenant hereby agree that, commencing with the first full calendar year of the
Lease Term, Operating Expenses (except for Uncontrollable Costs, as hereinafter
defined) shall be deemed not to increase by more than four percent (4%) from one
calendar year to the next calendar year, regardless of any actual increases in
Operating Expenses; provided, however, in the event that in any calendar year
any such increase in Operating Expenses is in fact greater than the Operating
Expense Cap (any such increase in excess of the Operating Expense Cap being
hereinafter collectively referred to as the "Carryover Percentage"), Landlord
shall have the right to add all of the Carryover
Exhibit "G"
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Page 3 of 5
Percentage (or such portion thereof as will not produce a total increase in
Operating Expenses in excess of the Operating Expense Cap) to the increases in
Operating Expenses occurring over any of the following years of the Lease Term
in which such increases in Operating Expenses are less than the Operating
Expense Cap, on a cumulative basis until all such Carryover Percentages have
been used to increase Operating Expenses for purposes of calculating Tenant's
Additional Rental payable pursuant to Article 8 of the Lease. For example, if
the actual increase in Operating Expenses during the second calendar year of the
Lease Term is ten percent (10%) and if, for purposes of this example, the
Operating Expense Cap is eight percent (8%) (thus creating a Carryover
Percentage of two percent (2%), which may be carried forward to future years by
Landlord), and if in the third calendar year of the Lease Term the actual
increase in the Operating Expenses is six percent (6%), then during the third
calendar year of the Lease Term Operating Expenses shall be deemed to increase
by eight percent (8%), such eight percent (8%) increase arising from adding the
six percent (6%) increase in Operating Expenses which occurred in the third
calendar year to the two percent (2%) Carryover Percentage from the second
calendar year. The foregoing provisions of this Section notwithstanding, Taxes,
all utility costs and expenses, including, without limitation, those for
electricity and other fuels and forms of power or energy, water charges, sewer
and waste disposal, and the cost of all casualty, liability and other insurance
applicable to the Project and Landlord's personal property used in connection
with the Project (all of the foregoing are herein collectively referred to as
"Uncontrollable Costs") shall not be subject to any limitation or cap, and,
accordingly, the total dollar increase in Operating Expenses, and Tenant's
Additional Rental payable pursuant to Article 8 of the Lease, for any and each
calendar year during the Lease Term shall be calculated without any limitation
or cap on Uncontrollable Costs.
7. Tenant's Generator and Fuel Storage Tank. Tenant may install one (1)
generator up to 750 kw, subject to Landlord's written approval (which approval
shall not be unreasonably withheld or delayed) of design and installation plans
and specifications therefor. In addition, Tenant is to be provided throughout
the Lease Term a pathway for conduits running from such generator location to
the Premises. Tenant shall be responsible for all costs associated with
constructing dedicated space for the supplemental generator and fuel storage
tank, associated transfer pumps and day storage tank. All costs associated with
preparing such location and the installation of such new tank will be the
responsibility of Tenant. Other than in cases of emergency, Tenant shall have
the right to exercise the generator on a weekly basis with Landlord approved
times and duration, which approval shall not be unreasonably withheld or
delayed. Tenant's fuel storage tank up to a maximum of 2,000 gallons, and
associated transfer pumps shall be located in an area designated by Landlord,
and in accordance with Landlord's written approval as aforesaid. The location of
any penetrations required for the installation of Tenant's equipment shall be
x-rayed and said location approved by Landlord's representative before the
penetration is made.
8. Loading Dock Area. Tenant's future generator shall be in compliance
with all noise control ordinances and shall have muffler and sound absorbers
built in. Tenant agrees to use its best efforts to xxxxx any unreasonable noises
produced by Tenant's generator at all times during the Lease Term. The Generator
Area shall be constructed in a manner which is compatible in appearance with the
surrounding interior portions of the Loading Dock area of the Building and shall
be constructed in compliance with, and throughout the Lease Term and shall
remain in compliance with, all terms of this Lease during the Lease Term; prior
to construction thereof Tenant shall obtain Landlord's approval, not to be
unreasonably withheld or delayed, as to the manner and schedule for installing
and constructing such Generator Area. Tenant agrees to maintain free of
obstruction all sidewalks in its use and construction of the Generator Area,
and, if necessary in Landlord's sole discretion, Tenant, at its sole cost and
expense, shall provide alternate sidewalk space for other tenants of the
Building. Tenant shall be permitted to terminate the products of combustion
exhaust. Tenant is responsible for taking the necessary reasonable measures to
reduce the sound transmissions caused by Tenant's equipment between the Premises
and the adjacent premises. In addition, each engine generator set including
radiator, shall be installed in a weatherproof, walk-around type, sound
attenuating enclosure which shall keep the sound pressure to no more than 85 dba
as measured at three (3) feet from any side or top, under all operating
conditions.
9. Antenna/Satellite Dish Installation. Landlord hereby grants Tenant
the right to use and have access to the roof of the Building, for the
installation, maintenance, repair and removal of an antenna and/or satellite
dish. The precise location of such antenna/satellite dish and installation
thereof shall be approved by Landlord after Landlord's review of Tenant's
specifications, which approval shall not be unreasonably withheld based on
Landlord's standard review criteria. Tenant hereby agrees to install, maintain
and repair such antenna/satellite dish so as not to penetrate the roof membrane
and in an otherwise good and workmanlike manner, to secure all permits required
for the installation and operation thereof, and to keep the Building free of any
liens which might arise therefrom. Upon and following installation of a rooftop
satellite dish and/or antenna, Tenant shall pay Landlord a monthly fee of
$150.00 per month payable on the same date Rent is due hereunder for as long as
a satellite dish and/or antennae remain installed on the roof of the Building.
Tenant hereby indemnifies Landlord from and against any claims against Landlord
for personal injury or property damage arising from the use, operation,
maintenance, repair and removal of the antenna/satellite dish other than any
claim arising from the acts or omissions of the Landlord. Upon the expiration or
earlier termination of the Lease, Tenant shall remove the antenna/satellite dish
and shall restore the installation location to substantially the same condition
as existed prior to the installation of such equipment, ordinary wear and tear
and insured casualty loss excepted. Tenant acknowledges and agrees that nothing
contained herein shall be deemed to grant to Tenant any independent right to
access of the roof of the Building. All access to the roof shall under all
circumstances be made through and in conjunction with Landlord or its agents and
shall be subject to such reasonable controls and restrictions as Landlord may
impose from time to time. Tenant agrees that it will be responsible for
obtaining all licenses and permits necessary to operate any antenna/satellite
dish installed on the roof of the Building and will not use such equipment (or
any transmissions therefrom) to interfere with the transmissions or frequencies
of other rooftop antenna/satellite dishes currently installed on the roof of the
Building.
10. Supplemental HVAC. Tenant may install up to 100 tons of HVAC during
the term of this Lease. Landlord does not supply chilled water on a 24-hour per
day, 7 days a week basis. For Tenant's 24-hour, 7 days a week HVAC requirement,
Tenant must install a supplemental HVAC unit, subject to mutual agreement
between Landlord and Tenant based on Tenant's final specifications and
Landlord's
Exhibit "G"
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Page 4 of 5
approval shall not be unreasonably withheld or delayed. Any and all electrical
power consumed by tenant through a supplemental HVAC unit(s) must be separately
metered (at Tenant's expense) and all will be charged monthly to Tenant as Rent
at Landlord's average rate for electricity consumption.
11. Miscellaneous.
(a) Landlord acknowledges that Tenant's business to be conducted
in the Premises requires the installation in the Premises of certain
communications equipment by telecommunications customers of Tenant ("Customers")
in order for such Customers to interconnect with Tenant's Terminal facilities.
Landlord agrees that no consent shall be required for any license agreement or
"co-location agreement" between Tenant or any such Customer for the purposes of
permitting such a telecommunications connection, so long as (i) such Customer
agrees in writing to comply with all obligations of Tenant under this Lease to
the extent relating to the portion of the Premises in question, and (ii) each
such license or co-location agreement is in writing, and is consistent with the
provisions of this Lease. Co-location shall not be deemed under any
circumstances, a sublet or assignment of the Premises.
(b) Landlord and Tenant agree that Tenant's communication, HVAC,
electrical and other various equipment will require Tenant to use Building
shafts, risers, chases, utility entrances, equipment rooms, and distribution
areas of conduits between the Premises and other parts of the Building
(excluding the roof). Tenant shall be afforded the right to use where available,
and or construct conduits to connect Tenant's equipment.
(c) Tenant shall have the right to utilize and/or install four (4)
four inch (4") conduits from the telephone service point of entrance into the
Building to designated areas within the Tenant's Premises. Landlord will
cooperate in locating points of entry to provide redundancy of access for
telecommunications services and providers to the Building.
(d) Landlord shall permit Tenant, and Tenant's agents to enter the
Premises no later than February 1, 1999 so that Tenant may construct its
improvements, in accordance with Exhibit "D" of the Lease. Tenant's entry prior
to the Term Commencement Date shall constitute a license only and not a lease
and such license shall be conditioned upon.
(e) Tenant shall be afforded access to the Building's electrical
supply to obtain a minimum of 500 kilowatts of power to the Premises. Landlord
warrants the building has sufficient capacity to provide at least 500 kilowatts
of power during the Term. Tenant shall have the right at any time during the
Term to upgrade the Building's electrical service, subject to Landlord's review
and approval.
Exhibit "G"
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Page 5 of 5
EXHIBIT "H"
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SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(hereinafter referred to as this "Agreement"), made as of the ____ day of
__________________, 19__, by and among
____________________________________________________ (hereinafter referred to as
"Lender") under the Loan Documents (as defined below), THE EQUITABLE LIFE
ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation (hereinafter
referred to as "Landlord") and ______________________________, a
___________________________ corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H:
--------------------
WHEREAS, Lender is to be the owner and holder of that certain note (the
"Note") of the Landlord and a first-in-priority deed to secure debt and security
agreement more particularly described on Exhibit "A" annexed hereto (said deed
to secure debt and security agreement, as it may be amended, increased, renewed,
modified, consolidated, replaced, combined, substituted, severed, split, spread
or extended, being herein called the "Security Deed", and the Note, Security
Deed and all other documents and instruments evidencing, securing or otherwise
relating to the loan which is the subject of the Note and the Security Deed are
collectively referred to herein as the "Loan Documents") covering certain real
property more particularly described on Exhibit "B" annexed hereto (the
"Property"); and
WHEREAS, Tenant is the tenant under a certain lease agreement to be made
by Landlord, which lease agreement (including any modifications or amendments
thereof) and the portion of the Property therein leased (the "Demised Premises")
are more particularly described on Exhibit "C" annexed hereto (as such lease
agreement may hereafter be amended, modified or supplemented by written
agreement, from time to time, among Landlord and Tenant and consented to in
writing by Lender, the "Lease"); and
WHEREAS, Tenant, Landlord and Lender desire to confirm their
understanding with respect to the Lease and the Security Deed.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Non-Disturbance. So long as Tenant is not in default (beyond any
period given Tenant to cure such default) in the payment of base rental or
additional rental or in the performance of any of the terms, covenants or
conditions of the Lease on Tenant's part to be performed: (a) provided Tenant
attorns as provided for in Paragraph 2 below, Tenant's possession or occupancy
of the Demised Premises and Tenant's rights and privileges under the Lease, or
any extensions or renewals thereof which may be effected in accordance with any
option therefor in the Lease, shall not be terminated, diminished or interfered
with by Lender in the exercise of any of Lender's rights under the Security
Deed; (b) provided Tenant attorns as provided for in Paragraph 2 below, Lender
will not join Tenant as a party defendant in any action or proceeding for the
purpose of terminating Tenant's interest under the Lease because of any default
under the Security Deed; and (c) from and after Tenant's attornment per
paragraph 2 below, Lender, its nominee, such other holder (or its nominee) or a
purchaser, as the case may be, shall be bound to Tenant under all the terms,
covenants and conditions of the Lease except as provided in paragraph 3 below.
2. Attornment. If (a) any proceedings are brought for the foreclosure
of the Security Deed or (b) the Property is conveyed by deed in lieu or
assignment in lieu of foreclosure (or similar device), Tenant shall attorn to
and recognize the Lender [or any other holder of the Note or its nominee], its
nominee, or such purchaser, as the case may be, as the landlord under the Lease
for the remainder of the term thereof, and Tenant shall perform and observe its
obligations thereunder, subject only to the terms and conditions of the Lease.
Such attornment shall be effective and self-operative without the execution of
any further instrument on the part of any of the parties hereto. Tenant agrees,
however, to execute and deliver at any time, and from time to time, upon the
request of Landlord, Lender or of any other holder of any of the indebtedness or
other obligations secured by the Security Deed or any such nominee or purchaser,
any instrument or certificate which, in its sole judgment, Landlord, Lender,
such other holder, or such nominee or purchaser, as the case may be, deems to be
necessary or appropriate in any such foreclosure proceeding or conveyance or
assignment in lieu of foreclosure (or similar device) or otherwise to evidence
such attornment. To the extent permitted by applicable law, Tenant waives the
provisions of any statute or rule of law now or hereafter in effect that may
give or purport to give it any right or election to terminate or otherwise
adversely affect the Lease or the obligations of Tenant thereunder by reason of
any foreclosure or other proceedings for enforcement of the Security Deed or the
taking of a deed or assignment in lieu of foreclosure (or similar device).
3. Liability of Lender. If Lender [or any other holder of the Note or
its nominee] or its nominee shall succeed to the interests of Landlord under the
Lease in any manner, or if any purchaser acquires the Property or any part
thereof including the Demised Premises upon any foreclosure of the Security Deed
or by a conveyance or assignment in lieu of such foreclosure (or similar
device), Lender, its nominee, such other holder [or its nominee], or such
purchaser, as the case may be, shall have the same remedies by entry, action, or
otherwise in the event of any default by Tenant (beyond any period given Tenant
to cure such default) in the payment of base rental or additional rental or in
the performance of any of the terms, covenants and conditions of the Lease on
Tenant's part to be performed that Landlord had or would have had if Lender, its
nominee, such other holder [or its nominee] or such purchaser, as the case may
be, had not succeeded to the interest of Landlord. Except as herein provided,
from and after such attornment, Lender, its nominee, such other holder [or its
nominee] or such purchaser, as the case may be, shall be bound to Tenant under
all the terms, covenants and conditions of the Lease. Except as herein provided,
Tenant shall, from and after the succession to the interest of Landlord under
the Lease by Lender, its nominee, or such other holder [or its nominee] or such
purchaser, as the case may be, have the same remedies against Lender, its
nominee, such other holder [or its nominee] or such purchaser, as the case may
be, for the breach of any agreement contained in the Lease that Tenant might
have had under the Lease against Landlord if Lender, its nominee, such other
holder [or its nominee] or such purchaser, as the case may be, had not succeeded
to the interest of Landlord; provided, however, that, except for Landlord
defaults for which Tenant has given Landlord and Lender written notice, Lender,
its nominee, such other holder [or its nominee] or such purchaser, as the case
may be, shall not be:
Exhibit "H"
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Page 1 of 8
(i) obligated to cure any defaults under the Lease of any prior
landlord (including Landlord);
(ii) liable for any act or omission of any prior landlord
(including Landlord);
(iii) subject to any offsets or defenses which Tenant might have
against any prior landlord (including Landlord) except as set forth in
Article 1, subparagraph (l) of the Lease;
(iv) bound by any base rental or additional rental which Tenant
might have paid for more than the current month to any prior landlord
(including Landlord);
(v) bound by any amendment or modification of the Lease made
without Lender's prior written consent;
(vi) bound by any warranty or representation of any prior
landlord (including Landlord) relating to work performed by any prior
landlord (including Landlord) under the Lease;
(vii) liable to Tenant for construction or renovation, or delays
in construction or restoration, of the improvements situated or to be
situated on the Property;
(viii) obligated to make any capital improvements to the Property
or the Demised Premises which any prior landlord (including Landlord)
has agreed to make but not completed or to perform or furnish any
services not related to the possession and quiet enjoyment of the
Demised Premises; or
(ix) responsible for security deposits or other refundable fees
unless paid over to Lender.
4. No Affect on Security Title and Lien of Security Deed. Nothing
herein contained shall in any way impair or affect the security title and lien
created by the Security Deed except as may be specifically set forth herein.
Nothing herein contained is intended, nor shall be construed, to abridge or
adversely affect any right or remedy of Landlord under the Lease in the event of
any default by Tenant (beyond any period given Tenant to cure such default) in
the conditions of the Lease on Tenant's part to be performed.
5. Subordination. Tenant hereby covenants and agrees that the Lease,
together with all rights, title, interests, estates, options, liens and charges
created thereby, is hereby expressly made, now is and shall at all times
continue to be subject, subordinate and inferior in all respects to the Loan
Documents, the Security Deed, the Note, all sums advanced under the Note, and
all other documents and instruments evidencing or securing (or to evidence or
secure) the indebtedness evidenced by the Note and secured by the Security Deed
and to all amendments, consolidations, extensions, replacements, modifications,
renewals, recastings, refinancings, transfers and assignments thereof, subject
to the terms of this Agreement. Tenant, upon request, shall execute and deliver
any certificate or other instrument whether or not in recordable form which
Lender may request to perfect, confirm or effectuate said subordination. The
Loan Documents shall be superior to the right, title, interest and estate of
Tenant in and to the Demised Premises by virtue of the Lease. The Loan Documents
may be amended from time to time without the consent of Tenant. Landlord shall
be named Tenant's attorney in fact in the event Tenant does not execute and
deliver such instruments in a timely fashion.
6. Notices. Any notice or communication required or permitted hereunder
shall be given in writing, hand delivered, sent by any overnight courier service
providing dated evidence of delivery, or sent by United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed as
set forth on Exhibit "D" annexed hereto, or to such other address(es) or in care
of such other person(s) as hereafter shall be designated in writing by the
applicable party sent in the manner in this Paragraph 6 provided and shall be
deemed to have been given as of the date of receipt. Rejection or other refusal
to accept or inability to deliver because of changed address of which no notice
has been received shall constitute receipt.
7. Default by Landlord. So long as the Security Deed remains
outstanding and unsatisfied, Tenant will mail or deliver to Lender, at the
address and in the manner herein provided, a copy of all notices permitted or
required to be given to Landlord by Tenant under and pursuant to the terms and
provisions of the Lease. In addition thereto, so long as the Security Deed
remains outstanding and unsatisfied, Tenant will mail or deliver to Lender, at
the address and in the manner hereinabove provided, written notice of any
default or claimed default of Landlord under the Lease (whether or not Tenant is
obligated under the Lease to give written notice thereof to Landlord). If
Landlord shall fail to cure any default within the time prescribed by the Lease,
Tenant shall give further notice of such fact to Lender. At any time before the
rights of Landlord shall have been forfeited or adversely affected because of
any default of Landlord, or within the time permitted Landlord for curing any
default under the Lease as therein provided (but not less than sixty (60) days
from the receipt of notice), Lender may, but shall have no obligation to, pay
any taxes and assessments, make any repairs and improvements, make any deposits
or do any other act or thing required of Landlord by the terms of the Lease, and
all payments so made and all things so done and performed by Lender shall be as
effective to prevent the rights of Landlord from being forfeited or adversely
affected because of any default under the Lease as the same would have been if
done and performed by Landlord. Tenant agrees that notwithstanding any
provisions of the Lease, no notice of cancellation or abatement shall be
effective unless Lender has received notice as herein provided, and Lender has
failed within sixty (60) days of its receipt of such notice to cure the default,
or if the default cannot be cured within sixty (60) days, has failed to commence
and diligently prosecute the curing of the default (which may include, but not
be limited to, commencement of foreclosure proceedings, if necessary to effect
such cure) which gave rise to such right of cancellation or abatement.
8. Limited Liability of Lender. Anything herein or in the Lease to the
contrary notwithstanding, in the event that Lender [or any other holder of the
Note or its nominee] or its nominee shall succeed to the interest of the
Landlord under the Lease (any of the foregoing being herein referred to as the
"Successor"), the Successor shall have no obligation, nor incur any liability,
beyond its then interest, if any, in the Property and Tenant shall look
exclusively to such interest of the Successor, if any, in the Property for the
payment and discharge of any obligations imposed upon the Successor hereunder or
under the Lease and the Successor is hereby released or relieved of any other
liability hereunder and under the Lease. Tenant agrees that with respect to any
judgment which may be obtained or secured by Tenant against the Successor,
Tenant shall look solely to the
Exhibit "H"
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Page 2 of 8
estate or interest owned by the Successor in the Property and Tenant will not
collect or attempt to collect any such judgment out of any other assets of the
Successor. In no event shall Successor be liable to Tenant nor shall any
interest of Successor in the Property be subject to execution by Tenant, for any
indirect, special or consequential damages. 9. Satisfaction of Lease
Requirements. Tenant agrees that this Agreement satisfies any condition or
requirement in the Lease relating to the granting of a non-disturbance agreement
with respect to the Security Deed. Tenant further agrees that in the event there
is any inconsistency between the terms and provisions of this Agreement and the
terms and provisions of the Lease, the terms and provisions of this Agreement
shall be controlling.
10. Modifications; Binding Effect. This Agreement may not be modified
orally or in any manner other than by an agreement in writing signed by the
parties hereto or their respective successors in interest. The term "Landlord",
as used herein, shall mean and include the Landlord under the Lease and any
successor landlord under the Lease up to and including any landlord succeeding
to the position of Landlord prior to and other than Lender. This Agreement shall
inure to the benefit of, and be binding upon, the parties hereto, their legal
representatives, successors and assigns, and any purchaser or purchasers at
foreclosure of the Property, and its or their respective heirs, personal
representatives, successors and assigns.
11. Assignment of Rents. Tenant acknowledges that it has notice that
the Landlord's interest under the Lease and the rent and all other sums due
thereunder have been assigned to Lender as part of the security for the
indebtedness secured by the Security Deed, and Tenant expressly consents to such
assignment. In the event that Lender notifies Tenant of an event of default
under the Security Deed and demands that Tenant pay rent and all other sums due
under the Lease to Lender, Tenant agrees that it shall pay rent and all other
sums due under the Lease directly to Lender.
12. Miscellaneous. This Agreement shall be governed by and construed
under the laws of the State of Georgia. If any of the terms of this Agreement or
the application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the application of
any such terms to any person or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each term of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
13. Exhibits. All exhibits attached hereto are by this reference
incorporated fully herein, and the term "this Agreement" shall include all such
exhibits.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the date first above written.
"LENDER":
----------------------------------
Signed, sealed and ----------------------------------
delivered in the presence of:
By:
------------------------------ -------------------------------
Witness Title:
---------------------
Attest:
------------------------------ ---------------------------
Notary Public
Title:
---------------------
[CORPORATE SEAL]
[SIGNATURES CONTINUE ON NEXT PAGE]
Exhibit "H"
-----------
Page 3 of 8
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
"LANDLORD":
----------------------------------
Signed, sealed and ----------------------------------
delivered in the presence of:
By:
------------------------------ -------------------------------
Witness Title:
---------------------
Attest:
------------------------------ ---------------------------
Notary Public
Title:
---------------------
[CORPORATE SEAL]
"TENANT":
----------------------------------
Signed, sealed and ----------------------------------
delivered in the presence of:
By:
------------------------------ -------------------------------
Witness Title:
---------------------
Attest:
------------------------------ ---------------------------
Notary Public
Title:
---------------------
[CORPORATE SEAL]
Exhibit "H"
-----------
Page 4 of 8
EXHIBIT "A"
-----------
DESCRIPTION OF SECURITY DEED
----------------------------
Deed to Secure Debt and Security Agreement executed by
________________________ in favor of _________________________ dated
_________________________________, recorded in Deed Book _____________,page
_____________, Xxxxxx County, Georgia.
Exhibit "H"
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Page 5 of 8
EXHIBIT "B"
-----------
(LEGAL DESCRIPTION OF PROPERTY)
-------------------------------
Exhibit "H"
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Page 6 of 8
EXHIBIT "C"
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DESCRIPTION OF LEASE AND DEMISED PREMISES
-----------------------------------------
That certain Lease Agreement (the "Lease") between
_______________________ and _______________________________, dated
_________________, 19__. "Demised Premises" shall have the same meaning as
defined in the Lease.
Exhibit "H"
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Page 7 of 8
EXHIBIT "D"
-----------
NOTICE ADDRESSES
----------------
The address of Landlord is:
-------------------------------------------
-------------------------------------------
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The address of Lender is:
-------------------------------------------
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The address of Tenant is:
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Exhibit "H"
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Page 8 of 8
