TELECOM/OFFICE LEASE AGREEMENT BETWEEN BANK BUILDING LIMITED PARTNERSHIP, LLC. AND WINSONIC DIGITAL MEDIA GROUP, LTD.
TELECOM/OFFICE
LEASE AGREEMENT
BETWEEN
BANK
BUILDING LIMITED PARTNERSHIP, LLC.
AND
WINSONIC
DIGITAL MEDIA GROUP, LTD.
Table
of Contents
|
Page
|
||
|
1.
|
LEASED
PREMISES
|
3
|
|
2.
|
DEFINITIONS
|
3
|
|
3.
|
TERM
OF LEASE
|
4
|
|
4.
|
POSSESSION
|
4
|
|
5.
|
BASE
MONTHLY RENTAL
|
5
|
|
6.
|
RENTAL
ADJUSTMENT
|
5
|
|
7.
|
SECURITY
DEPOSIT
|
6
|
|
8.
|
USE
AND OCCUPANCY
|
7
|
|
9.
|
UTILITIES
|
7
|
|
10.
|
HEATING
AND AIR CONDITIONING
|
7
|
|
11.
|
ELEVATORS
|
7
|
|
12.
|
INTERRUPTION
OF SERVICES
|
7
|
|
13.
|
MAINTENANCE
AND ALTERATIONS
|
8
|
|
14.
|
RIGHT
OF ENTRY
|
9
|
|
15.
|
INSURANCE
|
9
|
|
16.
|
INDEMNITY
|
10
|
|
17.
|
FIRE
OR OTHER CASUALTY
|
10
|
|
18.
|
DEFAULT
|
11
|
|
18.1
|
REMEDIES
|
11
|
|
19.
|
ASSIGNMENT
AND SUBLETTING
|
14
|
|
20.
|
BUILDING
RULES AND REGULATIONS
|
14
|
|
21.
|
WAIVER
|
14
|
|
22.
|
HOLDING
OVER
|
15
|
|
23.
|
SUBORDINATION
AND ATTORNMENT
|
15
|
|
24.
|
NOTICES
|
16
|
|
25.
|
SUBSTITUTE
SPACE
|
16
|
|
26.
|
EXCULPATION
|
16
|
|
27.
|
ATTORNEY'S
FEES AND HOMESTEAD
|
16
|
|
28.
|
ENTIRE
AGREEMENT
|
17
|
|
29.
|
TIME
|
17
|
|
30.
|
INTEREST
CONVEYED
|
17
|
|
31.
|
SURRENDER
OF PREMISES
|
17
|
-i-
Table
of Contents
|
Page
|
||
|
32.
|
PARTIES
|
17
|
|
33.
|
SEVERABILITY
|
17
|
|
34.
|
CAPTIONS
|
17
|
|
35.
|
ESTOPPEL
CERTIFICATE
|
17
|
|
36.
|
PERSONALTY
OF TENANT
|
18
|
|
37.
|
QUIET
ENJOYMENT
|
18
|
|
38.
|
CORPORATE
AUTHORITY
|
18
|
|
39.
|
EMINENT
DOMAIN
|
18
|
|
40.
|
GOVERNMENTAL
REGULATIONS
|
18
|
|
41.
|
NO
OFFER
|
19
|
|
42.
|
NO
RECORDATION
|
19
|
|
43.
|
NO
MERGER
|
19
|
|
44.
|
AMENDMENTS
|
19
|
|
45.
|
NO
CONSTRUCTION AGAINST PREPARER OF LEASE
|
19
|
|
46.
|
WAIVER
OF JURY TRIAL
|
19
|
|
47.
|
BINDING
EFFECT
|
19
|
|
48.
|
EXHIBITS
|
19
|
|
49.
|
GOVERNING
LAW
|
20
|
|
50.
|
NO
COUNTERCLAIM
|
20
|
|
51.
|
FORCE
MAJEURE
|
20
|
|
52.
|
SURVIVAL
OF OBLIGATIONS
|
20
|
|
53.
|
JOINT
AND SEVERAL LIABILITY
|
20
|
|
54.
|
RIGHTS
RESERVED
|
20
|
|
55.
|
SPECIAL
STIPULATIONS
|
20
|
-ii-
TELECOM
/
OFFICE LEASE BASIC INFORMATION
|
DATE:
|
||
|
LANDLORD:
|
BANK
BUILDING LIMITED PARTNERSHIP
|
|
|
ADDRESS:
|
c/o
Ultima Real Estate Services, L.L.C.
|
|
|
00
Xxxxxxxx Xxxxxx, X.X.
|
||
|
Xxxxx
000
|
||
|
Xxxxxxx,
Xxxxxxx 00000
|
||
|
TENANT:
|
WINSONIC
DIGITAL MEDIA GROUP, LTD,
|
|
|
ADDRESS:
|
00
Xxxxxxxx Xxxxxx, XX
|
|
|
Xxxxx
0000
|
||
|
Xxxxxxx,
XX 00000
|
||
|
CONTACT:
|
Xx.
Xxxxxxx X. Xxxxxxx
|
|
|
ADDRESS
FOR NOTICE
|
Winsonic
Digital Media Group
|
|
|
Centennial
Tower, Suite 2600
|
||
|
000
Xxxxxxxx Xxxxxx
|
||
|
Xxxxxxx,
XX 00000
|
||
|
ADDRESS
FOR NOTICE
|
c/o
Ultima Real Estate Services
|
|
|
TO
LANDLORD:
|
00
Xxxxxxxx Xxxxxx, X.X.
|
|
|
Xxxxx
000
|
||
|
Xxxxxxx,
Xxxxxxx 00000
|
||
|
Facsimile
No. (000) 000-0000)
|
||
|
LEASED
PREMISES:
|
Described
in Exhibit "A" attached.
|
|
|
NET
RENTABLE
|
||
|
AREA
OF LEASED PREMISES:
|
Approximately
12,080 square feet
|
|
|
PERCENTAGE
SHARE
|
||
|
OF
SPACE:
|
3.25%
|
|
|
TERM
COMMENCEMENT:
|
May
1, 2007
|
|
|
TERM
EXPIRATION:
|
April
30, 2017
|
|
BASE
MONTHLY RENTAL:
|
Dates
|
|
Rate
PSF
|
|
Monthly
amount
|
|||||
|
|
05/01/07
- 02/28/08
|
$
|
8.72
|
$
|
8,778.13
|
|||||
|
|
03/01/08
- 04/30/12
|
$
|
17.45
|
$
|
17,566.33
|
|||||
|
|
05/01/12
- 04/30/17
|
$
|
19.00
|
$
|
19,126.67
|
|||||
|
The
Base Monthly Rental actually payable from time to time, shall be
subject
to such adjustments as shall be made pursuant to Paragraph 6 of
this
Office Lease Agreement (Rental
Adjustment).
|
|
BASE
YEAR:
|
2007
|
|
|
SECURITY
DEPOSIT
|
||
|
PAYABLE
UPON EXECUTION:
|
$17,566.33
|
|
|
FIRST
MONTH'S RENTAL
|
||
|
PAYABLE
UPON EXECUTION:
|
$8,778.13
|
|
|
|
||
|
EXHIBITS
AND ADDENDA:
|
Exhibit
"A" - Leased Premises
|
|
|
Exhibit
"B" - Initial Improvement of Premises
|
||
|
Exhibit
"C" - Special Stipulations
|
||
|
Exhibit
"D" - Rules & Regulations
|
||
|
Exhibit
"E" - Brokerage/Agency
|
||
|
Exhibit
“F”- Moving/contractor policy
|
||
|
Exhibit
“G” -License
Agreements
|
1
This
Telecom/Office Lease Basic Information must be read in reference to this
Telecom/Office Lease Agreement as a whole and is provided for convenience of
reference. In the event of any conflict between this Telecom/Office Lease Basic
Information and the terms and conditions of the Telecom/Office Lease Agreement,
the Telecom/Office Lease Agreement shall control, except as to the number of
square feet of the Area of Leased Premises which shall be as stated in this
Telecom/Office Lease Basic Information.
IN
WITNESS WHEREOF, the parties have hereunto set their hands, as of the day and
year first above written.
As
to
Tenant:
Signed,
sealed and delivered in the presence of:
TENANT:
WINSONIC
DIGITAL MEDIA GROUP, LTD
| By: /s/ Xxxxxxx X.Xxxxxxx | /s/ Xxxxxx X. Xxxxxx | ||
|
Xx. Xxxxxxx X. Xxxxxxx |
Witness |
||
| Title: Founder, Chairman |
As
to
Landlord:
Signed,
sealed and delivered in the presence of:
BANK
BUILDING LIMITED PARTNERSHIP, LLC, a Georgia Partnership
By:
Ultima Marietta Holdings Ltd, General partner
| By: /s/ Xxxxxx Xxxxx | /s/ Xxxxxxx Xxxxxxx | ||
|
Xxxxxx Xxxxx |
Witness |
||
| Title: Attorney in Fact |
2
OFFICE/
TELECOM LEASE
THIS
LEASE is made and entered into this 8th
day of
February ,
2007 by
and between BANK
BUILDING LIMITED PARTNERSHIP, LLC,
(hereinafter referred to as the "Landlord") and WINSONIC
DIGITAL MEDIA GROUP, LTD.
(hereinafter referred to as the "Tenant").
WITNESSETH:
That
in
consideration of the mutual promises and covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereby agree as follows:
| 1. |
LEASED
PREMISES. Landlord
does hereby lease and rent to Tenant, and Tenant does hereby lease,
take
and rent from landlord, the Leased Premises described in Paragraph
2d
below. No easement for light, air or view is included in this Lease
of the
Leased Premises, and no diminution or shutting off of light or air
or view
by any structure which may be now or hereafter erected shall affect
this
Lease. Tenant acknowledges that Landlord has not made any representation
or warranty with respect to the condition of the Leased Premises
or the
Building. Unless otherwise provided for in this Lease, Tenant agrees
to
accept the Leased Premises in its “as is” physical condition without any
agreements, representations, understandings or obligations on the
part of
Landlord to perform any alterations, repairs or improvements (or
to
provide any allowance for same) except as provided for on Exhibit
“B”.
|
| 2. |
DEFINITIONS.
|
a. Base
Monthly Rental. The term "Base Monthly Rental" shall mean the monthly rental
amount specified in the Office Lease Basic Information, subject to adjustments
as provided herein.
b. Building.
The term "Building" shall mean those improvements located at 00 Xxxxxxxx Xxxxxx
XX Xxxxxxx, Xxxxxxx 00000 and commonly known as "55 Marietta
Street".
c. Common
Area. The term "Common Area" shall mean the total area on a floor consisting
of
rest rooms, janitor, telephone and electrical closets, mechanical areas and
public corridors providing access to tenant space on such floor, but excluding
public stairs, elevator shafts and pipe shafts, together with the enclosing
walls thereof.
d. Leased
Premises. The term "Leased Premises" shall mean that area of the Building shown
or designated on the floor plan attached hereto as Exhibit "A" and incorporated
herein by reference and as specified in the Office Lease Basic Information
attached hereto.
e. Net
Rentable Area. The term "Net Rentable Area" shall mean: (i) as to a floor leased
entirely by Tenant, all areas within the exterior glass line of the Building
to
the opposite exterior glass line, including restrooms, janitor, telephone and
electrical closets, mechanical areas, and columns and projections necessary
to
the Building, including public stairs, elevator shafts and pipe shafts, together
with the enclosing walls thereof; (ii) as to a floor a portion of which is
leased by Tenant, the aggregate of the Net Usable area (as defined below) of
the
portion of the floor occupied by Tenant, plus the result obtained by multiplying
the areas of the Common Area on such floor times a fraction, the numerator
of
which is the Net Usable Area of Tenant's portion of the floor and the
denominator of which is the Net Useable Area of all Tenant space (whether leased
or unleased, improved or unimproved) on such floor. Tenant agrees to the Net
Rentable Area specified in the Office Lease Basic Information.
f. Net
Usable Area. The term "Net Usable Area" shall mean all floor area in the Leased
Premises as measured to the exterior glass line and from centerline to
centerline of all perimeter partitions, without deduction for columns and
projections necessary to the Building. Tenant agrees to the Net Usable Area
specified in the Office Lease Basic Information.
3
g. Operating
Expenses. The term "Operating Expenses" shall mean all costs of management,
operation, and maintenance of the Building, as determined by Landlord in its
sole discretion, and as calculated by Landlord in accordance with Landlord's
ordinary and customary method of accounting, including, without limitation;
(1)
all costs of electricity, natural gas, fuel oil, water, waste disposal, sewer
and other utilities servicing the Building; (2) all insurance premiums and
management fees; (3) real property taxes, general or special assessments imposed
upon the Building, personal property taxes imposed upon any personal property
used in the management, operation and maintenance of the Building, all
reasonable costs (including attorneys' fees, experts' and witnesses' fees)
incurred in contesting the validity or amount of any taxes or assessments or
in
obtaining a refund thereof, and if any tax or assessment (including, without
limitation, any franchise, income, profit, sales, use, occupancy, gross receipts
or rental tax) is imposed upon Landlord as the owner of the Building, or the
occupancy, rents or income from the Building, in substitution for any taxes
or
assessments, then such other tax or assessment, computed as if the Building
were
Landlord's sole asset, will be deemed a part of taxes and assessments; (4)
all
costs of maintenance, operation, and repair of the Building (including
maintenance of all elevators, HVAC, electrical, and other systems and equipment
contained therein), and the costs of replacing tools or equipment used for
such
maintenance, operation or repair), (5) all general administrative expenses
regarding the operation and maintenance of the Building (including wages, fees,
payroll and benefits of janitorial, security, grounds and building maintenance,
and administrative personnel and contractors , and accounting, legal and other
professional fees); (6) the rent or rental value of the Building's management
office; (7) the costs of licenses, permits and similar fees and charges; and
(8)
amortization of capital improvements made to the Building after Term
Commencement which are undertaken primarily for the purpose of reducing
Operating Expenses, or which are required to comply with any laws, ordinances,
rules or regulations.
h. Percentage
Share of Space. The term "Percentage Share of Space" for purposes of Paragraph
6
shall mean the percentage specified in the Office Lease Basic
Information.
|
3.
|
TERM
OF LEASE. The
term of this Lease (the "Term") shall commence on the Term Commencement
date, and unless sooner terminated as hereinafter provided, shall
end on
the Term Expiration date; as such dates are respectively specified
in the
Office Lease Basic Information. The terms and conditions of this
Lease
shall include and govern all renewal periods of the Lease, if any,
as such
dates and under such other terms and conditions as are respectively
specified in the Office Lease Basic Information. Landlord agrees
to
proceed with due diligence to complete the construction of the Leased
Premises or to otherwise prepare the Leased Premises for Tenant's
occupancy on or before the Term Commencement. In the event that Tenant,
with Landlord's consent, occupies the Leased Premises at any time
prior to
Term Commencement, then Term Commencement shall be on the date of
such
occupancy, and Tenant shall pay to Landlord a pro rata share of the
Base
Monthly Rental for the period from such commencement date through
the
first day of the month next following or, if this Lease provides
for
Rental Abatement as set forth in the Office Lease Basic Information,
then
the Term Commencement shall be deemed to be the date of such occupancy
and
a pro rata share of the first monthly payment of Base Monthly Rental
shall
be due and payable upon expiration of the exact amount of time of
Rental
Abatement specified. Thereafter, the schedule of Basic Monthly Rental
shall be unaltered.
|
|
4.
|
POSSESSION.
Taking
of possession by Tenant shall be deemed conclusively to establish
that the
Leased Premises have been prepared or completed in accordance with
the
Initial Improvement of Premises (see Exhibit "B" attached) and that
the
Leased Premises are in good, satisfactory and acceptable condition.
If
this Agreement is executed before the Leased Premises herein become
ready
for occupancy and Landlord cannot acquire and/or deliver possession
of the
Leased Premises by Term Commencement, this Lease shall not be void
or
voidable; and Tenant waives any claim for damages due to such delay.
Landlord waives the payment of any rental or the running of any Rental
Abatement until Landlord delivers possession of the Leased Premises
to
Tenant, unless specified otherwise in the Office Lease Basic Information
or any Exhibit attached hereto. No delay in delivery or possession
shall
operate to terminate this Lease, but such delay shall operate to
extend
the Term Commencement and the Term Expiration hereof (except for
Tenant-caused delays which shall not be deemed to delay commencement
of
the Term).
|
4
| 5. |
BASE
MONTHLY RENTAL.
|
a. Subject
to the further provisions of this Paragraph 5, Tenant shall pay to Landlord
the
Base Monthly Rental specified in the Office Lease Basic Information, which
shall
be payable by the first day of each month, in advance, without prior demand
and
without any deduction or set-off, during the Term, except that the payment
of
the first month of Base Monthly Rental in the amount specified in the Office
Lease Basic Information, after expiration of any Rental Abatement as provided
therein, shall be paid simultaneously with the execution of this Lease by
Tenant. Base Monthly Rental shall at all times be subject to Rental Adjustment
as provided in Paragraph 6 below.
b. It
is
acknowledged and agreed that the late payment by Tenant to Landlord of Base
Monthly Rental or any other rent, additional rent, or other sums due under
the
Lease shall cause Landlord to incur costs not contemplated by this Lease, the
exact amount of which would be extremely difficult and impractical to ascertain.
Such costs include, but are not limited to, processing, clerical and accounting
charges, lost interest, and late charges which may be imposed on Landlord by
the
terms of any security instrument. Therefore, if Landlord does not receive any
installment of Base Monthly Rental, or any other rent, additional rent, or
other
sum by the end of the 5th day following the date due, a late fee of five percent
(5%) shall be imposed upon such Base Monthly Rental, rent, additional rent,
or
other sum. In addition, at Landlord's option, all unpaid rents will accrue
interest at the rate of eighteen per centum (18%) per annum from the due date
until paid.
|
6.
|
RENTAL
ADJUSTMENT.
Tenant agrees to pay Landlord as additional rent each year beginning
after
the last day of the Base Year as stated in the Office Lease Basic
Information, on demand, Tenant's pro-rata share of all Operating
Expenses
in excess of those for the Base Year. For purposes of this Paragraph,
Tenant's share of such Operating Expenses shall equal the total amount
of
such Operating Expenses of the Building for the applicable calendar
year
less the total amount of the Operating Expenses of the Building for
the
Base Year multiplied by Tenant's Percentage Share of Space as stated
in
the Office Lease Basic Information. It is understood, and Tenant
hereby
specifically agrees, that in no event shall the Operating Expenses
for any
calendar year be calculated or deemed to equal less than those computed
for the calendar year immediately preceding. At landlord's election,
and
beginning not sooner than the first day of the first calendar month
after
expiration of (i) the Base Year (as specified in the Office Lease
Basic
Information) or (ii) Rental Abatement (whichever shall last occur),
an
amount equal to one-twelfth (1/12) of Landlord's good faith estimate
of
the additional rent due hereunder for the calendar year during which
the
(i) Base Year or (ii) Rental Abatement period expires (whichever
is later)
shall be payable each month in advance as additional rent, along
with Base
Monthly Rental, on the first day of each month of such year, with
an
adjustment to be made between Tenant and Landlord within sixty (60)
days
after the end of such year to account for any differences between
such
estimated additional rent and that actually due. If the difference
between
such estimated additional rent and that actually due results in an
amount
due Landlord from Tenant, Tenant shall pay such amount to Landlord
within
ten (10) days after notice from Landlord to Tenant, and if any such
amount
is due to Tenant from Landlord, Landlord shall apply such amount
against
Tenant's next due estimated additional rent payment. Tenant's obligation
to pay for increases in Operating Expenses as provided herein shall
survive any expiration or other termination of this
Lease.
|
5
| 7. |
SECURITY
DEPOSIT.
|
a. As
security for the faithful performance by Tenant throughout the Term (and any
renewals and extensions of the Term) of all the terms and conditions of the
Lease on the part of Tenant to be performed, Tenant has deposited with Landlord
the sum shown in the Office Lease Basic Information as the Security Deposit
(hereinafter referred to as the "Security Deposit"). Such amount shall be
returned to Tenant, without interest, within ninety (90) days after the latter
of the Term Expiration as set forth in the Office Lease Basic Information or
the
day Tenant actually vacates the Leased Premises, provided Tenant has fully
and
faithfully observed and performed all of the terms, covenants, agreements,
warranties and conditions hereof on its part to be observed and performed.
Landlord shall have at any time during the Term the right to apply all or any
part of the Security Deposit toward the cure of any default of Tenant; provided,
however, that the Security Deposit will not be a limitation on Landlord's
damages or other rights under this Lease, or a payment of liquidated damages.
If
all or any part of the Security Deposit is so applied by Landlord, then Tenant
shall immediately pay to Landlord upon demand an amount sufficient to return
the
Security Deposit to the balance on deposit with Landlord prior to said
application.
b. As
additional security for Tenant's obligation to take possession of the Leased
Premises on the date of the Term Commencement and to comply with all of Tenant's
covenants, warranties, agreements and provisions on the Term Commencement,
Tenant has herewith paid to Landlord the first month of Base Monthly Rental
as
provided in Paragraph 5 above, for purposes of application in reduction, but
not
in satisfaction, of damages which may be suffered by Landlord if Tenant fails
to
take possession or to commence the payment of Base Monthly Rental in accordance
with Tenant's obligations under this Lease. The first month's Base Monthly
Rental paid pursuant to Paragraph 5 above, as referenced in this Paragraph,
shall be applied to the first full month of Base Monthly Rental as provided
in
the Office Lease Basic Information, provided Tenant is not then in default
hereunder, subject to such additional amount which may be due from and payable
by Tenant pursuant to Paragraph 6 above.
c. In
the
event of a sale or transfer of Landlord's interest in the Leased Premises or
the
Building or a lease by Landlord of the Building, Landlord shall have the right
to transfer the Security Deposit and first month's rent to the purchaser or
lessee, as the case may be, and Landlord shall be relieved of all liability
to
tenant for the return of such amounts. Tenant shall look solely to the new
owner
or landlord for the return of the same.
d. Landlord
may commingle the Security Deposit and the first month's Base Monthly Rental
along with any other sums paid by Tenant to Landlord with other or similar
deposits made by other tenants occupants of the Building or with Landlord's
general operating funds.
e. The
Security Deposit may not be assigned or encumbered by the Tenant, and any
attempted assignment or encumbrance by the Tenant shall be null and
void.
6
|
8.
|
USE
AND OCCUPANCY. Tenant
agrees that the Leased Premises will be used only for general office
purposes and for no other purpose (unless stipulated in differently
in
Exhibit C “Special Stipulations”), that no unlawful use of the Leased
Premises will be made, and that no sign may be painted or displayed
on any
part of the Building, except that the name and business or profession
of
Tenant may be posted in an appropriate manner approved in advance
by
Landlord, in its discretion, on or adjacent to the door or doors
to the
Leased Premises. Any such sign shall be provided by Landlord, at
Tenant's
expense, payable upon demand. Tenant shall not use or occupy the
Leased
Premises in any manner which would violate any certificate of occupancy
issued for the Leased Premises, that would cause damage to the Building,
that would constitute a public or private nuisance, that would disturb
the
quiet enjoyment of other tenants of the Building, or that would violate
any law, ordinance, order, rule, regulation, or other governmental
requirement. Tenant affirmatively covenants and agrees to comply
with all
laws, ordinances, orders, rules, regulations, and any other governmental
requirements relating to the use, condition or occupancy of the Leased
Premises, and all rules, orders, regulations and requirements of
the board
of fire underwriters or insurance service office, or any other similar
body having jurisdiction over the Building. The cost of such compliance
shall be borne by Tenant. Upon the termination of this Lease, Tenant
will
vacate and surrender possession of the Leased Premises to Landlord
in as
good condition as the Leased Premises were at the commencement of
this
Lease, normal wear and tear excepted. Landlord disclaims any warranty
that
the Leased Premises are suitable for Tenant’s use and Tenant acknowledges
that it has had a full opportunity to make its own determination
in this
regard.
|
|
9.
|
UTILITIES.
So
long as Tenant is not in default under this Lease, Landlord shall
supply
electric current for the lighting fixtures as installed in the Leased
Premises, toilets, corridors, and restrooms, and for normal use by
electrically powered office machines requiring 110 volt general (but
no
dedicated) electrical lines, but Landlord shall not be responsible
for any
power failure or fluctuations. Landlord shall furnish a reasonable
amount
of hot and cold running water to lavatories and toilets in or proximate
to
the Leased Premises and shall keep all plumbing in good repair. It
is
specifically agreed that Landlord undertakes to furnish only a reasonable
amount of electric current and water and that Landlord reserves the
right
to install meters and to make extra rental charges for any consumption
of
electric current or water which it deems, in its discretion, to be
greater
than normal office use, or to be excessive or wasteful as compared
to
other office tenants in the
Building.
|
|
10.
|
HEATING
AND AIR CONDITIONING. Landlord
shall maintain and operate heating, air conditioning and ventilation
systems for all common area parts of the Building except storage
space.
The heating, air conditioning and ventilation systems shall be operated
and maintained, except on holidays and Sundays, between the hours
of 8:00
a.m. and 6:00 p.m. on weekdays and from 8:00 a.m. to 1:00 p.m. on
Saturdays.
|
| 11. |
ELEVATORS.
Landlord shall furnish non-attended elevator service (if the Building
has
such equipment serving the Leased Premises), in common with Landlord
and
other tenants and occupants and their agents and invitees, to all
occupied
floors of the Building during ordinary business hours and make a
reasonable number of elevators available for such persons as properly
enter the Building at other times.
|
|
12.
|
INTERRUPTION
OF SERVICES. Landlord
shall not be liable for damages to Tenant alleged to be caused or
occasioned by or in any way connected with or as a result of any
interruption, defect or breakdown from any cause whatever in any
of the
services herein referred to in Paragraphs 8, 9, 10 and 11 above,
or
elsewhere herein, and no actual or constructive eviction of Tenant
shall
be deemed to have occurred hereunder by virtue of any such interruption,
defect, or breakdown. However, within a reasonable period of time
after
receipt of actual written notice of any such interruption, defect
or
breakdown, Landlord will take such steps as Landlord deems reasonable
to
restore any such interrupted service or to remedy any such
defect.
|
7
| 13. |
MAINTENANCE
AND ALTERATIONS.
|
a. Any
alterations, additions or improvements permitted herein, other than the Landlord
Contribution to the Tenant Improvements as set forth in Exhibit "B" attached,
and as limited therein, shall be made at the sole expense of Tenant. Tenant
agrees that Tenant will make no alterations, additions or improvements to the
Leased Premises without the prior written consent of Landlord. Landlord may
withhold its approval, in Landlord's sole and absolute discretion, for any
alterations, additions or improvements to the Leased Premises if such
alterations, additions or improvements affect the structural components and
elements, or the electrical, plumbing or mechanical systems, of the Building.
All alterations, additions or improvements made by and for Tenant, including
but
not limited to, any and all subdividing partitions, walls or railings of
whatever type, material or height, but excepting moveable equipment, movable
office furniture or furnishings put in at the expense of Tenant, shall, when
made, be the property of Landlord and shall remain upon and be surrendered
with
the Leased Premises as a part thereof at Term Expiration or any earlier
termination of this Lease. Any moveable equipment, moveable furniture or
furnishings installed in, or removed from, the Leased Premises shall be
installed or removed without damage to the Leased Premises or the Building,
or
Tenant shall promptly repair such damage. Upon the Term Expiration or any
earlier termination of this Lease, Tenant shall remove all moveable equipment,
moveable furniture or furnishings installed in the Leased Premises, or any
such
property remaining in the Leased Premises after Term Expiration or earlier
termination shall be deemed to have been abandoned and may be removed by
Landlord at Tenant's expense. Tenant accepts the Leased Premises in its present
condition and as suited for the use and purposes contemplated by Tenant.
Landlord shall not be required to make any repairs or improvements to the Leased
Premises except as herein set forth and shall not, under any circumstances,
be
required to make any repairs necessitated by virtue of Tenant's or its agents'
or visitors' actions. Otherwise, Tenant shall keep the Leased Premises in good
order, condition and repair, including but not limited to the floors, walls,
ceilings, light fixtures, and plumbing fixtures. Any repainting, renovation
or
decoration of the Leased Premises shall be at the sole expense of Tenant. Tenant
shall keep the Leased Premises in as good a state of repair as when received,
normal wear and tear excepted. Tenant is hereby permitted to make such repairs
to the Leased Premises at its own expense that Tenant may deem advisable during
the term of this Lease and without liability on the part of Landlord that
written consent of Landlord shall first be obtained. Tenant will pay or cause
to
be paid all costs and charges for work done by it or caused to be done by it,
in
or to the Leased Premises or the Building, and for all materials furnished
for
or in connection with the work. Tenant will indemnify and hold Landlord harmless
from all liabilities, liens, claims, costs, and demands on account of such
work.
If any mechanic's, material man’s or other lien is filed against the Leased
Premises or the Building, Tenant will cause such lien to be discharged of record
within ten (10) days after the lien is filed. Nothing contained in this Lease
is
the consent or agreement of Landlord to subject Landlord's interest in the
Leased Premises or the Building to liability under any lien law. Tenant will
fully reimburse Landlord for any costs occasioned by the acts of Tenant and
paid
by Landlord, including legal fees.
b. With
respect to work by Tenant on the Initial Improvements of the Leased Premises
as
provided in Exhibit "B" of this Lease, and with respect to any alterations,
additions, improvements, renovations, repairs or decorations which Tenant may,
in the future, be permitted to make or construct in the Leased Premises, such
work by Tenant shall be subject to the following standards:
(i) Whenever,
after the Term Commencement, Tenant is permitted or required to maintain and
repair, or make additions or alterations to, the Leased Premises, Tenant shall
commence such work only after Landlord has approved the plans therefor and
any
contractor proposed by Tenant to perform the work.
8
(ii) Tenant
shall cause the work to be done and completed in a good, substantial and
xxxxxxx-like manner free from faults and defects, in compliance with all laws,
ordinances, rules and regulations, and should utilize only new materials and
supplies. Tenant shall be solely responsible for construction means, methods,
techniques, sequences and procedures, and for coordinating all activities
relating to Tenant's work, and the Landlord shall not have any duty or
obligation to inspect the work, but shall have the right to do so.
(iii)
Whenever
Tenant is required to perform any work on the Leased Premises, Tenant shall
promptly commence the work and, once commenced, diligently and continually
pursue the work and complete the work in a reasonable time. Tenant shall
supervise and direct the work utilizing its best efforts and reasonable care,
and assign qualified personnel to the work in order to cause the work to be
completed in an expeditious fashion.
(iv) Except
as
provided in Exhibit "B" with respect to Landlord's Contribution toward the
initial improvement of the Leased Premises, Tenant shall provide and pay for
all
labor, materials, goods, supplies, equipment, appliances, tools, construction
equipment and machinery and other facilities and services necessary for the
proper execution and completion of the work. Tenant shall promptly pay when
due
all costs and expenses incurred in connection with the work, and not permit
or
suffer to exist any liens against the Building. Tenant shall pay all fees and
taxes required by law in connection with the work, and procure all permits
and
licenses necessary for the performance of the work.
(v) Tenant
shall be responsible for the acts and omissions of all of its employees and
all
other persons performing any of the work. Tenant shall initiate, maintain and
supervise all necessary safety precautions and programs in connection with
the
work, and take all reasonable protection to prevent damage, injury or loss
to,
the work, all persons performing work on the Leased Premises, all other persons
who may be involved in or affected by the work, all materials and equipment
to
be incorporated in the work, and all other property on the Leased Premises
or
adjacent thereto.
(vi) Tenant
shall defend, indemnify and save Landlord and its officers, employees and agents
harmless from all liabilities, damages, losses, costs, expenses, causes of
action, suits, claims, demands and judgments of any nature arising out of,
by
reason of, or in connection with Tenant's work.
|
14.
|
RIGHT
OF ENTRY. Tenant
agrees that Landlord shall have the right to enter and to grant licenses
to enter the Leased Premises at any time, (a) to examine the Leased
Premises, (b) to make alterations and repairs to the Leased Premises
or to
the Building (including the right, during the progress of such alterations
or repairs, to keep and store within the Leased Premises all necessary
materials, tools and equipment), (c) for any purpose which Landlord
may
deem necessary for the operation and maintenance of the Building,
and (d)
to exhibit the Leased Premises to applicants for hire or prospective
purchasers or lenders. Such entry shall neither render Landlord liable
to
any claim or cause of action (or loss of or damage to the business
or
property of Tenant, by reason thereof) nor in any manner affect the
obligations and covenants of this Lease. Tenant hereby waives any
claim of
injury or inconvenience to Tenant's business, interference with Tenant's
business, loss of occupancy or quiet enjoyment of the Leased Premises,
or
any other loss occasioned by such
entry.
|
| 15. |
INSURANCE.
|
a. If,
because of anything done, caused to be done, permitted or omitted by Tenant,
the
premium rate for any kind of insurance affecting the Building shall be raised,
Tenant agrees that the amount of the increase in premium which Landlord shall
be
thereby obligated to pay for such insurance shall be paid by Tenant to Landlord
on demand as additional rent, and that upon demand of Landlord that Tenant
remedy the condition which caused the increase in the insurance premium rate,
Tenant will remedy such condition within five (5) days after such demand. Tenant
agrees that Tenant shall not do, nor cause to be done, nor permit on the Leased
Premises, anything deemed by Landlord to be hazardous.
9
b. Tenant
shall obtain and maintain during the term of this Lease comprehensive, "all
risk" general liability coverage for bodily injury and property damage insuring
against any and all liability to Tenant and Landlord arising out of the
maintenance, and occupancy of the Leased Premises with aggregate liability
limits of not less than $2,000,000.00 for injuries to or death of persons in
any
one occurrence and of not less than $500,000.00 for damage to property. Tenant
shall additionally maintain in full force and effect during the Term full
replacement cost fire and extended coverage insurance insuring Tenant's
furniture, furnishings, equipment and other personal property in and about
the
Leased Premises. Landlord and Landlord's agents shall be named insured on all
such policies, and all such policies shall provide that they cannot be cancelled
or modified without first having given Landlord fifteen (15) days written notice
thereof. All policies of liability insurance specified in this Lease shall
specifically insure Tenant's performance of the indemnity agreements contained
in this Lease. Further, Tenant shall give notice to its insurance carrier or
carriers of coverage herein required, and any waivers of liability and indemnity
agreements contained in this Lease and shall provide Landlord with a certificate
of insurance reflecting the coverage obtained. A similar certificate in form
acceptable to Landlord renewing coverage for at least one (1) year shall be
delivered to Landlord not later than thirty (30) days prior to the expiration
date of such policies.
c. At
all
times during the Term, Tenant shall procure and maintain Workers’ Compensation
Insurance in accordance with the laws of the State of Georgia.
|
16.
|
INDEMNITY.
|
a. Tenant
agrees to defend, indemnify and save harmless Landlord and the agents, servants,
invitees, licensees and employees of Landlord against and from any and all
losses, costs, damages, liabilities and claims (including attorney's fees and
expenses) by or on behalf of any person, firm or corporation arising by reason
of injury to person or property occurring in the Leased Premises or the
Building, occasioned in whole or in part by any act or omission on the part
of
Tenant or an employee (whether or not acting within the scope of employment),
agent, licensee, invitee or undertenant of Tenant, or by reason of any use
by
Tenant of the Leased Premises or any breach, violation or non-performance of
any
covenant in this Lease on the part of Tenant to be observed or performed, and
also for any matter or thing growing out of the occupancy or use of the Leased
Premises by Tenant or anyone holding through or under Tenant. If any action
or
proceeding is brought against Landlord, or Landlord's agents, servants,
invitees, licensees and employees, by reason of any such claim, Tenant shall
defend the claim at Tenant's expense with counsel reasonably satisfactory to
Landlord. Tenant agrees to pay for all damage to the Building, as well as all
damage to tenants or occupants thereof, caused by Tenant's misuse or neglect
of
said Leased Premises, its apparatus or appurtenances. Landlord shall not be
liable to Tenant for any damage by or from any act or negligence of any tenant
or other occupant of the Building or by any owner or occupant of adjoining
or
contiguous property.
|
17.
|
FIRE
OR OTHER CASUALTY. Subject
to provisions of the next sentence, Landlord agrees that if before
or
during the term of this Lease the Leased Premises shall be damaged
by fire
or other casualty, not occasioned by the act of tenant or the servants,
licensees, invitees or agents of Tenant, Landlord will cause the
Leased
Premises to be repaired with reasonable dispatch after actual notice
to it
of the damage, due allowance to be made for any delay resulting from
any
cause beyond Landlord's reasonable control; provided, however, that
Landlord shall not be required to repair or replace any property
which
Tenant may be entitled to remove or which Landlord may require Tenant
to
remove from the Leased Premises pursuant to Paragraph 13, above;
and
provided further, that during the time, if any, that the Leased Premises
are unfit for occupancy by Tenant, the Base Monthly Rental and additional
rent shall xxxxx pro rata (based upon the amount of said Leased Premises
being untenantable) without the Term Expiration of the Lease being
extended. However, if Landlord in its sole discretion decides not
to cause
the Leased Premises to be repaired and restored, Landlord may terminate
this Lease by notifying Tenant within a reasonable time after such
damage
of Landlord's election to terminate this lease, immediately if the
Term
shall not have commenced, or on a date to be specified in such notice
if
during the Term. In the event of the giving of such notice during
the
Term, this Lease shall expire and all interest of Tenant in the Leased
Premises shall terminate on the date specified in such notice, and
the
Base Monthly Rental shall be apportioned and paid up to the time
of such
fire or other casualty if the Leased Premises are damaged, or up
to the
specified date of termination if the Leased Premises are not damaged.
If
the Leased Premises is not repaired within ninety (90) days after
actual
written notice to Landlord of the casualty (or such longer period
as is
reasonable required by Landlord to repair such damage), Tenant may
terminate this Lease within fifteen (15) days by written notice to
Landlord. Tenant fully assumes the risk of any damage to all personal
property of Tenant from time to time situated in the Leased Premises.
Tenant shall have no right or claim to any part of any insurance
proceeds
made to or received by Landlord for such fire or other casualty or
against
Landlord for the value of any unexpired term of this
Lease.
|
10
| 18. |
DEFAULT. Tenant
shall be in default under this Lease upon the occurrence of any one
or
more of the following events or occurrences, each of which shall
be deemed
to be a material event of default by
Tenant;
|
(a) Landlord
does not actually receive payment of the full amount of the Base Monthly Rental
or additional rent or other rent or other payment or reimbursement due hereunder
punctually on the due date thereof;
(b) Tenant
fails to fully and punctually observe or perform any of the terms of covenants
of this Lease, other than the payment of rent, or of any of the Rules and
Regulations now or hereafter established for the governing of the Building,
and
shall not cure such failure within ten (10) days after notice to Tenant of
such
failure;
(c) Tenant
fails to take possession or occupancy of, or deserts or abandons the Leased
Premises, or the Leased Premises become vacant;
(d) Any
representation, statement, or warranty made by Tenant orally, in this Lease,
or
in any information sheet or documents furnished by Tenant or any guarantor
hereof with respect to the net worth, liabilities, assets, or financial
condition of Tenant or any guarantor hereof, or any other matters, shall be
or
prove to be untrue or misleading;
(e) Tenant
shall be in default, in the payment of rent or otherwise, under another lease
with Landlord in the Building, or
(f) The
filing or execution or occurrence of: (i) a petition by or against Tenant or
any
guarantor hereof in bankruptcy or seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any
provision of the present or any future bankruptcy act or any other present
or
future federal, state or other bankruptcy or insolvency statute or law, (ii)
adjudication of Tenant or any guarantor hereof as a bankrupt or insolvent,
or
insolvency in the bankruptcy or equity sense, (iii) an assignment by Tenant
or
any guarantor hereof for the benefit of creditors, (iv) a petition or other
proceeding by or against Tenant or any guarantor hereof for, or the appointment
of a trustee, receiver, guardian, conservator or liquidator with respect to
any
portion of Tenant or guarantor's property, (v) any levy, execution, or
attachment against Tenant or any guarantor hereof, or (vi) any transfer or
passage of any interest of Tenant under this Lease by operation of
law.
| 18.1 |
REMEDIES.
Upon
the occurrence of any one or more of the events of default listed
in
Paragraph 18, or upon the occurrence of any other default or defaults
by
Tenant under this Lease, Landlord may, at Landlord's option, without
any
demand or notice whatsoever (except as expressly required in Paragraph
18):
|
11
(i) 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,
and Tenant shall remain liable for all obligations under this Lease arising
up
to the date of such termination, and Tenant shall surrender the Leased Premises
to Landlord on the date specified in such notice; or
(ii) Terminate
this Lease as provided in Subparagraph 18.1(a) (i) hereof and recover from
Tenant all damages Landlord may incur by reason of Tenant's default, including,
without limitation, a sum which, at the date of such termination represents
the
present value (discounted at a rate equal to the then average rate for Moody's
"AAA" rated corporate bonds) of the excess, if any, of (aa) the Base Monthly
Rental and all other sums which would have been payable hereunder by Tenant
for
the period commencing with the day following the date of such termination and
ending with the date hereinbefore set for the expiration of the full term hereby
granted, over (bb) the aggregate reasonable rental value of the Leased Premises
for the same period, all of which present value of such excess sum shall be
deemed immediately due and payable; provided that, Landlord must use its best
efforts to re-lease the leased Premises, in mitigation of any damage allowed
to
Landlord hereunder; or
(iii) Without
terminating this Lease, declare immediately due and payable all Base Monthly
Rental and other rents and amounts due and coming due under this Lease for
the
entire remaining term hereof, together with all other amounts previously due,
at
once, which total amount shall be discounted to the present value (discounted
at
a rate equal to the then average rate of Moody's "AAA" rated corporate bonds);
provided, however, that such payment shall not be deemed a penalty or liquidated
damages but shall merely constitute payment in advance of rent for the remainder
of said term. Upon making such payment, Tenant shall be entitled to receive
from
Landlord all rents received by Landlord from other assignees, tenants, and
subtenants on account of said Premises during the term of this Lease, provided
that the monies to which Tenant shall so become entitled shall in no event
exceed the entire amount actually paid by Tenant to Landlord pursuant to the
preceding sentence less all costs, expenses and attorney's fees of Landlord
incurred in connection with the reletting of the Leased Premises; provided
that,
no assignment, lease or sublease by Tenant presented by tenant to Landlord
shall
be unreasonably denied; or
(iv) Without
terminating this Lease, and with or without notice to Tenant, Landlord may
in
Landlord's own name but as agent for Tenant enter into and upon take possession
of the Leased Premises or any part thereof, and, at Landlord's option, remove
persons and property therefrom, and 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 rent the Leased
Premises or any portion thereof as the agent of Tenant with or without
advertisement, and by private negotiations and for any term upon such terms
and
conditions as Landlord may deem necessary or desirable in order to relet the
Leased Premises. Landlord shall in no way be responsible or liable for any
rental concessions or any failure to rent the Leased 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: first, to the payment of any indebtedness (other than any rent
due
hereunder) from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, including, without limitation, brokerage fees and
attorney's fees and costs of alterations and repairs; third, to the payment
of
rent 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 rent as the same may become due and payable hereunder. 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 default provided the same
has not been cured; provided that, Landlord must use its best efforts to
mitigate any damage or rent allowed to Landlord hereunder; or
12
(v) Pursue
such other remedies as are available at law or equity, including, without
limitation, an action for specific performance requiring Tenant to perform
Tenant's obligations under this Lease.
b. Landlord's
pursuit of any remedy or remedies, including, without limitation, any one or
more of the remedies stated in the foregoing Subparagraph 18.1(a), shall not
(i)
constitute an election of remedies or preclude pursuit of any other remedy
or
remedies provided in this Lease or any other remedy or remedies provided by
law
or in equity, separately or concurrently or in any combination, or (ii) serve
as
the basis for any claim of actual or constructive eviction, or allow Tenant
to
withhold any payments under this Lease.
c. If
this
Lease shall terminate as a result of, or while there exists, a default
hereunder, any funds of Tenant held by Landlord may be applied by Landlord
to
any damages payable by Tenant (whether provided for herein or by law) as a
result of such termination or default.
d. Tenant
covenants and agrees that Tenant shall not interpose any counterclaim or claim
for offset or deduction in any summary proceeding brought by Landlord to recover
possession of the Leased Premises.
e. 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.
f. No
termination of this Lease prior to the normal expiration thereof, by lapse
of
time or otherwise, shall affect Landlord's right to collect rent for the period
prior to termination thereof. Tenant covenants and agrees not to vacate the
Premises or exercise any right of termination arising out of any breach by
Landlord of any provision of this Lease or the condition or state of repair
of
the Premises. No surrender of the Premises or any part thereof by delivery
of
keys or otherwise shall operate to terminate this Lease unless and until
expressly accepted in writing by a authorized officer of Landlord.
g. If
Landlord terminates this Lease or Tenant’s right to possession of the Leased
Premises, Landlord shall have no obligation to mitigate Landlord’s damages
except to the extent required by applicable law. If Landlord has not terminated
this Lease or Tenant’s right to possession of the Leased Premises, Landlord
shall have no obligation to mitigate under any circumstances and may permit
the
Leased Premises to remain vacant or abandoned. If Landlord is required to
mitigate damages as provided herein: (i) Landlord shall be required only to
use
reasonable efforts to mitigate, which shall not exceed such efforts as Landlord
generally uses to lease other space in the Building; (ii) Landlord will not
be
deemed to have failed to mitigate if Landlord or its affiliates lease any other
portions of the Building or other affiliates in the same geographic area, before
re-letting all or any portion of the Leased Premises, and (iii) any failure
to
mitigate as described herein with respect to any period of time shall only
reduce the Base Monthly Rental and other amounts to which Landlord is entitled
hereunder by the reasonable rental value of the Leased Premises during such
period.
h. The
foregoing provisions of Paragraph 18 and this Paragraph 18.1 shall apply to
any
renewal or extension of this Lease.
i. The
specific remedies to which Landlord may resort under the terms of this Lease
are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which it may be lawfully entitled in case of any breach or
threatened breach by Tenant of any provisions of this Lease.
13
| 19. |
ASSIGNMENT
AND SUBLETTING. Tenant
may not, without the prior written consent of Landlord, endorsed
hereon,
assign this Lease or any interest herein or in the Leased Premises,
or
mortgage, pledge, encumber, hypothecate or otherwise transfer or
sublet
the Leased Premises or any part thereof or permit the use, management
or
control of the Leased Premises by any party other than Tenant. Landlord’s
consent to a proposed assignment or subletting shall not be unreasonably
withheld; however, in addition to any other grounds for denial, Landlord’s
consent shall be deemed reasonably withheld if, in Landlord’s sole
discretion: (a) the proposed assignee or subtenant does not have
the
financial strength to perform its obligations under this Lease or
any
proposed sublease; (b) the business and operations of the proposed
assignee or subtenant are not of comparable quality to the business
and
operations being conducted by other tenants in the Building; (c)
the use
of the Leased Premises or the Building by the proposed assignee or
subtenant would, in Landlord’s reasonable judgment, impact the Building in
a negative manner; or (d) Tenant has failed to cure a default at
the time
Tenant requests consent to the proposed transfer or sublease. Consent
to
one or more such transfers or subleases shall not destroy or waive
this
provision, and all subsequent transfers and subleases shall likewise
be
made only upon obtaining the prior written consent of Landlord.
Sub-tenants or transferees shall become directly liable to Landlord
for
all obligations of Tenant hereunder, without relieving Tenant for
any
liability therefor, and Tenant shall remain obligated for all liability
to
Landlord arising under this Lease during the entire remaining term
of this
Lease, including any extensions, whether or not authorized herein.
If this
Lease is assigned or the Leased Premises are subleased pursuant to
the
terms of this paragraph, then the excess of any amounts of rental
and
other charges, however designated, payable by such assignee or sublessee
pursuant to the assignment or sublease over the rental and other
charges
payable by Tenant hereunder shall belong to, and shall be payable
to,
Landlord. If Tenant shall transfer or sublet this Lease or any part
of the
Leased Premises or shall request the consent of Landlord to any transfer
or sublease, Tenant shall pay to Landlord as additional rent Landlord’s
costs related thereto, including Landlord’s reasonable attorneys’ fees and
a minimum fee to Landlord of Five Hundred Dollars
($500.00).
|
|
20.
|
BUILDING
RULES AND REGULATIONS. Tenant
has read the Rules and Regulations hereto attached as Exhibit "D"
and
hereby agrees to abide by and conform to the same and to such further
reasonable rules and regulations as Landlord may from time to time
make or
adopt for the care, protection and benefit of the Building or the
general
comfort and welfare of its occupants. Tenant further agrees that
Landlord
shall have the right to waive any or all of such Rules and Regulations
in
the case of any one or more Tenants in the Building without affecting
Tenant's obligations under this Lease and said Rules and Regulations.
Landlord shall not be responsible for the non-conformance by any
other
tenant to any of said Rules and
Regulations.
|
|
21.
|
WAIVER.
No
waiver by Landlord of any violation or breach of any of the terms,
provisions or covenants herein contained shall be effective unless
in a
writing signed by Landlord's authorized representative, nor shall
any such
waiver be deemed or construed to constitute a waiver of any other
violation or breach of any other terms, provision or covenants herein
contained. Forbearance by Landlord to enforce one or more of the
remedies
herein provided upon an event of default shall not be deemed or construed
to constitute a waiver of such default. In particular, the subsequent
acceptance of rent hereunder by Landlord shall not be deemed to be
a
waiver of any preceding breach by Tenant of any covenant of agreement
of
this Lease, other than the failure of Tenant to pay the particular
rental
so accepted, regardless of Landlord's knowledge of such preceding
breach
at the time of acceptance of such rent. No payment by Tenant, nor
receipt
by Landlord, of a lesser amount than the rent, additional rent, or
other
charges and sums stipulated in this Lease will be deemed to be anything
other than a payment on account of the earliest stipulated rent.
No
endorsement or statement on any check, or any letter accompanying
any
check or payment as rent, will be deemed an accord and satisfaction.
Landlord may accept the check for payment without prejudice in Landlord's
right to recover the balance of such rent or to pursue any other
remedy
available to Landlord. If this Lease is assigned, or if the Leased
Premises or any parts thereof are sublet or occupied by anyone other
than
Tenant, Landlord may collect rent from the assignee, subtenant or
occupant
and apply the net amount collected to the rent reserved in this Lease.
That collection will not be deemed a waiver of the covenant in this
Lease
against assignment or subletting, or the acceptance of the assignee,
subtenant or occupant as a tenant, or a release of Tenant from the
complete performance by Tenant of its covenants in this
Lease.
|
14
|
22.
|
HOLDING
OVER. If
Tenant shall fail to vacate and surrender the possession of the Leased
Premises at the termination of this Lease, whether by expiration
of the
Term, default or any other basis, Landlord shall, in addition to
any and
all other rights provided herein and provided by law, and without
waiving
any such rights or extending the Term, be entitled to deem Tenant
a tenant
at sufferance and to recover from Tenant an amount equal to two (2)
times
the amount of all types of rental (including, but not limited to,
Base
Monthly Rental and all additional rent) Tenant would have paid for
the
period immediately prior to termination equal in time to the period
from
the termination of this Lease until the date said Leased Premises
are
vacated and surrendered by Tenant.
|
| 23. |
SUBORDINATION
AND ATTORNMENT.
|
a. Tenant
agrees that this Lease shall be subordinate to any security deed or mortgage
now
or hereafter encumbering the Building or any interest herein and to all advances
made or thereafter to be made upon the security thereof and to any lease now
or
hereafter made of the entire Building, and together with any renewals,
extensions, modifications, consolidations and replacements of any security
deed,
mortgage, lease, or other encumbrance or indenture. The terms of this provision
shall be self-operative and no further instrument of subordination shall be
required by any mortgagee or lessee. Tenant, however, upon request of any party
in interest, shall execute promptly such instruments or certificates as may
be
reasonable required to carry out the intent hereof, whether said requirement
is
that of Landlord or any other party in interest, including, without limitation,
mortgagees or lessees. If Tenant does not execute, acknowledge and deliver
any
such instruments or documents within twenty (20) days after written demand,
Landlord, its successors and assigns will be entitled to execute, acknowledge
and deliver such instruments or documents on behalf of Tenant as Tenant's
attorney-in-fact. Tenant hereby constitutes and irrevocably appoints Landlord
and its successors and assigns, as Tenant's attorney-in-fact to execute,
acknowledge and deliver those instruments and documents on behalf of
Tenant.
b. If
any
grantee or mortgagee elects to have this Lease superior to its security deed
or
mortgage and signifies its election in the instrument creating its lien or
by
separate recorded instrument, this Lease agreement shall be superior to such
security deed.
c. In
the
event any proceedings are brought for the foreclosure of, or in the event of
exercise of the power of sale under, any security deed or mortgage made by
Landlord covering the Building, or in the event of termination of any lease
under which Landlord may hold the same, Tenant shall automatically attorn to
the
purchaser at foreclosure or under power of sale, or to the assignee or
transferee of Landlord's interest upon such lease termination, as the case
may
be, and shall recognize such person as the Landlord under this Lease. Tenant
agrees that the institution of any suit, action or other proceeding by any
mortgagee to realize on Landlord's interest in the Building pursuant to the
powers granted to a mortgagee under its security deed or mortgage shall not,
by
operation of law or otherwise, result in the cancellation or termination of
the
obligations of Tenant hereunder. In addition, Landlord and Tenant covenant
and
agree that Landlord's right to transfer or assign Landlord's interest in and
to
the leased Premises, or any part or parts thereof, shall be unrestricted, and
that in the event of any such transfer of assignment by Landlord which includes
the Leased Premises, Landlord's obligations to Tenant hereunder shall cease
and
terminate, Tenant looking only and solely to Landlord's assignee or transferee
for performance thereof. Upon request of Landlord's assignee or transferee,
and
without cost to Landlord or the assignee or transferee, Tenant will execute,
acknowledge and deliver documents confirming the attornment. If Tenant fails
or
refuses to execute, acknowledge and deliver those documents within twenty (20)
days after written demand, the assignee or transferee will be entitled to
execute, acknowledge and deliver those documents on behalf of Tenant as Tenant's
attorney-in-fact. Tenant hereby constitutes and appoints Landlord's assignee
or
transferee as Tenant's attorney-in-fact to execute, acknowledge and deliver
those documents on behalf of Tenant.
15
|
24.
|
NOTICES.
All
notices required or permitted to be given hereunder shall be in writing
and shall be deemed given, whether actually received or not, when
deposited, postage prepaid, in the United States mail, certified,
return
receipt requested, and addressed to Landlord or Tenant at the address
set
forth in the Office Lease Basic Information or at such other address
as
either party shall have given to the other by notice as herein provided.
Tenant hereby designates and appoints as its agent to receive notice
of
all distraint and dispossessory proceedings and all other notices
required
under this Lease the person in charge of the Leased Premises at the
time
said notice is given or the person occupying the Leased Premises
at said
time, whether such person or persons represent or are employed by
Tenant
or represent or are employed by any trustee, receiver or creditor
of
Tenant; and, if no person is in charge of or occupying the Leased
Premises, then such service or notice may be made by attaching the
same in
lieu of mailing on the main entrance of the Leased
Premises.
|
|
25.
|
|
|
26.
|
EXCULPATION.
Neither
Landlord, nor any officer, director, shareholder or partner of Landlord,
shall have any personal liability with respect to any of the provisions
of
this Lease. If Landlord is in default with respect to its obligations
under this Lease, Tenant shall look solely to the equity of Landlord
in
and to the Leased Premises for satisfaction of Tenant's remedies,
if any.
It is expressly understood and agreed that Landlord's liability under
the
terms of this Lease shall in no event exceed the amount of its interest
in
and to the Leased Premises.
|
|
27.
|
ATTORNEY'S
FEES AND HOMESTEAD. If
any rent or other debt owing by Tenant to Landlord hereunder is collected
by or through an attorney at law, Tenant agrees to pay (i) an additional
amount equal to fifteen percent (15%) of all amounts, including interest
and costs, owing under his Lease as attorney's fees, and (ii) all
other
costs of collection. In addition, Tenant agrees to pay all attorney's
fees
and expenses Landlord incurs in any other litigation or negotiation
in
which Landlord shall become involved through or on account of this
Lease.
Tenant waives all homestead rights and exemptions which it may have
under
any law as against any obligation owing under this Lease. Tenant
hereby
assigns to Landlord any homestead and exemption to which it might
be
entitled.
|
16
|
28.
|
ENTIRE
AGREEMENT. This
Lease contains the entire agreement of the parties, and no representations
or agreement, oral or otherwise between the parties not embodied
herein
regarding the subject matter hereof, shall be of any force or effect.
No
failure of Landlord to exercise any power given Landlord hereunder,
or to
insist upon strict compliance by Tenant of any obligation hereunder,
and
no custom or practice at variance with the terms hereof, shall constitute
a waiver of Landlord's right to demand exact compliance with terms
hereof.
|
| 29. |
TIME.
Time
is of the essence in this
Agreement.
|
|
30.
|
INTEREST
CONVEYED. This
Agreement shall create only the relationship of Landlord and Tenant
between the parties hereto; no estate shall pass out of Landlord,
and
Tenant has only a usufruct, not subject to levy and
sale.
|
|
31.
|
SURRENDER
OF PREMISES. At
termination of this Lease, Tenant shall surrender the Leased Premises,
and
the keys thereto, to Landlord in the same condition as the Leased
Premises
were at the Term Commencement, natural wear and tear only excepted.
Tenant
will fully repair any damage occasioned by Tenant's removal of moveable
equipment, moveable office furniture or furnishings. Tenant's obligations
under this paragraph shall survive termination of this
Lease.
|
|
32.
|
PARTIES.
"Landlord"
as used in this Lease shall include the first party, its assigns
and
successors in title to the Leased Premises. "Tenant" shall include
its
heirs, representatives and successors in title, and shall also include
Tenant's assignees and sublessees, if this Lease shall be validly
assigned
or sublet. "Landlord" and "Tenant" shall include the male and female,
singular or plural, corporation, partnership or individual, as may
fit the
particular parities. Landlord reserves the right to designate other
agents
or offices to collect the rents and monies due Landlord under this
Lease.
|
|
33.
|
SEVERABILITY.
If
any term, covenant or condition of this Lease or the application
thereof
to any person or circumstance shall, to any extent, be invalid or
unenforceable, neither the remainder of this Lease nor the application
of
such term, covenant or condition to any other person or circumstance
shall
be affected thereby; and each term, covenant or condition of this
Lease
shall be valid and enforceable to the fullest extent permitted by
law.
|
|
34.
|
CAPTIONS.
The
captions used herein are for convenience of reference only, are not
a part
of this Lease and shall have no effect upon the construction of
interpretation of any part hereof.
|
|
35.
|
ESTOPPEL
CERTIFICATE. At
any time, and from time to time, Tenant shall execute, acknowledge
and
deliver to Landlord, within ten (10) days of such request by Landlord,
a
certificate certifying (a) that this Lease is unmodified and in full
force
and effect (or, if there have been modifications, that this Lease
is in
full force and effect, as modified, and stating the date and nature
of
each modification); (b) the date, if any, to which rental and other
sums
payable hereunder have been paid; (c) that no notice has been received
by
Tenant of any default which has not been cured, except as to defaults
specified in said certificate, and (d) such other matters as may
reasonably be requested by Landlord. Any such certificate may be
relied
upon by an prospective purchaser, lender, grantee, mortgagee or
beneficiary under any deed of trust of the Building or any part
thereof.
|
17
|
36.
|
PERSONALTY
OF TENANT. Tenant
waives and releases any rights or claims against Landlord, and Landlord's
employees, agents, servants and licensees, on account of any loss
or
damage to Tenant's property, business or persons, and the Leased
Premises
or its contents, including but not limited to (a) any loss caused
by the
condition of the Leased Premises or the Building, the condition or
operation of or defects in any equipment, machinery or utility systems
located therein or the act or omission of any person or persons,
except
loss caused directly by or due to the gross negligence or willful
misconduct of Landlord, its employees or agents (provided that Landlord
shall not be liable for any acts of its employees or agents which
are
outside their scope of employment); (b) theft, mysterious disappearance
or
loss of or in any property of the Leased Premises of the Building;
(c) any
interference or disturbance by third parties, including, without
limitation, other tenants; (d) any loss or damage occasioned by acts
of
God or any other events beyond Landlord's control; and (e) all other
matters for which Landlord has disclaimed liability under this Lease.
Without in any way limiting the foregoing sentence, Tenant hereby
waives
all rights of recovery, claims, actions or causes of action against
Landlord, and its employees, agents, servants and licensees for any
loss
or damage (including consequential damages) due to causes or perils
which
are or could be insured against under the terms of the full replacement
cost fire and extended coverage insurance policies required to be
maintained by Tenant for Tenant's personal property in or about the
Leased
Premises, regardless of cause or origin (including the negligence
of
Landlord, and Landlord's employees, agents, servants and licensees),
and
regardless of whether such insurance policies are actually carried
or
maintained.
|
|
37.
|
QUIET
ENJOYMENT. Landlord
hereby covenants and agrees that if Tenant shall perform all the
covenants
and agreements herein stipulated to be performed on Tenant's part
and so
long as no event of default (or event which with the giving of notice
or
passage of time or both could become an event of default) exists
hereunder, Tenant shall at all times during the continuance hereof
have
the peaceable and quiet enjoyment and possession of the Leased Premises
without any hindrance from Landlord or any person or persons lawfully
claiming the Leased Premises.
|
|
38.
|
CORPORATE
AUTHORITY.
|
a. Tenant
signs as a corporation or partnership, each person executing this Lease on
behalf of Tenant does hereby personally covenant and warrant that Tenant is
a
duly authorized and existing corporation or partnership, that Tenant has and
is
qualified to do business and is in good standing in the State of Georgia, that
the corporation or partnership has full right and authority to enter into this
Lease and that each person signing on behalf of the corporation or partnership
is authorized to do so.
b. Landlord
represents and warrants to Tenant that it is the owner of the Building and
has
the authority and has been authorized to make and enter into this
Lease.
|
39.
|
EMINENT
DOMAIN. If
more than fifteen percent (15%) of the Net Rentable Area of the Leased
Premises shall be conveyed to or taken by any authorized entity under
threat of or by eminent domain, this Lease shall terminate as of
the date
when possession thereof is surrendered by Tenant and all rights of
Tenant
in this lease shall immediately cease and terminate. If fifteen percent
(15%) or less of the occupiable area of the Leased Premises shall
be so
conveyed or taken, the rental for the Leased Premises shall be
proportionately abated. In any event, Tenant shall have no right
or claim
to any part of any award made to or received by Landlord for such
taking
or against Landlord for the value of any unexpired term of this
Lease.
|
|
40.
|
GOVERNMENTAL
REGULATIONS. If
Landlord shall be required by any governmental authority to repair,
alter,
remove, construct, reconstruct or improve any part or all of the
Leased
Premises of the Building in order to maintain the Building as an
office
building, such action shall be made by and at Landlord's expense
but shall
not in any way affect Tenant's obligations under this Lease; and
Tenant
waives all claims for injury, damage or abatement of rent because
of such
repair, alteration, removal, construction, reconstruction or improvement;
provided, however, if such action by Landlord shall render the premises
untenantable and if Landlord cannot complete such acts within sixty
(60)
days after notice to it to perform such acts by the governmental
authority, either Landlord or Tenant, upon written notice to the
other,
delivered not later than seventy (70) days after the date of notice
to
Landlord by such governmental authority, may terminate this Lease,
in
which event rent shall be apportioned and paid up to and including
the
date the Leased Premises become untenantable if terminated by Landlord,
but up to and including the date of termination or the date Tenant
surrenders and vacates the Leased Premises, whichever is later, if
terminated by Tenant. If any such repairs, alterations, removal,
construction, reconstruction or improvement shall be required by
reason of
Tenant's use or occupancy for any purpose other than that set forth
in
Paragraph 7 hereof, then such action shall be solely by and at Tenant's
expense.
|
18
|
41.
|
NO
OFFER. The
submission of this Lease to Tenant is not an offer to Lease the Leased
Premises, or an agreement by Landlord to reserve the Leased Premises
for
Tenant. Landlord will not be bound to Tenant until Tenant has duly
executed and delivered duplicate original leases to Landlord and
Landlord
has duly executed and delivered one of those duplicate leases to
Tenant.
|
|
42.
|
NO
RECORDATION. Tenant's
recordation of the Lease or any memorandum or short form of it is
forbidden, and shall be void and considered an event of default under
this
Lease.
|
|
43.
|
NO
MERGER. The
surrender of this Lease by Tenant or the cancellation of this Lease
by
agreement of Tenant and Landlord or the termination of this Lease
on
account of Tenant's default will not work a merger, and will, at
Landlord's option, terminate any subleases of part or all of the
Leased
Premises or operate as an assignment to Landlord of any of those
subleases. Landlord's option under this paragraph will be exercised
by
notice to Tenant and all known subtenants in the Leased
Premises.
|
|
44.
|
AMENDMENTS.
This
Lease can only be amended by a written document signed by Landlord
and
Tenant.
|
|
45.
|
NO
CONSTRUCTION AGAINST PREPARER OF LEASE. This
Lease has been prepared by Landlord and its professional advisers,
and
reviewed by Tenant and its professional advisers. Landlord, Tenant
and
their advisers believe that this Lease is the product of all their
efforts, that it expresses their agreement, and that it should not
be
interpreted in favor of either Landlord or Tenant or against either
Landlord or Tenant merely because of their efforts in preparing
it.
|
|
46.
|
WAIVER
OF JURY TRIAL. Landlord
and Tenant waive trial by jury in any action, proceeding or counterclaim
brought by either of them against the other on all matters arising
out of
this Lease or the use and occupancy of the Leased Premises (except
for
claims for personal injury or property damage). If Landlord commences
any
summary proceedings for nonpayment of Base Monthly Rental, rent,
or
additional rent, Tenant will not interpose (and waives the right
to
interpose) any counterclaim in any such
proceeding.
|
|
47.
|
BINDING
EFFECT. This
Lease will inure to the benefit of, and will be binding upon, the
heirs,
successors, personal representatives and permitted assigns of Landlord
and
Tenant.
|
|
48.
|
EXHIBITS.
The
exhibits and addenda described herein and in the Office Lease Basic
Information and attached to this Lease are by this reference made
a part
hereof.
|
19
|
49.
|
|
50.
|
NO
COUNTERCLAIM.
It
is mutually agreed that in the event Landlord commences any summary
proceeding for non-payment of Monthly Base Rental, Tenant will not
interpose any counterclaim of whatever nature or description in any
such
proceeding.
|
| 51. |
FORCE
MAJEURE. Landlord
shall incur no liability to Tenant with respect to, and shall not
be
responsible for any failure to perform, any of Landlord’s obligations
hereunder if such failure is caused by any reason beyond the control
of
Landlord including, but not limited to, strike, labor disputes,
governmental rule, regulations, ordinance, statute or interpretation,
or
by fire, earthquake, civil commotion, or failure or disruption of
utility
services. The amount of time for Landlord to perform any of Landlord’s
obligations shall be extended by the amount of time Landlord is delayed
in
performing such obligation by reason of any force majeure occurrence
whether similar to or different from the foregoing types of
occurrences.
|
|
52.
|
SURVIVAL
OF OBLIGATIONS.
Any obligations of Tenant accruing prior to the expiration of the
Lease
shall survive the expiration or earlier termination of the Lease,
and
Tenant shall promptly perform all such obligations whether or not
this
Lease has expired or been
terminated.
|
|
53.
|
JOINT
AND SEVERAL LIABILITY.
If
Tenant comprises more than on person or entity, or if this Lease
is
guaranteed by any party, all such persons shall be jointly and severally
liable for payment of rents and the performance of Tenant’s obligations
hereunder.
|
|
54.
|
RIGHTS
RESERVED.
Except as otherwise expressly provided for to the contrary in this
Lease,
Landlord reserves the right, exercisable without notice and without
being
deemed an eviction or disturbance of Tenant’s use or possession of the
Premises, to maintain, alter, repair, market, and perform any other
action
with respect to the Leased Premises and to the Building as Landlord,
in
Landlord’s sole discretion, deems
appropriate.
|
| 55. |
SPECIAL
STIPULATIONS. If
the Special Stipulations attached as Exhibit “C” conflict with any of the
provisions of this Lease, the Special Stipulations shall be deemed
to
control.
|
IN
WITNESS WHEREOF, the parties hereto have set forth their hands and seals and
duly executed and delivered this Lease as of the day and year first above
written.
As
to
Tenant:
Signed,
sealed and delivered in the presence of:
WINSONIC
DIGITAL MEDIAL GROUP, LTD
| By: /s/ Xxxxxxx X. Xxxxxxx | /s/ Xxxxxx Xxxxxx | ||
|
Xx.
Xxxxxxx X. Xxxxxxx
|
Witness |
||
| Title: Founder, Chairman |
As
to
Landlord:
Signed,
sealed and delivered in the presence of
BANK
BUILDING LIMITED PARTNERSHIP, LLC, a Georgia Partnership
By:
Ultima Marietta Holdings Ltd, General partner
| By: /s/ Xxxxxx Xxxxx | /s/ Xxxxxxx Xxxxxxx | ||
|
Xxxxxx
Xxxxx
|
Witness |
||
|
Title: Attorney
in Fact
|
20
EXHIBIT
“A”
LEASED
PREMISES
21
EXHIBIT
“B”
INITIAL
IMPROVEMENTS OF PREMISES
Landlord
shall provide Tenant with an improvement allowance of $123,000.00 (“TI”). The TI
shall be paid directly to Tenant upon receipt of all invoices, final lien
waivers, and Certificate of Occupancy (if required). Any TI amount that is
unused after May 1, 2008, as long as Tenant is not in default, may be applied
as
base monthly rental credit at Tenant’s sole option.
22
EXHIBIT
“C”
SPECIAL
STIPULATIONS
In
the
event of any conflict between these Special Stipulations and the other terms
and
conditions of the Lease, the provisions of these Special Stipulations shall
control.
| 1. |
PREMISES: Tenant
shall accept the Leased Premises in "as is, where is" condition,
and
Landlord shall have no obligation or responsibility whatsoever to
make any
improvements or modifications to the Leased Premises other than those
provided for in Exhibit "B", Initial Improvements. Any and all other
such
improvements and modifications shall be at the sole cost and expense
of
Tenant and shall be subject to the prior written approval of
Landlord.
|
| 2. |
USE: The
Premises may be used and occupied by Tenant for a telecommunications
operation and purposes incidental thereto, including general office
purposes and the installation, construction, operation, maintenance
and
repair, including the addition and removal, from time to time, of
transmitting equipment, switching equipment, battery, UPS and other
ancillary equipment.
|
Landlord
hereby consents to the use of the Premises by Tenant for the purposes mentioned
above. By way of example and not of limitation, Tenant, at Tenant’s sole
cost:
|
(a)
|
May
install and shall maintain special equipment, including existing
special
equipment, in the Premise to provide the climate conditions necessary
to
operate Tenant's equipment and other equipment and items.
|
|
(b)
|
Shall
service and maintain equipment, cables, battery, UPS, conduit, wave
guides
installed by Tenant or left by previous
Tenant.
|
|
(c)
|
May
Install and maintain, in the manner and locations approved by Landlord,
coaxial and telephone cable to connect Tenant's equipment to the
appropriate hook-ups for same in the
Building.
|
|
(d)
|
May
Interconnect its equipment with any other telecommunications carrier
located within the building.
|
| 3. |
ELECTRICAL
AND TELEPHONE USE: Tenant
acknowledges the Base Rent does not include any charge for electricity
used by Tenant in connection with the Premises. Tenant shall arrange
to
obtain electricity directly from the public utility company servicing
the
Building (Landlord agrees to reasonably cooperate with and provide
access
for such arrangements) and the cost of all electricity used by Tenant
shall be registered through Tenant's own meters. Unless such meters
are
not available through public utility Company, then Landlord’s shall
install meters at Tenant’s expense and read/xxxx the Tenant on a monthly
basis. All meters, panel boards, feeders, and other conductors and
equipment to obtain electricity for the Premises shall be installed
by
Tenant at Tenant's expense. Landlord shall not be responsible in
any way
for any interruption, curtailment or failure or defect in supply
of
electricity furnished to the Premises by reason of any requirement,
act or
omission of any public utility company, or for any other reason.
|
23
Landlord
shall not be obligated to provide additional electrical facilities or capacity
to Tenant at any time, but Landlord shall not take away any of the capacity
existing on the date of this Lease, and Landlord agrees that Tenant may add
any
facilities or capacities that Tenant reasonably determines is advisable or
necessary.
| 4. |
TENANT”S
WATER USEAGE. Landlord
and Tenant agree that the Premises shall be furnished with water
on a 24
hour a day, seven day a week basis, however no water will be furnished
to
supply coolers or HVAC equipment utilized to cool or heat the
premises.
|
| 5. |
ASSIGNMENT
AND SUBLEASING. Anything
in Section 19 of the Lease to the contrary notwithstanding, Tenant
shall
have the right to assign without Landlord's consent, this Lease or
sublet
all or any portion of the Premises to any affiliate of Tenant, and
Tenant
shall have the right to sublet any portion (but not all) of the Premises
to any person or entity without Landlord's consent. "Affiliate" means
any
person or entity controlled by, under common control with, or controlling
directly or indirectly, Tenant. No such subleasing shall release
or
relieve Tenant from its obligation to fully perform all of the terms,
covenants and conditions of this Lease on its part to be performed.
Tenant
shall also have the right to assign without Landlord's consent this
Lease
to the successor of all of the business and assets of Tenant, if
successor's net worth is equal or greater than that of Tenant at
time of
execution of this Lease, regardless of the form of the transaction
and
upon such assignment and assumption of Tenant's obligation under
this
Lease by successor, Tenant shall be released from all future obligations
under this Lease. In the event of any such assignment or subletting,
Tenant shall provide written notice to Landlord of such assignment
or
subletting not less than ten (10) days prior to the effective date
of such
assignment or sublease.
|
| 6. |
RENEWAL
OPTION: Provided
that no Event of Default is then outstanding under this Lease, and
subject
to the terms and conditions set forth below, Tenant shall have the
option
("Renewal Option") to extend the term of this Lease for ONE (1)
consecutive five (5) year period (such period is referred to herein
as a
"Renewal Period") upon the terms and conditions of this Lease except
as
otherwise set forth to the contrary in this Lease, and except that
the
Base Rent in effect for the Premises (including any and all expansion
space, as hereinafter defined, and other space which may have become
part
of the Premises) during the Renewal Period shall be at the then Prevailing
Market Rate (as hereinafter defined and established). In the event
Tenant
desires to exercise any renewal Option, Tenant shall notify Landlord
in
writing of its exercise of said Renewal Option on or before 180 days
prior
to the expiration of the then current term of this Lease. Unless
Tenant
shall notify Landlord on or before the date(s) set forth herein for
Tenant's exercise of said Renewal Option, the Renewal Period and
the
Option described herein shall thereupon terminate and Tenant shall
have no
further rights under this Lease to renew the term hereof. In the
event the
Renewal Option is exercised properly by Tenant hereunder, the Prevailing
Market Rate shall be reasonably determined by Landlord and Tenant
by
mutual agreement and if Landlord and Tenant cannot agree upon the
Prevailing Market Rate within thirty (30) business days of Landlord's
receipt of Tenant's notice, the Renewal Option shall lapse and the
parties
shall continue to be governed by the remaining terms and condition
of this
Lease during the then term of this Lease and in no event shall Tenant
have
any further right to renew this Lease with respect to the Premises,
or any
part thereof. Landlord and Tenant do hereby irrevocably waive their
respective rights, if any, arising under this Lease, or otherwise,
to have
the Prevailing Market Rate determined by arbitration, mediation,
judicial
or other proceeding. "Prevailing Market Rate" shall mean the annual
base
rental rate per square foot of rentable area then being charged for
office
space in similar buildings in the downtown Atlanta area which are
of
similar quality to the Premises (taking into consideration, but not
limited to, improvements then provided or not required to be provided
in
the case of a renewal, allowances or concessions such as abatements,
lease
assumptions, moving allowances, etc., relative operating expenses,
and the
length of term of lease).
|
24
|
7.
|
HAZARDOUS
SUBSTANCES. Tenant
agrees not to cause any Hazardous Material (as hereinafter defined)
to be
installed, brought, kept, used, stored, or discharged on, about,
over or
under the Premises or the Building except generator fuel and normal
office, cleaning and maintenance supplies, Tenant shall not be responsible
in any way for any Hazardous Material installed, brought, kept, used,
stored, or discharged on, about, over or under the Premises or the
Building by Landlord or any employee, contractor, agent or representative
of Landlord or other Tenant. For purposes hereof, the term "Hazardous
Material" shall include, without limitation, any substances defined
as
"Hazardous Waste", "Hazardous Substances", "Hazardous Materials",
or
"Toxic Substances" by the Resource Conservation and Recovery Act
of 1976,
as amended from time to time, or the regulations promulgated thereunder,
the Comprehensive Environmental Response, Compensation and Liability
Act
of 1980, as amended from time to time, or the regulation promulgated
thereunder, or any other federal, state or local statute, law, ordinance,
code, rule, regulation, order, decree or other requirement of any
governmental authority, having jurisdiction over the Premises and/or
the
Building which regulates or imposes liability or standards at any
time
hereafter effect (collectively, the "Environmental Laws"). Notwithstanding
the foregoing, Tenant may store and use on the Premises materials
and
substances customarily used in a business such as that of Tenant,
provided
that Tenant shall do so in accordance with applicable law. Tenant
covenants, at its cost and expense, to protect, indemnify, defend,
and
save Landlord harmless against and from any and all damages, losses,
liability, obligations, penalties, claims, litigation, demands, defenses,
judgments, suits, proceedings, costs or expenses of any kind or nature
(including, without limitation, reasonable attorney's fees and experts'
fees) with may at any time may be imposed upon, incurred by or asserted
or
awarded against Landlord arising from or out of any hazardous substance
on, in, under, or affecting the Premises, the Building or any part
thereof
as a result of any act or omission by Tenant, permitted sublessees,
or
licensee of Tenant or other person or entity acting at the direction
of
Tenant, other than an employee, agent, contractor, or representative
of
Landlord. Landlord is responsible for controlling and abating any
asbestos
or other hazardous material presently in the Building and Premises.
|
| 8. |
APPROVAL
OF PLANS & SPECIFICATIONS: Landlord
understands, acknowledges and agrees to Tenant's layout requirements
(subject to approval of plans and specifications), which shall be
at the
sole cost of Tenant.
|
|
(A)
|
Tenant
shall have access to service elevator to bring equipment into the
Premises
(schedule use with front office);
and
|
|
(B)
|
Tenant's
ability to extend conduits to other tenants on other floors. Each
installation will require and be in accordance to the license agreement
attached hereto as Exhibit "G".
|
Landlord's
approval of plans and specification (which will not be unreasonably withheld,
conditioner or delayed) will address the construction contract, insurance,
contractor, procedures, method of installation and routes of conduit outside
of
the Premises. Notwithstanding anything to the contrary in the Lease, Tenant
shall be entitled to remove all of its equipment and certain improvements
including without limitation, all items listed in this Paragraph, subject to
the
provisions in Paragraph 13A of the Lease
25
Movable
furniture, fixtures, and equipment, furnishings, and other movable equipment
not
attached to the premises including computer and electronic equipment,
telecommunications cables installed by the Tenant between Tenant Premises and
the roof antennas, if any, used by Tenant.
The
following items of equipment shall be considered attached to the Premises and
other portions of the Building in case of conduits and shall not be removable
by
Tenant, and shall become the property of the Landlord, at the end of the Lease
term, provided, however that the same shall be subject to the removal provisions
in Paragraph 13A of the Lease. The Attached equipment, if existing or will
be
existing, is as follows:
Electrical
conduits, telecom conduits, electrical switch panels, and electrical control
devices (excluding uninterruptible power supplies), all fire control safety
systems and security systems, the emergency power generator and housing and
related equipment including the fuel storage tank, housing and related fuel
delivery piping system and the steel frames that all roof mounted equipment
are
mounted on and all environmental temperature control equipment in the Premises
as well as on the roof.
| (C) | Tenants shall have access to the floors above and below the Premises for the purpose of installing its equipment and related electrical and communications lines. |
|
(D)
|
Tenant
shall, at Tenant’s sole cost, connect the heat and fire detection alarms
of its fire suppression system to Landlord’s existing life safety and
alarm system per applicable code if
required.
|
| 12. |
MAINTENANCE
OF EQUIPMENT: Tenant
shall maintain and be solely responsible for all the equipment associated
within the Premises as well as any Telecom, generator, water condenser
equipment on the roof or other parts of the building that is associated
with the Premises. Tenant shall provide Landlord with all copies
of all
inspections, testing and maintenance reports of its equipment that
are
required by all codes including but not limited to NFPA 72, NFPA
2001,
NFPA 25, NFPA 13, NFPA Life Safety 101, State of Georgia 120-3-20
and
120-3-3 and any other applicable codes required by Federal, State
and
local authorities.
|
| 13. |
INTERCONNECTION
RIGHTS: Landlord
hereby acknowledges that the business to be conducted by Tenant in
the
Premises requires the installation of certain equipment owned by
its
customers and co-locators of Tenant in order for such customers and
co-locators to interconnect with Tenant’s telecommunications facilities.
Notwithstanding anything to the contrary provided herein, Landlord
expressly agrees that Tenant may license the use of up to Ninety-five
(95%) of the premises to its customers and co-locators for such purposes
without Landlord’s consent. Landlord may require that said customers and
co-locators provide evidence of appropriate property and general
liability
insurance covering their operations and naming Landlord as an additional
insured under any such policy. In addition, Tenant shall have unrestricted
access to any and all telecommunications carriers and related
telecommunications facilities within the Building to interconnect
such
carriers and facilities with Tenant’s equipment, subject only to
Landlord’s approval of the conduit placement, which approval shall not be
unreasonably withheld or delayed.
|
| 14. |
FLOOR
LOAD: Tenant
shall not overload the floors in the Premises, nor shall Tenant install
any heavy business machines or any safes or heavy equipment of any
kind in
the Premises other than Telecom switches and related equipment, a
generator, power systems, and fire suppression equipment, without
prior
written consent of the Landlord, which consent shall not be unreasonably
withheld. Additionally, Landlord may require stamped structural
engineering plans for approval of location of
equipment.
|
| 15. |
PARKING: Parking
is available is available in the building at a rate of $95 per month
(subject to change) and available on a first come, first serve basis.
Tenants at 55 Marietta shall receive priority over outside parkers.
The
standard hours of operation for the garage are Monday thru Friday
from
7:00 AM - 7:00 PM (subject to change). A garage opener may be purchased
for a one time fee of $40.00 for twenty-four hour
access.
|
26
EXHIBIT
"D"
RULES
AND REGULATIONS
The
sidewalks, halls, passages, exits, entrances, shopping malls, elevators,
escalators and stairways of the Building and Complex shall not be obstructed
by
any of the Tenants or used by them for any purpose other than for ingress to
and
egress from the respective premises. The halls, passages, exits, entrances,
shopping malls, elevators, escalators and stairways are not for the general
public, and Landlord shall in all cases retain the right to control and prevent
access thereto of all persons whose presence in the judgment of Landlord would
be prejudicial to the safety, character, reputation and interests of the
Building and its Tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom any Tenant normally deals
in the ordinary course of its business, unless such persons are engaged in
illegal activities. No Tenant and no employee or invitee of any Tenant shall
go
upon the roof of the Building except such roof or portion thereof any may be
contiguous to the premises of a particular Tenant, and may be designated in
writing by Landlord as a roof deck or roof garden area.
No
sign,
placard, picture, name, advertisement or notice visible from the exterior of
any
Tenant's premises shall be inscribed, painted, affixed or otherwise displayed
by
any Tenant on any part of the inside or outside of the Building without the
prior written consent of Landlord. Landlord will adopt and furnish to Tenant
general guidelines relating to signs inside the Building on the office floors.
Tenant agrees to conform to such guidelines, but may request approval of
Landlord for modifications, which approval will not be unreasonably withheld.
All approved signs or lettering on doors shall be printed, painted, affixed
or
inscribed at the expense of the Tenant by a person approved by Landlord, which
approval will not be unreasonably withheld. Material visible from outside the
Building will not be permitted.
The
premises shall not be used for the storage of merchandise held for sale to
the
general public or for loading. No cooking or related activities shall be done
or
permitted by any Tenant on the premises, except that use by the Tenant of
Underwriters' Laboratory approved equipment for cooking and cleaning dishes
shall be permitted, provided that such use is in accordance with all applicable
federal, state and city laws, codes, ordinances, rules and regulations, and
provided such equipment and the use thereof are approved by Landlord, which
approval will not be unreasonably withheld.
No
Tenant
shall employ any person or persons other than the janitors of Landlord for
the
purpose of cleaning the premises, unless otherwise agreed to by Landlord in
writing. Except with the written consent of Landlord, no person or persons
other
than those approved by Landlord shall be permitted to enter the Building for
the
purpose other than those approved by Landlord shall be permitted to enter the
Building for the purpose of cleaning the same. No Tenant shall cause any
unnecessary labor by reason of such Tenant's carelessness or indifference in
the
preservation of good order and cleanliness. Janitorial service will not be
furnished on nights when premises are occupied after 9:30 p.m., unless by
agreement in writing, janitorial service is extended to a later hour for
specifically designated premises.
No
animals, birds, bicycles or other vehicles shall be allowed in the
Building.
Landlord
will furnish each Tenant free of charge with two keys to each door lock in
the
premises. Landlord may make a reasonable charge for any additional keys. No
Tenant shall, under any circumstances, have any keys made. No Tenant shall
alter
any lock or install a new or additional lock or any bolt on any door of its
premises without the prior written consent of Landlord. Tenant shall in each
case furnish Landlord with a key for any such lock. Each Tenant, upon the
termination of its tenancy, shall deliver to Landlord all keys to doors in
the
Building.
27
Sales,
furniture, boxes or other bulky articles shall be carried up into the premises
or removed from the premises only with the written consent of the Landlord
first
obtained and then only subject to such reasonable scheduling as Landlord in
its
discretion shall deem appropriate. The persons employed to move such personal
property in or out of the Building must be acceptable to Landlord. Landlord
shall have the right to prescribe the weight, size and position of all
equipment, materials, furniture or other property brought into the Building.
Heavy objects shall, if considered necessary by Landlord, stand on wood strips
of such thickness as is necessary to properly distribute the weight. Landlord
will not be responsible for loss of or damage to any such property from any
cause. All damage done to the Building by moving or maintaining such property
shall be repaired at the expense of Tenant. Safes and other heavy articles
shall
be placed by the Tenant in such places only as may be specified in writing
by
the Landlord, and any damage done to the Building or to Tenants, or to other
persons by taking a safe or other heavy articles in or out of the Building,
from
overloading a floor, or in any other manner, shall be paid for by the
Tenant.
No
Tenant
shall use or keep in the premises or the Building any oil, kerosene, gasoline
or
other inflammable or combustible fluid or any other material or article deemed
extra hazardous, other than limited quantities thereof reasonably necessary
for
the operation or maintenance of office equipment. No Tenant shall without
Landlord's prior written approval use any method of heating or air conditioning
other than that supplied by Landlord. No Tenant shall use or keep or permit
to
be used or kept any foul or noxious gas or substance in the premises, or permit
or suffer the premises to be occupied or used in manner offensive or
objectionable to Landlord or other Tenants or occupants of the Building by
reason of noise, odors or vibrations, or interfere in any way with other Tenants
or those having business in the Building. No Tenant shall put up or operate
any
steam engine, boiler or machinery in the premises, or carry on any mechanical
business therein.
Landlord
shall have the right exercisable without notice and without liability to any
Tenant, to change the name and street address of the Building.
Landlord
reserves the right to exclude form the Building between the hours of 6:00 p.m.
and 7:00 a.m. and at all hours on Sundays, legal holidays and after 1:00 p.m.
on
Saturdays all persons who do not sign in and out on a register in the lobby
of
the Building showing the name of the person, the premises visited and the time
of arrival and departure. All such persons entering or leaving the Building
during such times may be expected to be questioned by the Building security
personnel as to their business in the Building. Landlord shall in no case be
liable for damages for any error with regard to the admission to or exclusion
from the Building of any person. In the case of invasion, mob, riot, public
excitement or other circumstances rendering such action advisable in the
Landlord's opinion, Landlord reserves the right to prevent access to the
Building during the continuance of the same by such action as Landlord may
deem
appropriate including closing doors. The building front door locks down nightly
at 7:00 PM. Entrance can be gained through a swipe card or ringing security
at
the front desk. We will provide two swipe cards per Tenant free of charge.
Each
additional card is $5.00. Please report lost or stolen card
immediately.
Landlord
will maintain a directory for the Building which shall display the name and
location of the Tenant. Landlord will post on the directory one name to be
designated by the Tenant at no charge. All additional names which Tenant shall
desire put upon said directory must be first consented to by Landlord and if
so
approved a charge will be made for such additional listing as prescribed by
Landlord to be paid to Landlord by Tenant.
No
curtains, draperies, blinds, shutters, shades, screens or other coverings,
hanging or decorations shall be attached to, hung or placed in or used in
connection with any window of the Building without the prior written consent
of
Landlord. In any event, with the prior written consent of Landlord such items
shall be installed on the office side of Tenant's standard window covering
and
shall in no way be visible from the exterior of the Building. No awnings over
or
outside of the windows shall be permitted. The floors, skylights and windows
that reflect or admit light into any place in the Building shall not be covered
or obstructed by Tenant.
28
Each
Tenant shall see that the doors of its premises are closed and locked and that
all water faucets, water apparatus and utilities are shut or turned off before
Tenant or Tenant's employees leave the premises, so as to prevent waste or
damage, and for any default or carelessness in this regard. Tenant shall make
good all injuries or damages sustained by other Tenants or occupants of the
Building or Landlord. On multiple-tenancy floors, all Tenants shall keep the
doors to the Building corridors closed at all times except for ingress and
egress.
All
Tenants and occupants shall observe strict care not to leave their windows
open
when it rains or snows or while air conditioning or heating systems are in
operation, and for any fault or carelessness in any of these respects, shall
make good any injury sustained by other Tenants, and to Landlord for damage
to
paint, plastering or other parts of the Building, resulting from such default
or
carelessness. No painting shall be done, nor shall any alterations be made
to
any part of the Building by pulling up or changing any partitions, doors or
windows nor shall there be any nailing, boring or screwing into the woodwork
or
plastering nor shall any connection be made to the electric wires or gas or
electric fixtures, without the consent in writing on each occasion of Landlord
or its agent. All glass locks and trimmings in or upon the doors and windows
of
the Building shall be kept whole and when any part thereof shall be broken,
the
same shall be immediately replaced or repaired and put in order under the
direction and to the satisfaction of Landlord or its agents and shall be left
whole and in good repair. Tenants shall not injure, overload or deface the
Building, the woodwork or the walls of the premises, nor carry on upon the
premises any noisesome, noxious, noisy or offensive business.
The
toilet rooms, toilets, urinals, wash bowls, water closets and other apparatus
shall not be used for any purpose other than that for which they were
constructed. No foreign substance of any kind whatsoever shall be thrown therein
and the expense of any breakage, stoppage or damage resulting from the violation
of this rule shall be borne by the Tenant who, or whose employees or invitees,
shall have caused it.
Except
with the prior written consent of Landlord, no Tenant shall sell or permit
the
sale at retail of newspapers, magazines, periodicals, theater tickets or any
other goods or merchandise to the general public in or on the premises nor
shall
any Tenant carry on or permit or allow any employee or other persons to carry
on
the business of stenography, typewriting or any similar business in or from
the
premises for the service or accommodation of occupants of any other portion
of
the Building nor shall the premises of any Tenant be used for manufacturing
of
any kind or any business or activity other than that specifically provided
for
in such Tenant's lease.
If
Tenants require wiring for a xxxx or buzz system such wiring shall be done
by
the electrician of the Building only and no outside electrician shall be allowed
to do work of this kind unless by the written permission of Landlord or is
representative. If telegraphic or telephonic service is desired the wiring
for
same shall be done as directed by the electrician of the Building or by some
other employee of Landlord who may be instructed by the Superintendent of the
Building to supervise same and no boring or cutting for wiring shall be done
unless approved by Landlord or its representatives as stated. The electric
current shall be used for ordinary lighting and for small office machines and
equipment purposes only unless written permission to do otherwise shall first
have been obtained from Landlord or its representative and at an agreed cost
to
Tenants. No Tenant shall install any radio or television antenna, loudspeaker
or
other device on the roof or exterior walls of the Building.
29
There
shall not be used in any space or in the public halls of the Building by any
Tenant any hand trucks except those equipped with rubber tires and side guards
or such other material handling equipment as Landlord may approve. No other
vehicles of any kind shall be brought by any Tenant into the Building or kept
in
or about its premises.
Each
Tenant shall store all its trash and garbage within its premises. No material
shall be placed in the trash boxes or receptacles if such material is of such
nature that it may not be disposed of in the ordinary and customary manner
of
removing and disposing of trash and garbage in the County of DeKalb without
being in violation of any law or ordinance governing such disposal. All garbage
and refuse disposal shall be made only through entryways and elevators provided
for such purposes and of such times as Landlord shall designate.
Canvassing,
peddling, soliciting and distribution of handbills or any other written
materials in the Building are prohibited and each Tenant shall cooperate to
prevent the same.
The
Landlord and its agents shall have the right to enter the demised premises
at
all reasonable hours for the purpose of making any repairs, alterations, or
additions which it or they shall deem necessary for the safety, preservation
or
improvement of said Building and the Landlord shall be allowed to take all
material into and upon said premises that may be required to make such repairs,
improvements, and additions or any alterations of the benefit of the Tenant
without in any way being deemed or held guilty of an eviction of the Tenant;
and
the rent reserved shall in no wise xxxxx while said repairs, alterations or
additions are being made; and the Tenant shall not be entitled to maintain
a
set-off of counter-claim for damages against the Landlord by reason of loss
or
interruption to the business of the Tenant because of the prosecution for any
such work. All such repairs, decorations, additions, and improvements shall
be
done during ordinary business hours or if any such work is at the request of
the
Tenant to be done during any other hours, the Tenant shall pay for all overtime
costs.
The
requirements of the Tenants will be attended to only upon application by
telephone or in person at the office of the Building. Employees of Landlord
shall not perform any work or do anything outside of their regular duties unless
under special instructions from Landlord.
Landlord
may waive any one or more of these Rules and Regulations for the benefit of
any
particular Tenant or Tenants, but no such waiver by Landlord shall be construed
as a waiver of such Rules and Regulations in favor of any other Tenant or
Tenants nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the Tenants of the Building.
These
Rules and Regulations are in addition to and shall not be construed to in any
way modify or amend in whole or in part, the terms, covenants, agreements and
conditions of any lease of premises in the Building.
Landlord
reserves the right to make such other reasonable rules and regulations as in
its
judgement may from time to time be needed for the safety, care and cleanliness
of the Building, and for the preservation of good order therein.
30
EXHIBIT
"E"
BROKERAGE/AGENCY
Ultima
Real Estate Services, L.L.C. has acted as agent for the Landlord in this
transaction, and shall be paid a commission by the Landlord pursuant to separate
agreement. Xxxx
& Associated has
acted
as agent for the Tenant in this transaction and shall be paid a commission
by
the Landlord pursuant to separate agreement. Tenant warrants that there are
no
other claims for broker's commissions or finder's fees in connection with its
execution of this lease. Tenant hereby indemnifies Landlord and holds Landlord
harmless from and against all loss, cost, damage or expense, including but
not
limited to, attorney's fees and court costs incurred by Landlord as a result
of
or in conjunction with a claim of any real estate agent or broker, if made
by,
through or under Tenant. Landlord hereby indemnifies Tenant and holds Tenant
harmless from and against all loss, cost damage, or expense, including but
not
limited to, attorney's fees and court costs, incurred by Tenant as a result
of
or in conjunction with a claim of any real estate agent or broker, if made
by,
through or under Landlord.
31
EXHIBIT
“F”
Contractor
Policy
Move/
in/out policy
The
following rules pertain to all work being performed in the building for tenants,
the Owner, and the Building Manager. This includes work being performed by
any
contractor, vendor, tenant and any of their sub-contractors and it includes,
but
is not limited to, tenant improvement and maintenance work, and the delivery
or
movement of furniture, equipment and supplies in the building.
ANYONE
WHO DOES NOT ADHERE TO THE FOLLOWING RULES WILL NOT BE ALLOWED TO ENTER THE
PREMISES OR WILL BE REQUIRED TO DISCONTINUE THE WORK OR MOVE.
|
A.
|
General
Policy and Procedures:
|
|
1.
|
Only
the freight elevator in the building will be used for the movement
of
materials, supplies, equipment and furniture unless prior approval
to use
additional elevators has been granted by the Building Manager. The
freight
elevator must be reserved for after hours usage by calling the management
office.
|
|
2.
|
Move-ins
or deliveries of large quantities of furniture, equipment, or supplies
that will disturb tenants or disrupt their daily routine will be
accomplished between 6:00 p.m. and 7:00 a.m. on weekdays, or on holidays
and weekends with prior consent of the Building
Manager.
|
|
3.
|
Any
work that will disturb or disrupt other tenant’s daily routine will be
accomplished between 6:00 p.m. and 7:00 a.m. on weekdays, or on holidays
and weekends with prior consent of the Building
Manager.
|
|
4.
|
Arrangements
must be made with the Building Manager for use of the elevator for
each
move or delivery with a firm arrival time. Access to mechanical areas
in
the building (i.e. electrical, phone risers), must be scheduled in
advance
with the Building Manager.
|
|
5.
|
Access
to parts of the building, other than the predetermined work area
or moving
route, are not permitted.
|
|
6.
|
OSHA
rules are to be strictly adhered to at all
times.
|
|
7.
|
All
personnel of outside contractors and vendors must sign in and out
each
day.
|
|
8.
|
Smoking
is prohibited in all areas of the building as well as outside the
building
entries. Building security will advise of the acceptable location
outside
the building for smoking.
|
|
9.
|
Any
damage to the building or fixtures must be promptly reported to the
Building Manager and repaired by or paid for by the contractor, vendor,
tenant or any of their sub-contractors. If damage is not repaired
satisfactorily in a reasonable time, the Building Manager will make
the
repair and invoice the tenant and /or the company that caused the
damage
along with an administrative charge equal to the greater of 10% of
the
damage, or $500. Each tenant will assume ultimate responsibility
for any
and all damage done by their contractors, vendors or
sub-contractors.
|
32
|
10.
|
For
scheduling and questions call the management office at
404-222-0050.
|
|
B.
|
Insurance
Requirements
|
|
1.
|
Each
contractor, vendor, tenant and any of their sub-contractors working
in
this building or moving supplies, furniture and/or equipment shall
secure
and present to the Building Manager a certificate of insurance at
least 24
hours before the work or move is scheduled to take
place.
|
|
2.
|
The
certificate of insurance must include the following coverage:
|
a.)
Workers Compensation in statutory limits for the State of Georgia with
employers’ liability limit of $ 100,000.
b.)
Bodily injury, personal injury and property damage liability insurance in
commercial general liability form in limits no less than $1,000,000.00 for
any
one occurrence.
|
1.)
|
The
Commercial General Liability insurance policy shall include hazards
of
premises, operation, elevators, products and completed operations;
and
include personal injury coverage and contractual liability coverage
designating the assumptions of liability including mold coverage
under
performance of the construction or activity.
|
|
2.)
|
The
policy must indemnify and save Owner, Landlord and Building Manager
harmless from and against all claims, demands, and causes of action
of
every kind in character arising in favor of contractor’s, vendor’s or
moving company’s employees, Landlord’s and Building Manager’s employees or
other third parties as a result of bodily injury, personal injury,
death
or damage to property in any way resulting from willful or negligent
acts
or omissions of the moving company or contractor, its agents, employees,
representatives, or subcontractors.
|
c.)
Commercial Automobile Liability coverage all owned, non-owned and hired vehicles
combined with a combined single limit of not less than $1,000,000 per
occurrence.
d.)
Excess Liability (Umbrella) coverage of not less than $ 2,000,000 per
occurrence.
|
3.
|
The
Landlord and Building Manager reserve all rights of subrogation against
contractor, vendor, tenant and any of their
subcontractors.
|
|
4.
|
Contractors,
vendors, tenants and any of their subcontractors shall be responsible
for
all damages and losses sustained by them to their tools and their
equipment utilized in the performance of all
work.
|
33
|
5.
|
Contractors,
vendors, tenants and any of their sub-contractors shall furnish Landlord
and Building Manager a Certificate of Insurance for all coverage
listed
above prior to commencement of operations. The following shall be
named as
additional insured on the
Certificate:
|
Bank
Building Limited Partnership
Ultima
Real Estate Services, L.L.C.
00
Xxxxxxxx Xx. Xxxxx 000
Xxxxxxx,
XX 00000
|
6.
|
The
certificate shall state that 30 days written notice shall be provided
to
Landlord and Building Manager in the event of cancellation. Further,
coverage shall be placed with a carrier rated A-VI or better by AM
Best.
|
|
C.
|
Construction
Requirements
|
|
1.
|
Preliminary
construction plans must be submitted to the Landlord and Building
Manager
for review and approval.
|
|
2.
|
After
preliminary plans have been approved, a full set of construction
documents, which include mechanical, plumbing and electrical drawings,
stamped by all required local government authorities, must be submitted
to
the Landlord and Building Manager for
approval.
|
|
3.
|
Landlord
and Building Manager must receive a copy of the building permit,
and the
permit and notice of issuance of building permit sign must be posted
at
the premises.
|
|
4.
|
Each
contractor and sub-contractor must be approved by the Landlord and
Building Manager. The contractor’s certificate of insurance containing the
above mentioned coverage must be on file and remain current with
the
Building Manager.
|
|
5.
|
A
daily construction work schedule must be filed with the Building
Manager.
Building security will be informed of this schedule. Security will
not
allow unauthorized personnel to work in the building or work to be
done at
unauthorized times.
|
|
6.
|
Any
work that causes a disturbance to others in the building must be
scheduled
after normal operating hours with the approval of the Building
Manager.
|
|
7.
|
While
contractors or vendors are performing work in the building a supervisor
from the approved contracting company or vendor must be
present.
|
|
8.
|
The
Building Manager is to be notified before and after work is performed
on
any life-safety system. At no time is a life-safety system to be
left
inoperable overnight or without a safety watch in
place.
|
|
9.
|
A
building operator must be onsite while contractors, vendors or tenants
are
working after hours.
|
34
|
10.
|
The
final Certificate of Occupancy, issued by the City of Atlanta, must
be
furnished to the Building Manager prior to tenant occupying the Premises
for business.
|
| D. |
Moving
and Delivery Requirements
|
|
1.
|
Clean
Masonite sections will be used as runners on all finished areas where
heavy furniture or equipment is being moved with wheel or skid-type
dollies. Clean plywood sections will also be required when moving
over
“sensitive floors” (i.e. stone or tile floors). The Masonite must be at
least ¼” thick, 4’ x 8’ sheets in elevator lobbies and corridors and 32”
sheets through the doors in tenant
spaces.
|
|
2.
|
The
Building Manager and the moving company or contractor’s personnel will
inspect all walls, door facings, elevator cabs and other areas along
the
route to be followed during the move or in the work area. The mover
or
contractor must provide and install protective coverings on all walls,
door facings, elevator cabs and other area along the route to be
followed
during the move or in the work area. It is the responsibility of
the mover
or contractor to note any and all existing damage or defects to his
path
for the move or in the work area. After the completion of the move
or
work, the moving company or contractor will be held responsible for
repair
of damages or defects not already
noted.
|
|
3.
|
All
employees of a moving company must be uniformed at all
times.
|
| E. |
Asbestos
Containing Material (ACM)
|
|
1.
|
Asbestos
containing materials (ACM) are present in the building located at
00
Xxxxxxxx Xxxxxx.
|
|
2.
|
The
presence of ACM does not necessarily mean that a hazard exists. However,
a
hazard may be created when ACM is disturbed and asbestos fibers become
airborne. The best way to maintain a safe environment is to avoid
the
disturbance of ACM.
|
|
3.
|
It
is possible that ACM may be encountered while working at 00 Xxxxxxxx
Xxxxxx. A summary of all known locations of ACM is kept in the office
of
the ACM Operations and Maintenance (O&M) Coordinator whose name and
phone number are at the bottom of this section. The summary may or
may not
be all inclusive; therefore, workers must exercise caution and be
watchful
for materials that may contain asbestos. Avoid disturbing ACM or
suspected
ACM as you carry out your work.
|
|
4.
|
All
work requiring the disturbance of ACM must be coordinated through
the ACM
O&M Coordinator to insure that the work is performed by a licensed
asbestos abatement contractor, proper identifications are submitted,
proper safety precautions are followed, and required air monitoring
is
performed.
|
|
5.
|
If
you have any questions regarding this notice, or desire additional
information on asbestos at 00 Xxxxxxxx Xxxxxx, please call the following
ACM O&M Coordinator:
|
Xx.
Xxxx
Xxxx
Ultima
Real Estate Services
00
Xxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
XX 00000
35
Please
execute below as acknowledgement of receipt and acceptance of this building
policy “Exhibit F”.
| /s/ Xxxxxxx X. Xxxxxxx | |||
|
Signature
|
|||
| WinSonic Digital Media Group, Ltd. | |||
|
Company: |
|||
| Chairman/CEO | |||
|
Title |
|||
| 2/7/07 | |||
|
Date |
36
EXHIBIT
“G”
LICENSE
TO INSTALL CABLE AND/OR CONDUIT OUTSIDE TENANT'S PREMISES
This
agreement is entered into on _______________________ (date) between
________________, a Georgia ________ ( Tenant), and _________________________,
a
Georgia ________ (Landlord), to authorize Tenant to install and operate
telecommunications cable describe below for a term of ____________________
from
the commencement date of _______________________at the ___________ Building
located at ______________________, Georgia subject to the condition hereinafter
described.
Description
of installation:
Cable
Description:_________________________________________________
Conduit
Size: _____________________________________________
From:___________________________________________________
To:_____________________________________________________
Approximate
Distance: ______________________________________________
(1) Tenant
shall have the conduit and telecommunications cables installed at its sole
cost
and expense in the manner described in the attached drawing. Tenant shall
reimburse Landlord for any and all reasonable expenses incurred by Landlord
in
connection with or as a result of the installation.
(2) Tenant
will at all times be responsible for the proper maintenance and operation of
the
conduit and wiring therein.
(3) Landlord
shall not be responsible for any interruption, malfunction, or injury to the
conduit or wiring installed by Tenant which may result from any occurrences
or
circumstances regardless of cause.
(4) Tenant
shall indemnify and save Landlord harmless from any and all claims made against
Landlord resulting from this installation or any interruption of service or
damage that may occur to Tenant's cables or conduit.
(5) Tenant
agrees to relocate conduit and cables at Tenant's sole expense upon written
notice from Landlord. Landlord shall give the proposed route of the relocation
required by Landlord, and Tenant shall have the conduit and cable moved within
fourteen (14) days or such other time as agreed to by Landlord if longer than
fourteen (14) days.
(6) At
the
end of Tenant's occupancy of the Leased Premises, Tenant agrees to remove the
conduit and cables and restore or repair any areas affected by Tenant's
occupancy of the Leased Premises to Building's standard condition if requested
to do so by Landlord, except if due to ordinary wear and tear.
37
(7) Tenant
shall not, without the prior written consent of Landlord in each instance,
grant
to any third party a security interest or line in or on the conduit and
telecommunications cables, and any such security interest or lien granted
without Landlord’s written consent shall be null and void.
(8) This
Agreement is subject to all the terms and condition of the Lease Agreement
dated
_____________________ between ___________________ and _________________________,
for space in _______________________________, Georgia.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their successors and assigns.
| TENANT: | ||
| By: | ||
|
Witness |
|
|
| LANDLORD: | ||
| By: | ||
|
Witness
|
|
|
38
