EXHIBIT 10.8
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XXXXXXXXXX CENTRE
OFFICE LEASE AGREEMENT
DATE OF LEASE EXECUTION: NOVEMBER 1, 1996
ARTICLE 1
REFERENCE DATA
1.1 SUBJECTS REFERRED TO:
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section 1.1:
LANDLORD: SPP Real Estate (Xxxxxxx XX) Inc.
MANAGING AGENT: Xxxxxxx/Xxxxxxx Company
LANDLORD'S MANAGING
AGENT'S ADDRESS: 000 Xxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
COPY TO: SPP Investment Management
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xx. Xxxxx Xxxx
TENANT: Conference Source International, Inc., a Georgia
corporation
TENANT'S ADDRESS (FOR
NOTICE AND BILLLNG): 000 Xxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
BUILDING: Building - Xxxxxxxxxx Centre, located on the land
described on Exhibit A attached hereto and made a part
hereof.
BUILDING ADDRESS: Xxxxxxxxxx Centre
000 Xxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
PREMISES: Portion of the third floor designated Suite 300 and
located as shown on Exhibit B attached hereto and more
particularly described in Section 2.1 below.
RENTABLE FLOOR AREA
OF PREMISES: 8,219 square feet
TENANT'S INITIAL PRORATA
SHARE OF OPERATING
EXPENSES: 5.59%
TOTAL RENTABLE FLOOR
AREA OF THE BUILDING: 147,045 square feet
SCHEDULED TERM
COMMENCEMENT DATE: November 1, 1996
TERM EXPIRATION DATE: October 31, 2002
TERM: 6 Years
ANNUAL BASE RENT: The Annual Base Rent for the Premises shall be determined by
multiplying the amounts, for each Lease Year during the Term set forth in the
Schedule below, by the number of square feet contained in the Rentable Floor
Area of the Premises during such Lease Year. The term "Lease Year," as used
herein, shall mean each consecutive one-year period beginning on the
Commencement Date and each anniversary thereof and ending one day prior to the
next succeeding anniversary on the Commencement Date.
SCHEDULE
Lease Year 1 $18.00
Lease Year 2 $18.00
Lease Year 3 $18.00
Lease Year 4 $18.50
Lease Year 5 $19.00
Lease Year 6 $19.50
The Base Rent for the first month of the initial term of this Lease shall be
paid to Landlord upon Tenant's execution of this Lease.
ADDITIONAL RENT: Any payments owned by Tenant to Landlord other than Annual
Base Rent
ANNUAL RENT: Annual Base Rent plus any Additional Rent
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SECURITY DEPOSIT: None GUARANTORS: None
PERMITTED USES: General office use consistent with a first-class office
building
COMMERCIAL GENERAL LIABILITY INSURANCE:
COMBINED SINGLE LIMITS: $3,000,000 per occurrence
1.2 EXHIBITS.
The exhibits listed below in this Section 1.2 are incorporated in this
Lease by reference and are to be construed as part of this Lease:
EXHIBIT A Legal Description of Land.
EXHIBIT B Plan showing Premises.
EXHIBIT C [NOT USED]
EXHIBIT D Landlord's Services.
EXHIBIT E Rules and Regulations.
EXHIBIT F [NOT USED]
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1.3. TABLE OF CONTENTS
CONTENTS
ARTICLE II PREMISES AND TERM
2.1. Premises
2.2 Term
ARTICLE III CONSTRUCTION
3.1 No Initial Construction
3.2 Tenant's Construction Obligation; Improvement Allowance
3.3 General Provisions Applicable to Construction
3.4 Representatives
ARTICLE IV RENT
4.1 Rent
4.2 Operating Expenses
4.2.1 Operating Expenses Increase
4.2.2 Tenant's Estimated Operating Expense Payments
4.2.3 Change to Fiscal Year
4.3 Electrical Standards and Charges
4.3.1 Electricity Furnished
4.3.2. Tenant's use
4.3.3 Excess Use
4.3.4 Discounting Service
4.4 Payments
ARTICLE V LANDLORD'S COVENANTS
5.1 Landlord's Covenants During the Term
5.1.1 Building Services
5.1.2 Additional Building Services
5.1.3 Repairs
5.1.4 Quiet Enjoyment
5.2 Interruptions
ARTICLE VI TENANT'S COVENANTS
6.1 Tenant's Covenants During the Term
6.1.1 Tenant's Payments
6.1.2 Repairs and Surrender of Premises
6.1.3 Occupancy and Use
6.1.4 Rules and Regulations
6.1.5 Safety Appliances
6.1.6 Compliance with Laws
6.1.7 Assignment and Subletting
6.1.8 Indemnity
6.1.9 Tenant's Liability Insurance
6.1.10 Tenant's Worker's Compensation Insurance
6.1.11 Landlord's Right of Entry
6.1.12 Loading
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6.1.13 Landlord's Costs
6.1.14 Tenant's Property
6.1.15 Labor or Materialmen's Liens
6.1.16 Changes or Additions
6.1.17 Holdover
ARTICLE VII CASUALTY AND TAKING
7.1 Casualty and Taking
7.1 Reservation of Award
ARTICLE VIII RIGHTS OF MORTGAGEE
8.1 Priority of Lease
8.2 Rights of Mortgage Holders; Limitation of Mortgagee's Liability
8.3 Mortgagee's Election
8.4 No Prepayment or Modification
8.5 No Release or Termination
8.6 Continuing Offer
8.7 Mortgagee's Approval
ARTICLE IX GROUND LEASES AND EASEMENTS
9.1 Priority of Lease
9.2 Easements
ARTICLE X DEFAULT
10.1 Events of Default
10.2 Tenant's Obligations After Termination
ARTICLE XI MISCELLANEOUS
11.1 Recording
11.2 Relocation
11.3 Notices from One Party To The Other
11.4 Bind and Inure
11.5 No Surrender
11.6 No Waiver, ETC.
11.7 No Accord and Satisfaction
11.8 Cumulative Remedies
11.9 Landlord's Right to Cure
11.10 Estoppel Certificate
11.11 Waiver of Subrogation
11.12 Acts of God
11.13 Brokerage Commission, Indemnity
11.14 Submission Not an Offer
11.15 Applicable Law and Construction
11.16 Guaranty
11.16 Guaranty
ARTICLE XII SECURITY DEPOSIT
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ARTICLE II
PREMISES AND TERM
2.1. PREMISES.
Subject to and with the benefit of the provisions of this Lease and any
ground lease for the parcel on which the Building is located (the "Land"),
Landlord hereby leases to Tenant, and Tenant leases from Landlord, that certain
portion of the third floor of the Building, excluding exterior faces of exterior
walls, the common facilities area and building service fixtures and equipment
serving exclusively or in common other parts of the Building. Such portion of
the Building, with such exclusions, is referred to herein as the "Premises".
"Rentable Floor Area" shall mean the size of a space in the Building as
measured from the inner surface of the outer glass enclosing the space in
question if the exterior wall consists of 50% or more glass or from the midpoint
of tile exterior wall if such wall consists of less than 50% glass, to the
midpoint of walls separating that space from other tenant areas or the common
facilities of the Building. The term "Rentable Floor Area of Premises" shall
mean the square footage amount measured as set forth in the immediately
preceding sentence plus a pro rata allocation of the common facilities on the
floor on which the Premises are located (based on the ratio of the Rentable
Floor Area of the Premises, excluding common facilities, to the total Rentable
Floor Area, excluding common facilities of the floor on which the Premises are
located) and plus a pro rata allocation of the common facilities of the Building
(based on the ratio of the Rentable Floor Area of the Premises, excluding common
facilities, to the Rentable Floor Area, excluding common facilities, of the
Building). Landlord and Tenant conclusively agree that the Rentable Floor Area
of the Premises, as set forth in Section 1.1 of this Lease, is final and correct
and is not subject to remeasurement or adjustment by either party.
Tenant shall have, as appurtenant to the Premises, the right to use in
common with others entitled thereto: (a) the common facilities included in the
Building or on the Land, (b) the Building service fixtures and equipment serving
the Premises, and (c) the parking facility, if any, designated by Landlord to be
used by tenants of the Building, but not in excess of four (4) parking spaces
per one thousand (1,000) square feet of Rentable Floor Area of tile Premises.
Landlord reserves the right from time to time, without unreasonable
interference with Tenants use, (a) to install, repair, replace, use, maintain
and relocate for service to the Premises and to other parts of the Building or
either, Building service fixtures and equipment wherever located in the Building
and (b)to alter or relocate any other common facilities, it being understood
that if any parking facilities are provided, the same may be relocated on or off
the Land from time to time by Landlord, provided that in all events
substitutions are substantially equivalent.
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2.2 TERM.
To have and to hold for a period (the "Term") commencing on the earlier of
(a) the date on which the Premises are deemed ready for occupancy as provided in
Section 3.2, or (b)the date on which Tenant occupies all or any part of the
Premises (whichever of said dates is appropriate being hereafter referred to as
the "Commencement Date"), and continuing until the Term Expiration Date, unless
sooner terminated as provided in Section 3.2, 6.1.6, 7.1 or 10.2 or in ARTICLE
IX.
ARTICLE III
CONSTRUCTION
3.1 NO INITIAL CONSTRUCTION.
Tenant acknowledges that the Premises are being delivered by Landlord to
Tenant "as-is", in their current condition. Except for Landlord's agreement to
provide the Improvement Allowance described in Section 3.2 below, Landlord shall
have no obligation whatsoever to construct any improvements in the Premises nor
to provide Tenant any improvement allowance. Tenant acknowledges that it has
inspected the Premises, is fully aware of the condition of the Premises and
agrees to accept the Premises "as-is."
3.2 TENANT'S CONSTRUCTION OBLIGATION; IMPROVEMENT ALLOWANCE.
On or before December 31, 1996, Tenant shall, at Tenant's sole cost and
expense, install on the roof of the Building, a "package" supplemental HVAC unit
which will provide HVAC services to the Premises during all times other than the
Building's normal operating hours (which as described in Exhibit D to this
Lease), without any chilled water being supplied from the Building HVAC system.
The electricity for such HVAC system shall be separately metered, at Tenant's
sole cost and expense, and Tenant shall pay all electrical charges necessary to
operate such system. The installation of the HVAC system by Tenant shall be
subject to Landlord's prior approval and to all other provisions of this Lease
including, without limitation, Sections 3.3 and 6.1.16. In particular, the exact
location of the HVAC system on the roof, the method of screening the system, any
necessary roof penetrations and the running of pipes shall all be subject to the
prior approval of Landlord. The HVAC system to be installed by Tenant shall be
considered a fixture and, upon the expiration or any earlier termination of this
Lease, shall become the property of Landlord and may not be removed by Tenant.
If Tenant fails to complete the installation of the HVAC system on or before
December 31, 1996, Landlord shall have the right, but not the obligation to
complete such installation. All costs incurred by Landlord to complete such
installation shall be considered Additional Rent due and payable by Tenant
within five (5) business days following Landlord's demand. As a result of the
installation of the HVAC unit described herein, Landlord shall have no
obligation whatsoever to provide HVAC service to Tenant outside of normal
business hours.
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3.3 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION.
All construction work required or permitted by Tenant under this Lease
shall be done in a good and workmanlike manner and in compliance with all
applicable laws and all lawful ordinances, regulations and orders of
governmental authority and insurers of the Building. Either party may inspect
the work of the other at reasonable times and promptly shall give notice of
observed defects.
3.4 REPRESENTATIVES.
Each party authorizes the other to rely, in connection with their
respective rights and obligations under this Article III, upon approval and
other actions on the party's behalf by a representative to be named by each
party upon execution hereof or by any person designated in substitution or
addition by notice to the party relying.
ARTICLE IV
RENT
4.1 RENT.
Tenant agrees to pay rent to Landlord, without any offset or reduction
whatever (except as made in accordance with the express provisions of this
Lease), equal to 1/12th of the Annual Rent in equal installments in advance on
the first day of each calendar month included in the Term; and for any portion
of a calendar month at the beginning or end of the Term, at the proportionate
rate payable for such portion in advance. Tenant acknowledges that Landlord has
already provided Tenant a credit of $8,219.00 against the November, 1996 Annual
Rent Installment. This credit was in lieu of any improvement allowance. Tenant
acknowledges that Tenant shall be responsible for any and all costs of
improvements which Tenant desires to construct in or for the Premises,
including, without limitation, all costs associated with the "package"
supplemental HVAC system required pursuant to Section 3.2 of this Lease.
4.2 OPERATING EXPENSES.
4.2.1 Operating Expenses Increase - In the event Landlord's Operating
Expenses, as defined below, shall in any calendar year exceed Landlord's
Operating Expenses for calendar year 1997 ("Base Year Amount"), Tenant shall,
and hereby agrees to, pay as Additional Rent, Tenant's pro rata share of such
excess ("Tenant's Operating Expense Payment"). Tenant's pro rata share be
determined by multiplying such excess by a fraction the numerator of which is
the Rentable Floor Area of the Premises (as such Rentable Floor Area may be
adjusted for any expansion set forth in this Lease or hereinafter agreed to by
Landlord and Tenant) and the denominator of which is the Rentable Floor Area of
the Building.
Landlord and Tenant hereby acknowledge and agree that the payment of
Tenant's operating Expense Payment, pursuant to the provisions of this Lease, is
based on a fully occupied Building. Accordingly, Landlord and Tenant hereby
agree that if, during any calendar year, the Building is
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not at least ninety-five percent (95%) occupied, on average, throughout the
year, the actual Landlord's Operating Expenses shall be increased for such year
to the amount which Landlord reasonably estimates would have been incurred had
the Building been ninety-five percent (95%) occupied, on average, throughout
such year. In such event, Landlord's Statement given to Tenant shall indicate
the occupancy percentage of the Building by month. If Landlord's Operating
Expenses are increased in any calendar year pursuant to the provisions of this
paragraph, Tenant's Operating Expenses Payment shall be determined by increasing
the Base Year Amount to reflect the amount of Landlord's Operating Expenses
which Landlord reasonably estimates would have been incurred during the year
1994 had the Building been ninety-five percent (95%) occupied, on average,
throughout the year.
As soon as practicable after the end of each calendar year during the Term
and after Lease termination, Landlord shall render a statement ("Landlord's
Statement") in reasonable detail and according to usual accounting practices
certified by Landlord and showing for the preceding calendar year or fraction
thereof, as the case may be, Landlord's Operating Expenses, including a
statement of the amount by which Landlord's Operating Expenses exceed the Base
Year Amount. The term "Landlord's Operating Expenses" as used in this Lease
shall not include interest and amortization on mortgages for the Building and
Land or leasehold interests therein and the cost of special services rendered to
tenants (including Tenant) for which a special charge is made, but shall mean
any and all reasonable and necessary expenses incurred by Landlord to operate
the Building and the Land, including, without limitation: real estate taxes on
the Building and Land; Installments and interest on assessments for public
betterments or public improvements; expenses of any proceedings for abatement of
taxes and assessments with respect to any fiscal year or fraction of a fiscal
year; premiums for insurance; compensation and all fringe benefits, worker's
compensation insurance premiums and payroll taxes paid by Landlord to, for or
with respect to all persons engaged in the operating, maintaining, or cleaning
of the Building and Land; all utility charges not billed directly to tenants by
Landlord or the utility, including electricity, steam, natural gas and water
(including sewer charges) and any taxes on such utilities; payments to
independent contractors under service contracts for cleaning, operating,
managing, maintaining and repairing the Building and Land (which payments may be
to affiliates of Landlord provided the same are at reasonable rates consistent
with the type of occupancy and the services rendered); rent paid by the managing
agent or imputed cost equal to the loss of rent by Landlord for making available
to the managing agent space for a Building office on the ground floor or above;
interest on working capital borrowed by Landlord in anticipation of receipts
from tenants; if the Building shares common areas or facilities with another
building or buildings, the Building's pro rata share (as reasonably determined
by Landlord) of the cost of cleaning, operating, managing (including the cost of
the management office for such buildings and facilities), maintaining and
repairing such common areas and facilities; fixed and Additional Rent payable
under any ground lease of the Land; and all other reasonable and necessary
expenses paid in connection with the cleaning, operating, managing, maintaining
and repairing of the Building and Land, or either, and any equipment therein,
properly chargeable against income, it being agreed that if Landlord installs a
new or replacement capital item for the purpose of reducing Landlord's Operating
Expenses, the cost thereof as reasonably amortized by Landlord, with interest at
the prime commercial rate in effect from time to time at NationsBank in Atlanta,
Georgia on the unamortized amount, shall be included in Landlord's Operating
Expenses
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Landlord's Statement shall also show the average number of square feet of the
Building which were occupied for the preceding fiscal year or fraction thereof.
The term "real estate taxes" as used above shall mean taxes of every kind
and nature assessed by any governmental authority on the Land, the Building and
improvements, or both, which the Landlord shall become obligated to pay because
of or in connection with the ownership, leasing and operation of the Land, the
Building and improvements, or both, subject to the following: There shall be
excluded from such taxes all income taxes, excess profits taxes, excise taxes,
franchise taxes, and estate, succession, inheritance and transfer taxes,
provided, however, that if at any time during the Term the present system of ad
valorem taxation of real property shall be changed so that in lieu of the whole
or any part of the ad valorem tax on real property, there shall be assessed on
Landlord a capital levy or other tax on the gross rents received with respect to
the Land, Building and improvements, or both, or a federal, state, county,
municipal, or other local income, franchise, excise or similar tax, assessment,
levy or charge (distinct from any now in effect) measured by or based, in whole
or in part, upon any such gross rents, then any and all of such taxes,
assessments, levies or charges, to the extent so measured or based, shall be
deemed to be included within the term "real estate taxes."
Notwithstanding any other provision of this Section 4.2, if the Term
commences on a date other than the first day of a calendar year or expires or is
terminated as of a date other than the last day of a calendar year, then for
such fraction of a calendar year at the beginning or end of the Term, Tenant's
payment to Landlord under this Section 4.2 shall be made on the basis of
Landlord's best estimate of the items otherwise includible in Landlord's
Statement and, in the case of the year in which the Term expires or is
terminated, shall be made on or before the later of (a) ten (10) days after
Landlord delivers such estimate to Tenant or (b) the last day of the Term, with
an appropriate payment or refund upon submission of Landlord's Statement.
4.2.2 Tenant's Estimated Operating Expense Payments - If, with respect to
any calendar year or fraction thereof during the Term, Landlord estimates that
Tenant shall be obligated to pay Tenant's Operating Expense Payment, then Tenant
shall pay, as Additional Rent, on the first day of each month of such calendar
year and each ensuing year thereafter, estimated monthly payments equal to
1/12th of the estimated Tenant's Operating Expense Payment for the respective
calendar year, with an appropriate additional payment or refund to be made
within thirty (30) days after Landlord's Statement is delivered to tenant
Landlord may adjust such estimated monthly payment from time to time and at any
time during a year, and Tenant shall pay, as Additional Rent, on the first day
of each month following receipt of Landlord's notice, thereof, the adjusted
estimated monthly payment.
4.2.3 Change to Fiscal Year - Landlord shall have the right from time to
time to change the periods of accounting under Section 4.2 to any annual period
other than a calendar year, and upon any such change all items referred to in
this Section 4.2 shall be appropriately apportioned. In all Landlord's
Statements rendered under this Section 4.2, amounts for periods partially within
and partially without the accounting periods shall be appropriately apportioned,
and any items which are not determinable at the time of a Landlord's Statement
shall be included therein on the basis of Landlord's estimate, and with respect
thereto Landlord shall render promptly after
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determination a supplemental Landlord's Statement, and appropriate adjustment
shall be made according thereto. All Landlord's Statements shall be prepared on
an accrual basis of accounting.
4.3 ELECTRICAL STANDARDS AND CHARGES.
4.3.1 Electricity Furnished - Landlord shall furnish electrical energy
required for lighting, electrical facilities, equipment, machinery, fixtures and
appliances used in or for the benefit of Premises. Tenant shall pay a pro rata
share of any increase in the cost of providing such service as a part of
Tenant's Operating Expenses Payment.
4.3.2 Tenant's Use - Tenant shall not, without prior written notice to
Landlord in each instance, connect to the Building electric distribution system
any fixtures, appliances or equipment other than normal office machines such as
desk-top calculators and typewriters, or any fixtures, appliances or equipment
which Tenant on a regular basis operates beyond normal building operating hours.
In the event of any such connection, Tenant agrees to pay upon demand an amount
which will reflect the cost to Landlord of the additional electrical service to
be furnished by Landlord, such increase to be effective as of the date of any
such installation. If Landlord and Tenant cannot agree thereon, such amount
shall be conclusively determined by a reputable independent electrical engineer
or consulting firm to be selected by Landlord and paid equally by both parties,
and the cost to Landlord will be included in Landlord's Operating Expenses
provided in Section 4.2 hereof.
4.3.3 Excess Use - Tenant's use of electrical energy in the Premises shall
not at any time exceed the capacity of any of the electrical conductors or
equipment in or otherwise serving the Premises nor shall it exceed the standard
per square foot consumption for the Building. In order to insure that such
capacity is not exceeded and to avert possible adverse effect upon the Building
electric service, Tenant shall not, without prior written notice to Landlord in
each instance, connect to the Building electric distribution system any
fixtures, appliances or equipment which operate on a voltage in excess of 120
volts nominal or make any alteration or addition to the electric system of the
Premises. Unless Landlord shall reasonably object to the connection of any such
fixtures, appliances or equipment, all additional risers or other equipment
required therefor shall be provided by Landlord, and the cost thereof shall be
paid by Tenant upon Landlord's demand. In the event of any such connection,
Tenant agrees to pay as Additional Rent an amount which will reflect the cost
to Landlord of the additional service to be furnished by Landlord, such increase
to be effective as of the date of any such connection. In addition, Tenant
shall pay as Additional Rent Landlord's cost to provide electricity to Tenant in
excess of the standard per square foot consumption amount for the Building. If
Landlord and Tenant cannot agree thereon, such amounts shall be conclusively
determined by a reputable independent electrical engineer or consulting firm to
be selected by Landlord and paid equally - by both parties, and the cost to
Landlord will be included in Landlord's Operating Expenses provided in Section
4.2 hereof.
4.3.4 Discontinuing Service - Landlord may, at any time, elect to
discontinue the furnishing of electrical energy. In the event of any such
election by Landlord: (1) Landlord agrees to give reasonable advance notice of
any such discontinuance to Tenant; (2) Landlord
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agrees to permit Tenant to receive electrical service directly from the public
utility supplying service to the building and to permit the existing feeders,
risers, wiring and other electrical facilities serving Premises Space to be used
by Tenant and/or such public utility for such purpose to the extent they are
suitable and safely capable; (3) Landlord agrees to pay such charges and costs,
if any, as such public utility may impose in connection with the installation of
Tenant's meters and to make or, at such public utility's election, to pay for
such other installations as such public utility may require, as a condition of
providing comparable electrical service to Tenant; (4) the Operating Expenses
shall no longer include the cost to furnish electricity; and (5) Tenant shall
thereafter pay, directly to the utility furnishing the same, all charges for
electrical services to the Premises.
4.4 PAYMENTS.
All payments of Annual Rent and Additional Rent shall be made to Managing
Agent, or to such other person as Landlord may from time to time designate. If
any installment of Annual Rent or any other amounts or payments due by Tenant to
Landlord hereunder is paid more than five (5) days after the due date thereof,
it shall, at Landlord's election, bear interest at a rate equal to the prime
commercial rate from time to time established by NationsBank of Atlanta, Georgia
plus 4% per annum from such due date, which interest shall be immediately due
and payable as further Additional Rent.
ARTICLE V
LANDLORD'S COVENANTS
5.1 LANDLORD'S COVENANTS DURING THE TERM.
Landlord covenants during the Term:
5.1.1 Building Services - To furnish, through Landlord's employees or
independent contractors, electrical service to the extent set forth in Section
4.3 above and the services listed in Exhibit D;
5.1.2 Additional Building Services - To furnish, through Landlord's
employees or independent contractors, reasonable additional Building operation
services, if available, upon reasonable advance request of Tenant at equitable
rates from time to time established by Landlord to be paid promptly by Tenant;
5.1.3 Repairs - Except as otherwise provided in ARTICLE VII of this Lease,
to make such repairs to the roof, exterior walls, floor slabs, other structural,
components, and common facilities of the Building as may be necessary to keep
them in serviceable condition; and
5.1.4 Quiet Enjoyment - That Landlord has the right to make this Lease and
that Tenant on paying the rent and performing its obligations hereunder shall
peacefully and quietly have, hold and enjoy the Premises throughout the Term
without any manner of hindrance or
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molestation from Landlord or anyone claiming under Landlord, subject however to
all the terms and provisions hereof.
5.2 INTERRUPTIONS.
Landlord shall not be liable to Tenant for any damages compensation or
reduction of rent by reason of inconvenience or annoyance or for loss of
business arising from power losses or shortages or from the necessity of
Landlord's entering the Premises for any of the purposes authorized in this
Lease or for repairing the Premises or any portion of the Building or Land. In
case Landlord is prevented or delayed from making any repairs, alterations or
improvements, or furnishing any service or perform any other covenant or duty to
be performed on Landlord's part, by reason of any cause beyond Landlord's
reasonable control, Landlord shall not be liable to Tenant therefor, nor, except
as expressly otherwise provided in ARTICLE VII, shall Tenant be entitled to any
abatement or reduction of rent by reason thereof, nor shall the same give rise
to a claim in Tenant's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Premises.
ARTICLE VI
TENANT'S COVENANTS
6.1 TENANT'S COVENANTS DURING THE TERM.
Tenant covenants during the Term and such further time as Tenant occupies
all or any part of the Premises:
6.1.1 Tenant's Payments - To pay when due (a) all Annual Rent and
Additional Rent, (b) all taxes which may be imposed on Tenant's personal
property in the Premises (including, without limitation, Tenant's fixtures and
equipment) regardless of whether such taxes are assessed to Landlord or Tenant,
(c) all charges by public utilities for telephone and other utility services
(including service inspections therefor) rendered to the Premises not otherwise
required hereunder to be furnished by Landlord without charge or not consumed in
connection with any services required to be furnished by Landlord without charge
and (d) as Additional Rent, all charges of Landlord for services rendered
pursuant to Section 5.1.2 hereof;
6.1.2 Repairs and Surrender of Premises - Except as otherwise provided in
ARTICLE VII, Section 3.2 and Section 5.1.3, to keep the Premises in good order,
repair and condition, reasonable wear and tear only excepted; and at the
expiration or termination of this Lease peaceably to surrender the Premises in
good order and repair and in the condition existing as of the Commencement Date,
reasonable wear and tear only excepted and Tenant shall be obligated to remove
all goods and effects of Tenant and any items, the removal of which is required
by agreement or specified herein to be removed at Tenant's election and which
Tenant elects to remove, and to repair all damage caused by such removal and to
restore the Premises and leave them broom clean and neat;
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6.1.3 Occupancy and Use - To use and occupy the Premises only for the
Permitted Uses; not to injure or deface the Premises, Building, or Land; and not
to permit in the Premises any use thereof which is improper, offensive, contrary
to law or ordinance, or which creates or is liable to create a nuisance or which
may invalidate or increase the premiums for any insurance on the Building or its
contents or liable to render necessary any alteration or addition to the
Building;
6.1.4 Rules and Regulations - To comply with the Rules and Regulations set
forth in Exhibit E and all other reasonable Rules and Regulations hereafter made
by Landlord, of which Tenant has been given notice, for the care and use of the
building and Land and their facilities and approaches, it being understood that
Landlord shall not be liable to Tenant for the failure of other tenants of the
Building to conform to such Rules and Regulations;
6.1.5 Safety Appliances - To keep the Premises equipped with all safety
equipment or appliances required by law or ordinance or any other regulation of
any public authority because any use made by Tenant and to procure and licenses
and permits as required because of such use and, if requested by Landlord, to do
any work so required because of such use, it being understood that the foregoing
provisions shall not be construed to broaden in any way Tenant's Permitted Uses;
6.1.6 Compliance with Laws - To comply, at Tenant's sole cost and expense
with all laws, orders, ordinances and regulations of federal, state, county, and
municipal authorities having jurisdiction over the Premises, and to comply with
all directions or orders of any governmental official made pursuant to such
laws, orders, ordinances and regulations and to comply with all insurance
requirements applicable to the Premises.
6.1.7 Assignment and Subletting - Not without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, to assign this
Lease, to make any sublease, or to permit occupancy of the Premises or any part
thereof by anyone other than Tenant, voluntarily or by operation of law; as
Additional Rent, to reimburse Landlord promptly for reasonable legal and other
expenses incurred by Landlord in connection with any request by Tenant for
consent as assignment or subletting; no assignment or subletting shall affect
the continuing primary liability of Tenant (which, following such assignment or
subletting, shall be joint and several with the assignee or sublessee); no
consent to any of the foregoing in a specific instance shall operate as a waiver
in any subsequent instance. In the event that any assignee or subtenant pays to
Tenant any amounts in excess of the Annual Rent and Additional Rent then payable
hereunder, or pro rata portion thereof on a square footage basis for any portion
of the Premises, Tenant shall promptly pay said excess to Landlord as and when
received by Tenant.
6.1.8 Indemnity - To defend, with attorney(s) reasonably acceptable to
Landlord, save harmless and indemnify Landlord from any liability for injury,
loss, accident or damage to any person or property and from any claims, actions,
proceedings and expenses and costs in connection therewith (including, without
implied limitation, reasonable attorneys' fees): (i) arising from the omission,
fault, willful act, negligence or other misconduct of Tenant or from any use
made or thing done or occurring on the Premises not due to the gross negligence
or
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willful misconduct of Landlord or (ii) resulting from the failure of Tenant to
perform and discharge its covenants and obligations under this Lease;
6.1.9 Tenant's Liability Insurance - To maintain commercial general
liability insurance on the Premises in amounts which shall, at the beginning of
the Term, be at least equal to the limits set-forth in Section 1.1 of this
Lease, and from time to time during the Term shall be for such higher limits, if
any, as are customarily carried in the area in which the Premises are located,
on property similar to the Premises and used for similar purposes, and to
furnish Landlord with certificates thereof;
6.1.10 Tenant's Worker's Compensation Insurance -To keep all of Tenant's
employees working in the Premises covered by worker's compensation insurance in
amounts and form required by all applicable laws and to furnish Landlord with
certificates thereof;
6.1.11 Landlord's Right of Entry - To permit Landlord and Landlord's agents
entry: to examine the Premises at reasonable times and, if Landlord shall so
elect, to make repairs or replacements; to remove, at Tenant's expense, any
changes, additions, signs, curtains, blinds, shades, awnings, aerials, flagpoles
or the like to which Landlord has not consented in writing; and to show the
Premises to prospective tenants during the twelve (12) months preceding
expiration of the Term and to prospective purchasers and mortgagees at all
reasonable times;
6.1.12 Loading - Not to place a load upon the Premises exceeding an average
rate of fifty (50) pounds of live load per square foot or floor area, and not to
move any safe, vault or other heavy equipment in, about or out of the Premises
except in such manner and at such times as Landlord shall in each instance
approve; Tenant's business machines and mechanical equipment which cause
vibration or noise that may be transmitted to the Building structure or to any
other leased space in the Building shall be placed and maintained by Tenant in
settings of cork, rubber, spring or other types of vibration eliminators
sufficient to eliminate such vibration or noise;
6.1.13 Landlord's Costs - In case Landlord shall be made party to any
litigation commenced by or against Tenant or by or against any parties in
possession of the Premises or any part thereof claiming under Tenant, to pay, as
Additional Rent, all costs including, without implied limitation, reasonable
attorneys' fees incurred by or imposed upon Landlord in connection with such
litigation and, as Additional Rent, also to pay all such costs and fees incurred
by Landlord in connection with the successful enforcement by Landlord of any
obligations of Tenant under this Lease;
6.1.14 Tenant's Property - All the furnishings, fixtures, equipment,
effects and property of every kind, nature and description of Tenant and of all
persons claiming by, through or under Tenant which, during the continuance of
this Lease or any occupancy of the Premises by Tenant or anyone claiming under
Tenant, may be on the Premises or elsewhere in the Building or on the Land shall
be at the sole risk and hazard of Tenant and, if the whole or any part thereof
shall be destroyed or damaged by fire, water or otherwise, or by the leakage or
bursting of water pipes, steam pipes or other pipes, by theft, or from any other
cause, no part of said loss or damage is to
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be charged to or to be borne by Landlord unless due to the gross negligence or
willful misconduct of Landlord;
6.1.15 Labor or Materialmen's Liens - To pay promptly when due the entire
cost of any work done on the Premises by Tenant, its agents, employees or
independent contractors; not to cause or permit any liens for labor or materials
performed or furnished in connection therewith to attach to the Premises; and
immediately to discharge any such liens which may so attach;
6.1.16 Changes or Additions - Not to make any changes, alterations or
additions to the Premises or to construct or take out any improvements therein
without Landlord's prior written consent, provided that Tenant shall reimburse
Landlord, as Additional Rent for all costs incurred by Landlord in reviewing
Tenant's proposed changes or additions, and provided further that, in order to
protect the functional integrity of the Building, all such changes and additions
shall be performed by contractors selected from a list of approved contractors
prepared by Landlord from time to time; and
6.1.17 Holdover - To pay to Landlord the greater of twice the then fair
market rent as conclusively determined by Landlord or twice the total of the
Annual Rent and Additional Rent then applicable for each month or portion
thereof during which Tenant shall retain possession of the Premises or any part
thereof after the termination or expiration of this Lease, whether by lapse of
time or otherwise, and also to pay all damages sustained by Landlord on account
thereof, the provisions of this subsection shall not operate as a waiver by
Landlord of the right of re-entry provided in this Lease; at the option of the
Landlord exercised by a written notice given to Tenant while such holding over
continues, such holding over shall constitute an extension of this Lease for a
period of one year.
ARTICLE VII
CASUALTY AND TAKING
7.1 CASUALTY AND TAKING.
In case during the Term all or any substantial part of the Premises,
Building or Land, or any one or more of them, are damaged materially by fire or
any other casualty or by action of public or other authority in consequence
thereof or are taken by eminent domain or Landlord receives compensable damage
by reason of anything lawfully done in pursuance of public or other authority,
this Lease shall terminate at Landlord's election, which may be made,
notwithstanding Landlord's entire interest may have been divested, by notice to
Tenant within thirty (30) days after the occurrence of the event giving rise to
the election to terminate, which notice shall specify the effective date of
termination which shall be not less than thirty (30) nor more than sixty (60)
days after the date of notice of such termination. If in any such case the
Premises are rendered unfit for use and occupation and the Lease is not so
terminated, Landlord shall use due diligence to put the Premises, or, in case of
a taking, what may remain thereof (excluding any items installed or paid for by
Tenant which Tenant may be required or permitted to remove) into proper
condition for use and occupation to the extent permitted by tile net award
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of insurance or damages available to Landlord, and a just proportion of the
Annual Rent and Additional Rent according to the nature and extent of the injury
shall be abated until the Premises or such remainder shall have been put by
Landlord in such condition; and in case of a taking which permanently reduces
the area of the Premises, a just proportion of the Annual Rent and Additional
Rent shall be abated for the remainder of the Term and an appropriate adjustment
shall be made to the Tenant's Operating Expense Base Year Amount.
7.2 RESERVATION OF AWARD.
Landlord reserves to itself any and all rights to receive awards made for
damages to the Premises, Building or Land and the leasehold hereby created, or
any one or more of them, accruing by reason of exercise of eminent domain or by
reason of anything lawfully done in pursuance of public or other authority.
Tenant hereby releases and assigns to Landlord all Tenant's rights to such
awards and covenants to deliver such further assignments and assurances thereof
as Landlord may from time to time request and hereby irrevocably designates and
appoints Landlord as its attorney-in-fact to execute and deliver in Tenant's
name and behalf all such further assignments thereof It is agreed and
understood, however, that Landlord does not reserve to itself, and Tenant does
not assign to Landlord, any damages payable for (i) movable trade fixtures
installed by Tenant, or anybody claiming under Tenant, at its own expense, (ii)
relocation expenses recoverable by Tenant from such authority in a separate
action, or (iii) any other item for which Tenant is entitled to any award so
long as recovery for such item does not reduce the award to which Landlord is
otherwise entitled.
ARTICLE VIII
RIGHTS OF MORTGAGEE
8.1 PRIORITY OF LEASE.
This Lease is and shall continue to be subject and subordinate to any
mortgage or deed to secure debt of record covering the Land or Building or both
(the "mortgaged premises") whether now or hereafter in existence. The holder of
any such mortgage or deed to secure debt shall have the election to subordinate
the same to the rights and interests of Tenant under this Lease exercisable by
filing with the appropriate recording office a notice of such election,
whereupon the Tenant's rights and interests hereunder shall have priority over
such mortgage or deed of trust. Tenant hereby agrees to execute, with ten (10)
days of demand therefore, any reasonable documentation evidencing such
subordination.
8.2 RIGHTS OF MORTGAGE HOLDERS; LIMITATION OF MORTGAGEE'S LIABILITY.
The word "mortgage" as used herein includes mortgages, deeds to secure debt
or other similar instruments evidencing other voluntary liens or encumbrances
and modifications, consolidations, extensions, renewals, replacements and
substitutes thereof. The word "holder" shall mean a mortgagee and any subsequent
holder or holders of a mortgage. Upon entry and
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taking possession of the Premises for the purpose of foreclosure, such holder
shall have all the rights of Landlord. Notwithstanding any other provision of
this Lease to the contrary no such holder of a mortgage shall be liable, either
as mortgagee or as assignee, to perform, or be liable in damages for failure to
perform any of the obligations of Landlord unless and until such holder shall
enter and take possession of the Premises for the purpose of foreclosure, and
such holder shall not in any event be liable to perform or liable in damages for
failure to perform the obligations of Landlord under Section 3.1. Upon entry for
the purpose of foreclosure, such holder shall be liable to perform all of the
obligations of Landlord (except for the obligations under section 3.1), provided
that a discontinuance of any foreclosure proceeding shall be deemed a conveyance
under said provisions to the owner of the equity of the Premises.
8.3 MORTGAGEE'S ELECTION.
Notwithstanding any other provision to the contrary contained in this
Lease, if prior to substantial completion of Landlord's obligations under
Article III, any holder of a first priority mortgage on the mortgaged premises
enters and takes possession thereof for the purpose of foreclosing the mortgage,
such holder may elect, by written notice given to Tenant and Landlord at any
time within ninety (90) days after such entry and taking of possession, not to
perform Landlord's obligations under Article III, and in such event such holder
and all persons claiming under it shall be relieved of all obligations to
perform, and all liability for failure to perform, said Landlord's obligations
under Article III, and Tenant may terminate this Lease and all its obligations
hereunder by written notice to Landlord and such holder given within thirty (30)
days after the day on which such holder shall have given its notice as
aforesaid.
8.4 NO PREPAYMENT OR MODIFICATION, ETC.
Tenant shall not pay Annual Rent, Additional Rent or any other charge more
than ten (10) days prior to the due dates thereof. No prepayment of Annual
Rent, Additional Rent or other charge, no assignment of this Lease and no
agreement to modify so as to reduce the rent, change the Term or otherwise
materially change the rights of Landlord under this Lease, or to relieve Tenant
of any obligations or liability under this Lease, shall be valid unless
consented to in writing by Landlord's mortgagees of record, if any.
8.5 NO RELEASE OR TERMINATION.
No act or failure to act on the part of Landlord which would entitle Tenant
under the terms of this Lease, or by law, to be relieved of Tenant's obligations
hereunder or to terminate this Lease, shall result in a release or termination
of such obligations or a termination of this Lease unless (i) Tenant shall have
first given written notice of Landlord's act or failure to act to Landlord's
mortgagees of record, if any, specifying the act or failure to act on the part
of Landlord which could or would give basis to Tenant's rights and (ii) such
mortgagees, after receipt of such notice, have failed or refused to correct or
cure the condition complained of within a reasonable time thereafter, but
nothing contained in this Section 8.5 shall be deemed to impose any obligation
on any such mortgagee to correct or cure any such condition. "Reasonable time"
as used above means and includes a reasonable time to obtain possession of
18
the mortgaged premises, if the mortgagee elects to do so, and a reasonable time
to correct or cure the condition if such condition is determined to exist.
8.6 CONTINUING OFFER.
The covenants and agreements contained in this Lease with respect to the
rights, powers and benefits of a mortgagee (particularly, without limitation
thereby, the covenants end agreements contained in this Article VIII) constitute
a continuing offer to any person, corporation or other entity, which by
accepting or requiring an assignment of this Lease or by entry or foreclosure
assumes the obligations herein set forth with respect to such mortgagee; such
mortgagee is hereby constituted a party to this Lease as an obligee hereunder to
the same extent as though its name were written herein as such; and such
mortgagee shall be entitled to enforce such provisions in its own name. Tenant
agrees on request of Landlord to execute and deliver from time to time any
agreement which may reasonably be deemed necessary to implement the provisions
of this Article VIII.
8.7 MORTGAGEE'S APPROVAL.
Landlord's obligation to perform its covenants and agreements hereunder is
subject to the condition precedent that this Lease be approved by the holder of
any mortgage of which the Premises are a part and by the issuer of any
commitment to make a mortgage loan which is in effect on the date hereof.
Unless Landlord gives Tenant written notice within thirty (30) business days
after the date hereof that such holder or issuer, or both, disapprove this
Lease, then this condition shall be deemed to have been satisfied or waived and
the provisions of this Section 8.7 shall be of no further force or effect.
ARTICLE IX
GROUND LEASES AND EASEMENTS
9.1 PRIORITY OF LEASE.
This Lease is and shall continue to be subject and subordinate to any
presently existing underlying lease (including any amendments, modifications and
extensions thereof) covering all or any part of the Land or the Building,
including but not limited to, that certain Lease Agreement for Office Building,
Xxxxxxxxxx International Airport Old Terminal Redevelopment Area, between City
of Atlanta and Trident Partners dated October 31, 1989. This provision shall be
self-operative and no further instrument shall be required to effect such
subordination of this Lease. Upon demand, however, Tenant shall execute any
reasonable documentation required by Landlord to evidence such subordination.
9.2 EASEMENTS.
This Lease and all rights of Tenant hereunder shall be subject and
subordinate to any easements, rights-of-way and agreements, whether now existing
or hereafter placed on the Land
19
or the Building, in connection with the ground lease referred to in Section 9.1
above or in connection with the development of the Land, the Building or the
project of which either the Land or the Building is a part; provided, however,
that this Lease shall not be subordinate to any future easement, right-of-way or
agreement which would prevent Tenant from gaining access to and using the
Premises for Tenant's Permitted Uses.
ARTICLE X
DEFAULT
10.1 EVENTS OF DEFAULT.
If any default by Tenant continues after notice, in case of Annual Rent,
Additional Rent, Tenant Improvement Reimbursement or any other monetary
obligation of Tenant to Landlord hereunder, for more than ten (10) days or, in
any other case, for more than thirty (30) days and such additional time, if any,
as is reasonably necessary to cure the default, if the default is of such a
nature that it cannot reasonably be cured in thirty (30) days, and Tenant
diligently endeavors to cure such default and thereafter completes such cure as
promptly as reasonably possible; or if Tenant becomes insolvent, fails to pay
its debts as they become due, files a petition under any chapter of the U.S.
Bankruptcy Code, 11 U.S.C. 101 et seq., as it may be amended (or any similar
petition under any insolvency law of any jurisdiction), or if such petition is
filed against Tenant; or if Tenant proposes any dissolution, liquidation,
composition, financial reorganization or recapitalization with creditors, makes
an assignment or trust mortgage or pledges its interest under this Lease as
security for any obligations of Tenant, or if a receiver, trustee, custodian or
similar agent is appointed or takes possession with respect to any property of
Tenant; or if the leasehold hereby created is taken on execution or other
process of law in any action against Tenant; then, and in any such case,
Landlord and the agents and servants of Landlord may, in addition to and not in
derogation of any remedies for any preceding breach of covenant, immediately or
at any time thereafter while such default continues and without further notice,
at Landlord's election, do any one or more of the following: (1) give Tenant
written notice stating that the Lease is terminated, effective upon the giving
of such notice or upon a date stated in such notice, as Landlord may elect, in
which event the Lease shall be irrevocably extinguished and terminated as stated
in such notice without any further action, or (2) with or without process of
law, and with or without terminating this Lease, in a lawful manner, enter and
repossess the Premises as of Landlord's former estate, and expel Tenant and
those claiming through or under Tenant, and remove its and their effects,
without being guilty of trespass, or (3) pursue any other rights or remedies
permitted by law. Any such termination of the Lease shall be without prejudice
to any remedies which might otherwise be used for arrears of rent or prior
breach of covenant, and in the event of such termination Tenant shall remain
liable under this Lease as hereinafter provided. Tenant hereby waives all
statutory rights (including, without limitation, rights of redemption, if any)
to the extent such rights may be lawfully waived, and Landlord, without notice
to Tenant, may store Tenant's effects and those of any person claiming through
or under Tenant at the expense and risk of Tenant and, if Landlord so elects,
may sell such effects at public auction or private sale and apply the net
proceeds to the payment of all sums due to Landlord from Tenant, if any, and pay
over the balance, if any, to Tenant. In addition, Landlord
20
shall have the right, but in no event shall Landlord be obligated, in its own
name but as agent for Tenant to enter into and rent all or any portion of the
Premises on behalf of Tenant, upon such terms and conditions as Landlord may
deem advisable.
10.2 TENANT'S OBLIGATIONS AFTER TERMINATION.
In the event that this Lease is terminated under any of the provisions
contained in Section 10.1 or shall be otherwise terminated for breach of any
obligation of Tenant, Tenant covenants to pay forthwith to Landlord, as
compensation, the then present values of the excess of the total rent reserved
for the residue of the Term over the rental value of the Premises for said
residue of the Term. In calculating the rent reserved, there shall be included,
in addition to the Annual Rent and all Additional Rent, the value of all other
consideration agreed to be paid or performed by Tenant for said residue. Tenant
further covenants as an additional and cumulative obligation after any such
termination to pay punctually to Landlord all the sums and perform all the
obligations which Tenant covenants in this Lease to pay and to perform in the
same manner and to the same extent and at the same time as if this Lease had not
been terminated. In calculating the amounts to be paid by Tenant under the next
foregoing covenant, Tenant shall be credited with any amount paid to Landlord as
compensation as provided in the first sentence of this Section 10.2 and also
with the net proceeds of any rents obtained by Landlord by reletting the
Premises, after deducting all Landlord's expenses in connection with such:
reletting, including, without implied limitation, all repossession costs,
brokerage commissions, fees for legal services and expenses of preparing the
Premises for such reletting, it being agreed by Tenant that Landlord may (i)
relet the Premises or any part or parts thereof for a term or terms which may at
Landlord's option be equal to or less than or exceed the period which would
otherwise have constituted the balance of the Term and may grant such
concessions and free rent as Landlord in its sole judgment considers advisable
or necessary to relet the same and (ii) make such alterations, repairs and
decorations in the Premises as Landlord in its sole judgment considers advisable
or necessary to relet the same, and no action of Landlord in accordance with the
foregoing or failure to relet or to collect rent under reletting shall operate
or be construed to release or reduce Tenant's liability as aforesaid.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amount of the loss or damages
referred to above.
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ARTICLE XI
MISCELLANEOUS
11.1 RECORDING.
Neither party shall record this Lease or any of its provisions in any
public records.
11.2 RELOCATION.
Landlord reserves the right to relocate the Premises to comparable space
within the Building or another office building in the development of which the
Building is a part by giving Tenant ninety (90) days prior written notice of
such intention to relocate. On or before the effective date of such relocation,
this Lease shall be amended by deleting the description of the original Premises
and substituting therefor a description of such comparable space. Landlord
agrees to pay the reasonable costs of moving Tenant to such other space within
the Building or the park.
11.3 NOTICES FROM ONE PARTY TO THE OTHER.
All notices required or permitted hereunder shall be in writing and
addressed, if to the Tenant, at Tenant's Address or such other address as Tenant
shall have last designated by notice in writing to Landlord and, if to Landlord,
at Landlord's Address or such other address as Landlord shall have last
designated by notice in writing to Tenant. Any notice shall be deemed duly
given three (3) days following the date the notice is mailed to such address
postage prepaid, registered or certified mail, return receipt requested, or when
delivered to such address by hand.
11.4 BIND AND INURE.
The obligations of this Lease shall run with the Land and this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Landlord named herein and each
successive owner of the Premises shall be liable only for the obligations
accruing during the period of its ownership. The obligations of Landlord shall
be binding upon the assets of Landlord which comprise the Premises but not upon
other assets of Landlord. No individual partner, trustee, stockholder, officer,
director, employee or beneficiary of Landlord shall be personally liable under
this Lease and Tenant shall look solely to Landlord's interest in the Premises
in pursuit of its remedies upon an event of default hereunder, and the general
assets of the individual partners, trustees, stockholders, officers, employees
or beneficiaries of Landlord shall not be subject to levy, execution or other
enforcement procedure for the satisfaction of the remedies of Tenant.
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11.5 NO SURRENDER.
The delivery of keys to any employee of Landlord or to Landlord's agent or
any employee thereof shall not operate as a termination of this Lease or a
surrender of the Premises.
11.6 NO WAIVER, ETC.
The failure of Landlord or of Tenant to seek redress for violation of, or
to insist upon the strict performance of, any covenant or condition of this
Lease or, with respect to such failure of Landlord, any of the Rules and
Regulations referred to in Section 6.1.4, whether heretofore or hereafter
adopted by Landlord, shall not be deemed a waiver of such violation nor prevent
a subsequent act, which would have originally constituted a violation, from
having all the force and effect of an original violation, nor shall the failure
of Landlord to enforce any of said Rules and Regulations against any other
tenant in the Building be deemed a waiver of any such Rules or Regulations. The
receipt by Landlord of Annual Rent or Additional Rent with knowledge of the
breach of any covenant of this Lease shall not be deemed a waiver of such breach
by Landlord, unless such waiver be in writing and signed by Landlord. No consent
or waiver, express or implied, by Landlord or Tenant to or of any breach of any
agreement or duty shall be construed as a waiver or consent to or of any other
breach of the same or any other agreement or duty.
11.7 NO ACCORD AND SATISFACTION.
No acceptance by Landlord of a lesser sum than the Annual Rent and
Additional Rent then due shall be deemed to be other than on account of the
earliest installment of such rent due, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such installment or
pursue any other remedy in this Lease provided.
11.8 CUMULATIVE REMEDIES.
The specific remedies to which Landlord may resort under the terms of this
Lease are cumulative and are not intended to be exclusive of any other remedies
or means of redress to which it may be lawfully entitled in case of any breach
or threatened breach by Tenant of any provisions of this Lease. In addition to
the other remedies provided in this Lease, Landlord shall be entitled to the
restraint by injunction of the violation or attempted or threatened violation of
any of the covenants, conditions or provisions of this Lease or to a decree
compelling specific performance of any such covenants, conditions or provisions.
11.9 LANDLORD'S RIGHT TO CURE.
If Tenant shall at any time default in the performance of any obligation
under this Lease, Landlord shall have the right, but shall not be obligated, to
enter upon the Premises and to perform such-obligation, notwithstanding the fact
that no specific provision for such substituted
23
performance by Landlord is made in this Lease with respect to such default. In
performing such obligation, Landlord may make any payment of money or perform
any other act. All sums so paid by Landlord together with interest at the rate
of 4% per annum in excess of the then prime commercial rate of interest being
charged by NationsBank of Atlanta, Georgia, and all necessary, incidental costs
and expenses in connection with the performance of any such act by Landlord,
shall be deemed to be Additional Rent under this Lease and shall be payable to
Landlord immediately on demand. Landlord may exercise the foregoing rights
without waiving any other of its rights or releasing Tenant from any of its
obligations under this Lease.
11.10 ESTOPPEL CERTIFICATE.
Tenant agrees, from time to time, upon not less than fifteen (15) days'
prior written request by Landlord, to execute, acknowledge and deliver to
Landlord a statement in writing certifying that this Lease is unmodified and in
full force and effect; that Tenant has no defenses, offsets or counterclaims
against its obligations to pay the Annual Rent and Additional Rent and to
perform its other covenants under this Lease; that there are no uncured defaults
of Landlord or Tenant under this Lease (or, if there have been modifications,
that this Lease is in full force and effect as modified and stating the
modifications and, if there are any defenses, offsets, counterclaims, or
defaults, setting them forth in reasonable detail); and the dates to which the
Annual Rent, Additional Rent and other charges have been paid. Any such
statement delivered pursuant to this Section 11.10 shall be in a form reasonably
acceptable to and may be relied upon by any prospective purchaser or mortgagee
of premises which include the Premises or any prospective assignee of any such
mortgagee.
11.11 WAIVER OF SUBROGATION.
Any insurance carried by either party with respect to the Premises and
property therein or occurrences thereon shall include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrences of injury or
loss. Each party, notwithstanding any provisions of this Lease to the contrary,
hereby waives any rights of recovery against the other for injury or loss due to
hazards covered by insurance containing such clause or endorsement to the extent
of the indemnification received thereunder.
11.12 ACTS OF GOD.
In any case where either party hereto is required to do any act (other
than the payment of Annual Rent and Additional Rent), delays caused by or
resulting from Acts of God, war, civil commotion, fire, flood or other casualty,
labor difficulties, shortages of labor, materials or equipment, government
regulations, unusually severe weather or other causes beyond such party's
reasonable control shall not be counted in determining the time during which
work shall be completed, whether such time be designated by a fixed date, a
fixed time or a "reasonable time," and such time shall be deemed to be extended
by the period of such delay.
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11.13 BROKERAGE COMMISSION; INDEMNITY.
Landlord and Tenant agree that Xxxxxxx Xxxxxxx Company has acted as broker
for Landlord in this transaction ("Broker") and that Tenant has not been
represented by a broker. Broker is to be paid a commission by Landlord pursuant
to the terms and conditions of a separate Commission Agreement between Landlord
and Broker. Tenant warrants that there are no claims for broker's commissions
or finder's fees claimed by any other party other than Broker claiming to have
dealt with Tenant 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, due to any party claiming to have dealt with
Tenant, other than Broker. Landlord hereby indemnifies Tenant and holds Tenant
harmless from and against 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. Landlord warrants that there are no claims other
than that of Broker for broker's commissions or finder's fees due to any party
claiming to have dealt with Landlord in connection with its execution of this
Lease.
11.14 SUBMISSION NOT AN OFFER.
The submission of a draft of this Lease or a summary of some or all of its
provisions does not constitute an offer to lease or demise the Premises, it
being understood and agreed that neither Landlord nor Tenant shall be legally
bound with respect to the leasing of the Premises unless and until this Lease
has been executed by both Landlord and Tenant and a fully executed copy has been
delivered to each of them.
11.15 APPLICABLE LAW AND CONSTRUCTION.
This Lease shall be governed by and construed in accordance with the laws
of the state in which the Premises are located. If any term, covenant, condition
or provision of this Lease or the application thereof to any person or
circumstances shall be declared invalid or unenforceable by the final ruling of
a court of competent jurisdiction having final review, the remaining terms,
covenants, conditions and provisions of this Lease and their application to
persons or circumstances shall not be affected thereby and shall continue to be
enforced and recognized as valid agreements of the parties, and in the place of
such invalid or unenforceable provision, there shall be substituted a like, but
valid and enforceable provision which comports to the findings of the aforesaid
court and most nearly accomplishes the original intention of the parties.
There are no oral or written agreements between Landlord and Tenant
affecting this Lease. This Lease may be amended, and the provisions hereof may
be waived or modified, only by instruments in writing executed by Landlord and
Tenant.
The titles of the several Articles and Sections contained herein are for
convenience only and shall not be considered in construing this Lease.
25
Unless repugnant to the context, the words "Landlord" and "Tenant"
appearing in this Lease shall be construed to mean those named above and their
respective heirs, executors, administrators, successors and assigns, and those
claiming through or under them respectively. If there be more than one tenant,
the obligations imposed by this Lease upon Tenant shall be Joint and several.
11.16 GUARANTY.
Not Applicable.
11.17 RENEWAL OPTION.
Provided Tenant is not in default under this Lease either as of the date
of exercise or of the commencement date thereof, Tenant shall have the right and
option to extend the Term of this Lease for one additional period of five (5)
years ("Extended Term") commencing immediately following the expiration of the
original Term of this Lease. Tenant may only exercise this option by providing
written notice to Landlord at least two hundred seventy (270) days prior to the
expiration of the Term of the Lease. The Base Rent for the Extended Term shall
be the greater of (i) $19.50 per annum, per square foot of Rentable Floor Area
of Premises or the first year of the option period, or (ii) ninety-five percent
(95%) of the market rate, as of the commencement date of the Extended Term, for
space of similar size in the Building, as reasonably determined by Landlord.
Landlord will notify Tenant, in writing, at least thirty (30) days prior to the
commencement of the Extended Term of Landlord's reasonable determination of
ninety-five (95%) of the then current market rate.
ARTICLE XII
SECURITY DEPOSIT
Landlord and Tenant acknowledge that no Security Deposit is required as part of
this Lease.
EXECUTED as a sealed instrument on the day and year first above written.
LANDLORD:
BY: SPP REAL ESTATE (GEORGIA TWO),
INC.,
By:/s/
------------------------------
Name: Xxxxx Xxxxxxxxx Brom
----------------------------
Title: Chief Financial Officer
---------------------------
26
(Signatures Continued on Following Page)
TENANT:
CONFERENCE SOURCE INTERNATIONAL,
INC., a Georgia corporation
By:/s/
-------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------
Title: Owner
----------------------
By:
-------------------------
Name:
-----------------------
Title:
----------------------
[CORPORATE SEAL]
27
EXHIBIT "A"
ALL THAT TRACT OR PARCEL OF LAND situated, lying and being in Land Lots 128 and
129 of the 14th District, Xxxxxx County, Georgia, being more particularly
described as follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at an iron pin set located at the
intersection of the easterly right-of-way line of Xxxxxx Terrace (a variable-
width right-of-way) and the southern right-of-way line of Loop Road; and running
thence along the said easterly right-of-way line the following courses and
distances: South 00 42' 32" West 31.44 feet to an iron pin set, along the arc
of a 775.97-foot radius curve to the left an arc distance of 192.46 feet (said
arc being subtended by a chord lying to the East having a bearing of South 06
23' 48" East and being 191.97 feet in length) to an iron pin set, South 13 30'
8" East 48.81 feet to a point located at the intersection of said easterly
right-of-way line and the land lot line common to Land Lots 129 and 130 (said
common land lot line being the current city limits line of the City of College
Park), South 13 30' 08" East 81.65 feet to an iron pin set, along the arc of a
1478.14-foot radius curve to the right an arc distance of 105.77 feet (said arc
being subtended by a chord lying to the West having a bearing of South 11 27'
09" East and being 105.75 feet in length) to an iron bin set and THE TRUE POINT
OF BEGINNING FROM THE TRUE POINT OF BEGINNING AS THUS ESTABLISHED, run thence
North 90 00' 00" East 481.39 feet to a nail set; thence South 00 00' 00" East
474.14 feet to a nail set; thence South 90 00' 00" West 427.00 feet to a point
located on the easterly right-of-way line of Frontage Road (a variable width
right-of-way); thence along said easterly right-of-way line the following
courses and distances: along the arc of a 797.14-foot radius curve to the right
an arc distance of 83.69 feet (said arc being subtended by a chord lying to the
East having a bearing of North 08 38' 29" West and being 83.66 feet in length)
to an iron pin set; North 05 38' 03" West 296.52 feet to an iron pin set; along
the arc of a 1478.14-foot radius curve to the left an arc distance of 97.21 feet
(said arc being subtended by a chord lying to the West having a bearing of North
07 30' 57" East and being 97.19 feet in length) to an iron pin set and THE TRUE
POINT OF BEGINNING.
Said property being more particularly shown as Parcel 1, containing 4.950
acres, on that certain plat of survey entitled "Trident Xxxxxxxx, Xxxxx 0,
Xxxxxxxxxx Xxxxxx Office Building,, dated October 5, 1988, last revised March
30, 1989, prepared by Xxxxxxxx X. Xxxxx & Associates, bearing the seal and
certification of Xxxxxxxx X. Xxxxx, G.R.L.S. No. 2372. Said survey being
incorporated herein by this reference.
28
[Xxxxxxxxxx Centre Letterhead]
EXHIBIT B
---------
PREMISES
--------
[third floor diagram inserted]
29
EXHIBIT C
[NOT USED]
30
EXHIBIT D
LANDLORD'S SERVICES
ONE XXXXXXXXXX CENTRE
Office Areas, Common Areas, etc.
--------------------------------
Nightly:
-------
1. Vacuum all carpeted areas.
2. Clean all tile floors with a treated dust mop; damp mop with a
disinfectant.
3. Dust all horizontal surfaces, i.e. tops of desks, filing cabinets,
chairs, tables, etc.
4. Damp wipe entrance doors moldings and spot clean entrance glass.
5. - Empty ashtrays; damp wipe and polish.
6. Remove all trash from receptacles; remove trash to collection area;
replace all liners.
7. Disinfect and polish drinking fountain(s).
Nightly - Restrooms:
-------------------
1. Damp mop and disinfect tile floors.
2. Remove trash from receptacles; replace liners.
3. Replenish paper products and soap.
4. Clean and disinfect all toilets and sinks.
5. Polish all bright work.
6. Spot clean partitions as needed.
Weekly - All Areas
------------------
1. Thoroughly damp mop all tile floors taking care to get into comers,
along edges, etc.
2. Remove fingerprints from telephones; clean with disinfectant.
3. Vacuum all upholstered furniture.
31
4. Dust all vertical surfaces, i.e. sides of desks, filing cabinets,
chairs, tables, etc.
5. Accomplish all high dusting, i.e. over exit signs, doors, etc.
Heating, Ventilating, and Air Conditioning
------------------------------------------
1. Heating, ventilating, and air conditioning as required to provide
reasonably comfortable temperatures for normal business day occupancy (excepting
holidays); Monday through Friday from 8:00 am. to 6:00 pm. and Saturday from
8:00 a.m. to 1:00 pm.
2. Maintenance of any additional or special air conditioning equipment and
the associated operating cost will be at Tenant's expense.
Water
-----
Hot water for lavatory purposes and cold water for drinking, lavatory
and toilet purposes.
Floor's
Vinyl composition tile floors will be stripped and waxed one (1) time
per year.
Window Washing
--------------
Exterior windows will be washed two (2) times per year. Interior
windows will be washed one (1.) time per year.
Elevators
---------
Elevators for the use of all tenants and the general public for access to
and from all floors of the Building. Programming of elevators (including,
but not limited to, service elevators) shall be as Landlord from time to
time determines best for the Building as a whole. Tenant shall have 24
hours/day, seven days/week access to at least one passenger elevator.
Relamping of Light Fixtures
---------------------------
Lamps, ballasts, and starters shall be replaced or repaired by Landlord at
Landlord's expense.
Cafeteria and Vending Installations
-----------------------------------
1. Any space to be used primarily for lunchroom or cafeteria operation
shall be Tenant's responsibility to keep clean and sanitary, it being
understood that Landlord's approval of such use must be first obtained
in writing.
32
2. Vending machines or refreshment service installations by Tenant must
be approved by Landlord in writing and shall be restricted in use to
employees and business callers. All cleaning necessitated by such
installations shall be at Tenant's expense.
33
EXHIBIT E
RULES AND REGULATIONS
1. The entrance, lobbies, passages, corridors, elevators and stairways shall
not be encumbered or obstructed by Tenant, Tenant's agents, servants,
employees, licensees or visitors or be used by them for any purpose other
than for ingress or egress to and from the Premises. The moving in or out
of all freight, furniture or bulky matter of any description must take
place during the hours which Landlord may determine from time to time.
Notwithstanding the foregoing, Tenant shall have use of the loading dock
and freight elevator at all reasonable times. Landlord reserves the right
to inspect all freight and bulky matter to be brought into the Building and
to exclude from the Building all freight and bulky matter which violates
any of these Rules and Regulations or the Lease of which these Rules and
Regulations are a part.
2. No curtains, blinds, shades, screens or signs, other than those furnished
by Landlord shall be attached to, hung in or used in connection with any
window or door of the Premises without the prior written consent of
Landlord. Interior signs on doors shall be painted or - affixed for Tenant
by Landlord or by sign painters first approved by Landlord at the expense
of Landlord and shall be of a size, color and style acceptable to Landlord.
3. Subject to the foregoing term of the Lease no additional locks or bolts of
any kind shall be placed upon any of the doors or windows by Tenant, nor
shall any changes be made in existing locks or the mechanism thereof
without the prior written consent of Landlord which consent shall not be
unreasonably delayed or withheld. Tenant must, upon the termination of its
tenancy, restore to Landlord all keys of stores, shops, booths, stands,
office and toilet rooms, either furnished or otherwise procured by Tenant,
and in the event of the loss of any keys so furnished, Tenant shall pay to
Landlord the cost thereof.
4. Canvassing, soliciting and peddling in the Building are prohibited and
Tenant shall cooperate to prevent the same.
5. Tenant may request heating and/or air conditioning during other periods in
addition to normal working hours pursuant to the foregoing terms of the
Lease.
6. Tenant shall comply with all security measures from time to time
established by Landlord for the Building. Notwithstanding anything to the
contrary contained herein, Tenant and its permitted assignees, subtenants,
and their employees, licensees and guests, shall have access to the
Building, the Premises and the Common Areas, including all parking areas,
at all times, 24 hours per day, every day of the year during the term of
this Lease provided such employee has a security access card in his
possession (for any hours other than 7:00 a.m. to 6:00 p.m. on weekdays)
and, upon request, produces reasonable identification.
34
7. Non Smoking Building - For the health and safety of your employees and
visitors, One Xxxxxxxxxx Centre is designated as a non-smoking building.
Smoking will not be permitted in the common areas, lobby, restrooms,
stairwells, mailroom, dock area, building entrances, etc. Please have your
employees limit smoking to areas designated within your office areas.
35
EXHIBIT F
---------
[NOT USED]
36
