EXHIBIT 10.52
PARK PLACE ATLANTA
LEASE AGREEMENT
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THIS LEASE, made and entered into as of this 8 day of January, 1997,
by and between PARK PLACE XXXXX, L.L.C., a Georgia limited liability company
(hereinafter referred to as the "Landlord") and iXL, Inc., a Delaware
corporation (hereinafter referred to as the as the "Tenant");
W I T N E S S E T H:
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1. PREMISES. The Landlord, for and in consideration of the rents,
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covenants, agreements, and stipulations hereinafter mentioned, reserved and
contained, to be paid, kept and performed by the Tenant, by these presents does
lease and rent unto the said Tenant, and said Tenant hereby agrees to lease and
take upon the terms and conditions which hereinafter appear, the following
described property (hereinafter referred to as the "Prime Premises") containing
initially approximately 1,230 rentable square feet in Suite 115 on the First
Floor, 14,170 rentable square feet in Suite 200 on the Second Floor, 7,321
rentable square feet in Suite 350 on the Third Floor, and 14,170 rentable square
feet in Suite 400 on the Fourth Floor, for a total of 36,891 rentable square
feet in BUILDING TWO (hereinafter referred to as the "Building") located in PARK
PLACE ATLANTA (hereinafter referred to as the "Office Complex") and the Building
being more fully described as 0000 Xxxxx Xxxxxx. Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx
00000. The attached floor plan (Exhibit "A-1") represents an approximation of
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the Prime Premises to be leased pursuant to this Lease. A legal description of
the land on which the Building is situated is attached hereto as Exhibit "B"
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(hereinafter referred to as the "Land").
2. TERM. The term of this Lease shall be for a period of ONE HUNDRED
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TWENTY (120) MONTHS commencing on the 1ST day of APRIL, 1997 (hereinafter
referred to as the "Commencement Date"), and ending on the 31ST day of MARCH,
2007, at midnight (hereinafter referred to as the "Expiration Date") (such term
being hereinafter referred to as the "Term"), unless sooner terminated as may be
hereinafter provided. If the Commencement Date of the Lease should change for
any reason, or if the tenant improvements are not substantially complete on or
before the Commencement Date for any reason, Landlord shall not be liable or
responsible for any claims, damages, losses, penalties or liabilities in
connection therewith or by reason thereof, and this Lease shall not be void or
voidable. After the occurrence of the Commencement Date. Tenant and Landlord
shall execute a certificate in the form attached hereto as Exhibit "C"
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confirming the Commencement Date. (SEE SPECIAL STIPULATIONS)
3. COMPLETION OF IMPROVEMENTS, ADDITIONAL PREMISES, OPTIONS TO RENEW.
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(SEE SPECIAL STIPULATIONS)
4. BASE MONTHLY RENTAL. Tenant agrees to pay Landlord, by payments to
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Park Place Xxxxx, L.L.C., and delivered to Landlord c/o Winter Properties,
Inc., 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, promptly on the
first day of each month in advance, from and after the Rental Commencement
Dates forth in Special Stipulation 7, during the Term of this Lease, without
deduction or set off, in legal tender, an initial monthly rental of THIRTY-NINE
THOUSAND NINE HUNDRED SIXTY-FIVE AND 25/100 ($39,965.25) DOLLARS (hereinafter
referred to as "Base Monthly Rental"). If the Term commences on a day other than
the first day of a month, or terminates on a day other than the last day of a
month, the Base Monthly Rental for the first or last partial month shall be
prorated based upon the actual number of days in such a month.
5. BASE MONTHLY RENTAL ADJUSTMENT. (a) At the end of each and every
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Lease Year, as hereinbelow defined, during the Term, the Base Monthly Rental, as
increased by previous rental adjustments hereunder, shall be increased for the
next succeeding Lease Year by an amount equal to the product of (i) the Base
Monthly Rental, as increased by previous rental adjustments hereunder, less the
actual monthly Operating Expenses attributable to the Prime Premises for the
first twelve (12) full calendar months after the first Rental Commencement Date
set forth in Special Stipulation 7, as outlined in Paragraph 6 below, multiplied
by (ii) one hundred percent (100%) of the difference expressed as a percentage
between the Consumer Price Index, as hereinbelow defined, published for the
month of November for the immediately preceding calendar year and the Consumer
Price Index published for the month of November for the year immediately
preceding the immediately preceding calendar year. Each adjustment shall remain
in effect until the next such annual adjustment is made. In no event shall the
Base Monthly Rental, as increased by previous rental adjustments, be decreased
pursuant to any adjustment hereunder; if a decrease would result, then no
adjustment will be made until the end of the next Lease Year. Landlord and
Tenant agree that the Base Monthly Rental shall not be increased in any year by
more than five percent (5%) from the prior year's Base Monthly Rental.
(b) "Consumer Price Index", as used herein, shall be the "Revised
Consumer Price Index for All Urban Consumers, U.S. City Average, All Items
(1967=100) Unadjusted" issued by the Bureau of Labor Statistics of the U.S.
Department of Labor. If the manner in which such Index is determined by the
Bureau of Labor Statistics shall be substantially revised, an adjustment shall
be made by Landlord in such revised index which would produce results
equivalent, as nearly as possible, to those which would have been obtained if
the Index had not been so revised. If the 1967 average shall no longer be used
as an index of 100, such change shall constitute a substantial revision. If the
Consumer Price Index published by the Bureau of Labor Statistics of the U.S.
Department of Labor is discontinued, then the Consumer Price Index published by
the U.S. Department of
Commerce shall be used (with proper adjustment); and if the U.S. Department of
Commerce Index is discontinued, then Landlord and Tenant shall, in good faith,
agree on a suitable substitute. If no such agreement can be reached, then four
percent (4%) shall be deemed to be the difference in the Consumer Price Index
for the rental adjustment each year for purposes of this paragraph until such
time as a new index can be agreed upon. If there is a change in the frequency of
publication of such Index so that there is no such publication in the month or
months specified in subparagraph (a), then the adjustments called for in such
subparagraph shall be based on the publication of such Index most closely
preceding the month or months specified in such subparagraph.
(c) "Lease Year", as used herein, means a period of twelve (12)
consecutive calendar months, or a portion thereof falling within the Term, with
the first Lease Year commencing with the first day of the first calendar month
beginning on or after the last to occur of the Rental Commencement. Dates set
forth in Special Stipulation 7 and each subsequent Lease Year commencing on each
anniversary thereof. The period, if any, from the commencement date of the Term
to the beginning of the first Lease Year shall be treated as if it were part of
the first Lease Year under this Lease for all purposes.
(d) Within ninety (90) days after the end of each Lease Year,
Landlord shall deliver to Tenant a statement setting forth (i) a computation of
the amount of the Base Monthly Rental, as adjusted, that is due each month of
the Lease Year in which such statement is issued; and (ii) the amount of a lump
sum payment required to cover the amount of increase for the lapsed months of
the then current Lease Year. Within thirty (30) days after Landlord renders such
statement, Tenant shall pay to Landlord, as additional rental, such lump sum
payment and thereafter pay the Base Monthly Rental, as adjusted pursuant to such
statement.
(e) The provisions of this paragraph shall survive the expiration
or earlier termination of this Lease. Within ninety (90) days following such
expiration or earlier termination, Landlord shall issue a final statement,
setting forth all amounts due Landlord pursuant to this paragraph. Tenant shall
pay such final statement to Landlord within thirty (30) days following the date
Landlord issues such final statement.
6. ADDITIONAL RENT. (a) The following terms, as defined below, are
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used in this paragraph:
"Escalation Year" shall mean the calendar year, commencing with
the calendar year following the year in which the commencement date of the Term
occurs, falling in whole or in part, within the Term.
"Estimated Operating Expense Increase" shall mean the payments to
be made by Tenant to Landlord toward the Operating Expense Increase in the
amounts, at the times, and in the manner provided for by subparagraph (c) below.
"Estimated Operating Statement" shall mean a statement rendered to
Tenant setting forth: (i) Landlord's reasonable estimate of the projected
Operating Expenses attributable to the Prime Premises for the then current
Escalation Year; (ii) a computation of the Estimated Operating Expense Increase
attributable to the Prime Premises due for the then current Escalation Year;
(iii) a computation of the monthly Estimated Operating Expense Increase
installments to be paid by Tenant pursuant to the Estimated Operating Statement,
being one-twelfth (1/12) of the amount determined pursuant to clause (ii) above;
and (iv) a computation of the amount due Landlord, or credit due Tenant, in
respect of the lapsed months of the then current Escalation Year.
"Operating Expense Increase" shall mean time amount to be paid as
Additional Rent in accordance with subparagraph (b).
"Operating Expenses" are defined in Exhibit "D" attached hereto
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and incorporated herein by this reference.
"Operating Statement" shall mean a statement setting forth (i) the
actual Operating Expenses attributable to the Prime Premises for an Escalation
Year; (ii) a computation of the total actual Operating Expense Increase
attributable to the Prime Premises for such Escalation Year; (iii) an accounting
for Estimated Operating Expense Increase payments, if any, made with respect to
such Escalation Year; and (iv) the amount of Operating Expense Increase then
payable to Landlord, or the credit in respect thereof to which Tenant is
entitled, for such Escalation Year, taking into account any increase in the
Estimated Operating Expense Increase payments due Landlord pursuant the
Estimated Operating Statement rendered with respect to the next Escalation Year,
if any.
(b) Tenant shall pay to Landlord as additional rent (the
"Additional Rent") for each Escalation Year during the Term Tenant's Percentage
Share (defined below) of the total dollar increase in the Operating Expenses
attributable to the Prime Premises for such Escalation Year if and to the extent
they exceed the actual Operating Expenses for the first twelve (12) full
calendar months after the last to occur of the Rental Commencement Dates set
forth in Special Stipulation 7 as increased to reflect ninety-five percent (95%)
occupancy in the Office Complex, and the same being assessed for purposes of
taxes and insurance as if it were fully complete and occupied. Within one
hundred twenty (120) days after the expiration of each Escalation Year, Landlord
shall furnish Tenant with an Operating Statement. All amounts shown as due from
Tenant on the Operating Statement for such Escalation Year shall be due from
Tenant thirty (30) days after the rendering of such Operating Statement. The
term, "Tenant's Percentage Share", means 35.51%. Landlord and Tenant acknowledge
that Tenant's Percentage Share has been obtained by dividing the rentable square
feet of the Prime Premises by the rentable square feet of the Office Complex,
and multiplying such quotient by 100. In the event Tenant's Percentage Share
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is changed during a calendar year by reason of a change in the rentable square
feet of the Prime Premises or the rentable square feet of the Office Complex,
Tenant's Percentage Share shall thereafter mean the result obtained by using the
revised net rentable square feet in the foregoing formula. For the purpose of
this Lease, Tenant's Percentage Share shall be determined on the basis of the
number of days during such calendar year at each percentage share. Landlord
agrees to operate and manage the Office Complex in an efficient and effective
manner consistent with other comparable properties and customary property
management practices.
(c) Commencing with the first Escalation Year during the Term,
Landlord may render an Estimated Operating Statement for any Escalation Year. If
and when so rendered from time to time, Tenant shall pay to Landlord in advance
on the first day of each calendar month the monthly Estimated Operating Expense
Increase installments provided for in such Estimated Operating Statement, such
payments to continue until another Estimated Operating Statement is rendered.
Upon the rendering of the Operating Statement for any Escalation Year for which
Estimated Operating Expense Increase installments were paid by Tenant, Tenant
shall, within thirty (30) days thereafter, pay to Landlord the sum of (i) the
excess, if any, of the Operating Expense Increase due for such Escalation Year
over the monthly Estimated Operating Expense Increase installments paid by
Tenant in respect of such Escalation Year; and (ii) the excess, if any, of the
Estimated Operating Expense Increase installments due for the current Escalation
Year, as shown on the Estimated Operating Statement, over the Estimated
Operating Expense Increase installments then being paid by Tenant multiplied by
the number of months which shall have elapsed, in whole or in part, since the
commencement of the current Escalation Year. If Tenant's Estimated Operating
Expense Increase installments for the prior or current Escalation Year shall
exceed the Operating Expense Increase due for the prior Escalation Year or the
Estimated Operating Expense Increase due for the current Escalation Year,
respectively, such excess shall first be credited against any amounts shown due
on the Operating Statement (including the Estimated Operating Statement) and
the balance, if any, shall be credited against the next succeeding installment
or installments of Base Monthly Rent, Operating Expense Increase or Estimated
Operating Expense Increase becoming due hereunder; provided, however, that if
the Term of this Lease shall terminate or expire prior to full application of
such credit, any balance due Tenant shall be refunded to Tenant by Landlord on
the date of such termination or expiration.
(d) For any Escalation Year not wholly falling within the Term,
the Operating Expense Increase shall be determined by annualizing Operating
Expenses actually accrued during the portion of the Escalation Year falling
within the Term and then prorating the Operating Expense Increase thereby
determined, based on the number of days of such Escalation Year falling within
the Term. The provisions of this paragraph shall survive the expiration or
earlier termination of this Lease.
7. USE OF PREMISES. The Prime Premises shall be used for general
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office purposes and no other purposes and in accordance with the Rules and
Regulations attached hereto and incorporated herein by this reference. The
Tenant shall not use, permit or allow the Prime Premises to be used other than
as strictly provided in this Lease and shall not use, permit or allow the Prime
Premises or any part thereof to be used for any immoral, improper, offensive, or
unlawful purpose or otherwise in violation of any federal, state or local
statute, law, ordinance, rule or regulation, including, without limitation, in
violation of any zoning ordinances; nor shall the Tenant permit any nuisance
within the Prime Premises or permit the Prime Premises to be used in any manner
which will be a source of material annoyance or in any way interfere with the
peaceful possession, enjoyment and proper use of other areas of the Building,
nor shall the Prime Premises be used in any manner so as to vitiate the
insurance or increase the rate of insurance on the Prime Premises or the
Building, nor shall the Prime Premises be used for any purpose which would tend
to lower the quality or character of the Building, create unreasonable elevator
loads or otherwise unreasonably interfere with Building operations. Not by way
of limitation of the foregoing but in addition thereto, neither the Prime
Premises nor any portion thereof shall be used or occupied for any or all of the
following: governmental or quasi-governmental offices, spas, massage parlors,
escort services offices, retail sales purposes, auto leasing or auto sales
offices, equipment or appliance repair shops, daycare centers, nurseries,
churches, or places of religious or quasi-religious worship, religious
facilities or offices of religious organizations, or retail or wholesale sale
purposes, medical research laboratories or offices for medical or quasi-medical
professionals providing medical treatments.
8. NO NUISANCE. Tenant shall conduct its business and control its
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agents, contractors, customers, employees, invitees, licensees and visitors in
such a manner so as not to create any unreasonable nuisance or interference
with, annoy or disturb any other tenant or Landlord in its operation of the
Office Complex.
9. ASSIGNMENT AND SUBLETTING. Tenant may sublease any or all of the
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Prime Premises to a subsidiary or affiliated corporation without Landlord's
prior written consent. Tenant may sublease portions of the Prime Premises to
others provided such subtenant's operation is a part of the general operation
of Tenant and under the supervision and control of Tenant, and provided such
operation is within time purposes for which said Prime Premises shall be used.
Except as provided in the preceding sentences, Tenant shall not voluntarily or
involuntarily, whether by operation of law or otherwise, assign, transfer,
hypothecate or otherwise encumber this Lease or any interest therein and shall
not sublet or permit the use by others of the Prime Premises or any portion
thereof without obtaining in each instance Landlord's prior written consent,
which shall not be unreasonably withheld, provided excess rent goes to Landlord
as provided below. Landlord's consent to one assignment, sublease, transfer or
hypothecation shall not be deemed as a consent to any other or further
assignment, sublease, transfer or hypothecation. Any such assignment, sublease,
transfer or hypothecation without Landlord's prior written consent shall be void
and shall, at Landlord's option, constitute a material breach of this Lease. No
acceptance by Landlord of any rent or any other sum of money from any assignee,
sublessee or other category of
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transferee shall release Tenant from any of its obligations hereunder or be
deemed to constitute Landlord's consent to any assignment, sublease, transfer or
hypothecation, and in any event, Tenant shall remain primarily liable on this
Lease for the entire Term hereof and shall in no way be released from the full
and complete performance of all the terms, conditions, covenants and agreements
contained herein.
In the event Tenant should desire to assign this Lease or sublet the
Prime Premises or any part thereof, Tenant shall give Landlord prior written
notice, which notice shall specify (a) the date on which Tenant desires to make
such assignment or sublease; (b)the name and business of the proposed assignee
or sublessee; (c) the amount and location of the space affected; (d) the
proposed effective date and duration of the subletting or assignment; and (e)
the proposed rental to be paid to Tenant by such subtenant or assignee. Landlord
shall then have a period of fifteen (15) days following receipt of such notice
within which to notify Tenant in writing that Landlord elects either (1) to
terminate this Lease as to the space so affected as of the date so specified by
Tenant, in which event Tenant will on that date be relieved of all further
obligations to pay rent hereunder as to such space; or (2) to permit Tenant to
assign or sublet such space, in which event if the proposed rental between
Tenant and subtenant is greater than the Base Monthly Rental as adjusted under
this Lease, then fifty (50%) percent of such excess rental shall be deemed
additional rent owed by Tenant to Landlord under this Lease, and the amount of
such excess shall be paid by Tenant to Landlord in the same manner that Tenant
pays the Base Monthly Rental hereunder and in addition thereto; or (3) to
withhold consent to Tenant's assigning or subleasing such space, which consent
shall not be unreasonably withheld, and to continue this Lease in full force and
effect as to the entire Prime Premises. In the event Landlord elects to
terminate under Paragraph (1) above, Tenant may immediately thereafter withdraw
its notice of desire to assign or sublet, whereupon this Lease shall continue in
full force and effect. Requests for sublease or assignment shall be accompanied
by a minimum service fee of Three Hundred and No/100 ($300.00) Dollars and
Tenant agrees to reimburse Landlord for all legal fees and other expenses
incurred by Landlord in connection with the request. Total service fees,
including legal fees, shall not exceed $1,000.00.
10. HOLDING OVER. Should Tenant or any of its successors in interest
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continue to hold the Prime Premises after termination of this Lease, whether
such termination occurs by lapse of time or otherwise, with Landlord's
acquiescence, and without any distinct agreement between the parties, such
holding over shall constitute and be construed as a tenancy at sufferance at a
monthly rental equal to one and one-fourth (1 1/4) times time monthly rental
(including Base Monthly Rental and any adjusted and Additional Rent) provided
herein at the time of such termination, if Landlord elects to accept such rent.
During such time as Tenant shall continue to hold the Prime Premises after the
termination hereof, Tenant shall be regarded as a tenant at sufferance and not a
tenant at will; subject, however, to all the terms, provisions, covenants and
agreements on the part of Tenant hereunder. No payments of money by Tenant to
Landlord after the termination of this Lease shall reinstate, continue, renew
or extend the Term and no extension of this Lease after the termination hereof
shall be valid unless and until the same shall be reduced to writing and signed
by both Landlord and Tenant. Tenant shall be liable to Landlord for all damage
which Landlord shall suffer by reason of Tenant's holding over and Tenant shall
indemnify, defend and hold Landlord harmless against all claims made by any
other tenant or prospective tenant against Landlord resulting from delay by
Landlord in delivering possession of the Prime Premises to such other tenant or
prospective tenant. If Landlord accepts rent pursuant to this paragraph,
Landlord shall always have the right to terminate Tenant's possession under this
paragraph upon thirty (30) days prior written notice to Tenant.
11. ALTERATIONS AND IMPROVEMENTS. (a) No structural alteration in, or
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addition to the Prime Premises will be made without first obtaining Landlord's
prior written consent, which Landlord may grant or withhold for any reason or
for no reason;
(b) If Tenant's actions, omissions or occupancy of the Prime
Premises shall cause the rate of fire or other insurance either on the Office
Complex or the Prime Premises to be increased, Tenant shall pay, as additional
rent, the amount of any such increase promptly upon demand by Landlord; and
(c) All erections, additions, fixtures and improvements, whether
temporary or permanent in character (except only the movable office furniture of
Tenant) made in or upon the Prime Premises shall be and remain Landlord's
property and shall remain upon the Prime Premises at the termination of this
Lease by lapse of time or otherwise, with no compensation to Tenant. Landlord
may, at its election, repair any damage to the Prime Premises caused by or in
connection with the removal of any articles of personal property, business or
trade fixtures, alterations, improvements and installations, and all costs for
such repairs shall be at Tenant's expense.
12. REPAIRS TO THE PREMISES. Except as expressly stated herein,
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Landlord shall not be required to make any repairs or improvements to the Prime
Premises, except structural repairs necessary for safety and tenantability.
Tenant shall, at its own cost and expense, keep in good repair all portions of
the Prime Premises, including but not limited to windows, interior glass,
doors, interior walls and finish work, floors and floor coverings, and
supplemental or special heating and air conditioning systems, and shall take
good care of the Prime Premises and its fixtures and permit no waste, except
normal wear and tear with due consideration for the purpose for which the Prime
Premises are leased. Tenant shall maintain and replace, at its cost and expense,
all light bulbs and fixtures in the Prime Premises that are not the building's
standard 2-foot by 4-foot fluorescent light fixtures and bulbs therefor, which
Landlord shall replace. Tenant shall indemnify Landlord against any loss,
damage, or expense arising by reason of any failure of Tenant so to keep the
Prime Premises in good repair and tenantable condition or due to any act or
neglect of Tenant, its agents, employees, contractors, invitees, licensees,
tenants, or assignees. If Tenant fails to perform, or cause to be performed,
such maintenance and repairs, then at the option of Landlord, in its sole
discretion, any such maintenance or repair may be performed or caused to be
performed by
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Landlord and the cost and expense thereof charged to Tenant, and Tenant shall
pay the amount thereof to Landlord on demand as additional rental. Tenant shall
promptly report to Landlord promptly in writing any damage to, or defective
condition in or about the Building or Prime Premises known to Tenant.
13. LANDLORD'S RIGHT TO ENTER PREMISES. Tenant shall not change the
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locks on any entrance to the Prime Premises. Upon Tenant's written request to
Landlord, Landlord will make a reasonable change of locks on behalf of Tenant at
Tenant's sole cost and expense. Landlord and its agents, employees, and
contractors shall have the right to enter the Prime Premises, at such times as
Landlord deems reasonably necessary, to make necessary repairs, additions,
alterations, and improvements to the Prime Premises or the Building, including,
without limitation, the erection, use, and maintenance of pipes and conduits and
to show the Prime Premises to prospective tenants and purchasers. Landlord shall
also be allowed to take into and through the Prime Premises any and all needed
materials that may be required to make such repairs, additions, alterations, and
improvements, all without being liable to Tenant in any manner whatsoever.
During such time as work is being carried on in or about the Prime Premises,
provided such work is carried out in a manner so as not to interfere
unreasonably with the conduct of Tenant's business therein, the rent provided
herein shall in no way xxxxx, and Tenant waives any claim and cause of action
against Landlord for damages by reason of loss or interruption to Tenant's
business and profits therefrom because of the prosecution of any such work or
any part thereof. In the event of emergency, or if otherwise necessary to
prevent injury to persons or damage to property, such entry to the Prime
Premises may be made by force without any liability whatsoever on the part of
Landlord for damage resulting from such forcible entry. Except in the event of
emergency, Landlord agrees to give reasonable notice to Tenant prior to entering
Prime Premises.
14. DEFAULT AND REMEDIES. The following events shall be deemed to be
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events of default by Tenant under this Lease: (i) Tenant shall fail to pay any
installment of Base Monthly Rental, Additional Rent or any other charge or
assessment against Tenant pursuant to the terms hereof within five (5) days
after notice of failure; (ii) Tenant shall fail to comply with any term,
provision, covenant or warranty made under this Lease by Tenant, other than the
payment of the Base Monthly Rental or Additional Rent or any other charge or
assessment payable by Tenant, and shall not cure such failure within thirty (30)
days after notice thereof to Tenant, as extended as reasonably necessary to
effect cure, provided Tenant commences cure and diligently pursues same to
completion; (iii) Tenant or any guarantor of this Lease shall make a general
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts as they become due, or shall file a petition in bankruptcy or
shall be adjudicated as bankrupt or insolvent, or shall file a petition in any
proceeding seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future statute,
law or regulation, or shall file an answer admitting or fail timely to contest
the material allegations of a petition filed against it in any such proceeding;
(iv) a proceeding is commenced against Tenant or any guarantor of this Lease
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, and such proceeding shall not have been dismissed within forty-five
(45) days after the commencement thereof; (v) a receiver or trustee shall be
appointed for the Prime Premises or for all or substantially all of the assets
of Tenant or of any guarantor of this Lease; (vi) Tenant shall abandon or vacate
all or any portion of the Prime Premises, or fail to take possession thereof as
provided in this Lease; (vii) Tenant shall do or permit to be done anything
which creates a lien upon the Prime Premises or the Office Complex and such lien
is not removed or discharged within fifteen (15) days after the filing thereof;
(viii) Tenant shall fail to return a properly executed instrument to Landlord in
accordance with the provisions of Paragraph 29 hereof within the time period
provided for such return following Landlord's request for same as provided in
Paragraph 29; or (ix) Tenant shall fail to return a properly executed estoppel
certificate to Landlord in accordance with the provisions of Paragraph 30 hereof
within the time period provided for such return following Landlord's request for
same as provided in Paragraph 30.
Upon the occurrence of any of the aforesaid events of default, without
notice or demand of Tenant in any instance, Landlord shall have the option to
pursue any one or more of the following remedies:
(a) Terminate this Lease by giving Tenant notice of termination,
in which event this Lease shall expire and terminate on the date specified in
such notice of termination, with the same force and effect as though the date so
specified were the date herein originally fixed as the termination date of the
Term of this Lease, and all rights of Tenant under this Lease and in and to the
Prime Premises shall expire and terminate, and Tenant shall remain liable for
all obligations under this Lease arising up to the date of such termination, and
Tenant shall surrender the Prime Premises to Landlord on the date specified in
such notice and if Tenant fails to do so. Landlord may without prejudice to any
other remedy which it may have for possession or arrearage in rent, enter upon
and take possession of the Prime Premises and expel or remove Tenant and any
other person who may be occupying the Prime Premises or any portion thereof.
(b) Without terminating this Lease, terminate Tenant's right of
possession and enter into and upon and take possession of the Prime Premises or
any part thereof, and at Landlord's option, expel and remove persons and
property therefrom by entry (including the use of force if necessary),
dispossessing suit or otherwise, without thereby releasing Tenant from any
liability hereunder, without terminating this Lease, and without being liable to
prosecution or any claim for damages therefor. Such property, if any, may be
removed and stored in a warehouse or elsewhere at the cost of; and for the
account of Tenant, all without being deemed guilty of trespass or becoming
liable for any loss or damage which may be occasioned thereby, and Landlord
may, but shall be under no obligation to do so relet the Prime Premises or any
portion thereof in Landlord's or Tenant's name, but for the account of Tenant,
with or without advertisement, and by private negotiations, and receive the rent
therefore, and
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for any term and upon such terms and conditions as Landlord may deem necessary
or desirable. Landlord shall in no way be responsible or liable for any rental
concessions or any failure to lease the Prime Premises or any part thereof, or
for any failure to collect any rent due upon such reletting. Upon each such
reletting, all rentals received by Landlord from such reletting shall be applied
as follows: first, to the payment of any indebtedness (other than any amounts
due hereunder) from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, including, without limitation, brokerage fees and
attorneys' fees and costs of alterations and repairs (Tenant agreeing that
Landlord shall have the right to make such alterations and repairs as, in
Landlord's judgement, may be necessary to relet the Prime Premises); third, to
the payment of rental and other charges then due and unpaid hereunder; and the
residue, if any, shall be held by Landlord to the extent of and for application
in payment of future amounts due hereunder as the same may become due and
payable hereunder. In reletting the Prime Premises as aforesaid, Landlord may
grant rent concessions and Tenant shall not be credited therefor. If such
rentals received from such reletting shall at any time or from time to time be
less than sufficient to pay to Landlord the entire sums then due from Tenant
hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency
shall, at Landlord's option, be calculated and paid monthly. No such reletting
shall be construed as an election by Landlord to terminate this Lease unless a
written notice of such election has been given to Tenant by Landlord.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for any such previous event of default
provided same has not been cured. Notwithstanding anything contained herein to
the contrary, no termination of Tenant's right of possession of the Prime
Premises by dispossessory action or otherwise shall release Tenant from the
performance of Tenant's obligations under this Lease, including, without
limitation, the timely payment of all rent reserved hereunder for the balance of
the Term of this Lease following such termination of Tenant's right of
possession, and Tenant agrees to so perform said obligations.
(c) Without liability to Tenant or any other party and without
constituting a constructive or actual eviction, suspend, or discontinue
furnishing or rendering to Tenant any property, material, labor, utilities or
other service, wherever Landlord is obligated to furnish or render the same, so
long as Tenant is in default under this Lease.
(d) Allow the Prime Premises to remain unoccupied and collect
Base Monthly Rental and other charges due hereunder from Tenant as they come
due.
(e) Landlord may perform, as agent for and at the expense of
Tenant, any obligation of Tenant under this Lease which Tenant has failed to
perform and of which Landlord shall have given Tenant notice and opportunity to
cure as provided herein, the cost of which performance by Landlord together with
interest thereon at the default rate from the date of such expenditure, shall be
deemed additional rental and shall be payable by Tenant to Landlord upon demand,
and Tenant agrees that Landlord shall not be liable for any damages resulting to
Tenant from such action, whether caused by negligence of Landlord or otherwise.
(f) Landlord may exercise any other legal or equitable right or
remedy which it may have, including, but not limited to Landlord's right
judicially to obtain possession pursuant to Georgia statutory law.
Notwithstanding the provisions of clause (c) above and regardless of
whether a "default" shall have occurred, Landlord may exercise the remedy
described in clause (c) without any notice to Tenant if Landlord, in its good
faith judgment, believes it would be materially injured by failure to take rapid
action or if the unperformed obligation of Tenant constitutes an emergency. Any
costs and expenses incurred by Landlord (including, without limitation,
reasonable attorneys' fees actually incurred at standard rates without reference
to O.C.G.A. (S) 13-1-11)) in enforcing any of its rights or remedies under
this Lease shall be deemed additional rent and shall be repaid to Landlord by
Tenant on demand.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any other remedy herein provided or any other remedy provided by law or at
equity, nor shall pursuit of any remedy herein provided constitute an election
of remedies thereby excluding the later election of an alternate remedy, or a
forfeiture or waiver of any Base Rental, Additional Rent or other charges and
assessments payable by Tenant and due to Landlord hereunder or of any damage
accruing to Landlord by reason or violation of any of the terms, covenants,
warranties and provisions herein contained. No course of dealing between
Landlord and Tenant or any failure or delay on the part of Landlord in
exercising any rights of Landlord under this paragraph, or under any other
provisions of this Lease, shall operate as a waiver of any rights of Landlord
hereunder or under any other provisions of this Lease, nor shall any waiver of
an event of default on one occasion operate as a waiver of any subsequent event
of default or of any other event of default. No express waiver shall affect any
condition, covenant, rule, or regulation other than the one specified in such
waiver and that one only for the time and in the manner specifically stated.
Neither the commencement of any action or proceeding, nor the
settlement thereof, nor entry of judgment thereon shall bar Landlord from
bringing subsequent actions or proceedings from time to time, nor shall the
failure to include in any action or proceeding any sum or sums then due be a bar
to the maintenance of any subsequent actions or proceedings for the recovery of
such sum or sums so omitted. Landlord's pursuit of any remedy or remedies,
including, without limitation, any one or more of the remedies stated above,
shall not (i) constitute an election of remedies or preclude pursuit of any
other remedy or remedies provided in this Lease or separately or concurrently or
in any combination, or (ii) serve as the basis for any claim of constructive
eviction, or allow Tenant to withhold any payments under this Lease.
-6-
The failure of Landlord to insist upon strict performance of any of
the terms, conditions and covenants herein shall not be deemed to be a waiver of
any subsequent breach or default in the terms, conditions, and covenants herein
contained except as may be expressly waived in writing.
Landlord shall in no event be in default in the performance of any of
its obligations in this Lease unless and until Landlord shall have failed to
perform such obligation within thirty (30) days or such additional time as is
reasonably required to correct any such default, after notice by Tenant to
Landlord properly specifying wherein Landlord has failed to perform any such
obligation.
If Tenant shall at any time be in default hereunder, and if Landlord
shall deem it necessary to engage attorneys to enforce Landlord's rights
hereunder, the determination of such necessity to be in the sole discretion of
Landlord or if Landlord is made a party to litigation involving or pertaining to
Tenant due to no fault of Landlord, then Tenant will reimburse Landlord for the
reasonable expenses incurred thereby, including but not limited to court costs
and reasonable attorneys' fees and other legal expenses actually incurred at
standard rates without reference to O.C.G.A. (S)13-1-11.
Notwithstanding any other provisions of this Lease (including but not
limited to, provisions relating to periods within which defaults may be cured)
which are or may be construed to be to the contrary, if Tenant shall default in
the payment of any monetary obligations contained in this Lease more than three
(3) times in any Lease year, then any further default shall be deemed to be
deliberate and thereupon Landlord may immediately exercise its rights and
remedies without further notice to or demand upon Tenant. Furthermore, Tenant
hereby covenants that, prior to the exercise of any remedies, it will give the
holder of any Mortgage (as defined below) notice and thirty (30) days to cure
said default unless said default cannot be cured within thirty (30) days, in
which case such holder shall have the right, but not the obligation, to commence
and to diligently prosecute the cure of Landlord's default.
15. LANDLORD'S SERVICES. Landlord shall render services and supplies
-------------------
incidental to this Lease in accordance with and as described in this paragraph,
as follows:
(a) General cleaning and janitorial service required as a result
of normal, prudent use of the Prime Premises and only on Mondays through
Fridays, inclusive, with New Year's Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, Christmas Day, and any other recognized bank holiday
(herein collectively referred to as the "Holidays") excepted.
(b) Electric current for building standard tenant lighting and
small business machinery only from electric circuits designated by Landlord for
Tenant's use. Tenant will not use any electrical equipment which in Landlord's
opinion will overload the wiring installations or interfere with the reasonable
use thereof by other users in the Building. Tenant will not, without Landlord's
prior written consent in each instance, connect any items such as non-building
standard tenant lighting, vending equipment, printing or duplicating machines,
computers (other than desk top word processors and personal computers),
auxiliary air-conditioners, and other computer-related equipment to the
electrical system of the Prime Premises, or make any alteration or addition to
the system, except as disclosed in Tenant's Work. If any additional circuitry or
wiring is required by Tenant, and Landlord approves the installation of the same
in writing, such work shall be performed at Tenant's expense under Landlord's
control and supervision and Tenant shall pay Landlord the actual cost of such
additional work as billed. In the event the Tenant utilizes electric current or
other utilities in excess of the amount which would be typically utilized by
normal business office use of the Prime Premises, then Landlord shall have the
right to charge Tenant as additional rent a reasonable sum as reimbursement for
the direct cost of such additional use or services. In the event of a
disagreement as to the reasonableness of the amount of such additional rent, the
opinion of a qualified, local, and independent professional engineer selected by
Landlord in good faith shall be binding upon Landlord and Tenant. Payments for
such additional electrical power shall be deemed additional rent due from
Tenant.
(c) Seasonable air-conditioning and heating during normal
business hours (8:00 A.M. to 6:00 P.M.) Monday through Friday and (8:00 A.M.
until 1:00 P.M.) Saturday, said heating or air-conditioning not being furnished
Sunday or Holidays. Should Tenant desire either heating or air-conditioning at
other times on a regular basis, Landlord agrees to provide same upon written
request by Tenant, but at Tenant's expense at such hourly rates as may be
determined by Landlord, which charge Tenant shall pay promptly upon being billed
therefor. If Tenant desires a supplemental air-conditioning system and Landlord
has approved same, then Landlord may, at its option, either cause to be designed
or permit Tenant to design a supplemental air-conditioning system subject to
Landlord's approval, and Landlord shall install such system substantially in
accordance with such design. If Tenant has requested such supplemental system,
Tenant shall be responsible for determining that the design of such system is
adequate for its needs. Tenant agrees to pay Landlord for such equipment,
design, installation, metering and consumption of electricity for supplemental
air-conditioning and to maintain such equipment at Tenant's expense. Payments
for such additional servicing shall be deemed additional rent due from Tenant.
(d) Elevator services and other utilities as appropriate for
office buildings of this type.
Landlord may elect, at its option, to utilize security
practices, controls or devices in or about the Office Complex, but retains the
right, without notice to Tenant, to terminate, suspend or modify such practices,
devices and controls, without liability or responsibility to Tenant.
Notwithstanding anything contained in this Lease or otherwise, Tenant
acknowledges that Landlord has no liability, obligation or responsibility to
Tenant, its guests,
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invitees, contractors or employees with respect to either (i) such security
practices, contracts or devices; or (ii) failure to install such security
practices, controls or devices. Tenant acknowledges that Tenant, its employees,
agents, contractors and invitees enter the Office Complex at their own risk as
to their person or property.
Landlord shall not be liable for any damages directly or indirectly
resulting from the installation, use or interruption of use of any equipment in
connection with the furnishing of services referred to in this paragraph, and
particularly any interruption in services by any cause beyond the immediate
control of Landlord, provided Landlord shall use reasonable diligence in the
restoration of such services.
In the event that any interruption shall continue beyond five (5)
days, Landlord and Tenant agree that all rent shall xxxxx until service is fully
restored.
16. WINDOW DRESSINGS. All exterior windows of the Prime Premises
----------------
shall be equipped only with building-standard blinds provided by the Landlord.
Tenant may install other window treatments so long as same have solid white
linings and so long as the building-standard blinds remain affixed between the
window glass and the other window treatments.
17. TELEPHONE SERVICE. Tenant acknowledges and agrees that securing
-----------------
and arranging for telephone service to the Prime Premises is the sole
responsibility of Tenant and that Landlord has no responsibility or obligation
to provide or arrange such telephone service, nor to permit installation of any
facilities or equipment in the Building outside the Prime Premises in connection
with providing telephone service to the Prime Premises.
18. DESTRUCTION OF PRIME PREMISES. Should the Prime Premises be so
-----------------------------
damaged by fire or other cause that rebuilding or repairs cannot, in the
estimation of Landlord, be completed within one hundred eighty (180) days from
the date of the fire, or other cause of damage, then either Landlord or Tenant
may terminate this Lease by written notice to the other given within thirty (30)
days of the date of such damage or destruction, in which event rent shall be
abated from the date of such damage or destruction. However, if the damage or
destruction is such that rebuilding or repairs can be completed within one
hundred eighty (180) days, Landlord covenants and agrees, subject to the
provisions of this paragraph, to make such repairs with reasonable promptness
and dispatch, and to allow Tenant an abatement in the Base Monthly Rental for
such time as the Prime Premises are untenantable or proportionately for such
portion of the Prime Premises as shall be untenantable, and Tenant covenants and
agrees that the terms of this Lease shall not be otherwise affected. In no event
shall Landlord be required to repair or replace any trade fixtures, furniture,
equipment or other property belonging to Tenant nor shall Landlord be required
to rebuild, repair or replace any part of the partitions, fixtures, additions,
or other improvements which may have been placed in or about the Prime Premises
by Tenant; nor shall Landlord have any obligation to incur any cost to repair,
reconstruct or restore the Prime Premises in excess of insurance proceeds from
the casualty necessitating such work that are made available to Landlord, under
its sole control, for such work. Notwithstanding anything to the contrary
contained in this paragraph, Landlord shall not have any obligation whatsoever
to repair, reconstruct or restore the Prime Premises when the damage resulting
from any casualty contained under this paragraph occurs during the last twelve
(12) months of the Term of this Lease.
19. CONDEMNATION. If the whole of the Prime Premises, or such portion
------------
thereof, as will make Prime Premises unusable for the purposes herein leased, be
condemned by any legally constituted authority for any public use or purpose,
then, in either of said events, the Term hereby granted shall cease from the
date when possession thereof is taken by public authorities, and rental shall be
accounted for as between Landlord and Tenant as of said date. Such termination,
however, shall be without prejudice to the rights of either Landlord or Tenant
to recover compensation and damage caused by condemnation from the condemnor;
provided, however, Tenant shall not be entitled to claim compensation for items
which would reduce Landlord's award.
20. INSURANCE. Tenant shall carry fire and extended coverage
---------
insurance insuring Tenant's interest in its improvements and betterment to the
Prime Premises and any and all furniture, equipment, supplies, and other
property owned, leased, held, or possessed by it and contained therein, against
loss or damage by fire, flood, windstorms, hail, earthquakes, explosion, riot,
damage from aircraft and vehicles, smoke damage, vandalism and malicious
mischief and such other risks as are from time to time covered under "extended
coverage" endorsements and special extended coverage endorsements commonly known
as "all risks" endorsements, such insurance coverage to be in an amount equal to
the full replacement value of such improvements and property.
Tenant also agrees to carry a policy or policies of workers'
compensation and commercial general liability insurance, including personal
injury and property damage, with contractual liability endorsement, in an amount
of not less than One Million and No/100 Dollars ($l,000,000.00) for the property
damage and Two Million and No/100 Dollars ($2,000,000.00) per occurrence for
personal injuries or deaths of persons occurring in or about the Prime Premises.
Said policies shall: (i) name Landlord, its agents and mortgagees as additional
insureds and insure Landlord's contingent liability under this Lease (except for
the workers' compensation policy, which shall instead include waiver of
subrogation endorsement in favor of Landlord); (ii) be issued by an insurance
company which is acceptable to Landlord and licensed to do business in the State
of Georgia and maintains an A.M. Best credit rating of "B+" or better; and (iii)
provide that said insurance shall not be cancelled unless thirty (30) days'
prior written notice shall have been given to Landlord. Said policy or policies,
or certificate thereof, shall be delivered to Landlord by Tenant upon
commencement of the Term of the Lease and upon each renewal and/or modification
of said insurance. If during the Term or any extension thereof additional
coverage and/or higher limits of insurance than those mentioned above shall be
deemed necessary by Landlord, Tenant shall procure such
-8-
additional coverage provided such additional coverage is appropriate, customary
and generally required for like premises utilized for similar purpose. If Tenant
shall fail at any time to procure and/or maintain the insurance required herein,
Landlord may, at its option, procure such insurance on Tenant's behalf and the
cost thereof shall be payable upon demand, as additional rent. Payment by
Landlord of any insurance premium or the carrying by Landlord of any such
insurance policy shall not be deemed to waive or release the default of Tenant
with respect thereto.
21. WAIVER OF SUBROGATION. Landlord and Tenant each hereby releases
---------------------
the other from any and all liability or responsibility to the other or anyone
claiming through or under them by way of subrogation or otherwise for any loss
or damage to property caused by fire or any other perils that is insured against
or that are required to be insured against under the terms of the Lease, even if
such loss or damage shall have been caused by the fault or negligence of the
other party, or anyone for whom such party may be responsible, including,
without limitation, any other tenants or occupants of the remainder of the
Building in which the Prime Premises are located; provided, however, that this
release shall be applicable and in force and effect only to the extent that such
release shall be lawful at that time and in any event only with respect to loss
or damage occurring during such time as the releaser's policies shall contain a
clause or endorsement to the effect that any such release shall not adversely
affect or impair said policies or prejudice the right of the releaser to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Landlord and Tenant each agrees that it will request its
insurance carriers to include in its policies such a clause of endorsement. If
extra cost shall be charged therefor, each party shall advise the other thereof
and of the amount of the extra cost, and the other party, at its election, may
pay the same, but shall not be obligated to do so. If such other party fails to
pay such extra costs, the release provisions of this paragraph shall be
inoperative against such other party to the extent necessary to avoid
invalidation of such releaser's insurance.
22. NO ESTATE IN LAND. This contract shall create the relationship of
-----------------
Landlord and Tenant between the parties hereto; no estate shall pass out of
Landlord. Tenant has only a usufruct, not subject to levy and sale, and not
assignable by Tenant except by Landlord's consent
23. INDEMNITY. Excepting for the willful misconduct or gross
---------
negligence of Landlord, its agents and employees, Tenant indemnities and shall
hold Landlord, its agents and employees, harmless from and defend Landlord, its
agents, officers, directors, partners, attorneys and employees, against any and
all claims or liability for injury or death to any person or damage to any
property whatsoever:
(a) either (i) occurring in, on, or about the Prime Premises; or
(ii) occurring in, on, or about any facilities (including, without limitation,
elevators, stairways, passageways or hallways) the use of which Tenant may have
in conjunction with other occupants of the Office Complex, when such injury,
death or damage shall be caused in part or in whole by the act, neglect or fault
of, or omission of any duty with respect to the same by Tenant, its agents,
employees, contractors, invitees, licensees, tenants, or assignees; or
(b) arising from any work or thing whatsoever done by or
benefitting the Tenant in or about the Prime Premises or from transactions of
the Tenant concerning the Prime Premises; or
(c) arising from any breach or default on the part of the Tenant
in the performance of any covenant or agreement on the part of the Tenant to be
performed pursuant to the terms of this Lease; or
(d) otherwise arising from any act or neglect of the Tenant, or
any of its agents, employees, contractors, invitees, licensees, tenants or
assignees; and from and against all costs, expenses, counsel fees, and court
costs incurred or assessed in connection with any or all of the foregoing.
Furthermore, in case any action or proceeding be brought against Landlord by
reason of any claims or liability, Tenant agrees to cause such action or
proceeding to be defended at Tenant's sole expense by counsel reasonably
satisfactory to Landlord. The provisions of this Lease with respect to any
claims or liability occurring or caused prior to any expiration or termination
of this Lease shall survive such expiration or termination.
Except as may be the result of Landlord's gross negligence or wilful
misconduct, as a material part of the consideration to Landlord for this Lease,
Tenant hereby assumes all risk of damage to property or injury to persons in,
upon or about the Prime Premises from any cause, and Tenant hereby waives all
claims with respect thereto against Landlord. Tenant shall give immediate notice
to Landlord in case of casualty or accidents in the Prime Premises. The
provisions of this paragraph shall survive the expiration or sooner termination
of this Lease.
24. LIABILITY OF LANDLORD. Except as provided herein to the contrary,
---------------------
and except as may be the result of Landlord's gross negligence or wilful
misconduct, Landlord shall not be liable to Tenant or to any persons, firm,
corporation, or other business association claiming by, through, or under Tenant
for failure to furnish or for delay in furnishing any service provided for in
this Lease, and no such failure or delay by Landlord shall be an actual or
constructive eviction of Tenant nor shall any such failure or delay operate to
relieve Tenant from the prompt and punctual performance of each and all the
covenants to be performed herein by Tenant; nor for any latent defects in the
Premises or Building; nor for defects in the cooling, heating, electric, water,
elevator, or other apparatus or systems or for water discharged from sprinkler
systems, if any, or from water pipes and plumbing facilities in the Building;
nor for the theft, mysterious disappearance, or loss of any property of Tenant
whether from the Premises or any part of the Building; and nor from
interference, disturbance, or acts to or omitted against
-9-
Tenant by third parties, including, without limitation other occupants of the
Building and any such occurrences shall not constitute an actual or constructive
eviction of Tenant.
25. LIMITATION OF LIABILITY. Landlord's obligations and liability
-----------------------
with respect to this Lease shall be limited solely to Landlord's interest in the
Office Complex, as such interest is constituted from time to time, and neither
Landlord nor any officer, director, shareholder, or partner of Landlord, or of
any partner of Landlord, shall have any personal liability whatsoever with
respect to this Lease. In no event shall Landlord be liable to Tenant nor shall
any interest of Landlord in the Office Complex be subject to execution by
Tenant, for any indirect, special or consequential damages.
26. NO WAIVER OF RIGHTS. No failure or delay of Landlord to exercise
-------------------
any right or power given it herein or to insist upon strict compliance by Tenant
of any obligation imposed on it herein and no custom or practice of either party
hereto at variance with any term hereof shall constitute a waiver or a
modification of the terms hereof by Landlord or any right it has herein to
demand strict compliance with the terms hereof by Tenant. No person has or shall
have any authority to waive any provision of this Lease unless such waiver is
expressly made in writing and signed by Landlord.
27. ENTIRE AGREEMENT AND EXHIBITS. This Lease constitutes and
-----------------------------
contains the sole and entire agreement of Landlord and Tenant and no prior or
contemporaneous oral or written representation or agreement between the parties
and affecting the Prime Premises shall have legal effect. The content of each
and every exhibit which is referenced in this Lease as being attached hereto is
incorporated into this Lease as fully as if set forth in the body of this Lease.
Landlord hereby disclaims any warranties and representations as to the Office
Complex or Prime Premises, whether express or implied.
28. NOTICES. All notices required or desired to be given with respect
-------
to this Lease shall, in order to be effective, be in writing and shall be
effectively given or delivered if hand delivered to the addresses for Landlord
and Tenant specified hereinbelow, or if deposited, postage prepaid, to the
United States mail, certified, return receipt requested, properly addressed to
the addresses specified hereinbelow, or if delivered by Federal Express or other
overnight commercial courier to the addresses for Landlord and Tenant
hereinbelow. Any notice mailed or sent by overnight commercial courier shall be
deemed to have been given upon receipt or refusal thereof. Notice affected by
hand delivery shall be deemed to have been given at the time of actual delivery.
In the event of a change of address by either party, such party shall give
written notice thereof to the other party in accordance with the foregoing.
Additionally, Tenant agrees to send copies of all notices required or permitted
to be given to Landlord to each lessor under any ground or land lease covering
all or any part of the Land and each holder of a mortgage or deed to secure debt
encumbering the Office Complex and/or the Land that notifies Tenant in writing
of its interest in the address to which notices are to be sent.
If to Tenant: iXL, INC.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
If to Landlord: PARK PLACE XXXXX, L.L.C.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Mr. Xxxxx Aynsley
The foregoing addresses may be changed by thirty (30) days written
notice from time to time.
Tenant hereby appoints as his agent to receive the service of all
dispossessory or distraint proceedings and notices thereunder, and all notices
required under this Lease, the person in charge of or occupying the Prime
Premises at the time and if no person is in charge of or occupying same, then
such service or notice may be made by attaching the same on the main entrance to
the Prime Premises. To the extent permitted by law. Tenant hereby submits to the
jurisdiction of any state or federal court located in Xxxxxx County, Georgia, as
well as to the jurisdiction of all courts from which an appeal may be taken from
the aforesaid courts for the purpose of any suit, action or other proceeding
arising out of Tenant's obligations under or with respect to this Lease and
Tenant hereby expressly waives any and all objections that Tenant may have as to
jurisdiction and/or venue in any of such courts.
29. SUCCESSORS AND ASSIGNS. The covenants, conditions and agreements
----------------------
herein contained shall inure to the benefit of and be binding upon Landlord, its
successors and assigns, and shall be binding upon Tenant, its heirs, executors,
administrators, successors and assigns, and shall inure to the benefit of Tenant
and only such assigns of Tenant to whom the assignment by Tenant has been
consented to by Landlord. Nothing contained in this Lease shall in any manner
restrict Landlord's right to assign or encumber this Lease in its sole
discretion. Should Landlord assign this Lease as provided for above, Tenant
shall be bound to said conditions of this Lease for the balance of the Term
hereof remaining after such succession, and Tenant shall attorn to such
succeeding party as its landlord under this Lease promptly under any such
successions. Tenant agrees that should any party so succeeding to the interest
of Landlord require a separate agreement of attornment regarding the matters
covered by this Lease, then Tenant shall enter into any such "attornment
agreement", provided the same does not modify any of the provisions of this
Lease and has no adverse effect upon Tenant's continued occupancy of the Prime
Premises.
-10-
30. SUBORDINATION. Tenant agrees that this Lease shall automatically
-------------
be and remain subject and subordinate to all present and future mortgages, deeds
to secure debt or other security instruments (the "Security Deeds") affecting
the Prime Premises. Tenant shall promptly execute and deliver to Landlord such
certificate or certificates in writing as Landlord may request, confirming the
subordinate nature of the Lease to such Security Deeds, and in default of Tenant
so doing, Landlord shall be and is hereby authorized and empowered to execute
such certificate in the name of and as the act and deed of Tenant, this
authority being hereby declared to be coupled with an interest and to be
irrevocable.
31. ESTOPPEL CERTIFICATE. Tenant shall, within ten (10) days after
--------------------
request from Landlord, at any time and from time to time execute, acknowledge
and deliver to Landlord a written statement certifying as follows: (a) that this
Lease is unmodified and in full force and effect (or if there has been
modification thereof, that the same is in full force and effect as modified and
stating the nature thereof); (b)that to the best of its knowledge there are no
uncured defaults on the part of Landlord (or if any such default exists, the
specific nature and extent thereof); and (c) the date to which any rents and
other charges have been paid in advance, if any; and (d) such other matters as
Landlord may reasonably request. Tenant irrevocably appoints Landlord as its
attorney-in-fact, coupled with an interest, to execute and deliver, for and in
the name of Tenant, any document or instrument provided for in this paragraph.
32. TIME IS OF THE ESSENCE. Time is of the essence with the respect
----------------------
to the performance of each of the covenants and agreements of this Lease;
provided, however, that failure of Landlord to provide Tenant with any
notification regarding adjustments in Base Monthly Rental, or any other charges
provided for hereunder, within the time periods prescribed in this Lease shall
not relieve Tenant of its obligation to make such payments, which payments shall
be made by Tenant at such time as notice is subsequently given. Unless
specifically provided otherwise, all references to terms of days or months shall
be construed as references to calendar days or calendar months, respectively.
33. CAPTIONS GOVERNING LAW. The captions of this Lease are for
----------------------
convenience of reference only and in no way define, limit or describe the scope
or intent of this Lease. The laws of the State of Georgia shall govern the
validity, performance and enforcement of this Lease.
34. DEFINITIONS. "Landlord" as used in this Lease shall include his
-----------
heirs, representatives, assigns and successors in title to Prime Premises.
"Tenant" shall include its heirs and representatives, and if this Lease shall
be validly assigned or sublet, shall include also Tenant's assignees or
sublessees, as to premises covered by such assignment or sublease. "Broker" and
"Co-Broker" shall include its successors, assigns, heirs, and representatives.
"Landlord", "Tenant", "Broker" and "Co-Broker", shall include male and female,
singular and plural, corporation, partnership or individual, as may fit the
particular parties.
35. SEVERABILITY. If any clause or provision of this Lease is or
------------
becomes illegal, invalid, or unenforceable because of present or future laws or
any rule or regulation of any governmental body or entity, effective during its
term, the intention of the parties hereto is that the remaining parts of this
Lease shall not be affected thereby, unless such invalidity is, in the sole
determination of Landlord, essential to the rights of both parties in which
event Landlord has the right to terminate this Lease on written notice to
Tenant.
36. LAWS AND REGULATIONS: BUILDING RULES AND REGULATIONS. Tenant
----------------------------------------------------
shall comply with, and Tenant shall cause its agents, contractors, customers,
employees, invitees, licensees, servants and visitors to comply with (i) all
applicable laws, ordinances, orders, directions, requirements, rules and
regulations (state, federal, municipal and other agencies or bodies having any
jurisdiction thereof) now in force or which may hereafter be in force, which
shall impose any duty upon Landlord or Tenant relating to the use, condition or
occupancy of the Prime Premises or the conduct of Tenant's business therein,
including, without limitation, the Americans With Disabilities Act or 1990 (as
now or hereafter amended); and (ii) the Rules and Regulations set forth in
Exhibit "E", as such Rules and Regulations are modified and supplemented by
-----------
Landlord from time to time, and such other rules and regulations as are
reasonably adopted by Landlord from time to time, for the safety, care or
cleanliness of the Prime Premises and the Building, or for preservation of good
order therein, all of which will be sent by Landlord to Tenant in writing and
shall be thereafter carried out and observed by Tenant, its agents, contractors,
customers, employees, invitees, licensees, servants and visitors. Tenant hereby
expressly waives the benefit of all existing and future rent control laws and
similar governmental rules and regulations, whether in time of war or not, to
the full extent permitted by law.
37. SPECIAL STIPULATIONS. The Special Stipulations, if any, attached
--------------------
hereto and initialed by Landlord and Tenant are hereby incorporated herein and
made a part hereof. In the event the Special Stipulations conflict with any of
the foregoing provisions of this Lease, the Special Stipulations shall control.
38. BROKER COMMISSION. Tenant acknowledges and agrees that The
-----------------
Xxxxxxx Company ("Broker") has represented the Tenant in this transaction and
shall receive a real estate commission payable by Tenant as outlined in a
separate Commission Agreement. Tenant represents and warrants to Landlord that,
other than Broker, no broker, agent, commissioned salesperson or other person
has represented Tenant in the negotiations for and procurement of this Lease,
and that no commissions, fees or compensation of any kind are due in connection
herewith to any broker, agent, commissioned salesperson or other person, other
than Broker. Landlord agrees to pay all commissions, fees, or compensation of
any kind to any real estate broker(s) representing Landlord in this Lease.
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Tenant further acknowledges that some principals of Landlord are
licensed real estate brokers and may be receiving a real estate commission in
connection with this transaction.
39. REMOVAL OF PERSONAL PROPERTY. Tenant may (if not in default
----------------------------
hereunder) prior to the expiration of this Lease, or any extension thereof,
remove all unattached and movable personal property and equipment which Tenant
has placed in the Prime Premises, provided Tenant repairs all damages to Prime
Premises caused by such removal. All personal property of Tenant remaining on
the Prime Premises after the end or the Term shall be deemed conclusively
abandoned, notwithstanding that title to or a security interest in such personal
property may be held by an individual or entity other than Tenant, and Landlord
may dispose of such personal property in any manner it deems proper, in its sole
discretion. Tenant hereby waives and releases any claim against Landlord arising
out of the removal or disposition of such personal property. Tenant shall
reimburse Landlord for the cost of removing such personal property.
40. SIGNAGE. Tenant shall not place any signs, decals, or other
-------
materials upon the windows or suite doors of the Prime Premises nor on the
exterior walls of Prime Premises. Landlord agrees to provide Tenant one building
standard suite door tenant identification sign and one building standard
directory listing. Any additional signage desired by Tenant shall be approved,
in writing, by Landlord and the management company of the Office Complex, which
shall be granted in their sole discretion, unless otherwise specified in the
Special Stipulations.
41. EFFECT OF TERMINATION OF LEASE. No termination of this Lease
------------------------------
prior to the normal ending thereof, by lapse of time or otherwise, shall affect
Landlord's right to collect rent for the period prior to termination thereof.
42. RIGHTS CUMULATIVE. All rights, powers and privileges conferred
-----------------
hereunder upon parties hereto shall be cumulative but not restrictive to those
given by law.
43. FORCE MAJEURE. In the event of strike, lockout, labor trouble,
-------------
civil commotion, act of God, or any other cause (hereinafter collectively
referred to as "Force Majeure") outside and beyond Landlord's control, resulting
in the impairment of Landlord's ability to perform any obligation or provide any
service hereunder, this Lease shall not terminate except at Landlord's election,
and Tenant's obligation to pay Base Monthly Rental, additional rental and all
other charges and sums due payable by Tenant shall not be altered or excused and
Landlord shall not be considered to be in default under this Lease or liable in
damages to Tenant in any manner.
44. TENANT CORPORATION. Each of the persons executing this Lease on
------------------
behalf of Tenant does hereby covenant, warrant and represent that Tenant is a
duly organized and validly existing corporation, that Tenant has and is
qualified to do business in Georgia, that the corporation has full right and
authority to enter into this Lease, and that each and all persons signing on
behalf of the corporation were authorized to so do. Upon Landlord's request,
Tenant shall provide Landlord with evidence reasonably satisfactory to Landlord
confirming the foregoing covenants and warranties.
45. SUBMISSION OF LEASE. The submission of this Lease for examination
-------------------
does not constitute an offer to lease nor a reservation of space even if said
lease is executed by Landlord, and this Lease shall be effective only upon
execution hereof by Landlord and Tenant and delivery of a counterpart hereof to
Landlord and Landlord's acceptance and final approval thereof.
46. NO RECORDATION OF LEASE. This Lease is not in recordable form,
-----------------------
and Tenant agrees not to record or permit the recording of this Lease.
47. HAZARDOUS SUBSTANCES. Tenant hereby covenants and agrees that
--------------------
Tenant shall not cause or permit any "Hazardous Substances" (as hereinafter
defined) to be generated, placed, held, stored, used, located or disposed of at
the Office Complex or any part thereof, except for Hazardous Substances as are
commonly and legally used or stored as a consequence of using the Demised Prime
Premises for general office and administrative purposes, but only so long as the
quantities thereof do not pose a threat to public health or to the environment
or would necessitate a "response action", as that term is defined in CERCLA (as
hereinafter defined), and so long as Tenant strictly complies or causes
compliance with all applicable governmental rules and regulations concerning the
use or production of such Hazardous Substances. For purposes of this paragraph,
"Hazardous Substances" shall mean and include those elements or compounds which
are contained in the list of Hazardous Substances adopted by the United States
Environmental Protection Agency (EPA) or the list of toxic pollutants designated
by Congress or the EPA which are defined as hazardous, toxic, pollutant,
infectious or radioactive by any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to or
imposing liability (including, without limitation, strict liability) or
standards of conduct concerning, any hazardous, toxic or dangerous waste,
substance or material, as now or at any time hereinafter in effect (collectively
"Environmental Laws") Tenant hereby agrees to indemnify Landlord and hold
Landlord harmless from and against any and all losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable attorneys'
fees, costs of settlement or judgment and claims of any and every kind
whatsoever paid, incurred or suffered by, or asserted against, Landlord by any
person, entity or governmental agency for, with respect to, or as a direct or
indirect result oh, the presence in, or the escape, leakage, spillage,
discharge, emission or release from, the Demised Prime Premises of any Hazardous
Substances (including, without limitation, any losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable attorneys'
fees, costs of any settlement or judgment or
-12-
claims asserted or arising under the Comprehensive Environmental Response,
Compensation and Liability Act ["CERCLA"], any so-called federal, state or local
"Superfund" or "Superlien" laws or any other Environmental Law); provided,
however, that the foregoing indemnity is limited to matters arising solely from
Tenant's violation of the covenant contained in this Article. The obligations of
Tenant under this Article shall survive any expiration or termination of this
Lease.
48. EXECUTION. This Lease may be executed in any number of
---------
counterparts, each of which shall be deemed an original and any of which shall
be deemed to be complete in itself and may be introduced into evidence or used
for any purpose without the production of the other counterparts. No
modification or amendment of this Lease shall be binding upon the parties hereto
unless such modification or amendment is in writing and signed by Landlord and
Tenant.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
hereunder and have caused this Lease to be executed in their names and their
corporate seals to be affixed by their officers duly authorized thereunto, upon
the day and year set forth above.
TENANT:
Signed, sealed and delivered iXL, INC., A DELAWARE CORPORATION
in the presence of:
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxx
--------------------------------- --------------------------------
Notary Public or Witness
Xxxxx X. Xxxxxx Name: XXXXX X. XXXXX
--------------------------------- ------------------------------
Name (Please Print) (Please Print)
Title: VP OF OPERATIONS
-----------------------------
(CORPORATE SEAL)
LANDLORD:
Signed, sealed and delivered PARK PLACE XXXXX, L.L.C.,
in the presence of:
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------- --------------------------------
Notary Public or Witness
Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx
--------------------------------- ------------------------------
Name (Please Print) (Please Print)
Notary Public, Xxxx County, Georgia
My Commission Expires Oct. 20, 2000 Title: Chairman, The Winter Construction
----------------------------------
Co.
----
Managing Member
Park Place Xxxxx L.L.C.
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XXXX XXXXX XXXXXXX
SPECIAL STIPULATIONS
--------------------
1. Landlord and Tenant agree that Tenant shall accept the Prime Premises in an
"as is" condition per Exhibit "A-1" attached hereto. Landlord agrees to
------------
provide an amount equal to $12.00 per rentable square foot for tenant
improvements desired by Tenant ("Tenant Improvement Allowance"). Any costs
in excess of this amount shall be at Tenant's expense. Landlord agrees to
"demo" Xxxxx 000, Xxxxx 000, and Suite 400 at Landlord's expense, which
---
shall not be included in the Tenant Improvement Allowance, and the Prime
Premises shall be delivered to Tenant broom clean and ready for
construction of Tenant's work.
Tenant shall have the right to select the contractor of its choice
("Tenant's Contractor") to construct the "Tenant Improvements" (hereinafter
defined); however, Tenant's Contractor shall require the final approval of
Landlord, which approval shall not be unreasonably withheld. Landlord and
Tenant agree that all building materials used by Tenant's contractor will
be first quality.
Landlord and Tenant agree that Exhibit "F" attached hereto represents the
----------
Construction Rules and Regulations for outside contractors by which
Tenant's Contractor agrees to abide. Tenant shall be responsible for any
failure by Tenant's Contractor to comply with such rules and regulations
and such failure to comply in any respect within ten (10) days of notice by
Landlord to Tenant to cure by either Tenant or Tenant's Contractor shall
constitute a default under this Lease. Further, Tenant and Tenant's
Contractor shall jointly and severally be responsible to Landlord for and
shall indemnify and hold Landlord from any and all costs, expenses,
damages, liabilities, suits, claims or court costs, incurred or suffered by
Landlord solely as a result of the acts of omissions of Tenant, Tenant's
Contractor or their respective employees, agent subcontractors and
suppliers in connection with the Tenant Improvements.
It is understood that Tenant desires to make changes to the existing
partition layout within the Prime Premises, Landlord agrees that Tenant
shall submit line drawings, to be approved by Landlord prior to
construction, of proposed changes to the Prime Premises (on copies of plans
previously submitted to Tenant as representative of the existing layout),
which plans shall serve to notify Landlord of the proposed changes. Upon
completion of the construction of the Prime Premises, Tenant shall deliver
to Landlord "as built" drawings of the remodeling, showing wall locations,
electrical and telephone outlet, and lighting switch locations, drawn to
1/8" scale, which will be attached to the Lease as Exhibit "A-3". All
------------
approvals and consents shall not be unreasonably withheld, delayed or
conditioned by Landlord.
Tenant agrees that Landlord shall have the right to inspect the tenant
improvements upon completion, and any corrections to the work, if any
required by Landlord to cause the work to comply with the plans approved
for the work shall be at Tenant's expense.
Landlord agrees to disburse the Tenant Improvement Allowance to Tenant in
monthly payments based on the percent of work complete. Tenant agrees to
provide monthly affidavits and lien waivers to Landlord. Tenant does hereby
release and relieve Landlord from any claims for damages and the like which
may result from Landlord's paying an inaccurate invoice, fee statement or
the like, and does hereby indemnify and agree to hold Landlord harmless and
to defend Landlord from and against any and all claims, damages, liability
or costs (including, without limitation, attorneys' fees and court costs)
which may arise or result from Landlord's payment of Tenant Improvement
Costs. Notwithstanding the foregoing, the within release and
indemnification of Landlord by Tenant shall not release any other third
parties, nor shall it waive any and all rights which Tenant may have
against Landlord or other third parties in connection with the payment or
nonpayment of Tenant Improvement Costs. Prior to final payment, Tenant
shall provide Landlord with copies of all invoices, final affidavits, and
removal of all liens.
Landlord shall give access and entry to the Prime Premises to Tenant and
its contract parties performing time improvement work and reasonable
opportunity and time to enable Tenant and such contract parties to perform
and complete such work. All of such work and Tenant's use (and the use by
its contract parties) of the Prime Premises for such purposes shall be
entirely in accordance with the Lease.
Tenant shall, at its own expense, obtain all necessary licenses and
permits and Certificates of Occupancy pertaining to the Tenant Improvements
and comply with all statutes, ordinances, rules, regulations, and orders
of any governmental or quasi-governmental authority having jurisdiction
over the Tenant Improvements or the performance thereof and respond to, and
shall defend, indemnify and save harmless Landlord and/or Landlord's agents
from and against any loss, liability or expense arising from, any such
violations and any citations, assessments, fines or penalties resulting
therefrom. Tenant agrees that time work shall be performed in strict
accordance with all applicable current fire, health safety and building
codes of the city, county, and state in which these premises are situated
and all Federal Occupational Safety and Health Act (OSHA) guidelines.
Tenant, at its expense, shall be responsible for removing or repairing all
conditions not in accordance with state and local codes. To the extent
Landlord has work to be completed prior to Tenant's being able to obtain a
Certificate of Occupancy, Landlord agrees to complete its
iXL, INC.
SPECIAL STIPULATIONS - CONTINUED
--------------------------------
work promptly and in a good and workmanlike manner. Any delays resulting
from Landlord's responsibility shall delay rental commencement. Upon
completion of the Tenant Improvements, Tenant shall submit to Landlord
copies of the Certificate of Occupancy and building permit. Landlord
agrees, at its own expense, to promptly comply with all existing
requirements of any legally constituted public authority imposed by reason
of Tenant's use or occupancy of the Prime Premises and Building, including,
but not limited to, the Americans with Disabilities Act ("ADA"). To the
extent that any part of the Prime Premises or Building does not, prior to
commencement of this Lease, meet the minimum standards imposed by ADA,
Landlord shall cause the Building to be upgraded to meet said minimum
standards. Landlord agrees to promptly comply with all requirements of any
legally constituted public authority which hereinafter become effective,
but the expense shall be an operating cost of the Building.
2. Landlord agrees to use its reasonable efforts to deliver to Tenant
additional premises ("Additional Premises"). Landlord agrees to use
reasonable efforts to deliver to Tenant Xxxxx 000, Xxxxx 0xx, xxx Xxxxx 000
(collectively, the "Additional Premises") as each respectively become
available or are vacated pursuant to Landlord's efforts. Tenant
acknowledges that with respect to certain of the Additional Premises there
exist certain leases with other parties, some of which leases contain
renewal options and first rights of refusal over the Additional Premises
which may prevent Landlord from being able to deliver to Tenant all or part
of such Additional Premises. The attached Floor Plan A-2 represents an
approximation of the Additional Premises to be leased pursuant to this
stipulation.
To the extent Landlord is able to lease to Tenant all or portions of the
Additional Premises, Tenant agrees to lease such Additional Premises in an
"as is" condition upon receipt of thirty (30) days written notice from the
Landlord. Upon each and every lease of Additional Premises, a Lease
Amendment shall be prepared and executed to reflect the following changes
to the Lease:
a) The incremental square footage to be added to the Prime Premises and
any previous Additional Premises to disclose the current aggregate
square footage;
b) Effective ninety (90) days after the delivery of each Additional
Premises, the Base Monthly Rental shall be increased by a sum which
is the product of the number of square feet of the Additional
Premises times the then current prevailing Base Monthly Rental for
the Lease computed on a per square foot basis;
c) There will be proportionate and commensurate adjustments to the
Additional Rent and Tenant Percentage Share;
d) Upon the full execution by Tenant of each Lease Amendment, Landlord
shall provide to Tenant an Additional Tenant Improvement Allowance
of $12.00 per square foot of each Additional Premises, such
provision and disbursement to be effected in a manner consistent
with applicable provisions of these Special Stipulations;
3. Landlord and Tenant agree that Landlord is entitled to a Return of twelve
percent (12%) (Return is defined as Net Operating Income before debt
service) on its Total Investment (debt plus equity and accrued Return) in
the Office Complex. Attached as Exhibit "G" is the current Pro-Forma for
----------
the acquisition, improvement and leasing of the Office Complex. Upon
completion of the Improvements and leasing as contemplated in the Pro-
Forma, and the attainment of ninety percent (90%) occupancy or December 31,
1998, whichever shall first occur, the current estimates in the Pro-Forma
shall be replaced by the actual expenditures, income and expenses incurred.
Landlord warrants and represents that one of its investors/affiliated
companies will initially be leasing approximately 23,000 square feet of
premises on Floors 2 and 3 of Building One of the Office Complex at the
exact same Base Rent. Additional Rent and Tenant Improvement Allowance,
and substantially the same Lease Agreement as Tenant. If, upon the
replacement of the estimated Pro-Forma by the actual Pro-Forma, Landlord is
receiving a Return of less than twelve percent (12%), then to the extent
necessary, the Base Rent payable by both Tenant and Landlord's
investor/affiliate company will be increased proportionately and
commensurately, retroactive to the Commencement Date in both Leases,
sufficient to generate a return of twelve percent (12%) per annum on
Landlord's Total Investment. Landlord and Tenant agree that in no event
shall the initial Base Monthly Rental rate exceed $14.00 per rentable
square foot.
4. Provided Tenant still occupies the Prime Premises and any Additional
Premises and has not otherwise been in default beyond notice and cure
periods provided herein, Tenant shall be entitled to two (2) options to
renew this Lease for the Prime Premises as expanded by any Additional
Premises for additional terms of five (5) years each. Not less than one
hundred twenty (120) days, nor more then one hundred eighty (180) days
prior to the expiration of this Lease or any renewed Lease, Tenant shall
notify Landlord in writing of its exercise of its renewal option which
shall be on the same terms and conditions of this Lease except for Base
Rent, which shall be adjusted to the then prevailing market rent for
similar facilities within reasonable proximity. Landlord shall deliver to
Tenant Landlord's estimate of the prevailing Base Market Rental Rate within
thirty (30) days of Tenant's notice, and Tenant, upon receiving Landlord's
estimate of the prevailing Base Market Rental Rate, shall have seven (7)
days to submit a counter estimate. Following such time, Tenant and Landlord
shall have thirty (30) days to agree upon the prevailing Base Market
Rental Rate. If an agreement has not been reached at the end of thirty (30)
days, Tenant may notify Landlord of its intent to arbitrate such rate, with
notice to be accompanied by the identity of an appraiser in the
Metropolitan Atlanta area appointed by the Tenant.
IXL, INC.
SPECIAL STIPULATIONS - CONTINUED
--------------------------------
Thereafter, Landlord shall have fifteen (15) days in which to appoint its
appraiser in the Metropolitan Atlanta area, and if the two appraisers can
not agree on the Base Market Rental Rate within fifteen (15) days after the
appointment of Landlord's appraiser, the two appraisers theretofore
appointed shall appoint a third appraiser in the Metropolitan Atlanta area,
experienced in the commercial real estate market in Xxxxxx County, Georgia.
If the two appraisers can not agree on the appointment of a third appraiser
within fifteen (15) days, then either party shall have the right to apply
to the presiding judge of the Superior Court of Xxxxxx County, Georgia for
such selection of the third appraiser. After the appointment of such third
appraiser, the third appraiser thus elected shall have thirty (30) days in
which to decide on the Base Market Rental Rate as defined above, which
determination shall be final and binding upon the parties thereto. After
the Base Market Rental Rate has been established, the third appraiser shall
immediately notify the parties in writing. Each appraiser appointed
hereunder shall be a member of the MAI with at least ten (10) years of
full-time appraisal experience in commercial real estate in the Atlanta
area, and shall also be a Georgia certified appraiser, and no such
appraiser shall have any other existing contractual relationship with
either party hereto. Landlord and Tenant shall pay the fees of their
respectively appointed appraisers and the fee of the third appraiser shall
be shared equally by Landlord and Tenant. It is also agreed that any
arbitrated rate shall be within the parameters of the rates last quoted to
each party by tine other party.
5. Tenant shall have the right to erect, access and maintain, at its sole cost
and expense, and exclusively utilize a deck on the roof of Building Two.
Tenant shall submit its plans and specifications for Landlord's review and
consent which may not be unreasonably withheld provided Landlord deems the
same safe. Notwithstanding any consent issued by Landlord for a roof deck,
the protections of Paragraphs 23 and 24 are specifically incorporated
herein by reference and to matters pertaining to the roof and deck, are
expanded to an absolute unqualified hold harmless by Tenant in favor of
Landlord.
6. Tenant shall have the right, to erect signage on not more than two
elevations on Building Two identifying iXL and Virtual Resources as
occupants of Building Two. The installation maintenance and illumination of
such signage shall be ant the sole expense of Tenant. Upon the termination
of the Lease or if Tenant shall cease to be the largest occupant of
Building Two, Tenant's Building signage rights shall terminate and Tenant
will immediately remove all of its signs arid repair and restore Building
to its original condition.
7. With regard to the Prime Premises, the following Rental Commencement Dates
shall apply:
a) Fourth Floor and Suite 115, April 1, 1997, subject to Landlord
delivering tile same to Tenant on or before January 1, 1997.
b) Second Floor, the earliest of ninety (90) days after delivery by
Landlord, or May 1, 1997, subject to Landlord delivering the same
to Tenant on or before February 1, 1997.
c) Suite 350, subject to Landlord delivering the same and ninety (90)
days from completion of the Tenant Improvements on the Second Floor,
on October 1, 1997.
8. Landlord agrees that Tenant shall have the right to construct a driveway,
at Tenant's expense, to gain access to the south entrance to the Building
and that the two (2) adjacent parking spaces on the southeast corner of the
Building shall be designated "iXL Loading Zone", as outlined in yellow on
the site plan attached as Exhibit "M". Tenant will be allowed to use the
----------
spaces to load and unload Tenant's vehicles.
9. If Tenant has leased all available space in Building Two and the net worth
of Tenant equals at least the value of the Office Complex, Landlord agrees
to grant Tenant the right of first refusal to lease all space that Winter
Properties occupies in Park Place Atlanta, Building One, 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as the 'Xxxxxxx
Construction Company Space and as outlined on Exhibit "N" attached hereto).
----------
Upon Landlord presenting a copy of a bona fide lease proposal for the
Xxxxxxx Construction Company Space acceptable to Landlord and the third
party involved, Tenant shall have five (5) business days within which to
notify Landlord. In writing, of its decision to lease or not to lease the
Xxxxxxx Construction Company Space under the same terms and conditions as
the bona fide lease proposal. If Tenant exercises said right of first
refusal, then Tenant agrees to execute an Amendment to this Lease for such
Xxxxxxx Construction Company Space upon the same terms and conditions
identical to those contained in the bona fide lease proposal. If the Tenant
does not exercise this right of first refusal, this right of first refusal
shall be null and void and Landlord shall be entitled to thereafter lease
said Xxxxxxx Construction Company Space without restriction.
iXL, INC.
SPECIAL STIPULATIONS - CONTINUED
--------------------------------
10. If Tenant has leased all available space in Building Two and the net worth
of Tenant equals at least the value of the Office Complex, Landlord agrees
to grant Tenant the right of first refusal to lease all other space in
Building One (hereinafter referred to as the "Non-Xxxxxxx Construction
Company Space") and as outlined on Exhibit "O" attached hereto). In the
----------
event there is already a right of first refusal on any Non-Xxxxxxx
Construction Company Space in Building One, Landlord agrees to grant Tenant
a right of second refusal on such space. Upon any Non-Xxxxxxx Construction
Company Space becoming available for Tenant and Landlord presenting a copy
of a bona fide lease proposal for the Non-Xxxxxxx Construction Company
Space acceptable to Landlord and all other parties involved. Tenant shall
have ten (10) business days within which to notify Landlord, in writing, of
its decision to lease or not to lease the Non-Xxxxxxx Construction Company
Space under the same terms and conditions as the bona fide lease proposal.
If Tenant exercises said right of first or second refusal, then Tenant
agrees to execute an amendment to this Lease for such Non-Xxxxxxx
Construction Company Space upon the same terms and conditions identical to
those contained in the bona fide lease proposal.
11. Landlord agrees to provide card key access to Building and Premises with
one (1) card per employee of Tenant. Tenant shall have the right to
install, at Tenant's expense, card key access for the elevators and
stairwell doors to any floor occupied 100% by Tenant and to all doors with
access to the roof. Tenant shall provide Landlord six (6) sets of such
keys.
12. Landlord agrees to designate six (6) "iXL Visitor" spaces conveniently
located adjacent to the Building, as outlined on the site plan attached
hereto as Exhibit "P".
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13. Landlord hereby acknowledges and agrees that "Tenant shall have the right
for no additional consideration to install and operate satellite dishes,
antennas, or any other electronic/transmitting/ receiving devices for
service to the Premises at a location on the roof and in a first-class
manner reasonably acceptable to Landlord during the term of this Lease and
any extension thereof.
Tenant hereby agrees to install the satellite dish on the dish space in a
good and workmanlike manner, maintain and repair such satellite dish and
dish space in proper condition and to secure all permits required for the
installation and operation thereof, at no cost to Landlord, and hereby
indemnifies Landlord from and against any claims against Landlord for
personal injury, property damage or other damage, including reasonable
attorney's fees actually incurred, arising from the installation, use,
operation, maintenance, repair and removal of the dish space, the satellite
dish, such other equipment, or any cables or related equipment thereof. The
provisions of this paragraph shall survive the expiration date or sooner
termination of this Lease. The insurance required to be carried by Tenant
under the Lease shall also apply to the satellite dish or other equipment
and dish space (collectively, the "Satellite Dish").
Landlord understands and agrees that the Satellite Dish and related
equipment is considered the personal property of Tenant, and that Tenant
has the right to remove the same at any time during the Lease Term, or
during any renewals or extensions thereafter. Tenant shall remove the
Satellite Dish and restore the dish space to substantially the same
condition as existed prior to the installation of the Satellite Dish,
reasonable wear and tear excepted.
All direct expenses incurred by Tenant in connection with the installation,
operation or removal of the Satellite Dish shall be paid promptly by
Tenant, and Tenant shall not permit any mechanic's or other lien to be
filed against Landlord in connection with the installation, operation or
removal of the Satellite Dish. Tenant shall provide Landlord with an
executed contractor's lien waiver within thirty (30) days of completion of
the work, Tenant shall be responsible for any and all utilities to be used
in connection with the operation of the Satellite Dish should Landlord
determine an additional charge is necessary for its operation. Tenant shall
properly and promptly repair any damage or potentially damaging condition
existing or caused by the existence or operation and use of the Satellite
Dish or connecting cables of any part thereof within ten (10) days after
receipt of Landlord's written notice; provided, however, if such repair
cannot reasonably be cured within the said ten (10) day period, and Tenant
shall, in good faith, commence to repair and diligently proceed to effect
such repair, then the ten (10) day period shall be extended for such
reasonable period as Tenant shall require to effect such repair. Should
Tenant fail to satisfy the terms of this provision within said ten (10)
days period, Landlord may repair the damaged condition at Tenant's cost.
Tenant represents and warrants to Landlord that the specifications,
location and contemplated use of the Satellite Dish comply with all laws,
ordinances, codes and regulations promulgated by any governmental authority
having jurisdiction over the Premises or the installation and operation of
the Satellite Dish. The construction and installation shall be accomplished
in a good and workmanlike manner and with no disruption to the other
occupants of the Building. Tenant shall provide Landlord, prior to
installation of the Satellite Dish, detailed drawings and specifications on
the mounting method to be used in affixing the proposed dish to the roof.
Tenant shall require all contractors and subcontractors to provide Landlord
with certificates of insurance with Landlord being named as Additional Loss
Payee prior to installation. Tenant's installation of any devices on the
roof shall not void any roof warranties.
iXL, INC.
SPECIAL STIPULATIONS - CONTINUED
--------------------------------
14. Except for the wilful misconduct or gross negligence of Tenant, its agents
and employees, Landlord indemnifies Tenant and shall hold Tenant, its
agents and employees, harmless from and defend Tenant, its agents,
officers, directors, partners, attorneys, employees, licensees and invitees
against any and all claims or liability for injury or death to any person
or damage to any property whatsoever arising out of Landlord's conduct and
operation of the Office Complex of which the Prime Premises are a part.
Landlord shall indemnify Tenant against any loss, damage, or expense
arising by reason of any failure of Landlord to repair or maintain the
Prime Premises or Office Complex due to any act of wilful neglect or gross
misconduct, or neglect of Landlord, its agents, employees, contractors,
invitees, licensees, tenants, or assignees.
15. In the event Suite 200 is not delivered to Tenant for any reason (including
the exercise by other parties of rights of first refusal) by February 1,
1997, Tenant may elect, at is sole option, to terminate this Lease in its
entirety, or to terminate this Lease as to that portion not delivered,
which election shall be evidenced by notice to Landlord. In the event
Tenant elects to terminate this Lease or to terminate the same with respect
to a portion thereof, this Lease and Tenant's obligations with respect to
the portion(s) so terminated shall become null and void.
16. Landlord acknowledges and agrees that Tenant shall have the right to
install a separate electrical meter for the HVAC system serving that part
of the Prime Premises located on the fourth (4th) floor so that Tenant
shall have access and use of the HVAC system 24 hours per day, seven days
per week. Upon the installation of the meter by Tenant, (a) Tenant shall
pay for the HVAC charges (at rates charged by the utility providers) for
the fourth (4th) floor portion of the Prime Premises (b) Landlord shall
deduct the square footage of the fourth (4th) floor portion of the Prime
Premises from the calculations used to determine Tenant's operating expense
charges hereunder, such that Tenant shall not be billed for HVAC usage not
actually consumed or used by Tenant.
17. Landlord acknowledges and agrees that as a material inducement to Tenant,
Landlord has agreed to renovate the Building and the Office Complex as
described on Exhibit "O" attached hereto, such that the quality and
----------
appearance of the Office Complex would be deemed Class "B" or better office
space in the metropolitan Atlanta area. Landlord shall complete such
renovations by January 1, 1998.
18. Landlord and Tenant agree that Suite 350 shall include Suites 312 and 325,
as outlined in red on the floor plan attached hereto as Exhibit "A-1", and
------------
that other tenants will occupy Suites 312 and 325, as outlined in yellow on
the floor plan attached hereto as Exhibit "A-1", until no later than
------------
December 31, 1997. Upon Suites 312 and 325 becoming available and delivered
to Tenant and Suite 200 being available for Tenant's occupancy, Tenant
shall have ninety (90) days until the Rental Commencement Date occurs.
Landlord and Tenant further agree that Tenant shall pay $10.00 per rentable
square foot for Suite 350 until Suites 312 and 325 are delivered to Tenant
and Suite 200 is available for Tenant's occupancy, whereupon the rental
rate for Suite 350 shall become the higher of $13.00 per square foot or the
prevailing rental rate pursuant to Paragraph 5(a) or Special Stipulation 3.
Should Tenant decide not to build out Suite 350 upon Landlord delivering
Suite 350 to Tenant, Tenant shall pay $10.00 per rentable square foot for
Suite 350 for the ninety (90) day period following delivery to Tenant.
iXL LEASE EXHIBITS
------------------
Paragraph/Special Stips #
EXHIBIT
-------
X0 X-X Xxxxx Xxxx(x)
XX0 X-0 Xxxxxx Build Out As Builts
SS2 A-2 Additional Premises
P1 B Legal Description (attached hereto)
P2 C Tenant Acceptance Agreement
P36 D Projected Operating Expenses
P6 E Building Rules & Regulations
SS1 F Construction Rules & Regulations
SS3 G Pro-Forma Return
SS5 H (Intentionally Deleted)
SS6 K (Intentionally Deleted)
SS8 M Loading Zone
SS9 N Right of First Refusal Over Winter Space
SS10 0 Right of First Refusal Over Non-Winter Space
SS12 P iXL Visitor Parking
SS16 Q Building Renovations
EXHIBIT B
---------
ALL THAT TRACT OR PARCEL OF LAND situated, lying and being in Land Xxx 000, 00xx
Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, and being more particularly described as
follows:
To find the TRUE POINT OF BEGINNING, commence at the intersection of the
northerly right-of-way line of Xxxx Street (a 40-foot right-of-way) and the
easterly right-of-way line of Xxxxx Street (a 40-foot right-of-way); running
thence North 13 degrees 24' 42" West 324.08 feet to an iron pin set on the
westerly right-of-way line of Xxxxx Street and the TRUE POINT OF BEGINNING; FROM
SAID TRUE POINT OF BEGINNING AS THUS ESTABLISHED, running thence along said
westerly right-of-way line of Xxxxx Street South 05 degrees 12' 53" East 164.89
feet to an iron pin set; thence South 04 degrees 58' 14" East 39.95 feet to an
iron pin set; thence South 04 degrees 58' 14" East 188.77 feet to an iron pin
set; thence South 06 degrees 57' 57" East 100.00 feet to an iron pin set thence
South 83 degrees 53' 37" West 200.00 feet to an iron pin set; thence South 06
degrees 43' 21" East 24.31 feet to an iron pin set; thence North 64 degrees 27'
21" West 63.50 feet to a point; thence North 61 degrees 19' 44" West 24.90 feet
to a point; thence North 54 degrees 45' 13" West 169.41 feet to a point; thence
North 52 degrees 18' 19" West 239.53 feet to an iron pin set; thence North 14
degrees 56' 29" West 33.48 feet to an iron pin set; thence North 05 degrees 20'
36" West 164.89 feet to an iron pin found; thence North 84 degrees 25' 14" East
582.86 feet to the TRUE POINT OF BEGINNING.
Said property being more particularly shown as containing 5.483 acres on that
certain plat of survey prepared for Park Place Atlanta, a California general
partnership, and Confederation Life Insurance Company by Xxxxx X. Xxxxxxx,
G.R.L.S. No. 2134, dated September 15, 1986, revised October 17, 1986.
LEASE AMENDMENT
---------------
THIS LEASE AMENDMENT (the "Amendment") is made and entered into this 6th
day May, 1997, by and between PARK PLACE XXXXX, L.L.C., (hereinafter referred
---
to as "Landlord"), and iXL, Inc. (hereinafter referred to as "Tenant").
WITNESSETH:
-----------
WHEREAS, Landlord and Tenant have entered into that certain Office Lease,
dated as of January 8, 1997, with respect to certain premises, containing
approximately 36,891 square feet of rentable area (hereinafter referred to as
the "Prime Premises") located on the first, second, third and fourth floors of
Two Park Place, 0000 Xxxxx Xx., X.X., Xxxxx 000, Xxxxxxx, Xxxxxxx, (the "Office
Complex") and a preliminary Occupancy Agreement, dated as of October 28, 1996,
covering approximately 21,361 square feet of space on the third and fourth
floors of the Building (said Office Lease is hereinafter referred to as the
"Lease");
WHEREAS, Landlord and Tenant desire to amend the Lease as set forth herein;
NOW, THEREFORE, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00), in hand paid by Tenant to Landlord, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. Definitions. Except as otherwise expressly provided herein, all terms
-----------
used herein with an initial Capital letter or letters shall have the
meaning ascribed thereto in the Lease.
2. Change in Square Footage for Temporary Premises relating to the
---------------------------------------------------------------
Occupancy Agreement. The term "Temporary Premises" means the space on the
-------------------
third (3rd) floor of the office building located at 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx (the "Building"). Landlord and Tenant agree that the total
area occupied as Temporary Premises and Additional Temporary Space by
Tenant under the Occupancy Agreement was increased to approximately 5,070
square feet of space effective January 23, 1997. Exhibit A to the
Agreement, attached hereto, is hereby amended as shown to reflect the
Temporary Premises and the Additional Temporary Space as noted.
3. Increase of Occupancy Fee. The occupancy fee payable to Landlord for
-------------------------
the Temporary Premises and the Additional Temporary space shall be
$4,208.10 (5070 sq. ft. X $.83) per month until such time as the Additional
Temporary Space or the Prime Premises, as the case may be, are to be
expanded to include further additional space occupied by Tenant.
4. Confirmation and Ratification. Except as amended herein, the Lease
-----------------------------
remains in full force and effect; and the parties hereby ratify and confirm the
Lease as amended herein.
This Amendment to Office Lease shall be binding upon and inure to the
benefit of the parties hereto, their respective heirs, administrators, personal
representatives, guarantors, executors, successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Lease Amendment to
be executed by duly authorized representatives or officers, as the case may be,
as of the day and year first above written.
LANDLORD:
--------
PARK PLACE XXXXX, L.L.C.
By: /s/ X. Xxxxxx
------------------------------
Its: ____________________________
TENANT:
------
iXL, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Its.: VP OPERATIONS
----------------------------
EXHIBIT "A"
-----------
[BUILDING TWO THIRD FLOOR PLAN APPEARS HERE]
LEASE ADDENDUM TWO
PARK PLACE XXXXX L. L. C. ("Landlord") and iXL, INC. ("Tenant") have entered
into a lease agreement, dated January 8, 1997, and a lease addendum dated May 6,
1997 (hereinafter collectively referred to as the "Lease"). Tenant wishes to
lease from Landlord, for a term to run concurrently with the Lease and, except
as set forth below, under the same terms and conditions set forth in the Lease,
additional space at 0000 Xxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx. Said additional
space is located in the same building as the premises which are the subject of
the Lease ("Premises") and shall hereafter be included in the Premises. Tenant
also wishes to vacate a certain portion of the Premises. For and in
consideration of the rent to be paid and the space to be leased thereunder,
Landlord and Tenant hereby agree as follows:
1. Tenant is currently leasing space on the third (3rd) floor, known as
Suite 350, of the office building located at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
(the "Building") containing approximately 5070 rentable square feet as set forth
on Exhibit "A", attached hereto, incorporated in, and by reference made a part
hereof.
2. The reconfiguration and Tenant's space on the third (3rd) floor, known
as Suite 350, set forth on Exhibit "B" attached hereto, incorporated in, and by
reference made a part hereof, will change the rentable square footage to 6338
("Reconfigured Space")
3. The lease term for the Reconfigured Space shall commence the day after
the demising wall which will create the Reconfigured Space is completed. The
rent payable to the Landlord for the Reconfigured Space shall be $5,260.54 (6338
rentable square feet X $.83) per month which shall be prorated if the demising
wall is completed on any day other than the first of the month. Upon the
completion of any conversion of the Reconfigured Space to Prime Premises, as
defined in the Lease, Landlord shall pay to Tenant a tenant improvement
contribution in the amount set forth in the lease based on rentable square
footage of the Prime Premises located on the third (3RD) Floor, plus 490
rentable square feet.
4. Tenant shall also lease from Landlord, commencing September 1, 1997,
space located on the first (1ST) floor, known as Xxxxx 000, xx 0000 Xxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx (the "Building") and shown on Exhibit "C", attached
hereto, incorporated in, and by reference made a part hereof, contains
approximately 571 rentable square feet. Tenant shall pay to Landlord rent in the
amount of $473.93 (571 rentable square feet X $.83) per month, commencing on
September 1, 1997.
5. Tenant shall also lease from Landlord, commencing July 1, 1997, space
located on the first (1ST) floor known as Xxxxx 000, 0000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx (the "Building") and shown on Exhibit "D", attached herto, incorporated
in, and by reference made a part hereof. Suite 111 contains approximately 3483
rentable square feet. Tenant shall pay to Landlord rent in the amount of
$3,773.25 per month, Commencing October 1, 1997. Pursuant to the terms of the
Lease, Landlord shall pay to Tenant $41,796.00 as a contribution toward Lessee's
improvements upon receipt of a copy of the Certificate of Occupancy for Suite
111.
6. Upon acceptance of Lease Addendum Two the Tenant will occupy the
following space which totals 35,908 rentable square feet of Prime Premises and
4,658 rentable square feet of Additional Premises.
Prime Premises
Suite 115 1,230 rentable square feet
Suite 350 6,338 rentable square feet
Suite 200 14,170 rentable square feet
Suite 400 14,170 rentable square feet
TOTAL 35,908 rentable square feet
Additional Premises Suite 108 571 rentable square feet
Suite 111 3,483 rentable square feet
Suite 112 604 rentable square feet
TOTAL 4,658 rentable square feet
7. Except as modified herein, all other terms and provisions of the Lease
shall remain in full force and effect and are hereby made applicable to this
Addendum, and this Addendum is hereby incorporated in and made a part of said
Lease. Furthermore, Tenant and Landlord agree that as of the date of this
Addendum, no default exists under said Lease.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of
this 6th day of October, 1997.
LANDLORD
PARK PLACE XXXXX, L. L. C.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Its: MANAGER FOR PARK PLACE XXXXX, L.L.C.
------------------------------------
TENANT
iXL, Inc.
By: /s/ Xxxxx X. Xxxxx
--------------------------
Its: COO
----------------------
[CORPORATE SEAL]
[FLOOR PLAN APPEARS HERE]
EXHIBIT "A"
[FLOOR PLAN APPEARS HERE]
EXHIBIT "B"
[FLOOR PLAN APPEARS HERE]
EXHIBIT "C"
[FLOOR PLAN APPEARS HERE]
EXHIBIT "D"
LEASE ADDENDUM THREE
--------------------
This Lease Addendum Three (hereinafter referred to as this "Amendment") is
made and entered into as of July 1, 1998, by and between PARK PLACE XXXXX,
L.L.C., a Georgia limited liability company (hereinafter referred to as
"Landlord"); and iXL, INC., a Delaware corporation (hereinafter referred to as
"Tenant"). All defined terms used herein shall have the meanings ascribed to
them in the Lease, unless otherwise defined herein.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Tenant and Landlord have heretofore entered into that certain
Lease Agreement dated as of January 8, 1997, as amended by that certain Lease
Amendment dated May 6, 1997, as further amended by that certain Lease Addendum
Two dated as of October 6, 1997 (collectively, the "Lease") for the lease of a
total of 5,036 rentable square feet in Building One of the Office Complex and
for the lease of a total of 41,005 rentable square feet in Building Two of the
Office Complex; and
WHEREAS, the parties desire to further amend the Lease so as to clarify and
restate the current area of the Premises and the Base Monthly Rental payable
with respect thereto, to expand further the area of the Premises leased to
Tenant pursuant to the Lease, to modify the Expiration Date of the Lease, and to
make such other modifications as are provided herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions contained herein, the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged, the parties do hereby agree as follows:
1.
As of the date hereof, Tenant is currently leasing from Landlord, and
Landlord is renting to Tenant, the Premises in each Building as more
particularly described in Exhibit "A" attached hereto and by this reference made
-----------
a part hereof.
2.
(a) Notwithstanding anything in Section 1 of the Lease to the contrary,
and except for the repair by Landlord of any damage beyond normal wear and tear,
Landlord shall deliver to Tenant in its then "AS IS" condition, on the
"Expansion Date" (which Expansion Date is
anticipated to be no later than December 31, 1998) the "Expansion Space". The
"Expansion Space" shall consist of: (i) approximately 2,108 square feet known as
Suite 103 on the first (1st) floor of Building One; (ii) approximately 14,170
square feet known as Suite 200 and consisting of the entire second (2nd) floor
of Building One; and (iii) approximately 14,170 square feet known as Suite 300
and consisting of the entire third (3rd) floor of Building One, all as more
particularly described on Exhibit "B" attached hereto and by this reference made
----------
a part hereof. On and after the Expansion Date, the "Premises" as referred to in
the Lease from time to time shall be deemed to include the Expansion Space, and
shall consist of a total of 35,484 rentable square feet in Building One and a
total of 41,005 rentable square feet in Building Two.
(b) Following the Expansion Date, Landlord and Tenant shall execute a
Tenant Acceptance Agreement in the form attached hereto as Exhibit "C" and by
----------
this reference made a part hereof setting forth the Expansion Date with respect
to the Expansion Space.
3.
Notwithstanding anything in Section 2 of the Lease to the contrary, on and
after the Expansion Date, the Expiration Date of the Lease with respect to the
Premises, including the Expansion Space, shall be December 31, 2008.
4.
Notwithstanding anything in Section 4 of the Lease to the contrary, on and
after the Expansion Date, Tenant shall pay to Landlord promptly on the first day
of each month, in the manner more particularly described in Section 4 of the
Lease: (i) Base Monthly Rental of $50,844.34 for the Premises as more
particularly described in Exhibit "A"; and (ii) Base Monthly Rental for the
-----------
Expansion Space (which Expansion Space consists of a total of 30,448 square
feet) of $41,866.00, for a total of $92,710.34 of Base Monthly Rental, which
shall be adjusted at the times and in the manner more particularly set forth in
Section 5 of the Lease.
5.
On and after the Expansion Date, "Tenant's Percentage Share" as defined in
Section 6(b) of the Lease, for all purposes as set forth in the Lease, shall be
71.76%, based on 53,455 square feet contained in Building One and 53,135 square
feet contained in Building Two.
6.
Notwithstanding anything in Section 38 of the Lease to the contrary, Tenant
acknowledges and agrees that Xxxx X. Xxxxxx d/b/a/a The Xxxxxx Team ("Xxxxxx"),
has represented Tenant in this transaction and shall receive a real estate
commission payable by
2
Tenant as outlined in a separate agreement. Landlord and Tenant represent and
warrant to each other that, other than Xxxxxx, no broker, agent, commissioned
salesperson or other person has represented Tenant or Landlord in the
negotiations for and procurement of this Amendment, and that no commissions,
fees, or compensation of any kind are due in connection herewith, either
pursuant to the Lease or to any other separate agreement, to any broker, agent,
commissioned salesperson or other person, other than Xxxxxx. Landlord and Tenant
hereby indemnify and hold each other harmless from and against any such claims
made against each other by any such third parties.
7.
Paragraph 4 of the Special Stipulations attached to the Lease granting
renewal options to Tenant shall apply in all respects to the entire Premises,
which renewal periods set forth therein shall be measured from the new
Expiration Date of the Lease as set forth herein.
8.
Notwithstanding anything to the contrary in Paragraphs 9 or 10 of the
Special Stipulations attached to the Lease, and as long as Tenant is not in
default hereunder or under the Lease, if any space in Building One of the Office
Complex becomes available for occupancy in 1998 or 1999 (any space which is
subject to a pre-existing possessory right by any party shall not be considered
"available for occupancy" pursuant to this Section unless and until all possible
notice periods and/or other conditions precedent which were granted to any such
party shall have passed without such party having fully complied therewith),
then in accordance with Section 28 of the Lease, Landlord shall so advise Tenant
from time to time, and Tenant shall have ten (10) days following each such
notice from Landlord to advise Landlord in writing of Tenant's intention to
lease such additional space (the "98-99 Space"). Tenant shall then execute an
amendment to the Lease within ten (10) days following Landlord's delivery to
Tenant of each such amendment, which shall include, but not be limited to, the
following terms: (i) the Base Rental for any 98-99 Space shall be $15.50 per
square foot, with annual adjustments as set forth in Section 5 of the Lease;
(ii) the term of the lease of any 98-99 Space shall be co-terminous with that of
the Lease; (iii) Tenant's Percentage Share shall increase proportionately; and
(iv) Landlord will provide Tenant with a Tenant Improvement Allowance for any
98-99 Space in accordance with Special Stipulation 1 of the Lease.
9.
As an express condition precedent to the effectiveness of this Amendment,
within three (3) business days following the execution of this Amendment by both
parties, Tenant shall remit to The Winter Construction Company, the former
tenant in the Expansion Space, a check in the amount of $121,792.00. In
addition, no later than the Expansion Date and as an express
3
condition precedent to Tenant's right to occupy the Expansion Space, Tenant
shall remit to Landlord a second check in the amount of $121,792.00. Tenant's
failure to comply in a timely manner with the obligations set forth in this
Item shall constitute a material breach of the Lease and shall entitle Landlord
to avail itself of all remedies available to it as set forth in the Lease, as
well as all remedies available at law or in equity.
10.
Landlord shall diligently pursue certain renovations in Building One and
Building Two, in a manner as solely determined by Landlord, which renovations
may include the first floor lobbies, common elevator lobbies, elevator cabs,
hallways and bathrooms where applicable, and additional surface parking and/or
restriping of existing parking. Landlord shall use commercially reasonable
efforts diligenty to pursue such renovations, with the good faith intention to
achieve substantial completion of such renovations on or about the Expansion
Date.
11.
Section 28 of the Lease shall be and is hereby, modified to reflect that
Landlord's address for notice purposes is as follows:
If to Landlord: Park Place Xxxxx, L.L.C.
--------------
0000 Xxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: President
with a copy to: Arnall Golden & Xxxxxxx, LLP
--------------
2800 One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: J. Xxxxx Xxxxxx, Jr., Esq.
12.
This Amendment may be executed in any number of counterparts, each of
which, when executed and delivered, shall be an original, but all of which
shall together constitute one and the same instrument, and the several signature
pages may be collected and annexed to one or more counterparts to form a
complete counterpart.
4
13.
Except as specifically set forth herein, all of the terms, covenants, and
conditions of the Lease shall remain in full force and effect. This Amendment
and the Lease represent the complete agreement of the parties hereto and
supersede any and all other written or oral previous or contemporaneous
agreements.
IN WITNESS WHEREOF, this Amendment has been executed on behalf of the
parties hereto by their respective duly authorized officers as of the day and
year herein first above written.
LANDLORD:
--------
PARK PLACE XXXXX, L.L.C.,
a Georgia limited liability company
BY: Winter Properties, Inc.,
its Managing Member
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxxx
President
TENANT:
------
iXL, INC.,
a Delaware Operations
By: /s/ Xxxxx X. Xxxxx
---------------------------
Print Name: Xxxxx X. Xxxxx
------------------
Title: [Vice] President
E V P Worldwide Operations
Attest: /s/ Xxxxx X. Xxxxxx
-----------------------
Print Name: Xxxxx X. Xxxxxx
-------------------
Title: Assistant Secretary
(CORPORATE SEAL)
5
EXHIBIT "A"
----------
SUMMARY OF EXISTING PREMISES
6
EXHIBIT "A-1"
------------
Site drawing of Existing Premises in Buildings One and Two currently leased by
Tenant
7
EXHIBIT "B"
-----------
Site drawing showing Expansion Space
8
EXHIBIT "C"
----------
TENANT ACCEPTANCE AGREEMENT
9
LEASE GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Guaranty"), made this ____ day of_________,
1998, by iXL ENTERPRISES, INC., a Delaware corporation (hereinafter "Guarantor")
whose address is 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000;
W I T N E S S E T H:
WHEREAS, concurrently with this Guaranty, PARK PLACE XXXXX, L.L.C.
("Landlord") has entered into that certain Lease Agreement dated January 8,
1997, as amended by that certain Lease Amendment dated as of May 6, 1997, as
further amended by that certain Lease Addendum Two dated as of October 6, 1997,
as further amended by that certain Lease Addendum Three dated as of July 1, 1998
(collectively, the "Lease"), with iXL, INC., a Delaware corporation ("Tenant"),
pursuant to which Tenant has leased from Landlord those certain premises at
Building One and Building Two, Park Place Atlanta, 0000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000, as more particularly described in the Lease; and
WHEREAS, the Lease is incorporated by reference into this Guaranty; and
WHEREAS, Landlord is willing to enter into Lease Addendum Three only on the
condition that Guarantor enter into this Guaranty Agreement; and
WHEREAS, Guarantor has substantial monetary interest, directly or
indirectly, in the Lease transaction and is willing to enter into this Guaranty.
NOW, THEREFORE, for and in consideration of the Lease and as an inducement
to Landlord to enter into the Lease, Guarantor, for itself and its successors
and assigns, guarantees to Landlord, its successors and assigns, the full and
punctual payment of all rent (as described in the Lease), and any and all other
sums payable by Tenant under the Lease, when and as the same shall be due and
payable under the terms of the Lease, after any notice and cure period set forth
in the Lease, and the due and punctual performance by Tenant of each and every
term, covenant, and condition contained in the Lease to be observed or performed
by the Tenant. If Tenant defaults in the payment or performance of the Lease,
upon written Landlord's request, Guarantor immediately agrees to pay or perform
on Tenant's behalf. Guarantor agrees to pay all expenses and costs (including,
but not limited to, legal costs and attorneys' fees) paid or incurred by
Landlord to enforce Tenant's obligations under the Lease or Guarantor's
obligations under this Guaranty. The provisions of this Guaranty shall extend
and apply to all renewals, amendments, extensions, consolidations and
modifications of the Lease, including the leasing of any additional space. All
references to the Lease in this Guaranty shall include any renewals, extensions,
amendments, consolidations and modifications of or to the Lease.
Landlord agrees that it shall send a copy of all notices delivered to
Tenant concerning the Lease to Guarantor at the address set forth in the first
paragraph above, or, thirty (30) days following the receipt in writing thereof,
at such other address as Guarantor shall provide to Landlord.
Guarantor consents and agrees that Landlord may, at any time and without
notice to or further consent from Guarantor, and without releasing, discharging,
modifying or otherwise affecting the obligations and liabilities of Guarantor in
any manner, either with or without consideration: (a) modify or otherwise change
the terms of the Lease, (b) extend or renew the Lease for any period, or (c)
grant releases, compromises, waivers of compliance and other indulgences with
respect to the Lease and this Guaranty to any persons or entities now or
hereafter liable under the Lease or the Guaranty, (d) release any Guarantor or
any other obligor under the Lease or this Guaranty, or (e) otherwise deal with
Tenant, or any other person or entity, in all respects, or take or fail to take
any action of any type.
This shall be an agreement of suretyship as well as guaranty and
Guarantor's liabilities and obligations under this Guaranty shall be direct and
immediate, not conditional or contingent upon the pursuit of any rights or
remedies against Tenant or any other person or against securities or liens
available to Landlord. Guarantor waives any right to require that an action be
brought against Tenant or any other person or entity or to require that resort
be had to any security. In the event of any default under the Lease, Landlord
may enforce its rights and remedies provided under the Lease or this Guaranty,
or under any other instruments relating to the Lease, in any order or not at
all. All rights and remedies available to Landlord shall be nonexclusive and
cumulative of all other rights and remedies provided under the Lease, or
hereafter, or by law, in equity, or contract. All rights and remedies afforded
to Landlord under this Guaranty shall be exercisable notwithstanding termination
of the Lease or termination of Tenant's right to possession under the Lease
because of Tenant's default.
To the extent permitted by law, Guarantor waives on account of its
liability under this Guaranty: (a) any of its available rights, privileges and
defenses under law for the relief of debtors, sureties or guarantors, (b) the
benefits of all provisions of law to stay or delay execution or sale of
property, and (c) other satisfaction of any judgment against Guarantor (or any
one or more of them if more than one).
This Guaranty is governed by the laws of Georgia.
This Guaranty shall not be impaired by any change arising by reason of
Tenant's bankruptcy or dissolution.
No obligation of the Guarantor can be released or waived by Landlord or any
partner, agent or employee of Landlord, except by a writing signed and attested
by the duly authorized representative or representatives of Landlord. This
Guaranty is irrevocable until all amounts guaranteed have been completely paid
and all obligations and undertakings of Guarantor have been completely
performed.
Any notice or demand which by any provision of this Guaranty is required or
allowed to any party shall have been sufficiently given when made in writing and
either delivered personally or sent by certified or registered United States
mail, Federal Express, express United States mail, or air courier, all postage
or fees prepaid, addressed to the parties at the addresses set forth on the
Summary Sheet of the Lease or to another address furnished in writing. Unless
otherwise provided, Guarantor's address, for purposes of notice, shall be the
same as that for Tenant.
This Guaranty is binding upon the Guarantor and its successors, legal
representatives and assigns, and inures to the benefit of Landlord, its
successors, legal representatives and assigns.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of the
day and year first above written.
GUARANTOR:
iXL ENTERPRISES, INC.
/s/ Xxxxxxxx Xxxx By: /s/ Xxxxx X. Xxxxxx
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Witness
Its: E V P
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/s/ Xxxxx XxXxxxx
--------------------------
Notary Public
(CORPORATE SEAL)
My Commission Expires:
Notary Public, Xxxx County, Georgia
My Commission Expires July 29, 1999
[NOTARY SEAL]
