LEASE AGREEMENT CONCOURSE ATLANTA, GEORGIA
CONCOURSE
ATLANTA,
GEORGIA
| LANDLORD: | 485 PROPERTIES, LLC |
| TENANT: | AMERICAN TELECOM SERVICES, INC. |
| BUILDING: | CORPORATE CENTER VI |
| SUITE: | 1525 |
| SQ. FT.: | 2,561 |
| ]TERM: | THREE (3) YEARS, THREE (3) MONTHS |
TABLE
OF CONTENTS
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Page
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1.
|
PREMISES
AND TERM
|
1
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2.
|
RENT
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2
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|
3.
|
OPERATING
COSTS
|
3
|
|
4.
|
DELIVERY
OF THE PREMISES
|
6
|
|
5.
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ACCEPTANCE
OF THE PREMISES
|
7
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|
6.
|
USE
|
7
|
|
7.
|
TENANT’S
CARE OF THE PREMISES
|
7
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|
8.
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SERVICES
|
8
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|
9.
|
DESTRUCTION
OR DAMAGE TO PREMISES
|
11
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|
10.
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DEFAULT
BY TENANT; LANDLORD’S REMEDIES
|
11
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11.
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ASSIGNMENT
AND SUBLETTING
|
14
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|
12.
|
CONDEMNATION
|
15
|
|
13.
|
INSPECTIONS
|
16
|
|
14.
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SUBORDINATION
|
16
|
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15.
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INDEMNIFICATION
AND HOLD HARMLESS
|
16
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16.
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INSURANCE
|
17
|
|
17.
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REMEDIES
CUMULATIVE
|
19
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|
18.
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ENTIRE
AGREEMENT - NO WAIVER
|
19
|
|
19.
|
HOLDING
OVER
|
19
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|
20.
|
HEADINGS
|
19
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21.
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NOTICES
|
19
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|
22.
|
HEIRS,
SUCCESSORS, AND ASSIGNS - PARTIES
|
20
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23.
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ATTORNEY’S
FEES
|
20
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24.
|
TIME
OF ESSENCE
|
20
|
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25.
|
NO
ESTATE IN LAND
|
20
|
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26.
|
SECURITY
DEPOSIT
|
20
|
|
27.
|
COMPLETION
OF THE PREMISES
|
21
|
|
28.
|
PARKING
ARRANGEMENTS
|
21
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|
29.
|
RULES
AND REGULATIONS
|
21
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|
30.
|
RIGHT
TO RELOCATE
|
22
|
|
31.
|
LA’T’E
PAYMENTS
|
22
|
|
32.
|
ESTOPPEL
CERT1FICATE
|
22
|
|
33.
|
SEVERABILITY
AND INTERPRETATION
|
23
|
|
34.
|
MULTIPLE
TENANTS
|
23
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|
35.
|
FORCE
MAJEURE
|
23
|
|
36.
|
QUIET
ENJOYMENT
|
24
|
|
37.
|
BROKERAGE
COMMISSION; INDEMNITY
|
24
|
|
38.
|
EXCULPATION
OF LANDLORD
|
24
|
|
39.
|
ORIGINAL
INSTRUMENT
|
24
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|
40.
|
GEORGIA
LAW
|
24
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41.
|
NO
RECORDAT1ON OF LEASE
|
24
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42.
|
HAZARDOUS
WASTES
|
25
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|
43.
|
PATRIOT
ACT.
|
25
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|
44.
|
LEASE
BINDING UPON DELIVERY
|
25
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45.
|
SPECIAL
STIPULATIONS
|
25
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Signature
Page
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||
-i-
Signature
Page
Exhibit
“A” - Space Plan of Premises
Exhibit
“B” - Description of the Property
Exhibit
“C” - Work Letter
Exhibit
“D’’ - Acceptance of Premises Form
Exhibit
“F” - Rules arid Regulations
Exhibit
“F” - Special Stipulations
-ii-
DEFINITIONS
|
Defined
Term
|
Paragraph
|
|
ADA
|
Exhibit
“C”
|
|
Additional
Electrical Equipment
|
8(b)(iv)
|
|
Allowance
|
Exhibit
“C”
|
|
Architect
|
Exhibit
“C”
|
|
Base
Building Improvements
|
Exhibit
“C”
|
|
Building
|
1(a)
|
|
Building
Plans and Specifications
|
Exhibit
“C”
|
|
Building
Standard Materials
|
Exhibit
“C”
|
|
Change
Order
|
Exhibit
“C”
|
|
Change
Order Effect Notice
|
Exhibit
“C”
|
|
Commencement
Date
|
1(b)
|
|
Completion
Date
|
Exhibit
“C”
|
|
Construction
Contract
|
Exhibit
“C”
|
|
Contractor
|
Exhibit
“C”
|
|
Expiration
Date
|
1(b)
|
|
Force
Majeure
|
35
|
|
Initial
Operating Costs
|
3(a)
|
|
Landlord
|
Caption
|
|
Lease
|
Caption
|
|
Lease
Year
|
1(c)
|
|
Monthly
Rental
|
2(a)
|
|
Mortgagee
|
14(a)
|
|
Operating
Costs
|
3(b)
|
|
Premises
|
1(a)
|
-iii-
|
Property
|
1(d)
and Exhibit “B”
|
|
Punchlist
Items
|
Exhibit
“C”
|
|
Rent
|
2(c)
|
|
Rules
|
6
and Exhibit “E”
|
|
Shared
Service
|
8(e)
|
|
Substantial
Completion or Substantially Complete
|
Exhibit
“C”
|
|
Tenant
|
Caption
|
|
Tenant
Delay
|
Exhibit
“C”
|
|
Tenant
Improvement Construction Documents
|
Exhibit
“C”
|
|
Tenant
Improvement Costs
|
Exhibit
“C”
|
|
Tenant
Improvements
|
Exhibit
“C”
|
|
Tenant
Space Plans
|
Exhibit
“C”
|
|
Tenant’s
Share
|
3(c)
|
|
Tenant’s
Work
|
Exhibit
“C”
|
|
Term
|
1(b)
|
|
Total
Building Rentable Area
|
1(a)
|
|
Working
Day
|
Exhibit
“C”
|
-iv-
CONCOURSE
THIS
LEASE AGREEMENT (this “Lease”), made this 21st day of December, 2005, by and
between 485 PROPERTIES, LLC (“Landlord”), a Delaware limited liability company,
which has as its address for all purposes hereunder as follows:
485
Properties, LLC
c/o
Cousins Properties Services LP
Five
Concourse Parkway
Suite
1200
Atlanta,
Georgia 30328-6111
and
AMERICAN TELECOM SERVICES, INC. (“Tenant”), a Delaware corporation, which has as
its address prior to the Commencement Date:
000
Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
and
after
the Commencement Date:
Six
Concourse Parkway, Suite 1525
Xxxxxxx,
Xxxxxxx 00000
Attn:
Director of Real Estate
WITNESSETH:
| 1. |
PREMISES
AND TERM
|
(a) Landlord
hereby rents and leases to Tenant, and Tenant hereby rents and leases from
Landlord, the following described space (the “Premises”):
Floor:
15th
Suite:
0000
Xxxxxxxx
Xxxxxx Feet: 2,561
Usable
Square Feet: 2,208
located
at the herein called “Building”:
Building:
Corporate Center VI
Address:
Six Concourse Parkway
Xxxxxx
County, Georgia
Total
Building Rentable Area: 697,400
(b) The
Premises are more particularly shown and outlined on the space plans attached
hereto as Exhibit “A”, and made a part hereof. The term of this Lease (the
“Term”) shall commence on the earlier to occur of (i) the date the Tenant
Improvements have been Substantially Complete or the date the Tenant
Improvements would have been Substantially
Complete
in the absence of Tenant Delay, or (ii) the date Tenant occupies the Premises
or
any portion thereof for the purpose of conducting business therefrom (the
earlier to occur of (i) or (ii) being hereinafter referred to as the
“Commencement Date”), and shall end at midnight on the last day the thirty-ninth
(39’’) full calendar month following the Commencement Date (the “Expiration
Date”), unless sooner terminated as herein provided. This Lease shall be
effective and enforceable upon its execution and delivery, whether such
execution and delivery occurs on, prior to, or after the Commencement Date.
Landlord currently estimates that the Commencement Date will occur on January
1,
2006, subject to the provisions of Paragraph 4 below and to confirmation by
delivery of an “Acceptance of Premises” agreement as described in Paragraph 5
below.
(c) “Lease
Year” as used herein shall mean (i) each and every twelve (12) month period
during the Term, or (ii) in the event of Lease expiration or termination, the
period between the last twelve (12) calendar month period and said expiration
or
termination; provided, however, that the first Lease Year shall commence on
the
Commencement Date and expire on the last day of the twelfth (12`1’) full
calendar month following the Commencement Date.
(d) The
Building and the land upon which said Building is located (which includes
certain parking facilities serving the Building), more particularly described
on
Exhibit “B”, attached hereto and by this reference incorporated herein, is
herein referred to as the “Property”.
(e) The
Premises shall include the appurtenant right to use, in common with others,
public lobbies, entrances, stairs, corridors, elevators, and other public
portions of the Building and of the office park commonly known as “Concourse”.
All the windows and outside walls of the Premises, and any space in the Premises
used for shafts, pipes, conduits, ducts, telephone ducts and equipment, electric
or other utilities, sinks or other Building facilities, and the use thereof
and
access thereto through the Premises for the purposes of operation, maintenance,
inspection, display and repairs are hereby reserved to Landlord. No easement
for
light, air or view is granted or implied hereunder, and the reduction or
elimination of Tenant’s light, air or view will not affect this
Lease.
| 2. |
RENT
|
(a) Tenant
shall pay to Landlord at X.X. Xxx 000000, Xxxxxxx, Xxxxxxx 00000-0000 or at
such
other place Landlord designates, without demand, deduction or setoff, an annual
rental for each Lease Year of the Term as set forth below in this Paragraph
2(a), due and payable in equal monthly installments (the “Monthly Rental”) in
advance on the first (1st) day of each calendar month during the Term, except
that Tenant shall pay the first installment of Monthly Rental upon the execution
and delivery of this Lease by Tenant. Said annual rental shall be paid as
follows:
Annual
Rental
Period square
foot per annum) (annualized basis) Monthly Rental
-2-
|
Period
|
Rate
(per rentable
square
foot per annum)
|
Annual
Rental
(annualized
basis)
|
Monthly
Rental
|
|||
|
Months
1-3
|
$0.00
|
$0.00
|
$0.00
|
|||
|
Months
4-12
|
$22.00
|
$56,342.00
|
$4,695.17
|
|||
|
Months
13-24
|
$22.55
|
$57,750.55
|
$4,812.55
|
|||
|
Months
25-36
|
$23.11
|
$59,184.71
|
$4,932.06
|
|||
|
Months
37-39
|
$23.69
|
$60,670.09
|
$5,055.84
|
|||
The
dates
set forth above shall be subject to adjustment upon determination of the actual
Commencement Date as set forth in an “Acceptance of Premises” agreement as
described in Paragraph 5 below.
(b) If
the
Term commences at any time other than the first day of a month or terminates
at
any time other than the last day of a month, the amount of Rent due from Tenant
shall be proportionately adjusted based on that portion of the month that this
Lease is in effect.
(c) The
term
“Rent”, as used herein, shall mean Monthly Rental, Tenant’s Share of Operating
Costs and any other amounts due of Tenant hereunder.
(d) At
all
times that Landlord shall direct Tenant to pay Rent to a “lockbox” or other
depository whereby checks issued in payment of Rent are initially cashed or
deposited by a person or entity other than Landlord (albeit on Landlord’s
authority), then, for any and all purposes under this Lease; (i) Landlord shall
not be deemed to have accepted such payment until ten (10) days after the date
on which Landlord shall have actually received such funds, and (ii) Landlord
shall be deemed to have accepted such payment if (and only if) within said
ten
(10) day period, Landlord shall not have refunded (or attempted to refund)
such
payment to Tenant. Nothing contained in the immediately preceding sentence
shall
be construed to place Tenant in default of Tenant’s obligation to pay Rent if
and for so long as Tenant shall timely pay the Rent required pursuant to this
Lease in the manner designated by Landlord.
| 3. |
OPERATING
COSTS
|
(a) Tenant
hereby covenants and agrees and shall be obligated to pay to Landlord, in
addition to and not in lieu of the other amounts specified herein, Tenant’s
Share of Operating Costs in excess of the Initial Operating Costs. These
payments shall be in addition to and not in lieu of any other payments due
from
Tenant hereunder. The “Initial Operating Costs” shall be, for the purposes of
this Lease, the actual Operating Costs for calendar year 2006, adjusted pursuant
to the terms of this Lease.
(b) The
term
“Operating Costs”, as adjusted pursuant to the terms of this Lease, shall mean
any and all operating expenses of the Property, Building and related areas
(such
as, by way of illustration but not limitation, the parking areas), computed
on
an accrual basis and including all expenses, costs, and disbursements of every
kind and nature, which Landlord (i) shall pay; and/or (ii) become obligated
to
pay, including, but not limited to, the following:
| (i) |
Costs,
wages and salaries of all persons engaged in the on-site management,
operation, repair, security or maintenance of the Property and Building,
including, but not limited to, fringe benefits, taxes, insurance and
any
other benefits relating thereto;
|
-3-
| (ii) |
All
supplies and materials used in the operation and maintenance of the
Property and Building during such calendar
year;
|
| (iii) |
Cost
of water, sewage, electricity and other utilities furnished in connection
with the operation of the Building;
|
| (iv) |
Cost
of all service agreements and maintenance for the Property and Building
and the equipment therein, including, but not limited to, trash removal,
security services, alarm services, window cleaning, janitorial service,
HVAC maintenance, elevator maintenance, and grounds maintenance, and
cost
of all services described in subparagraph 8(a)
below;
|
| (v) |
Cost
of all insurance relating to the Property and Building including, but
not
limited to, the cost of casualty and liability insurance applicable
to the
Property and Building and Landlord’s personal property used in connection
therewith;
|
| (vi) |
All
taxes (ad valorem, rental, sales and use or other similar taxes, if
any),
assessments, and governmental charges whether federal, state, county,
or
municipal, and whether by taxing districts or authorities presently
taxing
the Property and Building or by others, subsequently created or otherwise,
and any other taxes (other than federal and state income taxes), and
assessments attributable to the Property and Building or its operation
and
any reasonable consultants fees incurred with respect to issues or
concerns involving the taxes or the Building, the Property, or
both;
|
| (vii) |
Cost
of repairs and general maintenance of the interior and exterior of
the
Property and Building (including, but not limited to, light bulbs and
glass breakage; the redecorating, repainting, recarpeting and other
such
work of any common areas; heating, ventilation and air conditioning
equipment; plumbing and electrical equipment; and elevators), parking
areas, and landscaping;
|
| (viii) |
A
management fee and other expenses incurred for the general operation
and
management of the Property and Building which shall be on terms which
are
competitive in the Central Perimeter Atlanta Class A office building
market;
|
| (ix) |
An
amortization cost based on GAAP due to any capital expenditures incurred
(i) which have the effect of reducing or limiting Operating Costs of
the
Property and Building, if such reduction or limitation inures to Tenant’s
benefit (but only to the extent and in the amount that such Operating
Costs of the Property and Building are reduced); (ii) which may be
required by governmental authority or by Landlord’s insurance carrier; or
(iii) which are designed to protect or enhance the health, safety or
welfare of the tenants in the Building or their
invitees;
|
-4-
| (x) |
All
assessments made, charged, levied, assessed or accrued against Landlord
by
The Concourse Office Park Association,
Inc.;
|
| (xi) |
Legal
and accounting fees and expenses; and
|
| (xii) |
Anything
which could be classified as an Operating Cost under generally accepted
accounting principles, consistently applied, but not specified or
expressly set forth hereunder.
|
Excluded
from “Operating Costs” are:
| (i) |
Capital
items (except those expenditures referred to
above);
|
| (ii) |
Leasing
commissions;
|
| (iii) |
Specific
costs billed to and paid by specific tenants or other third
parties;
|
| (iv) |
Depreciation;
|
| (v) |
Principal,
interest, and other costs directly related to financing the Building
(and
if applicable, any rent or additional rent payable under any ground
lease);
|
| (vi) |
The
cost of any repairs or general maintenance paid by the proceeds of
insurance policies carried by Landlord on the Property and Building;
and
|
| (vii) |
Any
income or franchise taxes.
|
(c) The
term
“Tenant’s Share” shall mean the proportion that the rentable square footage of
the Premises bears to ninety-five percent (95%) of the Total Building Rentable
Area, or the average percentage of the Total Building Rentable Area actually
leased in the Building for any calendar year, if such average is greater than
ninety-five percent (95%) of the Total Building Rentable Area. The average
shall
be determined by adding together the total leased space on the last day of
each
month during the calendar year in question and dividing by twelve (12). Tenant’s
Share is used in this Lease to determine the portion of Operating Costs payable
by Tenant, on a per square foot per annum basis. Notwithstanding anything to
the
contrary contained herein, if the Building is not fully occupied during any
calendar year, appropriate adjustments shall be made to determine Operating
Costs as though the Building had been fully occupied in such calendar year
for
the entire calendar year. By way of example only, based upon a rentable square
footage in the Premises of 2,561, Tenant’s Share would be calculated as follows:
(i) if the average percentage of the Total Building Rentable Area actually
leased for the applicable calendar year is 95% or less, then 2,561 divided
by
662,530 (95% of the Building Rentable Square Footage of 697,400) _ 0.003865,
or
0.3865%, and (ii) if the average percentage of the Total Building Rentable
Area
actually leased for the applicable calendar year is greater than 95% (assuming,
by way of example only, 98%), then 2,561 divided by 683,452 (98% of the Building
Rentable Square Footage of 697,400) = 0.003747, 0.3747%.
(d) On
January 15 of each calendar year after the calendar year in which this Lease
is
executed (or as soon thereafter as practical), Landlord shall provide Tenant
with the
-5-
projected
Operating Costs for such current calendar year, and Tenant shall thereafter
pay
Tenant’s Share of projected Operating Costs for operating the Property and
Building in excess of the Initial Operating Costs. Such projected Operating
Costs in excess of the Initial Operating Costs shall be payable in advance
on a
monthly basis by paying one-twelfth (1/12th) of such amount during each month
of
such respective calendar year. If Landlord has not furnished Tenant such
comparison by January 15, Tenant shall continue to pay on the basis of the
prior
year’s estimate until the month after such comparison is given. Landlord shall,
within one hundred twenty (120) days (or as soon thereafter as practical) after
each calendar year during the Term provide Tenant an unaudited statement of
such
year’s actual Operating Costs. If actual Operating Costs are greater than
projected Operating Costs, Tenant shall pay Landlord, within thirty (30) days
of
such statement’s receipt, Tenant’s Share of the difference thereof. If such
year’s projected Operating Costs are greater than the actual Operating Costs,
Landlord shall credit Tenant, within thirty (30) days of such statement
issuance, Tenant’s Share of the difference between projected Operating Costs and
actual Operating Costs.
(e) If
this
Lease commences at any time other than the first day of a calendar year or
terminates at any time other than the last day of a calendar year, the amount
of
Operating Costs due from Tenant shall be proportionately adjusted based on
that
portion of the year that this Lease was in effect.
(f) Tenant’s
payments of Operating Costs shall not be deemed payments of base rental under
any governmental wage and price controls or analogous governmental actions
affecting the amount of Rent which Landlord may charge Tenant for the
Premises.
| 4. |
DELIVERY
OF THE PREMISES
|
Landlord
shall deliver possession of the Premises to Tenant, with the Tenant Improvements
Substantially Complete on the Commencement Date. If Landlord cannot deliver
possession of the Premises, with the Tenant Improvements Substantially Complete
to Tenant at the originally estimated Commencement Date set forth in
subparagraph 1(h) above, then the Commencement Date and the Expiration Date
shall each be deferred by the number of days such delivery is delayed beyond
the
originally scheduled Commencement Date; provided, however, that if the
Expiration Date is not the last day of a calendar month, said Expiration Date
shall be further extended to the last day of the calendar month. This Lease
shall not be void or voidable, nor shall Landlord be liable to Tenant for any
loss or damage resulting therefrom and such deferral of the Commencement Date
and the Expiration Date shall be Tenant’s sole remedy for Landlord’s failure to
deliver possession of the Premises for any reason other than Tenant Delay;
provided, however, if the Commencement Date shall not have occurred only as
a
result of the actions or omissions of Landlord (and not as the result of Tenant
Delay or Force Majeure) by March 31, 2006, then Tenant shall have the right
to
cancel this Lease by giving written notice of its election to Landlord on or
before April 10, 2006 (with Tenant’s failure to timely provide such notice of
cancellation being deemed Tenant’s waiver of such cancellation right), whereupon
Landlord shall refund the security deposit and all prepaid Rent, if any, and
thereafter neither party shall have any further rights or obligations hereunder.
Notwithstanding the foregoing, if the delay in Substantial Completion of such
Tenant Improvements and delivery of possession of the Premises is due to Tenant
Delay, the Commencement Date shall occur, and Tenant’s obligation to pay Monthly
Rental shall commence, as of the date upon which such Substantial Completion
and
such delivery would have occurred in the absence of Tenant Delay.
-6-
| 5. |
ACCEPTANCE
OF THE PREMISES
|
The
taking of possession of the Premises by Tenant shall be conclusive evidence
that
Tenant accepts the same “as is” and that the Premises is in good and
satisfactory condition for the use intended at the time such possession was
taken, subject to “punch-list” items which must be remedied after Tenant’s
acceptance of the Premises. Tenant shall execute and deliver an “Acceptance of
Premises” agreement upon the taking of possession of the Premises, in the form
attached as Exhibit “D”, by this reference incorporated herein.
| 6. |
USE
|
Tenant
shall use the Premises only for professional, executive office purposes,
generally in accordance with the manner of use by other tenants in the Building.
The occupancy rate of the Premises shall in no event be more than one (1) person
per 200 rentable square feet within said Premises. Tenant’s use of the Premises
shall not violate any ordinance, law or regulation of any governmental body
or
the “Rules and Regulations” of Landlord (the “Rules”) as set forth in Exhibit
“E” attached hereto and made a part hereof, or cause an unreasonable amount of
use of any of the services provided in the Building. Tenant shall conduct its
business in the manner and according to the generally accepted business
principles of the business or profession in which Tenant is
engaged.
| 7. |
TENANT’S
CARE OF THE PREMISES
|
(a) Tenant
will maintain the Premises and the fixtures and appurtenances therein in a
first-class condition, and will not commit or permit waste therein. Any repair
work, maintenance and any alterations permitted by Landlord in the Premises
(i)
shall be done at Tenant’s sole cost and expense; (ii) shall be done by
Landlord’s employees or agents or, with Landlord’s consent, by persons requested
by Tenant; and (iii) shall first be consented to by Landlord. Tenant shall,
at
Tenant’s expense (but under the direction of Landlord and performed by
Landlord’s employees or agents, or with Landlord’s consent, by persons requested
by Tenant and consented to by Landlord), promptly repair any injury or damage
to
the Premises or Building caused by the misuse or neglect thereof by Tenant,
by
Tenant’s contractors, sub-contractors, customers, employees, licensees, agents,
or invitees. Tenant shall give prompt notice to Landlord of any defective
condition in or about the Premises known to Tenant.
(b) Tenant
will not, without Landlord’s prior consent, which shall not be unreasonably
withheld, delayed or conditioned, make alterations, additions or improvements
(including, but not limited to, structural alterations, additions or
improvements) in or about the Premises and will not do anything to or on the
Premises which will increase the rate of insurance on the Building or the
Property. All alterations, additions or improvements of a permanent nature
made
or installed by Tenant to the Premises shall become the property of Landlord
at
the expiration or early termination of this Lease. Landlord reserves the right
to require Tenant to remove any improvements or additions made to the Premises
by Tenant and to repair and restore the Premises to their condition prior to
such alteration, addition or improvement, reasonable wear and tear, unrepaired
casualty and condemnation excepted, unless Landlord has agreed at or prior
to
the time Tenant requests the right to make such alteration, addition or
improvement that such item need not be removed by Tenant at the expiration
or
early termination of the Term.
-7-
(c) No
later
than the last day of the Term, Tenant will remove Tenant’s personal property and
repair injury done by or in connection with installation or removal of said
property and surrender the Premises (together with all keys, access cards or
entrance passes to the Premises and/or the Building) in as good a condition
at
the beginning of the Term, reasonable wear and tear, unrepaired casualty and
condemnation excepted. All property of Tenant remaining in the Premises after
expiration or early termination of the Term shall be deemed conclusively
abandoned and may be removed by Landlord, and Tenant shall reimburse Landlord
for the cost of removing the same, subject however, to Landlord’s right to
require Tenant to remove any improvements or additions made to the Premises
by
Tenant pursuant to subparagraph (b) above.
(d) In
doing
any work on the installation of Tenant’s furnishings, fixtures, or equipment in
the Premises, Tenant will use only contractors or workers consented to by
Landlord prior to the time such work is commenced. Landlord may condition its
consent upon its receipt from such contractors or workers of acceptable (i)
lien
waivers; and (ii) evidence of liability and personal property insurance coverage
in amounts and with insurance carriers satisfactory to Landlord. Tenant shall
promptly remove any lien or claim of lien for material or labor claimed against
the Premises or Building, or both, by such contractors or workers if such claim
should arise, and Tenant hereby indemnifies and holds Landlord harmless from
and
against any and all loss, cost, damage, expense or liabilities including, but
not limited to, attorney’s fees, incurred by Landlord, as a result of or in any
way related to such claims or liens.
(e) All
personal property brought into the Premises by Tenant, its employees, licensees
and invitees shall be at the sole risk of Tenant, and Landlord shall not be
liable for theft thereof or of money deposited therein or for any damages
thereto, such theft or damage being the sole responsibility of
Tenant.
| 8. |
SERVICES
|
(a) Landlord
shall cause to be furnished the following services (the cost of which services
are included within Operating Costs) on a 24 hour a day, seven day a week basis,
unless otherwise specified herein:
| (i) |
Elevator
service for passenger and delivery needs;
|
| (ii) |
Air
conditioning during summer operations and heat during winter operations
at
temperature levels similar to other first class office buildings in
the
Atlanta area, but consistent with and subject to all Federal and local
energy conservation regulations;
|
| (iii) |
Public
restrooms, including the furnishing of soap, paper towels, and toilet
tissue;
|
| (iv) |
Either
hot and cold or tempered running water for all restrooms and
lavatories;
|
| (v) |
Janitorial
service, including sanitizing, dusting, cleaning, mopping, vacuuming,
and
trash removal, each Monday through Friday, and floor waxing and polishing,
window washing, smudge removal and Venetian blind cleaning as
appropriate;
|
-8-
| (vi) |
The
replacement of building standard fluorescent lamps and ballasts as
needed;
|
| (vii) |
Repairs
and maintenance, for maintaining in good order at all times the exterior
walls, exterior windows, exterior doors and roof of the Building, public
corridors, stairs, elevators, storage rooms, restrooms, the heating,
ventilating and air conditioning systems, electrical and plumbing systems
of the Building, and the walks, paving and landscaping surrounding
the
Building;
|
| (viii) |
General
grounds care;
|
| (ix) |
General
management, including supervision, inspections and management functions;
and
|
| (x) |
Electricity
for the Premises, Building and Property.
|
(b) The
services provided in Paragraph 8(a) are predicated on and are in anticipation
of
the use of the Premises as follows:
| (i) |
Services
shall be provided for the Building during normal business hours as
described in the Rules;
|
| (ii) |
HVAC
design is based on sustained outside temperatures being no higher than
95
degrees Fahrenheit and no lower than 14 degrees Fahrenheit with sustained
occupancy of the Premises by no more than one person per 000 xxxxxx
xxxx
xx xxxxx xxxx and heat generated by electrical lighting and fixtures
not
to exceed 3.0 xxxxx per square foot;
|
| (iii) |
Electric
power usage and consumption for the Premises shall be based on lighting
of
the Premises during normal business hours on a level suitable for normal
office use and power for small desk-top machines and devices using
no more
than 110 volt, 20 amp circuits (allowable load of 15 amps). Heavier
use
items shall not be used or installed, unless expressly permitted elsewhere
herein or by consent of Landlord; and
|
| (iv) |
Should
Tenant’s total rated electrical design load per square foot in the
Premises exceed the Building standard rated electrical design load,
on a
per square foot basis, as determined by Landlord from time to time,
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, as such share is
determined by Landlord in Landlord’s reasonable judgment, Landlord may (at
Tenant’s expense), if reasonably possible, install within the Building one
(1) additional high voltage panel and/or one (1) additional low voltage
panel with associated transformer (the “Additional Electrical Equipment”)
as necessary to accommodate the aforesaid requirements. If the Additional
Electrical Equipment is installed because Tenant’s low or high voltage
rated
|
-9-
|
electrical
design load exceeds the applicable Building standard rated electrical
design load (on a per square foot basis), then a meter may also be
added
by Landlord (at Tenant’s expense) to measure the electricity provided
through the Additional Electrical
Equipment.
|
(c) If
Tenant
uses any services in an amount or for a period in excess of that provided for
herein, Landlord also reserves the right to charge Tenant reimbursement for
the
cost of such added services. Landlord reserves the right to install separate
metering devices to determine such excessive periods and/or amounts, at Tenant’s
sole cost and expense. If there is disagreement as to such additional charge,
the opinion of the appropriate local utility company or an independent
professional engineering firm shall prevail.
(d) Landlord
shall not be liable for any damages and Tenant shall have no right of set-off
or
reduction in Rent as a result of the installation, use, malfunction, or
interruption of use of any equipment in connection with the furnishing of
services referred to herein, including, but not limited to, any interruption
in
services by any cause beyond the immediate control of the Landlord; provided
however, Landlord shall exercise due care in furnishing adequate and
uninterrupted services. Without limitation on the foregoing, under no
circumstances shall Landlord incur liability for damages caused directly or
indirectly by any malfunction of Tenant’s computer systems resulting from or
arising out of the failure or malfunction of any electrical, air conditioning
or
other system serving the Building, and Tenant hereby expressly waives the right
to make any such claim against Landlord.
(e) There
may
be available in the Building a shared communications systems service (the
“Shared Service”), upon terms, conditions and fees to be agreed upon by Tenant
and the party providing such Shared Service. Neither Landlord nor any manager
of
the Building shall be liable to Tenant for damages if the furnishing of any
such
Shared Service is disrupted, terminated or diminished in any manner, nor shall
any disruption, diminution, or cessation relieve Tenant from the performance
of
any of Tenant’s covenants, conditions and agreements under this Lease, nor shall
any disruption, diminution or cessation constitute constructive eviction or
entitle Tenant to an abatement of Rent. Tenant holds Landlord and any such
manager harmless from any claims Tenant may have arising out of or connected
with such cessation or interruption. If Tenant elects not to use the Shared
Service, and Tenant has telephone or other such equipment installed at Tenant’s
own direction, such system shall not (i) cause the Building to violate any
municipal safety codes or ordinances, including, but not limited to, fire safety
codes; (ii) cause damage to the Building; (iii) require an amount of electrical
or other services unreasonably in excess of the requirements for customary
business-telephone systems; or (iv) impact upon the normal use, function and
operation of the Shared Service. If Tenant elects not to use or be a part of
the
Shared Service, Tenant shall not use any wiring or other equipment which is
a
part of the Shared Service without the prior, written consent of the provider
of
such Shared Service. If Tenant uses any such wiring or equipment without such
consent, Tenant shall be liable for, and shall pay to the provider of such
services on demand, (i) the cost of such use; (ii) the cost of repairing or
replacing any wiring or equipment damaged or altered by such use; and (iii)
any
other damages caused by such use.
-10-
| 9. |
DESTRUCTION
OR DAMAGE TO PREMISES
|
(a) If
the
Premises or the Building are totally destroyed (or so substantially damaged
as
to be untenantable in the determination of Architect) by storm, fire, earthquake
or other casualty, Landlord shall have the option to:
| (i) |
Terminate
this Lease as of the date of the occurrence of the storm, earthquake,
tire
or other casualty by giving notice to Tenant within sixty (60) days
from
the date of such damage or destruction;
or
|
| (ii) |
Commence
the process of restoration of the Premises to a tenantable condition
within sixty (60) days from the date of receipt by Landlord of all
of the
insurance proceeds paid with respect to such casualty, and proceed
with
due diligence to complete said restoration of the Premises. If Landlord
chooses to restore the Premises, Rent shall xxxxx with respect to the
untenantable portion of the Premises from the date of such casualty
until
the date of Substantial Completion
thereof.
|
If
Landlord fails to complete such restoration within one hundred eighty (180)
days
of the date of the casualty, this Lease may be terminated as of the date of
the
casualty upon notice from either party to the other, given not more than ten
(10) days following the expiration of said one hundred eighty (180) day period.
If such notice is not given, this Lease shall remain in force and effect and
Rent shall commence upon delivery of the Premises to Tenant in a state of
Substantial Completion.
(b) If
the
Premises are damaged but not rendered wholly untenantable by any event set
forth
in Paragraph 9(a) above, Rent shall xxxxx in the proportion the Premises have
been made untenantable. Landlord shall restore the Premises expeditiously,
and
upon the date of restoration, full Rent shall commence.
(c) Rent
shall not xxxxx if the damage or destruction of the Premises, whether total
or
partial, is the result of the negligence of Tenant, its contractors,
subcontractors, agents, employees, guests or invitees.
| 10. |
DEFAULT
BY TENANT; LANDLORD’S REMEDIES
|
(a) The
occurrence of any of the following shall constitute an Event of Default
hereunder by Tenant:
| (i) |
The
Rent or any other sum of money due of Tenant hereunder is not paid
within
five (5) days following written notice from Landlord that the same
is
due;
|
| (ii) |
Any
petition is filed by or against Tenant under any section or chapter
of the
National or Federal Bankruptcy Act or any other applicable Federal
or
State bankruptcy, insolvency or other similar law, and, in the case
of a
petition filed against Tenant, such petition is not dismissed within
sixty
(60) days after the date of such filing; if Tenant shall become insolvent
or transfer property to defraud creditors; if Tenant shall make an
assignment for the benefit of creditors; or if receiver is appointed
for
any of Tenant’s assets;
|
-11-
|
for
the benefit of creditors; or if receiver is appointed for any of
Tenant’s
assets;
|
| (iii) |
Tenant
fails to bond off or otherwise remove any lien filed against the Premises
or the Building by reason of Tenant’s actions, within twenty (20) days
after Tenant has notice of the filing of such lien;
or
|
| (iv) |
Tenant
fails to observe, perform and keep the covenants, agreements, provisions,
stipulations, conditions and Rules herein contained to be observed,
performed and kept by Tenant (other than the failure to pay when due
any
Rent or any other sum of money becoming due Landlord hereunder, which
under all circumstances is governed by and subject to Paragraph l0(a)(i)
herein), and persists in such failure after thirty (30) days written
notice by Landlord requiring that Tenant remedy, correct, desist or
comply
(or if any such failure to comply on the part of Tenant would reasonably
require more than thirty (30) days to rectify, unless Tenant commences
rectification within the thirty (30) day notice period and thereafter
promptly, effectively and continuously proceeds with the rectification
of
the failure to comply on the part of Tenant and, in all such events,
cures
such failure to comply on the part of Tenant no later than sixty (60)
days
after such notice).
|
(b) Upon
the
occurrence of an Event of Default, Landlord shall have the option to do and
perform any one or more of the following:
| (i) |
Terminate
this Lease, in which event Tenant shall immediately surrender the Premises
to Landlord. If Tenant shall fail to do so, Landlord may, without further
notice and without prejudice to any other remedy Landlord may have,
enter
upon the Premises without the requirement of resorting to the
dispossessory procedures set forth in O.C.G.A. §§ 44-7-50 et seq. and
expel or remove Tenant and Tenant’s effects without being liable for any
claim for trespass or damages therefor. Upon any such termination,
Tenant
shall remain liable to Landlord for damages, due and payable monthly
on
the day Rent would have been payable hereunder, in an amount equal
to the
Rent and any other amounts which would have been owing by Tenant for
the
balance of the Term, had this Lease not been terminated, less the net
proceeds, if any, of any reletting of the Premises by Landlord, after
deducting all of Landlord’s costs and expenses (including, without
limitation, advertising expenses and professional fees) incurred in
connection with or in any way related to the termination of this Lease,
eviction of Tenant and such reletting;
and/or
|
| (ii) |
Declare
the entire amount of Rent calculated on the current rate being paid
by
Tenant, and other sums which in Landlord’s reasonable determination would
become due and payable during the remainder of the Term (including,
but
not limited to, increases in Rent pursuant to Paragraph 2(b) and 3(d)
herein), discounted to present value by using a reasonable discount
rate
selected by Landlord, to be due and payable immediately.
|
-12-
|
Upon
such acceleration of such amounts, Tenant agrees to pay the same
at once,
together with all Rent and other amounts theretofore due, at Landlord’s
address as provided herein; provided however, that 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 actual damages in such event
are impossible to ascertain and that the amount set forth above is
a
reasonable estimate thereof). Upon making such payment, Tenant shall
receive from Landlord all rents received by Landlord from other tenants
renting the Premises during the Term, provided that the monies to
which
Tenant shall so become entitled shall in no event exceed the entire
amount
actually paid by Tenant to Landlord pursuant to the preceding sentence,
less all of Landlord’s costs and expenses (including, without limitation,
advertising expenses and professional fees) incurred in connection
with or
in any way related to the reletting of the Premises. The acceptance
of
such payment by Landlord shall not constitute a waiver of rights
or
remedies to Landlord for any failure of Tenant thereafter occurring
to
comply with any term, provision, condition or covenant of this Lease;
and/or
|
| (iii) |
Enter
the Premises as the agent of Tenant without the requirement of resorting
to the dispossessory procedures set forth in O.C.G.A. §§ 44-7-50 et seq.
and without being liable for any claim for trespass or damages therefor,
and, in connection therewith, rekey the Premises, remove Tenant’s effects
therefrom and store the same at Tenant’s expense, without being liable for
any damage thereto, and relet the Premises as the agent of Tenant,
without
advertisement, by private negotiations, for any term Landlord deems
proper, and receive the rent therefor. Tenant shall pay Landlord on
demand
any deficiency that may arise by reason of such reletting, but Tenant
shall not be entitled to any surplus so arising. Tenant shall reimburse
Landlord for all costs and expenses (including, without limitation,
advertising expenses and professional fees) incurred in connection
with or
in any way related to the eviction of Tenant and reletting the Premises,
and for the amount of any other Rent which would have been due of Tenant
to Landlord hereunder if not for certain concessions granted by Landlord
to Tenant. Landlord, in addition to but not in lieu of or in limitation
of
any other right or remedy provided to Landlord under the terms of this
Lease or otherwise (but only to the extent such sum is not reimbursed
to
Landlord in conjunction with any other payment made by Tenant to
Landlord), shall have the right to be immediately repaid by Tenant
the
amount of all sums expended by Landlord and not repaid by Tenant in
connection with preparing or improving the Premises to Tenant’s
specifications and any and all costs and expenses incurred in renovating
or altering the Premises to make it suitable for reletting;
and/or
|
| (iv) |
As
agent of Tenant, do whatever Tenant is obligated to do under this Lease,
including, but not limited to, entering the Premises, without
being
|
-13-
|
liable
to prosecution or any claims for damages, in order to accomplish
this
purpose. Tenant agrees to reimburse Landlord immediately upon demand
for
any expenses which Landlord may incur in thus effecting compliance
with
this Lease on behalf of Tenant. Landlord shall not be liable for
any
damages resulting to Tenant from such action, whether caused by the
negligence of Landlord or otherwise.
|
(c) Pursuit
by Landlord of any of the foregoing remedies shall not preclude the pursuit
of
general or special damages incurred, or of any of the other remedies provided
herein, at law or in equity.
(d) No
act or
thing done by Landlord or Landlord’s employees or agents during the Term shall
be deemed an acceptance of a surrender of the Premises. Neither the mention
in
this Lease of any particular remedy, nor the exercise by Landlord of any
particular remedy hereunder, at law or in equity, shall preclude Landlord from
any other remedy Landlord might have under this Lease, at law or in equity.
Any
waiver of or redress for any violation of any covenant or condition contained
in
this Lease or any of the Rules now or hereafter adopted by Landlord, shall
not
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt
by
Landlord of Rent with knowledge of the breach of any covenant in this Lease
shall not be deemed a waiver of such breach.
| 11. |
ASSIGNMENT
AND SUBLETTING
|
(a) Tenant
shall not sublet any part of the Premises, nor assign this Lease or any interest
herein, nor, once any such sublet or assignment is consented to by Landlord,
amend or modify the terms of such sublet or assignment, without the prior
consent of Landlord, which consent shall not be unreasonably withheld, delayed
or conditioned. Without limiting the generality of the foregoing, Landlord
may
deny consent to an assignment or sublease if, by way of illustration but not
limitation, (i) the financial statements of the proposed assignee or sublessee
are unsatisfactory, or (ii) the proposed assignment or sublease provides for
rental or other payment for such use, occupancy or utilization based, in whole
or in part, on the net income or profits derived by any person or entity from
the Premises leased, used, occupied or utilized.
(b) Consent
by Landlord to one assignment or sublease shall not destroy or waive this
provision, and all later assignments and subleases shall likewise be made only
upon prior consent of Landlord. If a sublease or assignment is consented to
by
Landlord, any sublessees or assignees shall become liable directly to Landlord
for all obligations of Tenant hereunder without relieving or in any way
modifying Tenant’s liability hereunder. If Tenant notifies Landlord of Tenant’s
intent to sublease or assign this Lease, Landlord shall within thirty (30)
days
following receipt of such notice, together with a copy of the proposed sublease
or assignment and together with information regarding the proposed subtenant
or
assignee in detail reasonably sufficient to enable Landlord to evaluate the
proposed subtenant or assignee (i) consent to such proposed subletting; (ii)
deny such consent, giving reasons for denying such consent at the time of the
denial; (iii) elect to cancel this Lease, or to reduce the Premises by the
area
requested to be subleased or assigned if the area is less than the entire
Premises; or (iv) elect to sublease the space, or take the assignment, as
applicable, on the same terms and conditions as offered by the third-party.
If
Landlord elects to cancel or to reduce the area of the Premises,
-14-
Tenant
shall have ten (10) days from such notice to notify Landlord of Tenant’s
acceptance of such cancellation or reduction or Tenant’s desire to remain in
possession of Premises for the Tenn. If Tenant fails to so notify Landlord
of
Tenant’s election to accept termination or reduction or to continue as Tenant
hereunder, such failure shall be deemed an election to terminate or have the
area of Premises reduced, as the case may be, and such termination or reduction
shall be effective as of the end of the ten (10) day period provided for in
Landlord’s notice as hereinabove provided. If Landlord gives its consent to any
such assignment or sublease, fifty percent (50%) of any rent or other cost
to
the assignee or subtenant for all or any portion of the Premises over and above
the Rent payable by Tenant for such space shall be due and payable, and shall
be
paid, to Landlord. If this Lease is cancelled, the area of Premises is reduced
or a sublease or assignment is made as herein provided, Tenant shall pay
Landlord a charge equal to the actual costs incurred by Landlord, in Landlord’s
reasonable judgment (including, but not limited to, the use and time of
Landlord’s personnel), for all of the reasonably necessary legal and accounting
services required to accomplish such cancellation, reduction of area of the
Premises, assignment or subletting, as the case may be.
(c) Notwithstanding
anything in this Lease to the contrary, Landlord’s consent shall not be required
for any assignment of this Lease or subletting of the Premises by Tenant to
an
assignee or sublessee that is directly or indirectly in control of, controlled
by or under common control with Tenant or its principals, or into which or
with
which Tenant merges or consolidates, or which purchases all or substantially
all
of the stock or assets of Tenant; provided, however, (i) in no event shall
Tenant be released from its liability under this Lease, and (ii) Tenant shall
provide to Landlord written notice of such assignment or subletting at least
thirty (30) days prior to the effective date thereof, together with a copy
of
the proposed agreement of assignment or sublease and together with such
information regarding the assignee or sublessee in such reasonable detail to
enable Landlord to determine that the proposed assignment or sublease is
permitted without Landlord’s consent pursuant to this subparagraph (c). For the
avoidance of doubt, the provisions of this Section 11 shall not be deemed to
apply to an initial public offering or any secondary offering of the stock
of
(i) the Tenant or (ii) any assignee or sublessee of Tenant as otherwise
permitted under this subparagraph (c).
| 12. |
CONDEMNATION
|
If
the
Premises (or a part of such Premises such that the Premises, in the reasonable
judgment of the Architect, are untenantable) arc taken by eminent domain or
other similar proceeding or are conveyed in lieu of such taking, this Lease
shall expire on the date when title or right of possession vests, and Rent
paid
for any period beyond said date shall be repaid to Tenant. If there is a partial
taking where this Lease is not terminated, the Rent shall be adjusted in
proportion to the square feet of Premises taken, as determined by the Architect.
In either event, Landlord shall be entitled, and Tenant shall not have any
right, to claim any award made in any condemnation proceeding, action or ruling
relating to the Building or the Property; provided, however, Tenant shall be
entitled to make a claim in any condemnation proceeding, action or ruling
relating to the Building for Tenant’s moving expenses and the unamortized value
of leasehold improvements in the Premises actually paid for by Tenant, to the
extent such claim does not in any manner impact upon or reduce Landlord’s claim
or award in such condemnation proceeding, action or ruling. Landlord shall
have,
in Landlord’s sole discretion, the option of terminating this Lease if any such
condemnation, action, ruling or conveyance in lieu thereof makes continuation
of
Landlord’s use of the Building economically unfeasible.
-15-
| 13. |
INSPECTIONS
|
Landlord,
its agents or employees may enter the Premises at reasonable hours and upon
reasonable notice (which notice may be by telephone) to Tenant except in the
event of an emergency to (a) exhibit the Premises to prospective purchasers
or
tenants of the Premises or the Building; (b) inspect the Premises to see that
Tenant is complying with its obligations hereunder; and (c) make repairs (i)
required of Landlord under the terms hereof; (ii) to any adjoining space in
the
Building; or (iii) to any systems serving the Building which run through the
Premises.
| 14. |
SUBORDINATION
|
(a) This
Lease shall be subject and subordinate to any underlying land leases or deeds
to
secure debt which may now or hereafter affect this Lease, the Building or the
Property and also to all renewals, modifications, extensions, consolidations,
and replacements of such underlying land leases and deeds to secure debt. In
confirmation of the subordination set forth in this Xxxxxxxxx 00, Xxxxxx shall,
at Landlord’s request, execute and deliver such further instruments desired by
the holder of the deed to secure debt (a “Mortgagee”) or by any lessor under any
such underlying land leases. Notwithstanding the foregoing, Landlord or such
Mortgagee shall have the right to subordinate or cause to be subordinated,
in
whole or in part, any such underlying land leases or deeds to secure debt to
this Lease (but not in respect to priority of entitlement of insurance or
condemnation proceeds). If any such underlying land leases or deeds to secure
debt terminate for any reason or any such deeds to secure debt are foreclosed
or
a conveyance in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination, deliver to Mortgagee within ten (10) days
of
written request an attornment agreement, providing that such Tenant shall
continue to abide by and comply with the terms and conditions of this
Lease.
(b) If
any
proceedings are brought for the foreclosure of, or in the event of exercise
of
the power of sale or conveyance in lieu of foreclosure under any deed to secure
debt, Tenant shall at the option of the purchaser at such foreclosure or other
sale, attorn to such purchaser and recognize such person as Landlord under
this
Lease. The institution of any suit, action or other proceeding by a Mortgagee
or
a sale of the Property pursuant to the powers granted to a Mortgagee under
its
deed to secure debt, shall not, by operation of law or otherwise, result in
the
cancellation or the termination of this Lease or of the obligations of Tenant
hereunder.
(c) If
such
purchaser requests and accepts such attornment, from and after such attornment,
Tenant shall have the same remedies against such purchaser for the breach of
an
agreement contained in this Lease that Tenant might have had against Landlord
if
the deed to secure debt had not been terminated or foreclosed, except such
purchaser shall not be (i) liable for any act or omission of the prior Landlord;
(ii) subject to any offsets or defenses which Tenant might have against the
prior Landlord; or (iii) bound by any Rent or security deposit which Tenant
might have paid in advance to the prior Landlord.
| 15. |
INDEMNIFICATION
AND HOLD HARMLESS
|
(a) Tenant
shall defend, protect, indemnify and hold harmless Landlord and Landlord’s
agents and employees against and from any and all claims, suits, liabilities,
-16-
judgments,
costs, demands, causes of action and expenses (including, without limitation,
reasonable attorneys’ fees, costs and disbursements) arising from (i) the use of
the Premises, the Building or the Concourse project by Tenant or Tenant’s
agents, employees or contractors, or from any activity done, permitted or
suffered by Tenant or Tenant’s agents, employees or contractors in or about the
Premises, the Building or the Concourse project, and (ii) any act, neglect,
fault, willful misconduct or omission of Tenant or Tenant’s agents, employees or
contractors, or from any breach or default in the terms of this Lease by Tenant
or Tenant’s agents, employees or contractors, or (iii) any action or proceeding
brought on account of any matter in items (i) or (ii). If any action or
proceeding is brought against Landlord by reason of any such claim, upon notice
from Landlord, Tenant shall defend the same at Tenant’s expense by counsel
reasonably satisfactory to Landlord. As a material part of the consideration
to
Landlord, Tenant hereby releases Landlord and Landlord’s agents and employees
from responsibility for, waives its entire claim of recovery for and assumes
all
risk of (x) damage to property or injury to persons in or about the Premises,
the Building or the Concourse project from any cause whatsoever (except to
the
extent is caused by the gross negligence or willful misconduct of Landlord
or
Landlord’s agents or employees or by the failure of Landlord to observe any of
the terms and conditions of this Lease, if such failure has persisted for an
unreasonable period of time after written notice of such failure), or (x) loss
resulting from business interruption or loss of income at the Premises. The
obligations of Tenant under this Paragraph 15(a) shall survive any termination
of this Lease.
(b) The
foregoing indemnity shall not relieve any insurance carrier of its obligations
under any policies required to be carried by either party pursuant to this
Lease, to the extent that such policies cover the peril or occurrence that
results in the claim that is subject to the foregoing indemnity.
| 16. |
INSURANCE
|
(a) Tenant
shall carry during the Term (and any other period during which Tenant is in
possession of the Premises, with all premiums paid prior to the due date at
Tenant’s sole expense) (i) all risk coverage insurance insuring Tenant’s
interest in its improvements to the Premises and any and all furniture,
equipment, supplies, contents and other property owned, leased, held or
possessed by Tenant and contained therein, such insurance coverage to be in
an
amount equal to the full insurable value of such improvements and property,
as
such may increase from time to time, (ii) worker’s compensation and employer’s
liability insurance as required by applicable law, (iii) commercial general
liability coverage 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 other portions of the Building or Property, the limits of such
policy or policies to be in amounts not less than One Million Dollars
($1,000,000) combined single limit for bodily injury and property damage per
occurrence, plus excess coverage of not less than Five Million Dollars
($5,000,000) combined single limit for bodily injury and property damage per
occurrence, (iv) insurance against thefts within the Premises, the Building
or
any project within which the Building is located, and (v) business interruption
insurance with a limit of liability representing loss of at least twelve (12)
months of income. Tenant shall also maintain and provide such other required
evidence to Landlord of any other form of insurance which Landlord, acting
reasonably, requires from time to time in form, in amounts, and for risks
against which a prudent tenant would insure. Landlord and Tenant shall each
have
included in all
-17-
policies
of insurance respectively obtained by them with respect to the Building or
Premises a waiver by the insurer of all right of subrogation against the other
in connection with any loss or damage insured against. All said insurance
policies shall be carried with companies licensed to do business in the State
of
Georgia reasonably satisfactory to Landlord and rated in Best’s Insurance Guide,
or any successor thereto (or, if there be none, an organization having a
national reputation) as having a general policyholder rating of “A-” and a
financial rating of at least “X.” All such policies shall be noncancellable
except after twenty (20) days’ written notice to Landlord. Each policy described
in clauses (i), (ii) and (iii) shall name Landlord, Landlord’s property manager
and any other person designated by Landlord as additional insureds and provide
that it is primary to, and not contributing with, any policy carried by
Landlord, Landlord’s property manager, or other designated person covering the
same loss. At Landlord’s request, duly executed certificates of such insurance
shall be delivered to Landlord prior to the Commencement Date and at least
thirty (30) days prior to the expiration of each respective policy
term.
(b) Landlord
will carry and maintain during the Term such insurance coverage as Landlord
may
elect to carry and maintain from time to time, including but not limited to
general comprehensive public liability insurance coverage with respect to the
Property and property insurance coverage on an all-risk extended coverage basis
with respect to the Property, in such amounts, with such insurance providers
and
under such terms as such insurance coverage is typically carried and maintained
by institutional owners of Class A properties similar to the Property in the
Atlanta, Georgia office market. Notwithstanding the foregoing, Landlord shall
have the right to self-insure (“Self-Insure”) all or any part of any of said
required insurance coverages, in Landlord’s sole discretion, so long as such
self-insuring party maintains has a net worth of not less than Fifty Million
Dollars ($50,000,000.00) as shown on financial statements for the most recently
concluded fiscal year prepared by an independent certified public accountant
in
accordance with generally accepted accounting principles consistently applied.
“Self-Insure” shall mean that Landlord is itself acting as though it were the
insurance company providing the insurance required under the provisions hereof,
and Landlord shall pay amounts due in lieu of insurance proceeds because of
self-insurance which amounts shall be treated as insurance proceeds for all
purposes under this Lease. In the event that Landlord elects to Self-Insure,
and
an event or claim occurs for which a defense and/or coverage would have been
available from an insurance company, with respect to a loss or damage which
Landlord would otherwise be required to insure against as provided above,
Landlord shall (i) undertake the defense of any such claim, including a defense
of Tenant, at Landlord’s sole cost and expense, and (ii) use its own funds to
pay any claim or replace any property or otherwise provide the funding which
would have been available from insurance proceeds but for such election by
Landlord to Self-Insure.
(c) Landlord
and Tenant hereby mutually waive any claim against the other and its agents
for
any loss or damage to any of their property located on or about the Premises,
the Building or the Concourse project that is caused by or results from perils
covered by property insurance carried by the respective parties, to the extent
of the proceeds of such insurance actually received with respect to such loss
or
damage, whether or not due to the negligence of the other party or its agents.
Because the foregoing waivers will preclude the assignment of any claim by
way
of subrogation to an insurance company or any other person, each party shall
immediately notify its insurer, in writing, of the terms of these mutual waivers
and have their insurance policies endorsed to prevent the invalidation of the
insurance coverage because of
-18-
these
waivers. Nothing in this Paragraph 16(c) shall relieve a party of liability
to
the other for failure to carry insurance required by this Lease.
| 17. |
REMEDIES
CUMULATIVE
|
The
rights given to Landlord and Tenant herein are in addition to any rights that
may be given to Landlord or Tenant by any statute or under law.
| 18. |
ENTIRE
AGREEMENT - NO WAIVER
|
This
Lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein shall be of any force and effect. The failure
of
either party to insist in any instance on strict performance of any covenant
or
condition hereof, or to exercise any option herein contained, shall not be
construed as a waiver of such covenant, condition or option in any other
instance. This Lease cannot be changed or terminated orally, and can be modified
only in writing, executed by each party hereto.
| 19. |
HOLDING
OVER
|
If
Tenant
remains in possession of the Premises after expiration of the Term, or after
any
termination of this Lease by Landlord, with Landlord’s acquiescence and without
any written agreement between the parties, Tenant shall be a tenant at
sufferance and such tenancy shall be subject to all the provisions hereof,
except that the Monthly Rental for said holdover period shall be (i) 150% of
the
amount of Rent due in the last month of the Term during the first three (3)
months of the holdover period, and (ii) double the amount of Rent due in the
last month of the Term for the remainder of the holdover period. There shall
be
no renewal of this Lease by operation of law. Nothing in this Paragraph shall
be
construed as a consent by Landlord to the possession of the Premises by Tenant
after the expiration of the Term or any termination of this Lease by Landlord,
or as an exclusive remedy in the event of a holdover. This Paragraph 19 shall
survive the termination of this Lease, by lapse of time or
otherwise.
| 20. |
HEADINGS
|
The
headings in this Lease are included for convenience only and shall not be taken
into consideration in any construction or interpretation of any part of this
Lease.
| 21. |
NOTICES
|
(a) Any
notice, request or consent by either party to the other hereunder shall be
valid
only if in writing and shall be deemed to be duly given only if hand-delivered,
or sent by certified mail or by a recognized national overnight delivery service
which has a receipt of notice as a part of its delivery function. Such notices
shall be addressed (i) if to Tenant, at the Premises and (ii) if to Landlord,
at
Landlord’s address set forth above, or at such other address for either party as
that party may designate by notice to the other. Notice shall be deemed given,
if delivered personally, upon delivery thereof, and if mailed, upon the mailing
thereof.
(b) Tenant
hereby appoints as its agent to receive service of all dispossessory or
distraint proceedings, an employee in the Premises at the time of any such
service.
-19-
| 22. |
HEIRS,
SUCCESSORS, AND ASSIGNS - PARTIES
|
(a) This
Lease shall bind and inure to the benefit of Landlord and Tenant, and their
respective successors, heirs, legal representatives and assigns. The term
“Landlord” as used in this Lease means only the owner (or the ground lessee) for
the time being of the Property and Building of which the Premises are a part,
so
that in the event of any sale or sales of said Property (or of any lease
thereof), Landlord named herein shall be and hereby is entirely released of
all
covenants and obligations of Landlord hereunder accruing thereafter, and it
shall be deemed without further agreement that the purchaser, or the lessee,
as
the case may be, has assumed and agreed to carry out any and all covenants
and
obligations of Landlord hereunder during the period such party has possession
of
the Property and Building. If the Property and Building are severed as to
ownership by sale and/or lease, the owner of the entire Building or lessee
of
the entire Building that has the right to lease space in the Building to tenants
shall be deemed “Landlord”. Tenant shall be bound to any such succeeding party
for performance by Tenant of all the terms, covenants, and conditions of this
Lease and agrees to execute any attornment agreement not in conflict with the
terms and provisions of this Lease at the request of any such
party.
(b) The
parties “Landlord” and “Tenant” and pronouns relating thereto, as used herein,
shall include male, female, singular and plural, corporation, partnership or
individual, as may fit the particular parties.
| 23. |
ATTORNEY’S
FEES
|
If
Landlord has to engage or consult with an attorney as a result of or in
connection with a failure by Tenant to pay any Rent as and when due under this
Lease, then Tenant shall owe to Landlord, in addition to and not in lieu of
any
other amounts due hereunder, and shall pay within ten (10) days after demand
for
payment therefor is made, all such attorneys fees incurred by Landlord. Also,
if
any law suit or court action between Landlord and Tenant arises out of or under
this Lease, the prevailing party in such law suit or court action shall be
entitled to and shall collect from the non-prevailing party the reasonable
attorney’s fees and court costs actually incurred by the prevailing party with
respect to said lawsuit or court action.
| 24. |
TIME
OF ESSENCE
|
TIME
IS
OF THE ESSENCE OF THIS LEASE.
| 25. |
NO
ESTATE IN LAND
|
Tenant
has been granted a usufruct only in the Premises under this Lease, and not
a
leasehold or other estate in land, and that Tenant’s interest hereunder is not
subject to levy, execution and sale and is not assignable except with Landlord’s
prior written consent. No estate shall pass out of Landlord by this
Lease.
| 26. |
SECURITY
DEPOSIT
|
Tenant
has deposited with Landlord $28,171.02 as a security deposit for the performance
by Tenant of all the terms, covenants and conditions of this Lease upon Tenant’s
part to be performed. Landlord shall have no obligation to segregate such
security deposit from
-20-
any
other
funds of Landlord, and interest earned on such security deposit, if any, shall
belong to Landlord. The security deposit shall be returned to Tenant within
thirty (30) days after the expiration of the Term, if Tenant has fully performed
its obligations hereunder. Landlord shall have the right to apply any part
of
said security deposit to cure any default of Tenant and if Landlord does so,
Tenant shall upon demand deposit with Landlord the amount so applied so that
Landlord shall have the full security deposit on hand at all times during the
Term. If there is a sale or lease of the Building subject to this Lease,
Landlord shall transfer the security deposit to the vendee or lessee, and
Landlord shall be released from all liability for the return of such security
deposit. Tenant shall look solely to the successor Landlord for the return
of
said security deposit. This provision shall apply to every transfer or
assignment made of the security deposit to a successor Landlord. The security
deposit shall not be assigned or encumbered by Tenant without the prior consent
of Landlord and any such unapproved assignment or encumbrance shall be void.
Notwithstanding anything to the contrary contained herein, if no Event of
Default is existing under the Lease at the end of the sixteenth (16th) full
calendar month of the Term, Landlord shall permit Tenant to reduce the security
deposit by $4,695.17 each month thereafter until the amount held by Landlord
as
Tenant’s security deposit shall be S4,695.17. Landlord shall apply each month’s
reduction of the security deposit towards the Monthly Rental due from the
Tenant.
| 27. |
COMPLETION
OF THE PREMISES
|
Landlord
shall supervise completion of the work described in Exhibit “C” subject to
payments which may be required of Tenant thereunder. Any work required by Tenant
as provided for in said Exhibit “C” shall be performed within the provisions and
according to all standards of said Exhibit “C”.
| 28. |
PARKING
ARRANGEMENTS
|
Landlord
shall maintain unreserved parking spaces for use by Tenant and Tenant’s invitees
and employees, in such amount or ratio as is in compliance with the zoning
for
the Property, as may be modified from time to time, and Tenant (and Tenant’s
guests and employees) shall only be entitled to use that amount of parking
spaces (determined on a parking space per square foot leased basis). Such
parking shall be available subject to the limitations and conditions from time
to time imposed by Landlord. Said parking shall be maintained on the Property
or
on areas located in the vicinity of the Property.
| 29. |
RULES
AND REGULATIONS
|
The
Rules
on Exhibit “E” are a part of this Lease. Landlord may from time to time amend,
modify, delete or add additional Rules for the use, operation, safety,
cleanliness and care of the Premises and the Building, provided that Landlord
enforces such Rules against all tenants on a nondiscriminatory basis and
provided that no such change materially affects Tenant’s ability to use and
enjoy the Premises for the purposes intended by this Lease. Such new or modified
Rules shall be effective upon notice to Tenant. Tenant will cause its employees
and agents, or any others permitted by Tenant to occupy or enter the Premises
to
at all times abide by the Rules. If there is a breach of any Rules beyond any
applicable notice and cure period provided in Xxxxxxxxx 00(x), Xxxxxxxx shall
have all remedies in this Lease provided for in an Event of Default by Tenant
and shall, in addition, have any remedies available at law or in
-21-
equity,
including but not limited to, the right to enjoin any breach of such Rules.
Landlord shall not be responsible to Tenant for the nonobservance by any other
tenant or person of any such Rules.
| 30. |
RIGHT
TO RELOCATE
|
Landlord
shall have the right, at Landlord’s sole cost and expense, to relocate Tenant
from the Premises to any other office space within Concourse V or the Building
that is comparable in size to the Premises; provided, however, that such
relocation space shall not be located below the eighth (8’h) floor within either
building. Landlord shall deliver notice to Tenant of Landlord’s desire to
relocate Tenant, together with a proposal for the area to which such Premises
shall be relocated. Should Landlord exercise its right to relocate Tenant under
this Paragraph 30, then (i) all expenses of said relocation or of any necessary
renovation or alteration, as reasonably calculated by Landlord prior to any
relocation, shall be paid by Landlord (including, without limitation, costs
reasonably incurred in changing addresses on stationery, business cards,
directories, advertising, and other such items), and (ii) following such
relocation, the substituted space shall for all purposes thereinafter constitute
the Premises and all terms and conditions of this Lease shall apply with full
force and effect to the Premises as so relocated, except that if the rentable
square footage of the relocated Premises is different from that of the Premises
as originally leased hereunder, Monthly Rental and Tenant’s Share shall be
adjusted accordingly. If Tenant has not relocated its premises within thirty
(30) days after Landlord’s Substantial Completion of the new Premises, then it
shall be an Event of Default on the part of Tenant hereunder and Landlord shall
be entitled to exercise any and all of its rights and remedies available upon
an
Event of Default. Tenant hereby further covenants and agrees to promptly execute
and deliver to Landlord any lease amendment or other such document appropriate
to reflect the changes in this Lease described or contemplated
above.
| 31. |
LATE
PAYMENTS
|
Any
payment due of Tenant hereunder not received by Landlord within five (5) days
of
the date when due shall be assessed a five percent (5%) charge for Landlord’s
administrative and other costs in processing and pursuing the payment of such
late payment, and shall be assessed an additional five percent (5%) charge
for
the aforesaid costs of Landlord for each month thereafter until paid in full.
Acceptance by Landlord of a payment, and the cashing of a check, in an amount
less than that which is currently due shall in no way affect Landlord’s rights
under this Lease and in no way be an accord and satisfaction. This provision
does not prevent Landlord from declaring the non-payment of Rent when due an
Event of Default hereunder, subject to Paragraph 10(a)(i).
| 32. |
ESTOPPEL
CERTIFICATE
|
Tenant
shall, within ten (10) business days of the request by Landlord, and Landlord
shall, within thirty (30) business days of the request by Tenant, execute,
acknowledge and deliver to the requesting party (or its auditors), any
Mortgagee, prospective Mortgagee or any prospective purchaser or transferee
of
the Property, the Building, or both (as designated by Landlord), an Estoppel
Certificate in recordable form, or in such other form as the requesting
-22-
party
may
from time to time reasonably request, evidencing whether or not (a) this Lease
is in full force and effect; (b) this Lease has been amended in any way; (c)
Tenant has accepted and is occupying the Premises; (d) there are any existing
defaults on the part of Landlord or Tenant hereunder or defenses or offsets
against the enforcement of this Lease to the knowledge of such party (specifying
the nature of such defaults, defenses or offsets, if any); (e) the date to
which
Rent and other amounts due hereunder, if any, have been paid; and (f) any such
other information as may be reasonably requested by the requesting party. Each
certificate delivered pursuant to this Paragraph may be relied on by the
requesting party, any prospective purchaser or transferee of Landlord’s interest
hereunder, or any Mortgagee or prospective Mortgagee.
| 33. |
SEVERABILITY
AND INTERPRETATION
|
(a) If
any
clause or provision of this Lease shall be deemed illegal, invalid or
unenforceable under present or future laws effective during the Term, the
remainder of this Lease shall not be affected by such illegality, invalidity
or
unenforceability, and in lieu of each clause or provision of this Lease that
is
illegal, invalid or unenforceable, there shall be added as a part of this Lease
a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
(b) if
any
provisions of this Lease require judicial interpretation, the court interpreting
or construing the same shall not apply a presumption that the terms of any
such
provision shall be more strictly construed against one party or the other by
reason of the rule of construction that a document is to be construed most
strictly against the party who itself or through its agent prepared the same,
as
all parties hereto have participated in the preparation of this
Lease.
| 34. |
MULTIPLE
TENANTS
|
If
more
than one individual or entity comprises and constitutes Tenant, then all
individuals and entities comprising Tenant are and shall be jointly and
severally liable for the due and proper performance of Tenant’s duties and
obligations arising under or in connection with this Lease.
| 35. |
FORCE
MAJEURE
|
Any
prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts
of
God, inability to obtain services, labor, or materials or reasonable substitutes
therefor, inability to obtain permits or other governmental approvals after
timely application therefor, governmental actions, civil commotions, war,
terrorism, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease (collectively, “Force Majeure”), notwithstanding anything
to the contrary contained in this Lease, shall excuse the performance of such
party for a period equal to any such prevention, delay or stoppage and
therefore, if this Lease specifies a time period for performance of an
obligation of either party, that time period shall be extended by the period
of
any delay in such party’s performance cause by an event of Force
Majeure.
-23-
| 36. |
QUIET
ENJOYMENT
|
So
long
as Tenant is in full compliance with the terms and conditions of this Lease,
Landlord shall warrant and defend Tenant in the quiet enjoyment and possession
of the Premises during the Term against any and all claims made by, through
or
under Landlord, subject to the terms of this Lease.
| 37. |
BROKERAGE
COMMISSION; INDEMNITY
|
COUSINS
PROPERTIES SERVICES LP (“COUSINS”) HAS ACTED AS CONTRACT MANAGER FOR LANDLORD IN
THIS TRANSACTION AND XXXXXX AND ASSOCIATES HAS ACTED AS AGENT FOR TENANT IN
TI-11S TRANSACTION. BOTH COUSINS AND XXXXXX AND ASSOCIATES ARE TO BE PAID A
COMMISSION BY LANDLORD. Tenant warrants that there are no other claims for
broker’s commissions or finder’s fees in connection with its execution of this
Lease. Tenant hereby indemnifies Landlord and holds Landlord harmless from
and
against all loss, cost, damage or expense, including, but not limited to,
attorney’s fees and court costs, incurred by Landlord as a result of or in
conjunction with a claim of any real estate agent or broker, if made by, through
or under Tenant. Landlord hereby indemnifies Tenant and holds Tenant harmless
from and against all loss, cost, damage or expense, including, but not limited
to, attorney’s fees and court costs, incurred by Tenant as a result of or in
conjunction with a claim of any real estate agent or broker, if made by, through
or under Landlord. Tenant shall cause any agent or broker representing Tenant
to
execute a lien waiver to and for the benefit of Landlord, waiving any and all
lien rights with respect to the Building or Property such agent or broker has
or
might have under Georgia law.
| 38. |
EXCULPATION
OF LANDLORD
|
LANDLORD’S
LIABILITY TO TENANT WITH RESPECT TO THIS LEASE SHALL BE LIMITED SOLELY TO
LANDLORD’S INTEREST IN THE BUILDING. NEITHER LANDLORD, ANY OFFICER, DIRECTOR, OR
SHAREHOLDER OF LANDLORD NOR ANY OF THE PARTNERS OF LANDLORD SHALL HAVE ANY
PERSONAL LIABILITY WHATSOEVER WITH RESPECT TO THIS LEASE.
| 39. |
ORIGINAL
INSTRUMENT
|
Any
number of counterparts of this Lease may be executed, and each such counterpart
shall be deemed to be an original instrument.
| 40. |
GEORGIA
LAW
|
This
Lease has been made under and shall be construed and interpreted under and
in
accordance with the laws of the State of Georgia.
| 41. |
NO
RECORDATION OF LEASE
|
Neither
this Lease nor any memorandum hereof shall be recorded or placed on public
record.
-24-
| 42. |
HAZARDOUS
WASTES
|
Tenant
shall not (either with or without negligence) cause or permit the escape,
disposal or release of any biologically or chemically active or other hazardous
substances or materials. Tenant shall not allow the storage or use of such
substances or materials in any manner not sanctioned by law or by the highest
standards prevailing in the industry for the storage and use of such substances
or materials, nor allow to be brought into the Building, the Premises or the
Property, any such materials or substances except to use in the ordinary course
of Tenant’s business, and then only after notice is given to Landlord of the
identity of such substances or materials. Without limitation, hazardous
substances and materials shall include those described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
42
U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws
and
the regulations adopted under these acts. If any lender or governmental agency
shall ever require testing to ascertain whether or not there has been any
release of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if such
requirement applies to the Premises. In addition, Tenant shall execute
affidavits, representations and the like from time to time at Landlord’s request
concerning Tenant’s best knowledge and belief regarding the presence of
hazardous substances or materials on the Premises. In all events, Tenant shall
indemnify Landlord in the manner elsewhere provided in this Lease from any
release of hazardous materials on the Premises occurring while Tenant is in
possession, or elsewhere if caused by Tenant or persons acting under Tenant.
The
within covenants shall survive the expiration or earlier termination of the
Term.
| 43. |
PATRIOT
ACT.
|
Tenant
(which for this purpose includes its partners, members, principal stockholders
and any other constituent entities (i) has not been designated as a
“specifically designated national and blocked person” on the most current list
published by the U.S. Treasury Department Office of Foreign Assets Control
at
its official website, <xxxx://xxx.xxxxx.xxx/xxxx/xxxxxx.xxx0 or at any
replacement website or other replacement official publication of such list;
(ii)
is currently in compliance with and will at all times during the Term (including
any extension thereof) remain in compliance with the regulations of the Office
of Foreign Asset Control of the Department of the Treasury and any statute,
executive order (including the September 24, 2001, Executive Order Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism), or other governmental action relating thereto;
and (iii) has not used and will not use funds from illegal activities for any
payment made under this Lease.
| 44. |
LEASE
BINDING UPON DELIVERY
|
This
Lease shall not be binding until and unless all parties have duly executed
said
Lease and a fully executed counterpart of said Lease has been delivered to
Tenant.
| 45. |
SPECIAL
STIPULATIONS
|
The
special stipulations attached hereto as Exhibit “F”, if any, and made a part
hereof shall control if in conflict with any of the foregoing provisions of
this
Lease.
-25-
IN
WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed
under
seal, on the day and year first above written.
|
LANDLORD:
|
|
| 485 PROPERTIES, LLC, a | |
| Delaware limited liability company | |
| By: /s/Xxxxxxxxx Chess | |
| Name: Xxxxxxxxx Chess | |
| Title: Assistant Secretary |
Date
executed by
Landlord:
12/21, 2005
|
TENANT:
|
|
| AMERICAN TELECOM SERVICES, INC., | |
| a Delaware corporation | |
| By: /s/Xxxxx X. Xxxxxx (SEAL) | |
| Authorized Signature | |
| Xxxxx X. Xxxxxx | |
| Type Name of Signatory |
| Date executed by |
By:______________________(SEAL)
|
| Tenant: 12/19, 2005 |
Authorized
Signature
|
| _________________________ | |
| Type Name of Signatory | |
|
(CORPORATE
SEAL)
|
|
*Note:
If
Tenant is a corporation, two authorized corporate officers must execute this
Lease in their appropriate capacities for Tenant, affixing the corporate
seal.
By
the
execution and delivery of this Lease Tenant has made and shall be deemed to
have
made a continuous and irrevocable offer to lease the Premises, on the terms
contained in this Lease, subject only to acceptance by Landlord (as evidenced
by
Landlord’s signature hereon), which Landlord may accept in its sole and absolute
discretion.
Tenant’s
Federal Employer Identification Number: 00-0000000
-26-
EXHIBIT
“A”
Space
Plan of Premises
A-1
EXHIBIT
“B”
LEGAL
DESCRIPTION - CORPORATE CENTER VI
All
that
tract or parcel of land lying and being in Land Xxx 00, 00xx Xxxxxxxx, Xxxxxx
Xxxxxx, Xxxxxxx and being more particularly described as follows:
To
reach
the TRUE POINT OF BEGINNING, commence at the intersection of the former southern
Right-of-Way of Xxxxxxx Drive (variable Right-of-Way, but was 47.9 feet from
the
centerline) extended and the former western Right-of-Way of Peachtree Dunwoody
Road (variable Right-of-Way, but was 41.7 feet from the centerline) extended;
thence along the former southern Right-of-Way of Xxxxxxx Drive North 86° 36’ 33”
West a distance of 169.01 feet to a point; thence continuing along said former
Right-of-Way North 84° 29’ 08” West a distance of 208.47 feet to a point; thence
continuing along said former Right-of-Way North 87° 58’ 03” West a distance of
344.41 feet to a point; thence leaving said former Right-of-Way South 02° 01’
32” West a distance of 23.63 feet to a point on the existing southern
Right-of-Way of Xxxxxxx Drive (variable Right-of-Way); thence continuing along
said existing Right-of-Way North 87° 59’ 35” West a distance of 173.23 feet to a
point; thence continuing along said Right-of-Way North 74° 42’ 17” West a
distance of 51.80 feet to a point; thence continuing along said Right-of-Way
North 87° 44’ 16” West a distance of 120.26 feet to a point; thence leaving said
Right-of-Way South 02° 13’ 27” West a distance of 47.46 feet to a point; thence
North 87° 17’ 49” West a distance of 340.88 feet to a point being the TRUE POINT
OF BEGINNING; thence North 87° 17’ 49” West a distance of 259.25 feet to a
point; thence South 00° 28’ 40” East a distance of 115.99 feet to a point;
thence along a curve to the right an arc distance of 162.30 feet (said curve
having a radius of 1301.00 feet, a chord distance of 162.20 feet, and a chord
bearing of South 03° 05’ 46” West) to a point; thence South 06° 40’ 11” West a
distance of 133.86 feet to a point; thence along a curve to the left an arc
distance of 156.81 feet (said curve having a radius of 1000.00 feet, a chord
distance of 156.65 feet, and a chord bearing of South 02° 10’ 40” West) to a
point; thence South 02° 18’ 52” East a distance of 22.60 feet to a point; thence
South 87° 41’ 08” West a distance of 109.76 feet to a point; thence along a
curve to the left an arc distance of 217.01 feet (said curve having a radius
of
3701.72 feet, a chord distance of 216.97 feet, and a chord bearing of South
02°
46’ 11” East) to a point; thence South 10° 51’ 39” East a distance of 127.09
feet to a point; thence South 06° 43’ 25” East a distance of 85.90 feet to a
point; thence South 16° 29’ 48” East a distance of 217.42 feet to a point;
thence along a curve to the left an arc distance of 835.81 feet (said curve
having a radius of 941.74 feet, a chord distance of 808.65 feet, and a chord
bearing of South 48° 01’ 33” East) to a point; thence North 17° 25’ 43” East a
distance of 169.03 feet to a point); thence along a curve to the right an arc
distance of 46.09 feet (said curve having a radius of 567.11 feet, a chord
distance of 46.08 feet, and a chord bearing of North 66° 51’ 40” West) to a
point; thence North 56° 26’ 51” West a distance of 185.58 feet to a point;
thence along a curve to the right an arc distance of 108.18 feet (said curve
having a radius of 438.02 feet, a chord distance of 107.91 feet, and a chord
bearing of North 49° 22’ 19” West) to a point; thence North 42° 17’ 47” West a
distance of 196.00 feet to a point; thence along a curve to the right an arc
distance of 344.02 feet (said curve having a radius of 438.02 feet, a chord
distance of 335.25 feet, and a chord bearing of North 19° 47’ 47” West) to a
point; thence North 02° 42’ 13” East a distance of 10.50 feet to a point; thence
North 87° 17’ 47” West a distance of 52.06 feet to a point on the east line of
Road Easement #4; thence along said easement along a curve to the right an
arc
distance of 92.00 feet (said curve having a radius of 835.47 feet, a chord
distance of 91.95 feet, and a chord bearing of North 09° 07’ 34” West) to a
B-1
point;
thence leaving said Road Easement South 87° 17’ 47” East a distance of 70.91
feet to a point; thence North 02° 42’ 13” East a distance of 127.59 feet to a
point; thence North 87° 17’ 47” West a distance of 10.00 feet to a point; thence
North 02° 42’ 13” East a distance of 10.00 feet to a point; thence North 87° 17’
47” West a distance of 55.80 feet to a point; thence North 02° 42’ 13” East a
distance of 244.00 feet to a point; thence South 87° 17’ 47” East a distance of
129.80 feet to a point; thence South 02° 42’ 13” West a distance of 244.00 feet
to a point; thence South 87° 17’ 47” East a distance of 174.00 feet to a point;
thence South 42° 17’ 47” East a distance of 75.00 feet to a point; thence South
02° 42’ 13” West a distance of 20.42 feet to a point; thence South 87° 17’ 47”
East a distance of 101.33 feet to a point; thence North 00° 00’ 00” East a
distance of 211.03 feet to a point; thence North 47° 42’ 11” East a distance of
105.51 feet to a point; thence North 48° 42’ 12” East a distance of 103.91 feet
to a point; thence along a curve to the left an arc distance of 150.75 feet
(said curve having a radius of 1317.92 feet, a chord distance of 150.67 feet,
and a chord bearing of North 41° 59’ 43” East) to a point; thence along a curve
to the left an arc distance of 37.41 feet (said curve having a radius of 23.00
feet, a chord distance of 33.42 feet, and a chord bearing of North 07° 52’ 36”
West) to a point; thence along a curve to the left an arc distance of 44.69
feet
(said curve having a radius of 78.00 feet, a chord distance of 44.08 feet,
and a
chord bearing of North 70° 53’ 04” West) to a point; thence North 87° 17’ 49”
West a distance of 129.20 feet to a point; thence South 02° 42’ 11” West a
distance of 10.75 feet to a point; thence North 87° 17’ 49” West a distance of
77.00 feet to a point; thence South 02° 42’ 11” West a distance of 22.00 feet to
a point; thence North 87° 17’ 49” West a distance of 60.67 feet to a point;
thence North 02° 42’ 11” East a distance of 22.00 feet to a point; thence North
87° 17’ 49” West a distance of 193.33 feet to a point; thence North 02° 42’ 11”
East a distance of 279.00 feet to a point being the TRUE POINT OF BEGINNING,
said tract containing 13.065 acres as shown on As-Built Survey for Concourse
VI
Associates, JV Georgia One, Inc., Lawyers Title Insurance Corporation and Ticor
Title Insurance Company of California, prepared by Benchmark Engineering
Corporation, bearing the certification of Xxxxxx Xxxx, Georgia Registered Land
Surveyor No. 2337, dated September 12, 1991.
B-2
EXHIBIT
“C”
WORK
AGREEMENT FOR
COMPLETION
OF THE PREMISES
Landlord
and Tenant executed a Lease for Premises on the fifteenth (15th) floor of the
Building and hereby attach this Work Agreement to said Lease as Exhibit “C”
thereto. To induce Tenant to enter into the Lease and in consideration of the
mutual covenants herein contained, Landlord and Tenant agree as
follows:
ARTICLE
1 - DEFINITIONS
The
following terms shall have the meanings described below. Terms not defined
herein shall have the meaning given in the Lease:
Allowance
shall
mean Fifteen and No/100t Dollars ($15.00) multiplied by the number of rentable
square feet in the Premises.
Architect
shall
mean Veenendaal Cave, Inc.
Base
Building Improvements
shall
mean Building Standard improvements to be constructed or installed in the
Building.
Building
Plans and Specifications
shall
mean the final drawings and specifications for Base Building
Improvements.
Building
Standard Materials
shall
mean such materials described in the Building Plans and Specifications, or
materials of comparable quality substituted therefor by Landlord. Except for
Building Standard Hardware and items pre-installed by Landlord, Tenant may,
but
is not obligated to, purchase Building Standard Materials. Tenant shall be
obligated to buy Building Standard Hardware and all items pre-installed by
Landlord. Tenant may also be obligated to utilize and pay for certain other
Building Standard Materials in accordance with Section 3.01(c)
herein.
Contractor
shall
mean the party selected in accordance with Article 5 herein to do the Tenant
Improvements.
Change
Order
shall
mean any alteration, substitution, addition or change to or in the Tenant Space
Plans or Tenant Improvement Construction Documents requested by Tenant after
the
same have been consented to by Landlord.
Completion
Date
shall
mean the date of Substantial Completion of Tenant Improvements under the Tenant
Improvement Construction Documents (except Punchlist Items).
Construction
Contract
shall
mean the agreement to be entered between Landlord and Contractor for the
construction of the Tenant Improvements.
C-1
Punchlist
Items
shall
mean those items not completed in the Premises at the time of the Substantial
Completion, as identified in a written list, which do not substantially
interfere with Tenant’s use or enjoyment of the Premises.
Substantial
Completion or Substantially Complete
shall be
as described in Section 3.04 hereof.
Tenant’s
Costs
shall
mean the aggregate of (a) all costs and expenses of constructing the Tenant
Improvements that are in excess of the Allowance, and (b) all costs and expenses
related to the design (including any revision and redesign costs) of the Tenant
Improvements.
Tenant
Improvements
shall
mean all improvements constructed or installed in or on the Premises in
accordance with the Tenant Improvement Construction Documents.
Tenant
Improvement Costs
shall
mean the aggregate cost for the Tenant Improvements, approved by Tenant in
accordance with Section 3.01 hereof, together with the cost of any Change Orders
as provided in Section 3.05 hereof.
Tenant
Improvement Construction Documents
shall
mean the working drawings, specifications and finish schedules for the Tenant
Improvements prepared by Architect and consented to by Tenant in accordance
herewith.
Tenant
Space Plans
shall
mean the schematic presentation of the Premises prepared by Architect and
consented to by Tenant in accordance herewith.
Tenant’s
Work
shall
mean all work in or about the Premises not within the scope of the work
necessary to construct the Tenant Improvements, such as (by way of illustration
and not limitation) delivering and installing furniture, telephone equipment
and
wiring and office equipment.
Working
Day
shall
mean the period from 9:00 A.M. until 5:00 P.M. on any Monday through Friday,
excluding federal and Georgia state holidays. By way of illustration, any period
described in this Work Letter as expiring at the end of the third (3rd) Working
Day after receipt of a document, then: (i) if receipt occurs at 9:01 A.M. on
Monday, said period shall expire at 5:00 P.M. on the following Thursday; and
(ii) if receipt occurs at 4:59 P.M. on Wednesday, the period shall expire at
5:00 P.M. on the following Monday.
ARTICLE
2. TENANT SPACE PLANS AND TENANT
IMPROVEMENT
PLANS AND SPECIFICATIONS
Section
2.01 Schedule for Preparation
Landlord
shall contract with Architect for the preparation of the Tenant Space Plans
and
Tenant Improvement Construction Documents. Tenant Space Plans and Tenant
Improvement Construction Documents for the Tenant Improvements shall be prepared
by Architect and consented to by Tenant as provided hereinbelow. Tenant Space
Plans shall be prepared and sealed by an architect licensed in
Georgia.
C-2
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1.
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As
soon as reasonably possible (but in no event later than ten (10)
Working
Days after the full execution and delivery of the Lease) Tenant shall
provide Architect all specifications, information and documents necessary
to enable Architect to prepare the Tenant Space
Plans.
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2.
|
Within
ten (10) Working Days after receipt of all items described in Section
2.01(1) above, Architect shall prepare and deliver to Tenant the
Tenant
Space Plans.
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3.
|
By
the end of the third (3rd) full Working Day after receipt of the
Tenant
Space Plans, Tenant shall review and resubmit the same to Architect,
either with Tenant’s consent or with Tenant’s comments
thereto.
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4.
|
By
the end of the third (3rd) full Working Day after receipt of Tenant’s
comments to the Tenant Space Plans, Architect shall resubmit to Tenant
the
Tenant Space Plans with such changes or information as requested
by
Tenant.
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5.
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This
process described in Section 2.01(2),(3) and (4) shall continue until
Tenant has satisfied itself that such proposed Tenant Space Plans
are
acceptable, but once Tenant Space Plans have been resubmitted to
Tenant,
Tenant shall confine Tenant’s comments thereupon only to the changes made
by Architect or changes requested by Tenant to the prior submission
of
Tenant Space Plans, but not made by Architect. Once Tenant has satisfied
itself that such proposed Tenant Space Plans are acceptable Tenant
shall
notify Landlord, and the Tenant Space Plans as so consented to by
Tenant
shall constitute the final Tenant Space Plans. When Tenant gives
such
final consent, Landlord shall notify Tenant of the amount of time
Landlord
estimates, in Landlord’s reasonable judgment, Substantial Completion of
Tenant Improvements within the portion of the Premises shown on such
Tenant Space Plans will require.
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6.
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After
final consent to the Tenant Space Plans, Architect shall prepare
and
deliver to Tenant the prepared Tenant Improvement Construction
Documents.
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7.
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By
the end of the third (3rd) full Working Day after receipt of the
Tenant
Improvement Construction Documents, Tenant shall review and resubmit
the
same to Architect, either with Tenant’s consent or comments
thereto.
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8.
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By
the end of the third (3rd) full Working Day after receipt of Tenant’s
comments to the Tenant Improvement Construction Documents, Architect
shall
resubmit to Tenant the Tenant Improvement Construction Documents
with such
changes or information as requested by
Tenant.
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9.
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The
process described in Section 2.01(6), (7) and (8) shall continue
until
Tenant is satisfied that such proposed Tenant Improvement Construction
Documents are acceptable, but once Tenant Improvement Construction
Documents have been resubmitted to Tenant, Tenant shall confine Tenant’s
comments thereupon only to changes made by Architect or the changes
requested by Tenant to the prior submission of Tenant Improvement
Construction Documents, but not made by Architect. Once Tenant is
satisfied that such proposed Tenant Improvement Construction Documents
are
acceptable, Tenant shall notify Landlord, and the Tenant Improvement
Construction
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C-3
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Documents
consented to by Tenant shall constitute the final Tenant Improvement
Construction Documents.
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10.
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Any
approval or consent by Landlord of any items submitted by Tenant
to and/or
reviewed by Landlord pursuant to this Work Letter shall be deemed
to be
strictly limited to an acknowledgment of approval or consent by Landlord
thereto and shall not imply or be deemed to imply any representation
or
warranty by Landlord that the design is safe or structurally sound
or will
comply with any legal or governmental requirements. Any deficiency,
mistake or error in design (expressly excluding the engineering drawings),
although the same has the consent or approval of Landlord, shall
be the
sole responsibility of Tenant, and Tenant shall be liable for all
costs
and expenses which may be incurred and all delays suffered in connection
with or resulting from any such deficiency, mistake or error in
design.
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ARTICLE
3. CONSTRUCTION OF TENANT IMPROVEMENTS
Section
3.01 Pricing of Tenant Improvements
(a) Within
ten (10) Working Days after final approval of the Tenant Improvement
Construction Documents, Landlord shall obtain a price proposal for the Tenant
Improvements from Contractor. Such price proposal shall be subject to Tenant’s
review and approval, which approval by Tenant shall not be unreasonably withheld
or delayed. Should Tenant desire to seek adjustments of such price proposal,
Tenant shall work promptly with Architect and Contractor to alter the Tenant
Improvement Construction Documents to cause the price quotation to be acceptable
to Tenant and to establish the Tenant Improvement Costs. Upon determination
of
the Tenant Improvement Costs and the written approval of the Tenant Improvement
Construction Documents by Tenant, Tenant shall have given final approval of
the
same, and Landlord shall be authorized to proceed with contracting with
Contractor for the construction and installation of the Tenant Improvements
in
accordance with the Tenant Improvement Construction Documents.
(b) Included
in the pricing for the Tenant Improvements shall be the cost of those Building
Standard Materials which Tenant is obligated to purchase under this Work Letter,
which shall be purchased by Tenant in appropriate quantities for the Premises.
The cost of such Building Standard Materials shall be charged against the
Allowance, to the extent available.
(c) If
Tenant
has, as a part of any specifications for the Tenant Improvements, designated
Building Standard Materials or a standard that allows for equivalent quality
items and would permit the use of Building Standard Materials, Landlord shall
have the right, at Landlord’s option and in Landlord’s sole discretion, to sell
those Building Standard Materials to Tenant at the price given for such item
(on
a unit cost basis) by the bidder selected to perform that portion of the work
which will be using the Building Standard Materials in question. Any such costs
shall be charged against the Allowance, to the extent available.
Section
3.02 Construction of Tenant Improvements.
Landlord
will enter into a Construction Contract with Contractor to construct the Tenant
Improvements.
C-4
Section
3.03 Tenant Delay
If
there
is delay in achieving Substantial Completion of Tenant’s Improvements as a
result of or in connection with:
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A.
|
Tenant’s
failure to furnish any information or documents in accordance with
this
Work Letter;
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B.
|
Tenant’s
request for materials, finishes or installations other than Building
Standard Materials, finishes or
installations;
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C.
|
Any
Change Order, including any change in the Tenant Improvement Construction
Documents made pursuant to Section 3.01 hereof and any failure by
Tenant
to respond to a “Change Order Effect Notice” within the time period
required hereunder;
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D.
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Tenant’s
failure to respond within any of the time periods specified
herein;
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E.
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If
in the performance or prosecution of Tenant’s Work, Tenant’s employees or
agents interfere with or in any manner hinder Contractor from prosecuting
to the fullest extent possible the Tenant Improvements work;
or
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F.
|
Tenant’s
failure to return properly executed original counterparts of this
Lease to
Landlord within three (3) Working Days after receipt from
Landlord;
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then
such
shall be a “Tenant Delay”, and for each of such day of Tenant Delay, Landlord
shall have an additional day to complete the work required
hereunder.
Section
3.04 Completion of Premises
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A.
|
The
Premises shall be Substantially Completed, as to any floor, and
Substantial Completion shall have occurred, as to any floor, upon
the
following:
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(i)
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Tenant
Improvements shall have been completed as to the floor in substantial
compliance with the Construction Contract, except for Punch List
Items and
otherwise sufficient so that Architect can execute the most recently
published version of ATA form G704, titled “Certificate of Substantial
Completion”; and
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(ii)
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Landlord
shall have obtained a certificate of occupancy (or evidence reasonable
satisfactory to Tenant that upon completion of the Tenant’s Work, a
certificate of occupancy will be issued) for the Premises in question,
permitting use of the floor of the Premises in
question;
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provided,
to the
extent
compliance with the conditions set forth above would have occurred earlier
but
for Tenant Delay, then compliance with such condition shall be deemed to have
occurred on the date it would have occurred but for the Tenant
Delay.
C-5
Section
3.05 Changes in Plans and Specifications
A.
If at
any time after the Tenant Improvement Costs are determined, Tenant desires
to
make Change Orders, Tenant shall submit to Landlord for pricing by Contractor
working drawings and specifications for any and all such desired Change Order.
Landlord shall respond to Tenant, within five (5) Working Days of such request
by Tenant, with an estimate of the effect of such desired Change Order on Tenant
Improvement Costs and the schedule of anticipated Substantial Completion (the
“Change Order Effect Notice”). Tenant shall have three (3) Working Days to
respond to such Change Order Effect Notice, with the authorization required
hereunder, although Tenant may, within said three (3) Working Day period,
request more time to finally respond to the Change Order Effect Notice. A
failure by Tenant to respond to any such Change Order Effect Notice shall be
denial of consent, and, upon denial, Contractor shall proceed with its work
in
accordance with the Tenant Improvement Construction Documents. Once the cost
and
the schedule change, if any, for such Change Order has been approved by Tenant,
all references in this Work Agreement to the “Tenant Improvement Construction
Documents” shall be to the Tenant Improvement Construction Documents, as changed
pursuant to this Section 3.05, and all references to “Tenant Improvement Costs”
shall include the net aggregate approved cost for the Change Orders determined
in this Section 3.05 (after taking into account any savings affected by such
Change Order), except that there may be a fee charged by the Tenant Improvement
Contractor for any Change Order which reduces Tenant Improvement
Costs.
B.
Once
the Change Order, the costs therefor and the schedule change associated
therewith have been approved and a form evidencing such approval executed by
Tenant, satisfactory to Landlord, is delivered to Landlord, Tenant shall have
given full authorization to Landlord to cause Contractor to proceed with the
work of constructing the Tenant Improvements in accordance with the Tenant
Improvement Construction Documents as so modified; provided that any changes
required by Tenant which constitute a material deviation from the previously
approved Tenant Improvement Construction Documents shall be effective only
after
the approval of Landlord, not to be unreasonably withheld or delayed, unless
such change would result in a material delay in the completion of the work
being
done by Contractor.
Section
3.06 General Provisions Applicable to Tenant’s Work
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1.
|
Landlord
will require a high grade, first-class operation to be conducted
in the
Premises. Tenant’s Work shall be performed in a first-class mariner, using
new and first-class, quality materials. Tenant’s Work shall be constructed
and installed in accordance with all applicable laws, ordinances,
codes
and rules and regulations of governmental authorities. Tenant shall
promptly correct any of Tenant’s Work which is not in conformance
therewith.
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2.
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Landlord
shall use reasonable efforts to give notice to Tenant of the projected
date by which Landlord shall have completed Tenant Improvements at
least
seven (7) days prior to said date, so Tenant has access to the Premises
for the performance of Tenant’s Work. Tenant shall commence the
performance of such work and diligently pursue such work to completion.
Tenant’s contract parties and subcontractors shall be subject to
administrative supervisions by Landlord in their use of the Building
and
their relationship with Contractor, or contractors of other tenants
in the
Building. The entry by Tenant and/or its contract parties into the
Premises for the performance of Tenant’s Work
shall
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C-6
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2.
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be
subject to the Lease, except the payment of Rent. If Landlord allows
Tenant and/or its contract parties to enter the Premises and commence
the
performance of Tenant’s Work prior to the Completion Date, such entry by
Tenant shall be at Tenant’s sole
risk,
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3.
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Tenant’s
Work shall be coordinated and conducted to maintain harmonious labor
relations and not (a) to interfere unreasonably with or to delay
the
completion of any work being performed by Contractor or by any other
tenant in the Building; or (b) to interfere with or disrupt the use
and
peaceful enjoyment of other tenants in the Building. Contractor shall
have
priority over Tenant’s Work.
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4.
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Tenant
and Tenant’s contract parties shall perform their work, including any
storage for construction purposes, within the Premises only. Tenant
shall
be responsible for removal, as needed, from the Premises and the
Building
of all trash, rubbish, and surplus materials resulting from any work
being
performed in the Premises. Tenant shall exercise extreme care and
diligence in removing such trash, rubbish, or surplus materials from
the
Premises to avoid littering, marring, or damaging any portion of
the
Building. If any such trash, rubbish, or surplus materials are not
promptly removed from the Building in accordance with the provisions
hereof or if any portion of the Building is littered, marred, or
damaged,
Landlord may cause same to be removed or repaired, as the case may
be, at
Tenant’s cost and expense. Tenant shall pay Landlord the amount of any
such cost and expenses promptly upon demand
therefor.
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ARTICLE
4. PAYMENT OF COSTS
Section
4.01 Allowance for Tenant Improvement Costs
Landlord
shall pay the Tenant Improvement Costs, up to, but not in excess of, the
Allowance. The Allowance is applicable to Tenant Improvements. Tenant shall
have
the right to apply up to $6.00 per rentable square foot of the Allowance towards
the cost of data cabling, furniture, fixtures and moving expenses.
Notwithstanding the foregoing, the costs of furnishing new ceiling tile and
standard building lighting throughout the Premises shall be provided by Landlord
at its sole cost and expense and shall not be applied to the
Allowance.
Section
4.02 Tenant’s Costs
Tenant
shall pay Tenant’s Costs to Landlord, including:
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1.
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Tenant
Improvement Costs (if any) in excess of the
Allowance;
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2.
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The
cost of preparing and finalizing all drawings and specifications,
and all
fees for architects, engineers, interior designers, and other
professionals and design specialists incurred by Landlord or Tenant
in
connection with the Tenant Improvements;
and
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3.
|
A
construction supervision fee equal to three percent (3%) of the total
cost
of all work associated with the Tenant Improvements. Such fee shall
be
paid to Landlord or Landlord’s designated agent, and may be funded
out of the Allowance, to the extent
available.
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C-7
Section
4,03 Payment of Tenant’s Costs
Tenant
shall pay Tenant’s Costs to Landlord prior to commencement of construction of
the Tenant Improvements upon Tenant’s receipt from Landlord of an invoice for
such costs. Failure by Tenant to pay Tenant’s Costs in accordance with this
Article 4 will constitute a failure by Tenant to pay Rent when due under the
Lease.
ARTICLE
5. CONTRACTOR REQUIREMENTS
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A.
|
The
prospective bidders for the engagement as “Contractor” shall be three (3),
including:
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(i)
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Raven
Construction
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(ii)
|
Xxxxx
X. Xxxxxx Company
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(iii)
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Double
T Contracting, Inc.
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Landlord
and Tenant shall in their respective reasonable judgment, agree on the remaining
list of Contractors not filled in above as authorized to be a prospective
bidder.
|
B.
|
Landlord
shall be responsible for preparing bid instructions to prospective
contractors. Landlord shall receive, qualify and determine the
responsiveness of all bids. However, Tenant may elect to perform
any bid
related functions in lieu of Landlord or elect to review Landlord’s
preparation of same. If Tenant elects to perform such services, Landlord
shall have the right to review such work and
services.
|
|
C.
|
All
bids from such potential contractors shall be required to be submitted
on
or before ten (10) business days after such potential contractors’ receipt
from Landlord of Tenant Space Plans or Building Plans and Specifications
sufficient to generate a bid with a maximum price quoted. From such
bids,
Tenant shall select Contractor.
|
ARTICLE
6. DESIGNATION OF REPRESENTATIVES
Section
6.01 Landlord’s Agent
Landlord
hereby designates Xxxxxx Xxxxx to act as its authorized representative on this
Work Agreement. Any response from such person under this Work Agreement shall
be
the response of Landlord.
Section
6.02 Tenant’s Agent
Tenant
hereby designates Xxxxx Xxxxxx to act as its authorized representative on this
Work Agreement. Any response from such person under this Work Agreement shall
be
the response of Tenant.
C-8
Section
6.03 Mutual Cooperation
Landlord’s
Agent and Tenant’s Agent shall cooperate with one another in coordinating
Substantial Completion of Tenant’s Work, and in controlling and minimizing the
time and costs of the Tenant Improvements and Tenant Work.
ARTICLE
7. ADA COMPLIANCE
Section
7.01 Building
Tenant
shall not be obligated to pay for Building compliance with the Americans with
Disabilities Act (“ADA”), unless such compliance arises out of Tenant’s specific
use of the Premises and Building.
Section
7.02 Tenant’s Improvements
Tenant
Improvements shall be and Tenant shall cause the Tenant Space Plan to be in
compliance with the ADA, to the extent the ADA requirements are applicable
and
mandatory and are not voluntary (but not mandatory) for such Tenant
Improvements.
C-9
EXHIBIT
“D”
Acceptance
of Premises and
Memorandum
Confirming Term
THIS
MEMORANDUM (“Memorandum”) is made as of __________, 20__ between
_________________________ (“Landlord”) and
_______________________________,
a
_________________ (“Tenant”), pursuant to that certain Lease Agreement between
Landlord and Tenant dated as of ___________, 20___ (the “Lease”) for the
premises located at __________________________ (the “Premises”) and more
particularly described in the Lease. All initial-capitalized terms used in
this
Memorandum have the meanings ascribed to them in the Lease.
1. Landlord
and Tenant hereby confirm that:
(a) The
Commencement Date of the Term is ,
20 ,
(b) The
Expiration Date of the Term is ,
20_;
and
(c) The
date
rental commences under the Lease is ,
20
2. Tenant
hereby confirms that:
(a) All
commitments, arrangements or understandings made to induce Tenant to enter
into
the Lease have been satisfied;
(b) All
space
and improvements have been completed and furnished in accordance with the
provisions of the Lease; and
(c) Tenant
has accepted and is in full and complete possession of the
Premises.
3. This
Memorandum shall be binding upon and inure to the benefit of the parties and
their permitted successors and assigns.
IN
WITNESS WHEREOF, the parties have executed this Memorandum as of the date first
set forth above.
| LANDLORD: | TENANT: |
| By: ______________________ | By: ______________________ |
|
Authorized
Representative
|
Its: ______________________ |
D-1
EXHIBIT
“E”
RULES
AND REGULATIONS
The
rules
and regulations set forth in this Exhibit shall be and hereby are made a part
of
the Lease to which they are attached. Whenever the term “Tenant” is used in
these rules and regulations, it shall be deemed to include Tenant, its employees
or agents and any other persons permitted by Tenant to occupy or enter the
Premises. The following rules and regulations may from time to time be modified
by Landlord in the manner set forth in Paragraph 29 of the Lease.
1. Obstruction.
The
sidewalks, entries, passages, corridors, halls, lobbies, stairways, elevators
and other common facilities of the Building shall be controlled by Landlord
and
shall not be obstructed by Tenant or used for any purposes other than ingress
or
egress to and from the Premises. Tenant shall not place any item in any of
such
locations, whether or not any such item constitutes an obstruction, without
the
prior written consent of Landlord. Landlord shall have the right to remove
any
obstruction or any such item without notice to Tenant and at the expense of
Tenant. The floors, skylights and windows that reflect or admit light into
any
place in said Building shall not be covered or obstructed by
Tenant.
2. Ordinary
Business Hours.
Whenever used in the Lease or in these rules and regulations, the ordinary
business hours of the Building shall be from 8:00 A.M. to 6:00 P.M. Monday
through Friday and 8:00 A.M. to 1:00 P.M. Saturday of each week, excluding
the
legal holidays of New Year’s Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day, and any other holidays observed by owners
of
comparable buildings.
3. Deliveries.
Tenant
shall insure that all deliveries of supplies to the Premises shall be made
only
upon the elevator designated by Landlord for deliveries and only during the
ordinary business hours of the Building. If any person delivering supplies
to
Tenant damages the elevator or any other part of the Building, Tenant shall
pay
to Landlord upon demand the amount required to repair such damage.
4. Moving.
Furniture and equipment shall be moved in or out of the Building only upon
the
elevator designated by Landlord for deliveries and then only during such
reasonable hours and in such manner as may be prescribed by Landlord. Landlord
shall have the right to approve or disapprove the movers or moving company
employed by Tenant and Tenant shall cause such movers to use only the loading
facilities and elevator designated by Landlord. If Tenant’s movers damage the
elevator or any other part of the Building, Tenant shall pay to Landlord upon
demand the amount required to repair such damage.
5. Heavy
Articles.
No safe
or article the weight of which may, in the reasonable opinion of Landlord,
constitute a hazard or damage to the Building or its equipment, shall be moved
into the Premises. Landlord shall have the right to designate the location
of
such articles in the Premises. Safes and other heavy equipment, the weight
of
which will not constitute a hazard or damage the Building or its equipment
shall
be moved into, from or about the Building only during such hours and in such
manner as shall be reasonably prescribed by Landlord.
6. Nuisance.
Tenant
shall not do or permit anything to be done in the Premises, or bring or keep
anything therein which would in any way constitute a nuisance or waste, or
E-1
obstruct
or interfere with the rights of other tenants of the Building, or in any way
injure or annoy them, or conflict with the laws relating to fire, or with any
regulations of the fire department or with any insurance policy upon the
Building or any part thereof, or conflict with any of the rules or ordinances
of
any governmental authority having jurisdiction over the Building.
7. Building
Security.
Landlord may restrict access to and from the Premises and the Building outside
of the ordinary business hours of the Building. Landlord may require
identification of persons entering and leaving the Building during this period
and, for this purpose, may issue Building passes to tenants of the
Building.
8. Pass
Key.
The
janitor of the Building may at all times keep a pass key to the Premises, and
he
and other agents of Landlord shall at all reasonable times be allowed admittance
to the Premises.
9. Locks
and Keys for Premises.
No
additional lock or locks shall be placed by Tenant on any door in the Building
and no existing lock shall be changed unless the written consent of Landlord
shall first have been obtained. A reasonable number of keys to the Premises
and
to the toilet rooms, if locked by Landlord, will be furnished by Landlord,
and
Tenant shall not have any duplicate key made. At the termination of this tenancy
Tenant shall promptly return to Landlord all keys to the Building, Premises
and
toilet rooms.
10. Signs.
Signs
on Tenant’s entrance doors will be provided for Tenant by Landlord, the cost of
the signs to be charged to and paid for by Tenant. No advertisement, sign or
other notice shall be inscribed, painted or affixed on any part of the outside
or inside of the Building, except upon the interior doors as permitted by
Landlord, which advertisement, signs, or other notices shall be of Building
standard order, size and style, and at such places as shall be designated by
Landlord.
11. Use
of
Water Fixtures.
Water
closets and other water fixtures shall not be used for any purpose other than
that for which the same are intended, and any damage resulting to the same
from
misuse on the part of Tenant shall be paid for by Tenant. No person shall waste
water by tying back or wedging the faucets or in any other manner.
12. No
Animals, Excessive Noise.
No
animals shall be allowed in the offices, halls, corridors and elevators in
the
Building. No person shall disturb the tenants of this or adjoining buildings
or
space by the use of any radio or musical instrument or by the making of loud
or
improper noises.
13. Bicycles.
Bicycles or other vehicles shall not be permitted anywhere inside or on the
sidewalks outside of the Building, except in those areas designated by Landlord
for bicycle parking.
14. Trash.
Tenant
shall not allow anything to be placed on the outside of the Building, -nor
shall
anything be thrown by Tenant out of the windows or doors, or down the corridors,
elevator shafts, or ventilating ducts or shafts of the Building. All trash
shall
be placed in receptacles provided by Tenant on the Premises or in any
receptacles provided by Landlord for the Building.
X-0
00. Windows
and Entrance Doors.
Window
shades, blinds or curtains of a uniform Building standard, color and pattern
only shall be used throughout the Building to give uniform color exposure
through exterior windows. Exterior blinds shall remain in the lowered position
at all times to provide uniform exposure from the outside. Tenant entrance
doors
should be kept closed at all times in accordance with the fire
code.
16. Hazardous
Operations and Items.
Tenant
shall not install or operate any steam or gas engine or boiler, or carry on
any
hazardous business in the Premises without Landlord’s prior written consent,
which consent may be withheld in Landlord’s absolute discretion. The use of oil,
gas or inflammable liquids for heating, lighting or any other purpose is
expressly prohibited. Explosives or other articles deemed extra hazardous shall
not be brought into the Building.
17. Hours
for Repairs, Maintenance and Alterations.
Any
repairs, maintenance and alterations required or permitted to be done by Tenant
under the Lease shall be done only during the ordinary business hours of the
Building unless Landlord shall have first consented in writing to such work
being done outside of such times. If Tenant desires to have such work done
by
Landlord’s employees on Saturdays, Sundays, holidays or weekdays outside of
ordinary business hours, Tenant shall pay the extra cost of such
labor.
18. No
Defacing of Premises.
Except
as permitted by Landlord, Tenant shall not xxxx upon, cut, drill into, drive
nails or screws into, or in any way deface the doors, walls, ceilings, or floors
of the Premises or of the Building, nor shall any connection be made to the
electric wires or electric fixtures without the consent in writing on each
occasion of Landlord or its agents. Any defacement, damage or injury to the
Premises or Building caused by Tenant shall be paid for by Tenant. Nothing
contained in this Paragraph shall prohibit Tenant from decorating the walls
of
the Premises with such items as are normally found in first-class, commercial
office buildings, so long as such items are no heavier than twenty (20)
pounds.
19. Limit
on Equipment.
Tenant
shall not, without Landlord’s prior written consent, which consent shall not be
unreasonably withheld or delayed, install or operate any equipment which will
consume in conjunction with Tenant’s other equipment throughout the Premises, an
amount of electricity which exceeds that provided for under the Lease. If Tenant
requires any interior wiring such as for a business machine, intercom, printing
equipment or copying equipment, such wiring shall be done by the electrician
of
the Building only at Tenant’s expense, and no outside wiring persons shall be
allowed to do work of this kind unless by the written consent of Landlord or
its
representatives. If telegraphic or telephonic service is desired, the wiring
for
same shall be done as directed by the electrician of the Building or by some
other employee of Landlord who may be instructed by the superintendent of the
Building to supervise same, and no boring or cutting for wiring shall be done
unless approved by Landlord or its representatives, as stated.
20. Solicitation.
Landlord reserves the right to restrict, control or prohibit canvassing,
soliciting and peddling within the Building. Tenant shall not grant any
concessions, licenses or permission for the sale or taking of orders for food
or
services or merchandise in the Premises, nor install or permit the installation
or use of any machine or equipment for dispensing goods or foods or beverages
in
the Building, nor permit the preparation, serving, distribution or delivery
of
food or beverages in the Premises without the approval of Landlord and in
compliance with arrangements prescribed by Landlord. Only persons approved
in
writing by Landlord shall be
E-3
permitted
to serve, distribute, or deliver food and beverages within the Building, or
to
use the elevators or public areas of the Building for that purpose.
21. Doors.
Doors
for entrance to and exit from the Premises shall be kept closed at all times,
except when in use for entering or exiting the Premises.
22. Captions.
The
caption for each of these rules and regulations is added as a matter of
convenience only and shall be considered of no effect in the construction of
any
provision or provisions of these rules and regulations.
23. No
Smoking.
Landlord shall prohibit smoking in any area other than certain designated
smoking areas in the Building. Landlord shall notify Tenant of such designated
areas from time to time.
24. No
Use
of Balconies.
Tenant
shall not have the right to use or have access to the balconies of the
Building.
E-4
EXHIBIT
“F”
SPECIAL
STIPULATIONS
Special
Stipulations to Office Lease Agreement, dated ________________, 2005, by and
between 485 PROPERTIES, LLC, a Delaware limited liability company, as
“Landlord,” and AMERICAN TELECOM SERVICES, INC, a Delaware corporation, as
“Tenant.” In the event of any conflict between the terms and conditions of any
of the following Special Stipulations and the terms and conditions of the main
text of this Lease or of any of the other Exhibits to this Lease, the terms
and
conditions of these Special Stipulations shall control. In addition to any
other
terms whose definitions are fixed and defined by these Special Stipulations,
the
terms used herein with the initial letter capitalized shall have the same
meaning ascribed to them as set forth in the main text of this Lease or any
of
the other Exhibits. No inference or implication shall result from or
interpretation be based upon the deletion or omission of words or material
from
the form on which this Lease appears or from a draft of this Lease, the words
or
material having been deleted or omitted being as though they were never in
such
form or draft.
NONE
F-1
