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OFFICE
LEASE AGREEMENT
Opus South Corporation, a Florida corporation, as Landlord,
and
NetB@nk, Inc., a Georgia corporation, as Tenant
Dated: March 17, 1999
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TABLE OF CONTENTS
BASIC TERMS ......................................................................................................1
ARTICLE 1 LEASE OF PREMISES AND LEASE TERM...............................................................4
1.1 Premises................................................................................................4
1.2 Term, Delivery and Commencement.........................................................................4
1.3 Completion of Tenant's Work.............................................................................5
1.4 Effect of Occupancy.....................................................................................5
ARTICLE 2 RENTAL AND OTHER PAYMENTS......................................................................5
2.1 Base Rent...............................................................................................5
2.2 Additional Rent.........................................................................................6
2.3 Improvement Allowance...................................................................................6
2.4 Delinquent Rental Payments..............................................................................6
2.5 Independent Obligations.................................................................................6
ARTICLE 3 OPERATING EXPENSES - DEFINITION................................................................7
3.1 Operating Expenses......................................................................................7
3.2 Excess Operating Expenses...............................................................................8
3.3 Tenant's Prorata Share of Excess Operating Expenses.....................................................8
3.4 Controllable Expenses Cap...............................................................................9
ARTICLE 4 OPERATING EXPENSES - PAYMENT...................................................................9
4.1 Payment of Operating Expenses...........................................................................9
4.2 Estimation of Tenant's Prorata Share of Excess Operating Expenses.......................................9
4.3 Payment of Estimated Prorata Share of Excess Operating Expenses.........................................9
4.4 Re-Estimation of Tenant's Prorata Share of Excess Operating Expenses...................................10
4.5 Confirmation of Tenant's Prorata Share of Excess Operating Expenses....................................10
4.6 Not Used...............................................................................................10
4.7 Personal Property Taxes................................................................................10
4.8 Landlord's Right to Contest Taxes......................................................................11
4.9 Adjustment for Variable Operating Expenses.............................................................11
ARTICLE 5 USE...........................................................................................11
5.1 Permitted Use..........................................................................................11
5.2 Acceptance of Premises.................................................................................11
5.3 Increased Insurance....................................................................................12
5.4 Laws, Rules and Regulations............................................................................12
5.5 Common Areas...........................................................................................12
5.6 Parking................................................................................................13
5.7 Americans with Disabilities Act........................................................................13
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ARTICLE 6 HAZARDOUS MATERIALS...........................................................................13
6.1 Compliance with Hazardous Materials Laws...............................................................13
6.2 Indemnification........................................................................................14
ARTICLE 7 SERVICES......................................................................................14
7.1 Landlord's Obligations.................................................................................14
7.2 Tenant's Obligations...................................................................................15
7.3 Other Provisions Relating to Services..................................................................16
7.4 Effects on Utilities...................................................................................16
ARTICLE 8 MAINTENANCE AND REPAIR........................................................................16
8.1 Landlord's Obligations.................................................................................16
8.2 Tenant's Obligations...................................................................................17
8.3 Tenant's Waiver of Claims Against Landlord.............................................................17
ARTICLE 9 CHANGES AND ALTERATIONS.......................................................................18
9.1 Landlord Approval......................................................................................18
9.2 Tenant Responsibility for Cost and Insurance...........................................................18
9.3 Construction Obligations and Ownership.................................................................18
9.4 Liens..................................................................................................19
9.5 Indemnification........................................................................................19
ARTICLE 10 RIGHTS RESERVED BY LANDLORD...................................................................19
10.1 Landlord's Entry.......................................................................................19
10.2 Landlord's Cure........................................................................................20
ARTICLE 11 INSURANCE.....................................................................................20
11.1 Landlord's Casualty Insurance Obligations..............................................................20
11.2 Tenant's Casualty Insurance Obligations................................................................21
11.3 Landlord's Liability Insurance Obligations.............................................................21
11.4 Tenant's Liability Insurance Obligations...............................................................21
11.5 Tenant's Miscellaneous Insurance Obligations...........................................................22
11.6 Tenant's Indemnification of Landlord...................................................................22
11.7 Mutual Waivers.........................................................................................22
11.8 Landlord's Deductible..................................................................................23
11.9 Tenant's Property......................................................................................23
11.10 Increase in Insurance...............................................................................23
11.11 Tenant's Failure to Insure..........................................................................23
ARTICLE 12 DAMAGE OR DESTRUCTION.........................................................................24
12.1 Tenantable Within 180 Days.............................................................................24
12.2 Not Tenantable Within 180 Days.........................................................................24
12.3 Property Substantially Damaged.........................................................................24
12.4 Uninsured Casualty or Unavailable Insurance Proceeds...................................................24
12.5 Deductible Payments....................................................................................25
12.6 Landlord's Repair Obligations..........................................................................25
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12.7 Rent Apportionment.....................................................................................25
12.8 Additional Tenant Termination Right....................................................................25
ARTICLE 13 EMINENT DOMAIN................................................................................26
13.1 Termination of Lease...................................................................................26
13.2 Landlord's Repair Obligations..........................................................................26
13.3 Tenant's Participation.................................................................................26
ARTICLE 14 ASSIGNMENT AND SUBLETTING.....................................................................27
14.1 Restriction on Transfers...............................................................................27
14.2 Definition of Assignment...............................................................................27
14.3 Affiliate and Transfer Assignment Rights...............................................................28
14.4 Recapture..............................................................................................28
14.5 Costs..................................................................................................28
14.6 Proceeds...............................................................................................28
ARTICLE 15 DEFAULTS; REMEDIES............................................................................29
15.1 Events of Default......................................................................................29
15.2 Remedies...............................................................................................30
15.3 Costs..................................................................................................31
15.4 No Waiver..............................................................................................32
15.5 Waiver by Tenant.......................................................................................32
ARTICLE 16 PROTECTION OF CREDITORS.......................................................................32
16.1 Subordination..........................................................................................32
16.2 Attornment.............................................................................................33
16.3 Estoppel Certificates..................................................................................33
16.4 Mortgagee Protection Clause............................................................................33
ARTICLE 17 TERMINATION OF LEASE..........................................................................34
17.1 Surrender of Premises..................................................................................34
17.2 Holding Over...........................................................................................34
ARTICLE 18 MISCELLANEOUS PROVISIONS......................................................................35
18.1 Notices................................................................................................35
18.2 Landlord's Continuing Obligations......................................................................35
18.3 Successors.............................................................................................35
18.4 Captions and Interpretation............................................................................35
18.5 Relationship of Parties................................................................................36
18.6 Entire Agreement.......................................................................................36
18.7 Severability...........................................................................................36
18.8 Landlord's Limited Liability...........................................................................36
18.9 Survival...............................................................................................36
18.10 Attorneys' Fees.....................................................................................36
18.11 Broker..............................................................................................37
18.12 Governing Law.......................................................................................37
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18.13 Time is of the Essence..............................................................................37
18.14 Joint and Several Liability.........................................................................37
18.15 Not Used............................................................................................37
18.16 Delivery of Tenant Organization Documents...........................................................37
18.17 Provisions are Covenants and Conditions.............................................................38
18.18 Business Days.......................................................................................38
18.19 Force Majeure.......................................................................................38
18.20 Submission of Lease.................................................................................38
18.21 Not Used............................................................................................38
18.22 Usufruct............................................................................................38
18.23 Security Deposit....................................................................................38
18.24 Special Stipulations................................................................................39
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EXHIBIT "A" LEGAL DESCRIPTION OF LAND
EXHIBIT "B" FLOOR PLAN
EXHIBIT "C" RULES AND REGULATIONS
EXHIBIT "D" WORK LETTER
EXHIBIT "D-1" BASE BUILDING CONDITION
EXHIBIT "E" SPECIAL STIPULATIONS
EXHIBIT "F" JANITORIAL SPECIFICATIONS
EXHIBIT "G" SUBORDINATION NON-DISTURBANCE AND ATTORNMENT
AGREEMENT
<PAGE>
LEASE AGREEMENT
This Lease Agreement (the "Lease") is made and entered into as of March
____, 1999 ("Effective Date"), by and between OPUS SOUTH CORPORATION, a Florida
corporation, as Landlord, and NETB@NK, INC., a Georgia corporation, as Tenant.
BASIC TERMS
The following terms ("Basic Terms") are hereby incorporated into and
made a part of this Lease. Each reference in this Lease to the Basic Terms shall
mean the information set forth below and shall be construed to incorporate all
of the terms provided under the particular section in this Lease pertaining to
such information. In the event of a conflict between the Basic Terms and the
particular section in this Lease, the particular section shall prevail.
1. Landlord: Opus South Corporation, a Florida corporation
2. Address of Landlord Normandale Properties South Corporation
for Payment of Rent: 4200 West Cypress Street
Suite 445
Telephone No.: (813) 876-1515
Facsimile No.: (813) 876-7955
3. Address of Landlord Opus South Corporation
for Notices: Suite 144
11675 Great Oaks Way
Alpharetta, Georgia 30202
Attn: Director of Real Estate
Telephone No.: (770) 521-0045
Facsimile No.: (770) 521-0046
With a copy to: Opus U.S. Corporation
700 Opus Center
9900 Bren Road East
Minnetonka, MN 55343
Attn: Law Department
Telephone No.: 612-936-4444
Facsimile No.: 612-936-9808
4. Tenant: NetB@nk, Inc., a Georgia corporation
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5. Address of Tenant NetB@nk, Inc.
for Notices: Royal Centre Three, Suite 100
11475 Great Oaks Parkway
Alpharetta, Georgia 30022
Attn: Robert E. Bowers
Telephone No.:
Facsimile No.:
6. Premises: 19,615 rentable square feet located on the first floor and
designated as Suite 100 within the Building located at 11475
Great Oaks Way, commonly known as Royal Centre Three situated
on the parcel of land in the City of Alpharetta, County of
Fulton, State of Georgia described on EXHIBIT "A", together
with the Improvements. The Premises are located within the
Building on EXHIBIT "B". (See Section 1.1).
7. Tenant's Work: The Improvements to be constructed by Landlord as described in
the Work Letter. (See Section 1.3)
8. Tenant Improvements: All Improvements other than the Tenant's Work (See Section 1.3)
9. Lease Term: Initial Lease Term: Approximately seven (7) years beginning on
the Commencement Date and ending on the last day of the
calendar month in which the seventh (7th) anniversary of the
Commencement Date occurs. (See Section 1.2)
10. Base Rent:
Lease Year Base Rent per rentable square foot of the Premises per annum
1 $20.75
2 $21.16
3 $21.58
4 $22.02
5 $22.46
6 $22.90
7 $23.36
The Base Rent is subject to
the provisions of Section
2.1 of this Lease.
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11. Base Year 1999
12. Tenant Insurance: Hazard: (At option of Tenant, see Section 11.2)
Full replacement value on
all tenant furniture,
fixtures, personal property
and equipment.
Liability: (See Section 11.4)
$3,000,000.00 combined limit
13. Security Deposit
or Guaranty: $33,917.60
14. Brokers: William Leonard & Company
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ARTICLE 1
LEASE OF PREMISES AND LEASE TERM
1.1 PREMISES.
Landlord, for and in consideration of the rents, covenants and
agreements hereinafter set forth, hereby leases to Tenant and Tenant hereby
leases from Landlord, upon and subject to the terms, covenants and conditions
hereinafter set forth, certain space situated within the office building
commonly known as Royal Centre Three ("Building"), currently being constructed
on that certain parcel of land situated in the City of Alpharetta ("City"),
County of Fulton ("County"), State of Georgia ("State") legally described on
EXHIBIT "A" attached hereto and incorporated herein ("Land") and shown and
designated on the floor plan ("Floor Plan") attached hereto as EXHIBIT "B" and
incorporated herein ("Premises"). The Land and Building are sometimes referred
to herein collectively as the "Property." The parties have each had the
opportunity to review the measurement calculations of the Premises and
conclusively agree that the Premises contains 19,615 rentable square feet, and
that such measurement is not subject to challenge or dispute by either Landlord
or Tenant.
1.2 TERM, DELIVERY AND COMMENCEMENT.
Landlord shall use commercially reasonable efforts to deliver occupancy
of the Premises to Tenant on or before June 1, 1999 ("Delivery Date"). Subject
to the provisions for Force Majeure contained in Section 18.19, the initial term
of this Lease ("Initial Term") shall commence on the earlier of (a) the date of
Substantial Completion (as defined in the Work Letter attached hereto as EXHIBIT
"D") of the Tenant's Work (as defined in Section 1.3) or (b) the date the
Tenant's Work would have been substantially completed in accordance with the
definition of Substantial Completion contained in the Work Letter but for Tenant
Delays (as defined in the Work Letter) ("Commencement Date"). The Initial Term
shall end on the last day of the calendar month in which the seventh (7th)
anniversary of the Commencement Date occurs. Any reference to the "Term" of this
Lease or similar reference shall be a reference to the Initial Term. Any
reference to "Lease Year" shall refer to each consecutive twelve (12) month
period during the Term commencing on the Commencement Date. However, if the
Commencement Date occurs on a day which is not the first day of the calendar
month, then the first Lease Year shall be for a period beginning on the
Commencement Date and ending on the last day of the calendar month in which the
Commencement Date occurs plus the following twelve (12) consecutive calendar
months.
Tenant shall, within ten (10) days of written request from Landlord,
execute an acknowledgment of the rentable square footage of the Premises, the
Base Rent, the Additional Rent, Commencement Date and any other terms of this
Lease. However, the failure of Tenant to execute such acknowledgment shall not
affect any obligation of Tenant hereunder or the determination of the
Commencement Date. If Tenant fails to execute and deliver such acknowledgment in
the form proposed by Landlord, Landlord and any prospective purchaser or
encumbrancer may conclusively presume and rely upon the following facts: (i)
that the Premises are in acceptable condition and were delivered in compliance
with all of the requirements of the
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Work Letter and (ii) the Commencement Date is the date specified in the
Landlord's acknowledgment and (iii) any other facts specified in Landlord's
acknowledgment are true and correct.
Tenant shall not occupy the Premises before the Commencement Date
without Landlord's prior written consent. Any early occupancy of the Premises by
Tenant shall be solely for the installation of Tenant's furniture, fixtures and
equipment and shall be subject to all of the terms and conditions of this Lease
other than the obligation to pay Base Rent (as defined in Section 2.1) and
Additional Rent (as defined in Section 2.2).
1.3 COMPLETION OF TENANT'S WORK.
Landlord shall use commercially reasonable efforts to complete, on or
before the Delivery Date, that portion of the improvements identified as
Tenant's Work in the Work Letter set forth in EXHIBIT "D" attached hereto and
incorporated herein. The cost of completing Tenant's Work shall be paid by
Landlord, but only up to the amount of the Improvement Allowance defined in
Section 2.3. All Additional Work (as defined in the Work Letter) shall be paid
for solely by Tenant.
1.4 EFFECT OF OCCUPANCY.
Subject to the punch list provisions of the Work Letter ("Punchlist"),
occupancy of the Premises by Tenant shall establish that Landlord has completed
Tenant's Work as required by this Lease. The Punchlist provisions of the Work
Letter are intended to provide Tenant with its sole and exclusive remedy for
incomplete or defective construction of the Tenant's Work, subject to Landlord's
obligation to repair any latent defects of which Tenant notifies Landlord, in
writing, on or before the date which is five (5) business days prior to the
first anniversary of the date Landlord achieves Substantial Completion of
Tenant's Work. The failure of Tenant to comply with the Punchlist provisions of
the Work Letter shall constitute a waiver by Tenant of any and all rights,
benefits, claims or warranties which may be available to Tenant in connection
with completion of Tenant's Work under the Work Letter, at law or in equity.
ARTICLE 2
RENTAL AND OTHER PAYMENTS
2.1 BASE RENT.
Tenant covenants to pay Landlord in advance on the first day of each
and every calendar month during the Term, without notice, demand, offset,
abatement or deduction, except as expressly provided elsewhere in this Lease, at
the address of Landlord specified at Item 2 of the Basic Terms, or at such other
place as Landlord may from time to time designate in writing, the rental
specified at Item 10 of the Basic Terms ("Base Rent"). In the event the
Commencement Date is not the first day of a calendar month and there are less
than fifteen (15) days remaining in such month, Tenant shall pay to Landlord the
Base Rent for such partial month and the next
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succeeding month on or before the Commencement Date. Base Rent for any partial
month shall be prorated on the basis of the number of days within such calendar
month.
2.2 ADDITIONAL RENT.
All charges payable by Tenant other than Base Rent, however denoted,
shall be deemed "Additional Rent." Unless this Lease provides otherwise, all
Additional Rent shall be paid with the next installment of Base Rent falling
due. Additional Rent for any partial month shall be prorated on the basis of the
number of days within such calendar month. All payments of Additional Rent that
are paid pursuant to an estimation provided by Landlord to Tenant shall be
payable without further demand therefor.
2.3 IMPROVEMENT ALLOWANCE.
Landlord shall provide Tenant an allowance of Twenty-Four and No/100
Dollars ($24.00) per rentable square foot within the Premises ("Improvement
Allowance") to be applied to the Cost of Tenant's Work (as defined in the Work
Letter). The Improvement Allowance shall be used by Landlord to complete
Tenant's Work and shall not be used to pay for any of the Additional Work. In
the event the Cost of Tenant's Work exceeds the Improvement Allowance, as
determined by Landlord pursuant to the Work Letter, Tenant shall pay fifty
percent (50%) of the Cost Differential (as defined in the Work Letter) to
Landlord within five (5) business days of Landlord's invoice therefor and prior
to Landlord commencing Tenant's Work and Tenant shall pay the remaining fifty
percent (50%) of the Cost Differential within five (5) business days following
the Commencement Date.
2.4 DELINQUENT RENTAL PAYMENTS.
Any installment of Base Rent, Additional Rent or any other charge
payable by Tenant under the provisions hereof and not paid within ten (10) days
of when due shall bear interest at Prime, as hereafter defined, plus four
percent (4%) per annum, not to exceed the maximum interest rate permitted by law
("Maximum Rate of Interest") from the date when the same is due hereunder
through the date the same is paid. For purposes of this Lease, the term "Prime"
shall mean the rate announced from time to time by Wachovia Bank of Georgia,
N.A. as its prime or reference rate. If Wachovia Bank of Georgia, N.A. shall
cease to announce its prime or reference rate, then Landlord shall select the
rate of another financial institution to be substituted therefor. The right to
require payment of interest shall be in addition to all of Landlord's rights and
remedies hereunder, at law or in equity.
2.5 INDEPENDENT OBLIGATIONS.
Any term or provision of this Lease to the contrary notwithstanding,
the covenants and obligations of Tenant to pay Base Rent and Additional Rent
hereunder shall be independent from any obligations, warranties or
representations of Landlord hereunder. Base Rent and Additional Rent are
sometimes collectively referred to herein as "Rent" or "rent."
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ARTICLE 3
OPERATING EXPENSES - DEFINITION
3.1 OPERATING EXPENSES.
"Operating Expenses" shall mean all expenses incurred with respect to
the ownership, maintenance and operation of the Property as determined by
Landlord's accountant in accordance with generally accepted accounting
principles consistently followed, including, but not limited to the following:
all taxes (as defined below); insurance premiums; maintenance and repair costs;
steam, electricity, water, sewer, gas and other utility charges; fuel; lighting;
window washing; janitorial services; trash and rubbish removal; wages payable to
employees of Landlord, whose duties are connected with the operation or
maintenance of the Property (but only for the portion of time allocable to work
related to the Property), together with all payroll taxes, unemployment
insurance, vacation allowances and disability, pension, profit sharing,
hospitalization, retirement and other so-called fringe benefits paid in
connection with such employees amounts paid to contractors or subcontractors for
work or services performed in connection with the operation and maintenance of
the Property; all costs of uniforms, supplies and materials used in connection
with the operation and maintenance of the Property; any expense imposed upon
Landlord, its contractors or subcontractors pursuant to law or pursuant to any
collective bargaining agreement covering such employees; all services, supplies,
repairs, replacements or other expenses for maintaining and operating the
Property; reasonable management fees; common expenses of the Royal Centre
Project, properly allocated among the Building and other buildings in the Royal
Centre Project; and such other expenses as may be ordinarily incurred in the
operation and maintenance of an office complex similar to the Property. The term
"taxes" shall mean any general real property tax, improvement tax, assessment,
special assessment, reassessment, commercial rental tax, in lieu tax, levy,
charge, penalty or similar imposition whatsoever imposed by any authority having
the direct or indirect power to tax, including but not limited to, (a) any city,
county, state or federal entity, (b) any school, agricultural, lighting,
drainage or other improvement or special assessment district, (c) any agency, or
(d) any private entity having the authority to assess the Property pursuant to
the Permitted Encumbrances. Property Taxes shall include (i) all charges or
burdens of whatsoever kind and nature incurred in the use, occupancy, ownership,
operation, leasing or possession of the Property, without particularizing by any
known name and whether any of the foregoing be general, special, ordinary,
extraordinary, foreseen or unforeseen, (ii) any tax or charge for fire
protection, street lighting, streets, sidewalks, road maintenance, refuse,
sewer, water or other services provided to the Property, and (iii) all costs and
expenses, including reasonable attorneys' fees, incurred in connection with any
appeal or contest of Property Taxes by Landlord pursuant to Section 4.6 below.
However, Property Taxes shall not include Landlord's state or federal income,
franchise, estate or inheritance taxes. In the event Landlord is entitled to pay
any of the above listed assessments or charges in installments over a period of
two or more calendar years, then only the minimum installment of such
assessments or charges shall be included within Property Taxes for such calendar
year.
The term "Operating Expenses" shall not include the cost of any capital
improvement to the Property other than replacements required for normal
maintenance and repair; the cost of repairs, restoration or other work
occasioned by fire, windstorm or other insured casualty, except
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for the amount of any deductible under any insurance policy; expenses incurred
in leasing or procuring tenants; leasing commissions; advertising expenses;
expenses for renovating space for tenants; legal expenses incident to
enforcement by Landlord of any lease; interest or principal payments on any
mortgage or other indebtedness of Landlord; depreciation allowance or expense;
the cost of any work or service performed for any tenant (including Tenant) at
such tenant's cost; salaries of officer and executives of Landlord; salaries of
employees above the grade of building manager or whose time is not spent
directly in the operation of the Property; the cost of any items to the extent
Landlord is reimbursed by insurance; rental under any ground lease or other
underlying lease; any costs paid to a corporation related to Landlord to the
extent such cost is in excess of the amount which would have been paid in the
absence of such relationship; charges (including applicable taxes) for
electricity, steam or other utilities provided to other tenants of the Building
in excess of the amounts of utilities to which Tenant is entitled under this
Lease; costs in connection with any repairs following a condemnation; costs and
expenses in connection with any refinancing or sale of the Property; and cost of
complying with any laws, rules, regulations or statutes which were in effect and
applicable to the Property as of the date of this Lease.
Notwithstanding the foregoing, in the event Landlord installs equipment
in, or makes improvements or alterations to, the Property which are for the
purpose of reducing energy, maintenance or other costs, or which are required
under any governmental laws, regulations or ordinances which were not required
on the Commencement Date, Landlord may include in Operating Expenses reasonable
charges for interest paid on such investment and reasonable charges for
depreciation of the same so as to amortize such investment over the reasonable
life of such equipment, improvement or alteration on a straight line basis.
Operating Expenses shall also be deemed to include expenses incurred by Landlord
in connection with city sidewalks adjacent to the Property, any pedestrian
walkway system (either above or below ground) and any other public facility to
which Landlord or the Property is from time to time subject in connection with
operation of the Property.
3.2 EXCESS OPERATING EXPENSES.
"Excess Operating Expenses" shall mean the amount of Operating Expenses
due and incurred by Landlord during any calendar year of the Term in excess of
the Operating Expenses for the Base Year.
3.3 TENANT'S PRORATA SHARE OF EXCESS OPERATING EXPENSES.
"Tenant's Prorata Share of Excess Operating Expenses" (based on the
rentable square footage of the Premises compared to the total rentable square
footage of the Building, which is 165,527) shall mean 11.85% of the Excess
Operating Expenses for the applicable calendar year.
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3.4 CONTROLLABLE EXPENSES CAP.
Notwithstanding anything to the contrary set forth hereinabove,
Landlord does hereby agree that, solely for purposes of determining Tenant's
Prorata Share of Excess Operating Expenses, the portion of the Operating
Expenses attributable to Controllable Expenses (as defined below) will not
increase by more than five percent (5%) per annum, on a cumulative, compounded
basis, over the amount of Controllable Expenses incurred for calendar year 1999,
after the 1999 figure is adjusted for occupancy, as provided in Section 4.9. The
term "Controllable Expenses" shall mean all Operating Expenses other than taxes,
insurance costs and utilities costs. Landlord shall use commercially reasonable
efforts to minimize Operating Expenses, taking into consideration Landlord's
intent to operate the Building as a first-class office building.
ARTICLE 4
OPERATING EXPENSES - PAYMENT
4.1 PAYMENT OF OPERATING EXPENSES.
Tenant covenants and agrees to pay during the Term, as Additional Rent,
Tenant's Prorata Share of Excess Operating Expenses, which are due and payable
during any calendar year of the Term. Tenant's Prorata Share of Excess Operating
Expenses due and payable during the calendar year in which the Lease commences
or terminates shall be prorated as of the Commencement Date or termination date,
as applicable, based upon the number of days of the Term within said calendar
year compared to three hundred sixty-five (365) days.
4.2 ESTIMATION OF TENANT'S PRORATA SHARE OF EXCESS OPERATING EXPENSES.
Landlord shall estimate for each calendar year of the Term (a) Excess
Operating Expenses, (b) Tenant's Prorata Share of Excess Operating Expenses and
(c) the annual and monthly Additional Rent attributable to Tenant's Prorata
Share of Excess Operating Expenses. Said estimates shall be in writing, shall be
delivered to Tenant at the addresses specified in the Basic Terms and shall be
reasonably based upon historical data and known or reasonably expected increases
or decreases.
4.3 PAYMENT OF ESTIMATED PRORATA SHARE OF EXCESS OPERATING EXPENSES.
Commencing January 1, 2000, Tenant shall pay, as Additional Rent, the
estimated amount of Excess Operating Expenses for each calendar year of the Term
in equal monthly installments, in advance, on the first day of each month during
such calendar year. In the event that said estimates are delivered to Tenant
after the first day of January of the applicable calendar year, said estimated
amount shall be payable as Additional Rent in equal monthly installments, in
advance, on the first day of each month over the balance of such calendar year,
with the number of installments being equal to the number of full calendar
months remaining in such calendar year.
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4.4 RE-ESTIMATION OF TENANT'S PRORATA SHARE OF EXCESS OPERATING
EXPENSES.
From time to time during any calendar year of the Term, Landlord may
re-estimate the amount of Excess Operating Expenses and Tenant's Prorata Share
of Excess Operating Expenses. In such event, Landlord shall also re-estimate the
monthly Additional Rent attributable to Tenant's Prorata Share of Excess
Operating Expenses for such calendar year in an amount sufficient to pay the
re-estimated monthly amount over the balance of such calendar year after giving
credit for payments made by Tenant on the previous estimate. Such re-estimate
shall be delivered to Tenant in writing in the manner specified in Section 4.2.
Tenant shall pay said re-estimated amount, in advance, on the first day of each
month remaining in such calendar year.
4.5 CONFIRMATION OF TENANT'S PRORATA SHARE OF EXCESS OPERATING
EXPENSES.
After the end of each calendar year of the Term, Landlord shall cause
its accountants to determine the actual amount of Excess Operating Expenses and
Tenant's Prorata Share of Excess Operating Expenses for such expired calendar
year and deliver a written certification from Landlord's property manager of the
amount thereof to Tenant. If for any calendar year Tenant paid less than the
amounts specified in said certification, Tenant shall pay the unpaid portion of
the same within twenty (20) days after receipt of such certification. If for any
calendar year Tenant paid more than the amounts specified in said certification,
Landlord shall, at Landlord's option, either (a) refund such excess to Tenant,
or (b) credit such excess against the next due monthly installment or
installments of estimated Additional Rent for the then existing calendar year.
Upon receipt of Landlord's written certification of the Excess Operating
Expenses for the expired calendar year, Tenant shall have the right to audit
Landlord's books with respect to Operating Expenses for the expired calendar
year. If Tenant elects to perform such audit, Tenant must notify Landlord of its
desire to perform such audit within thirty (30) days following Landlord's
certification of Excess Operating Expenses and the audit must be performed
within sixty (60) days of the date of such written certification. The audit must
be performed by a reputable independent certified public account (whose
compensation is not based upon achieving a reduction in Tenant's Excess
Operating Expenses nor upon the amount of any such reduction) or by an employee
of Tenant. The audit will be conducted during normal business hours in
Landlord's offices where such books are normally kept. Tenant and the party who
performs such audit must agree, in writing, prior to performing the audit, to
keep and maintain all information obtained in the audit absolutely confidential
except in any arbitration, lawsuit or other proceeding between Landlord and
Tenant and, in that event, such information shall be disclosed only to the
arbitration panel and/or the court, as necessary.
4.6 NOT USED.
4.7 PERSONAL PROPERTY TAXES.
Tenant shall pay, prior to delinquency, all taxes charged against trade
fixtures, furnishings, equipment or any other personal property belonging to
Tenant. Tenant shall use its best efforts to have such trade fixtures,
furnishings, equipment and personal property taxed separately from the Property.
If any of Tenant's trade fixtures, furnishings, equipment and
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personal property is taxed with the Property, Tenant shall pay Landlord for such
taxes within fifteen (15) days after Tenant receives a written statement from
Landlord for the same.
4.8 LANDLORD'S RIGHT TO CONTEST TAXES.
Landlord shall have the right, but not the obligation, to contest the
amount or validity, in whole or in part, of any of the Taxes. All reasonable
costs incurred in connection with any such contests by Landlord including,
without limitation, reasonable, actual fees and expenses of tax consultants and
attorneys, shall be included in Operating Expenses.
4.9 ADJUSTMENT FOR VARIABLE OPERATING EXPENSES.
Notwithstanding anything to the contrary set forth above, it is agreed
that in the event the Building is not fully occupied at any time during a
calendar year (including the Base Year), a reasonable and equitable adjustment
shall be made by Landlord in computing the Operating Expenses for such calendar
year so that Tenant's obligation for payment of any component of Operating
Expenses which adjusts based upon occupancy shall be equal to the amount which
Tenant would have paid for such component of Operating Expenses had the Building
been fully occupied at all times during such calendar year. Landlord agrees that
the amount included in the Base Year Operating Expenses for taxes will reflect
the taxes for the Building as fully assessed.
ARTICLE 5
USE
5.1 PERMITTED USE.
Tenant may use the Premises for general office purposes of a type
reasonable and customary for first-class office buildings only and for no other
purpose. Tenant shall not use the Property, or knowingly permit the Property to
be used, in violation of any Laws (as defined in Section 5.4) or in any manner
which would (a) violate any certificate of occupancy affecting the Property, (b)
make void or voidable any insurance now or hereafter in force with respect to
the Property, (c) cause structural injury to the Property, (d) cause the value
or usefulness of the Property or any portion thereof to substantially diminish
(reasonable wear and tear excepted), or (e) constitute a public or private
nuisance or waste. Promptly upon discovery of any prohibited use, Tenant will
take all necessary steps to discontinue such use.
5.2 ACCEPTANCE OF PREMISES.
Except for the Punchlist items and Landlord's obligation to repair
latent defects of which Tenant notifies Landlord, in writing, on or before the
date five (5) business days prior to the first anniversary of the date Landlord
achieves Substantial Completion of Tenant's Work, Tenant acknowledges that
neither Landlord nor any agent, contractor or employee of Landlord has made any
representation or warranty of any kind whatsoever with respect to the Premises
or the Building, specifically including but not limited to, suitability or
fitness for any particular purpose. Subject to the Punchlist items, Tenant
accepts the Premises in an "as is - where is" condition.
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5.3 INCREASED INSURANCE.
Tenant shall not do or permit to be done anything which will (a)
increase the premium of any insurance policy covering the Premises or the
Property, (b) cause a cancellation of or be in conflict with any such insurance
policy; (c) result in a refusal by any insurance company in good standing to
issue or continue any such insurance in amounts satisfactory to Landlord; or (d)
subject Landlord to any liability or responsibility for injury to any person or
property by reason of any operation in the Premises or use of the Property.
Tenant shall, at Tenant's expense, comply with all rules, orders, regulations
and requirements of insurers and of the American Insurance Association or any
other organization performing a similar function. Tenant shall promptly, upon
demand, reimburse Landlord for any additional premium charges for such policy or
policies caused by reason of Tenant's failure to comply with the provisions of
this section.
5.4 LAWS, RULES AND REGULATIONS.
Tenant acknowledges that this Lease is subject and subordinate to all
liens, easements, declarations, encumbrances, deeds of trust, reservations,
restrictions and other matters affecting the Property ("Permitted Encumbrances")
and any law, regulation, rule, order or ordinance of any governmental entity,
applicable to the Property or the use or occupancy thereof in effect on or after
the Effective Date ("Laws") or any of the Rules and Regulations (as defined
below) promulgated by Landlord. Tenant shall not violate any Permitted
Encumbrances, Laws or Rules and Regulations. A copy of the current Rules and
Regulations promulgated by Landlord are attached hereto and incorporated herein
as EXHIBIT "C", which Rules and Regulations may be amended by Landlord from time
to time in Landlord's sole discretion. Except for the Rules and Regulations
excluding Tenant from parking in designated portions of the parking facilities
comprising a portion of the Common Area, as specified in Section 5.5, Tenant
shall not be obligated to comply with any Rules and Regulations promulgated by
Landlord which are not imposed and enforced in a uniform and nondiscriminatory
manner with respect to all tenants in the Building. Landlord represents to
Tenant that none of the Laws or Permitted Encumbrances prohibit or materially
interfere with Tenant's ability to use the Premises for the use permitted under
this Lease.
5.5 COMMON AREAS.
Landlord hereby grants to Tenant the non-exclusive right, together with
all other occupants of the Building and their agents, employees and invitees, to
use the parking areas, driveways, lobby areas and other common areas of the
Property designated by Landlord from time to time ("Common Area"). Landlord
shall have the sole and exclusive control of the Common Area, as well as the
right to make changes to the Common Area. Landlord's rights shall include, but
not be limited to, the right to (a) restrain the use of the Common Area by
unauthorized persons; (b) place permanent or temporary kiosks, displays, carts
or stands in the Common Area and to lease same to tenants; (c) temporarily close
any portion of the Common Area (i) for repairs, improvements or alterations,
(ii) to discourage unauthorized use, (iii) to prevent dedication or an easement
by prescription, or (iv) for any other reason deemed sufficient
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in Landlord's judgment; (d) change the shape and size of the Common Area, add,
eliminate or change the location of any improvements located on the Common Area
and construct buildings on the Common Area, provided that any such changes shall
not materially and adversely affect Tenant's use of the Common Area; and (e)
impose Laws concerning use of the Common Area, including the right to exclude
Tenant, its agents, employees and invitees, from parking in designated portions
of the parking facilities comprising a portion of the Common Area.
5.6 PARKING.
Tenant's rights to use the parking facilities in the Common Area shall
be for unreserved spaces in an amount equal to five (5) spaces per each one
thousand (1,000) rentable square feet of the Premises. Within such total parking
allocation, two (2) spaces per each one thousand (1,000) rentable square feet of
the Premises will be provided in the covered, access-controlled parking
facility. Initially, Landlord will provide access cards to Tenant at no cost for
each space to which Tenant is entitled. Replacement cards must be paid for by
Tenant at Landlord's then current rate. Such parking spaces shall be provided to
Tenant at no charge throughout the Term of this Lease. Landlord will also
provide, throughout the Term, ten (10) spaces which will be marked for use only
by visitors of the Building.
5.7 AMERICANS WITH DISABILITIES ACT.
Landlord and Tenant acknowledge that the Property may be construed to
be a place of public accommodation under the Americans with Disabilities Act of
1990, as amended ("ADA"). Landlord represents and warrants that the Property
will not violate Title III of ADA (Title III) as interpreted and enforced by
local building inspection authorities as of the Commencement Date. Landlord
shall correct any violation of Title III within any part of the Common Area of
the Property, but shall not be required to correct any violation of Title III
within the Premises after the Commencement Date. Tenant shall correct any
violation of Title III within the Premises after the Commencement Date.
ARTICLE 6
HAZARDOUS MATERIALS
6.1 COMPLIANCE WITH HAZARDOUS MATERIALS LAWS.
Tenant shall not cause or permit any Hazardous Materials or Hazardous
Substances (as defined in any applicable state, federal or local environmental
Laws) to be brought upon, kept or used in connection with the Premises by
Tenant, its agents, employees, contractors or invitees, except for de minimis
amounts of materials, such as copying machine fluids, which are customary for
general office use and which are present in the Premises strictly in compliance
with all applicable Laws.
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6.2 INDEMNIFICATION.
Tenant shall indemnify, defend (with counsel reasonably acceptable to
Landlord) and protect Landlord against, and hold Landlord free and harmless
from, any and all claims, liabilities, damages, costs, penalties, forfeitures,
losses or expenses (including attorneys' fees and the costs and expenses of
enforcing this indemnity) ("Claims") for death or injury to any person or damage
to any property whatsoever arising or resulting in whole or in part, directly or
indirectly, from the presence, treatment, storage, transportation, disposal,
release or management of Hazardous Materials resulting from or in any way
related to Tenant's use of the Premises. Tenant's obligations hereunder shall
include, without limitation and whether foreseeable or unforeseeable, the costs
of (a) any required or necessary repair, clean-up, detoxification or
decontamination of the Property, (b) the implementation of any closure,
remediation or other required action in connection therewith and (c) any costs
and fees incurred in the enforcement of the indemnity action. The obligations of
Tenant under this section shall survive the expiration or other termination of
the Term.
ARTICLE 7
SERVICES
7.1 LANDLORD'S OBLIGATIONS.
Landlord shall provide the following services, the cost of which shall
be deemed Operating Expenses:
7.1.1 JANITORIAL SERVICE.
Nightly Janitorial services on Monday through Friday in the
Premises and on the Property as described in EXHIBIT "F" attached hereto and
made a part hereof.
7.1.2 ELECTRICAL ENERGY.
Electrical energy for lighting and operation of office
machines, air conditioning and heating as required for general office use during
the hours specified in Section 7.1.3. The electrical energy provided will be
sufficient for operation of personal computers and other equipment of similar
low electrical consumption, and for customary fluorescent office lighting but
will not be sufficient for main frame computers, computer rooms or for
non-standard lighting. Tenant shall not use any equipment or lighting requiring
electrical energy in excess of the above standards without receiving Landlord's
prior written consent, which consent shall not be unreasonably withheld but may
be conditioned upon Tenant paying all costs of installing the equipment and
facilities necessary to furnish such excess energy and an amount equal to the
average cost per unit of electricity for the Building applied to the excess use
as determined by an engineer selected by Landlord or by submeter. At the option
of either Landlord or Tenant, a submeter may be provided and installed at
Tenant's expense if allowable under the Laws. All Building standard lighting
bulbs, tubes, ballasts and starters within the Premises shall be replaced by
Landlord with the costs thereof included in Operating Expenses.
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7.1.3 HEATING AND AIR CONDITIONING.
Heat and air conditioning, sufficient to maintain comfortable
temperatures in Landlord's reasonable judgment, on Monday through Friday from
7:00 a.m. to 6:00 p.m. and on Saturdays which are not holidays from 8:00 a.m. to
1:00 p.m. The Building holidays shall be New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day. During other
hours, Landlord shall provide heat and air conditioning upon a reasonable
advance notice from Tenant to Landlord, which advance notice shall not be less
than twenty-four (24) hours; provided, however, that no advance notice will be
required if an automated key pad system is installed which allows Tenant to
access such after-hours service directly. Tenant, upon presentation of a bill
therefor, shall pay Landlord for such extended service at the rate of $20.00 per
hour, subject to increases based on actual increases in Landlord's cost to
provide such extended service (i.e., increases in utility, labor or maintenance
costs). If such extended service is not a continuation of that furnished during
the hours described above, Tenant may be required to pay for a minimum of three
(3) hours of such service. Air conditioning to the Premises is to be provided
based on standard lighting and general office use only.
7.1.4 WATER.
Hot and cold water from the standard building outlets for
lavatory, breakroom, restroom and drinking purposes.
7.1.5 PASSENGER ELEVATOR SERVICE.
Passenger elevator service in common with other tenants to be
provided by automatic elevators. Landlord shall have the right to restrict the
use of elevators for freight purposes to the freight elevator and to hours
determined by Landlord. Landlord shall have the right to limit the number of
elevators in operation on Saturdays, Sundays and holidays, but service shall be
provided through at least one (1) elevator at all times, except in emergencies.
7.2 TENANT'S OBLIGATIONS.
Tenant shall be solely responsible for the payment to Landlord of all
utilities which are separately submetered or separately charged (based on an
engineer's survey), if any, to the Premises or to Tenant and shall make such
payments to Landlord promptly upon invoice. Such amounts shall not be included
as Operating Expenses. Except as provided in Section 7.1 or the Work Letter,
Tenant shall also furnish and pay for all other utilities and services which
Tenant requires with respect to the Premises (including but not limited to
hook-up and connection charges).
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7.3 OTHER PROVISIONS RELATING TO SERVICES.
No interruption in, or temporary stoppage of, any of the aforesaid
services shall be deemed an eviction or disturbance of Tenant's use and
possession, relieve Tenant from any obligation herein set forth or render
Landlord liable for damages or, except as set forth below entitle Tenant to an
abatement of rent. In no event shall Landlord be required to provide any heat,
air conditioning, electricity or other service in excess of that permitted by
voluntary or involuntary guidelines or any applicable Laws. Landlord reserves
the right, from time to time, to make reasonable and non-discriminatory
modifications to the above standards for utilities and services. Notwithstanding
anything to the contrary set forth hereinabove, in the event that the essential
services to the Premises (which the parties hereby agree are electricity, water,
sanitary sewer, elevator and HVAC service) are interrupted and (i) the
interruption continues for five (5) or more consecutive business days, (ii) the
interruption is caused by a matter within Landlord's control, (iii) the
interruption renders all or a portion of the Premises untenantable and (iv)
Tenant actually discontinues use of all or a portion of the Premises, Tenant
shall be entitled to an abatement of Rent, beginning on the sixth (6th) business
day after such interruption begins, based on the portion of the Premises which
is untenantable and which Tenant has discontinued using, with such abatement to
continue until the applicable services have been materially restored by
Landlord. Landlord shall use commercially reasonable efforts to restore
interrupted services.
7.4 EFFECTS ON UTILITIES.
Tenant shall not, without the prior written consent of Landlord, use
any apparatus or device in or about the Premises which shall cause substantial
noise or vibration. Tenant shall not connect any apparatus or device to
electrical current or water except through the electrical and water outlets
installed by Landlord pursuant to the Work Letter.
ARTICLE 8
MAINTENANCE AND REPAIR
8.1 LANDLORD'S OBLIGATIONS.
Except as otherwise provided in this Lease, Landlord shall repair and
maintain the following in good order, condition and repair: (a) the foundations,
exterior walls and roof of the Building, (b) the electrical, mechanical,
plumbing, heating and air conditioning systems, facilities and components
located in the Building and the Premises (other than supplemental HVAC systems
that serve only the Premises, which shall be Tenant's obligation) and (c) the
Common Area. Landlord shall also maintain and repair windows, doors, plate glass
and the exterior surfaces of walls that are adjacent to Common Area, unless such
maintenance and repair becomes necessary in whole or in part due to (i) the
negligence of Tenant, its employees, agents, customers, licensees or invitees in
or about the Premises or Property, or (ii) damage caused by breaking and
entering into the Premises. The cost of Landlord's repair and maintenance
hereunder shall be included in Operating Expenses. Neither Base Rent nor
Additional Rent shall be reduced, nor shall Landlord be liable, for loss or
injury to or interference with property, profits or business arising from or in
connection with any such repairs or maintenance.
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8.2 TENANT'S OBLIGATIONS.
Tenant, at Tenant's sole cost and expense, shall keep and maintain the
Premises (including all non-structural interior portions, supplemental HVAC
systems and equipment; interior surfaces of exterior walls, interior moldings,
partitions and ceilings) in as good order, condition and repair as they were on
the Commencement Date, reasonable wear and tear and damage from fire and other
casualties excepted.
In the event that compliance with any Laws is required after the
Commencement Date, which is due in whole or in part to Tenant's specific use of
the Premises (as opposed to general office use) and/or Tenant's specific actions
or inactions with respect to the Premises, the cost of compliance shall be
Tenant's sole responsibility. Likewise, in the event any governmental authority
requires any alterations to the Building or the Premises as a result of Tenant's
particular use of the Building or as a result of any alterations to the Premises
by Tenant, Tenant shall be obligated for the cost of all such alterations. In
the event such alterations involve the structural, mechanical, electrical, life
safety or heating and air conditioning systems of the Building ("Structural
Alterations"), Landlord shall make such repairs after Tenant deposits with
Landlord an amount sufficient to pay for the cost thereof. In the event the
alterations are not Structural Alterations, Tenant shall make the repairs, at
Tenant's sole cost and expense, subject to the requirements of Article 9 below.
Tenant shall keep the Premises in a neat and sanitary condition and
shall not commit any nuisance or waste on the Premises or in, on or about the
Property. All uninsured damage or injury to the Premises or to the Property
caused by Tenant installing, removing or transporting any furniture, fixtures,
equipment or other property of Tenant, its agents, contractors, servants or
employees shall be repaired, restored and replaced promptly by Tenant at its
sole cost and expense to the satisfaction of Landlord. Tenant shall be solely
responsible for, shall indemnify, protect and defend Landlord against and hold
Landlord harmless from, any penetrations or perforations of the roof or exterior
walls to the Building caused by Tenant. It is the intention of Landlord and
Tenant that Tenant shall maintain the Premises in a first-class and fully
operative condition. All repairs made by Tenant shall be at least equal in
quality and workmanship to the original work and shall be made by Tenant in
accordance with all Laws. The maintenance obligations of Tenant shall apply even
if Tenant has vacated the Premises.
8.3 TENANT'S WAIVER OF CLAIMS AGAINST LANDLORD.
Except as otherwise expressly provided in the Work Letter or this
Lease, Landlord shall not be required to furnish any services or facilities, or
make any repairs or alterations, in, about or to the Premises or the Property.
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ARTICLE 9
CHANGES AND ALTERATIONS
9.1 LANDLORD APPROVAL.
Tenant shall have the right, without Landlord's consent, but with prior
notice to Landlord, to make alterations to the Premises which (i) are not
visible from the elevator lobby of the Building, (ii) do not affect the
structure of the Building or the Building mechanical, electrical, plumbing or
HVAC systems, (iii) do not involve the removal or addition or relocation of any
walls or partitions and (iv) do not cost in excess of $50,000 in any one
instance or in any series of related instances. Otherwise, Tenant shall not make
any alterations, additions or improvements to the Property ("Alterations")
without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed. Along with any request for Landlord's consent
and before commencement of the Alterations or delivery of any materials to be
used in the Alterations, Tenant shall furnish Landlord with plans and
specifications, and names and addresses of prospective contractors. All
Alterations shall be constructed (a) promptly by a contractor approved in
writing by Landlord in its sole discretion, (b) in a good and workmanlike
manner, (c) in compliance with all applicable Laws, and (d) in accordance with
all orders, rules and regulations of the Board of Fire Underwriters where the
Premises are located or any other body exercising similar functions.
9.2 TENANT RESPONSIBILITY FOR COST AND INSURANCE.
Tenant shall pay the cost and expense of all Alterations, including a
reasonable charge for Landlord's review, inspection and engineering time and for
any painting, restoring or repairing of the Premises or the Building occasioned
by the Alterations. Prior to commencement of construction of the Alterations,
Tenant shall deliver the following in form and amount satisfactory to Landlord:
(a) demolition and/or lien and completion bonds, (b) builder's all risk
insurance, (c) commercial general liability insurance insuring against
construction related risks and copies of contracts and all necessary permits and
licenses.
9.3 CONSTRUCTION OBLIGATIONS AND OWNERSHIP.
Tenant shall permit Landlord to inspect construction of the
Alterations. Upon completion of the Alterations, Tenant shall furnish Landlord
with contractor affidavits, unconditional lien releases, full and final waivers
of liens (in form satisfactory, under applicable Laws, to extinguish all lien
rights) and receipted bills covering all labor and materials expended and used
in connection with the Alterations. Tenant shall promptly remove any Alterations
constructed in violation of this Article 9 upon Landlord's written request. All
Alterations (other than Tenant's movable trade fixtures, furniture and
equipment) made or installed by Tenant shall become the property of and be
surrendered to Landlord upon termination of this Lease without payment therefor
by Landlord, unless otherwise agreed by Landlord.
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9.4 LIENS.
Tenant shall keep the Premises free from any mechanics', materialmens',
designers' or other liens arising out of any work performed, materials furnished
or obligations incurred by or for Tenant or any person or entity claiming by,
through or under Tenant. If any such liens are filed and Tenant does not provide
for release of the same of record, or provide Landlord with a bond or other
surety satisfactory to Landlord protecting Landlord and the Property against
such liens, within thirty (30) days after receipt of written notice thereof by
Tenant of such filing, Landlord may without waiving its rights and remedies
based upon such breach by Tenant and without releasing Tenant from any
obligations hereunder, cause such liens to be released by any means it shall
deem proper, including payment of the claim giving rise to such lien or posting
a bond to cause the discharge of such lien. In such event, all amounts paid by
Landlord shall immediately be due and payable by Tenant as Additional Rent.
9.5 INDEMNIFICATION.
Tenant hereby agrees to indemnify, protect and defend Landlord against,
and hold Landlord and the Property harmless from, any liability, cost,
obligation, expense (including without limitations reasonable attorneys' fees
and expenses incurred in enforcing this indemnity), or claim of any mechanics',
materialmens', designers' or other liens in any manner relating to or arising
out of any work performed, materials furnished or obligations incurred by or for
Tenant or any person or entity claiming by, through or under Tenant.
ARTICLE 10
RIGHTS RESERVED BY LANDLORD
10.1 LANDLORD'S ENTRY.
Landlord reserves the right at all reasonable times and upon reasonable
notice to Tenant to enter the Premises (except in emergencies, accompanied by an
employee of Tenant) to: (a) inspect the Premises; (b) show the Premises to
prospective purchasers, mortgagees, tenants (but only during the last year of
the Term) and underlying landlords; or (c) otherwise exercise and perform
Landlord's rights and obligations under this Lease. In the case of an emergency,
Landlord and/or its authorized representatives may enter the Premises at any
time using any and all means which Landlord may deem proper. Entry into the
Premises by Landlord in the event of any emergency shall not be construed as a
forcible or unlawful entry into, or detainer of, the Premises or as an eviction
of Tenant from the Premises or any portion thereof.
Tenant shall permit Landlord (or its designees) to erect, use,
maintain, replace and repair pipes, cables, conduits, plumbing and vents, and
telephone, electric and other wires or other items, in, to and through the
Premises, as and to the extent that Landlord may now or hereafter deem necessary
or appropriate for the proper operation and maintenance of the Building;
provided, however, that Landlord shall not materially interfere with Tenant's
business during any such entry.
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10.2 LANDLORD'S CURE.
If Tenant shall default in the performance of its obligations under
this Lease and if such default is not cured within the applicable periods
provided in Article 15, Landlord may but shall not be obligated to, make any
such payment or perform any such act on Tenant's part without waiving its rights
based upon any default of Tenant and without releasing Tenant from any
obligations hereunder. Except as may be specifically provided to the contrary in
this Lease, Tenant shall pay to Landlord, within ten (10) days after delivery by
Landlord to Tenant of statements therefor, sums equal to expenditures reasonably
made and obligations incurred by Landlord in connection with the remedying by
Landlord of Tenant's defaults. If there are any outstanding monetary obligations
of Tenant under this Lease attributable to the period prior to the expiration or
termination of this Lease, such obligations shall survive the termination or
expiration of this Lease and such amount shall be payable to Landlord within ten
(10) days after receipt of notice therefor from landlord.
ARTICLE 11
INSURANCE
11.1 LANDLORD'S CASUALTY INSURANCE OBLIGATIONS.
Landlord shall keep the Property insured for the benefit of Landlord,
its lenders and agents, in an amount equivalent to the full replacement value
thereof (excluding the Land, foundation, grading and excavation costs) against:
(a) loss or damage by fire; and
(b) such other risk or risks which are customarily covered with respect
to buildings and improvements similar in construction, general location, use,
occupancy and design to the Property, including but not limited to windstorms,
hail, explosion, vandalism, malicious mischief, civil commotion and such other
coverage as Landlord may deem appropriate or necessary.
These insurance provisions shall not limit or modify the obligations of
Tenant under any provision of this Lease. Such policy or policies of insurance
shall permit releases of liability as provided herein and/or waiver of
subrogation as to Tenant. Landlord waives, releases and discharges Tenant from
all claims or demands whatsoever which Landlord may have or acquire arising out
of damage to or destruction of the Property, or loss of use thereof occasioned
by fire or other casualty, which claim or demand may arise because of the
negligence or fault of Tenant, its agents, employees, customers or business
invitees, and Landlord agrees to look to the insurance coverage only in the
event of such loss. Notwithstanding the foregoing or anything to the contrary
elsewhere in this Lease, Tenant shall be obligated to continue to pay Rent in
the event of damage to or destruction of the Premises or the Property if such
damage or destruction is occasioned by the negligence or fault of Tenant, its
agents, employees, customers or business invitees. Premiums paid for insurance
under this section shall be included in Operating Expenses.
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11.2 TENANT'S CASUALTY INSURANCE OBLIGATIONS.
Tenant shall be solely responsible for but shall not be obligated to
keep all of its machinery, equipment, furniture, fixtures and personal property
(including all property under the care, custody or control of Tenant) which may
be located in, upon, or about the Premises insured in an amount equivalent to
the full insurable value thereof against:
(a) loss or damage by fire; and
(b) such other risk or risks which are customarily covered
with respect to a tenant's machinery, equipment, furniture, fixtures, personal
property and business located in a building similar in construction, general
location, use, occupancy and design to the Property, including but not limited
to, windstorms, hail, explosions, vandalism, theft, malicious mischief, civil
commotion and such other coverage as Tenant may deem appropriate or necessary.
To the extent Tenant keeps such insurance coverage, all policy or
policies of insurance shall permit release of liability as provided herein
and/or waiver of subrogation as to Landlord. Tenant waives, releases and
discharges Landlord, Landlord's lenders and its agents, employees and
contractors, from all claims or demands whatsoever which Tenant may have or
acquire arising out of damage to or destruction of the machinery, equipment,
furniture, fixtures, personal property or business, and loss of use thereof
occasioned by fire or other casualty, or by any cause whatsoever, including,
without limitation, damage caused by the negligence or fault of Landlord, its
agents, employees, contractors, and Tenant agrees to look to its insurance
coverage only (or if Tenant does not elect to carry such coverage, then to
Tenant's own funds) in the event of such loss.
11.3 LANDLORD'S LIABILITY INSURANCE OBLIGATIONS.
Landlord shall maintain commercial general liability insurance against
claims for personal injury, death or property damage occurring upon, in or about
the Property, such insurance to afford protection to Landlord, its lenders and
agents in amounts deemed reasonably to be appropriate by Landlord. Premiums paid
for insurance under this section shall be included in Operating Expenses.
11.4 TENANT'S LIABILITY INSURANCE OBLIGATIONS.
Tenant shall, at Tenant's sole cost and expense, maintain commercial
general liability insurance against claims for personal injury, death or
property damage occurring upon, in or about the Premises, with combined single
limits of not less than Three Million and No/100 Dollars ($3,000,000.00). Tenant
agrees to include contractual liability coverage in such policy insuring
Tenant's indemnification obligations under this Lease. Any such coverage shall
be deemed primary to any liability coverage secured by Landlord.
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11.5 TENANT'S MISCELLANEOUS INSURANCE OBLIGATIONS.
All policies of commercial general liability insurance shall be written
by companies reasonably satisfactory to Landlord, naming Landlord, Landlord's
lenders and agents as additional insureds thereunder. All policies, or a
memorandum or certificate of such insurance, shall be delivered to Landlord
endorsed "Premium Paid" by the company or agency issuing the same or accompanied
by other evidence satisfactory to Landlord that the premium thereon has been
paid. At such time as insurance limits required of tenants in office buildings
in the area in which the Property is located are generally increased to greater
amounts, Landlord shall have the right to require such greater limits as may
then be customary. All insurance policies required of Tenant shall be written on
an occurrence basis (not a claims made basis) so that they afford coverage for
all claims based upon acts, omissions, injury or damage, which claims occurred
or arose (or the onset of which occurred or arose) in whole or in part during
the policy period. All insurance policies required of Tenant shall require
thirty (30) days written notice by the insurer to Landlord prior to
cancellation.
11.6 TENANT'S INDEMNIFICATION OF LANDLORD.
Tenant agrees to indemnify, defend (with counsel reasonably acceptable
to Landlord) and protect Landlord, Landlord's lenders and managing agent,
against, and hold Landlord, Landlord's lenders and managing agent free and
harmless from, Claims arising from (a) any breach or default on the part of
Tenant in the performance of any covenant or agreement on the part of Tenant to
be performed pursuant to this Lease, (b) from any act or negligence on the part
of Tenant or its agents, contractors, servants, employees or licensees, and (c)
from any accident, injury or damage in or about the Premises and Property to the
extent caused by Tenant, its agents, contractors, servants, employees or
licensees.
11.7 MUTUAL WAIVERS.
Tenant waives, releases and discharges Landlord, Landlord's lenders and
its agents, employees and contractors, from all claims or demands whatsoever
which Tenant may have or acquire arising out of damage to or destruction of the
machinery, equipment, furniture, fixtures, personal property or business, and
loss of use thereof occasioned by fire or other casualty, or by any cause
whatsoever, including, without limitation, damage caused by the negligence or
fault of Landlord, its agents, employees, contractors, and Tenant agrees to look
to its insurance coverage only (or if Tenant does not elect to carry such
coverage, then to Tenant's own funds) in the event of such loss. Landlord
waives, releases and discharges Tenant, Tenant's lenders and its agents,
employees and contractors, from all claims or demands whatsoever which Landlord
may have or acquire arising out of damage to or destruction of the machinery,
equipment, furniture, fixtures, personal property or business, and loss of use
thereof occasioned by fire or other casualty, or by any cause whatsoever,
including, without limitation, damage caused by the negligence or fault of
Tenant, its agents, employees, contractors, and Landlord agrees to look to its
insurance coverage only (or if Landlord does not elect to carry such coverage,
then to Landlord's own funds) in the event of such loss. This paragraph shall
apply especially but not exclusively, to damage caused by the flooding of
basements or other subsurface areas and by refrigerators, sprinkling devices,
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air conditioning apparatus, water, snow, frost, steam, excessive heat or cold,
falling plaster, broken glass, sewage, gas, odors, noise or the bursting or
leaking of pipes or plumbing fixtures and shall apply regardless whether any
such damage results from an Act of God, the act or omission of other tenants or
occupants of the Property or any other persons. Both Landlord and Tenant shall
require to be included in all property insurance policies a waiver of
subrogation by the insurance carrier and each party shall provide to its
insurance carrier any notice required to make such waiver of subrogation
effective.
11.8 LANDLORD'S DEDUCTIBLE.
Provisions herein to the contrary notwithstanding, in the event any
damage to the Property results from any act or omission of Tenant, its agents,
employees or invitees, and all or any portion of the cost to repair the damage
falls within the deductible under Landlord's insurance policy, Tenant shall pay
to Landlord the amount of such deductible (not to exceed $5,000 per event) as
Additional Rent.
11.9 TENANT'S PROPERTY.
All machinery, equipment, furniture, fixtures and personal property of
Tenant, including all property under the care, custody and control of Tenant,
shall be at the risk of Tenant only, and Landlord shall not be liable for damage
thereto or theft, misappropriation or loss thereof Tenant agrees to indemnify,
defend (with counsel reasonably acceptable to Landlord) and protect Landlord
against, and hold Landlord free and harmless from, claims arising in connection
with such property.
11.10 INCREASE IN INSURANCE.
Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything therein which will in any way increase the
existing rate of or adversely affect in any other way any fire or other
insurance policy upon the Property or any of its contents, or cause a
cancellation of any insurance policy covering the Property or any of its
contents. Notwithstanding anything to the contrary contained herein, Tenant
shall promptly, upon demand, reimburse Landlord for the full amount of any
additional premium charged for such policy by reason of Tenant's failure to
comply with the provisions of this section, it being understood that such demand
for reimbursement shall not be Landlord's exclusive remedy.
11.11 TENANT'S FAILURE TO INSURE.
In the event Tenant fails to provide Landlord with evidence of
insurance required under Section 11.4 and Section 11.5, Landlord may but shall
not be obligated to, without further demand upon Tenant and without waiving or
releasing Tenant from any obligation contained in this Lease, effect such
insurance. In such event, Tenant agrees to repay, upon demand, all sums incurred
by Landlord in effecting such insurance. All such sums shall become Additional
Rent hereunder, but no such payment by Landlord shall relieve Tenant from any
default under this Lease.
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ARTICLE 12
DAMAGE OR DESTRUCTION
12.1 TENANTABLE WITHIN 180 DAYS.
If fire or other casualty shall render the whole or any material
portion of the Premises untenantable, and the Premises can reasonably be
expected to be made tenantable within one hundred eighty (180) days from the
date of such event, then Landlord shall repair and restore the Property and the
Premises to as near their condition prior to the fire or other casualty as is
reasonably possible within such one hundred eighty (180) day period (subject to
delays for causes beyond Landlord's reasonable control) and notify Tenant that
it will be doing so, such notice to be mailed within forty-five (45) days from
the date of such damage or destruction. In such case, this Lease shall remain in
full force and effect, but Rent for the period during which the Premises are
untenantable shall be abated prorata, based upon the portion of the Premises
which is untenantable; provided, however, if 40% or more of the Premises is
untenantable and Tenant discontinues use of all of the Premises, the Rent shall
be totally abated until the restoration is complete. If Landlord is required to
repair the Premises as aforesaid, said work shall be undertaken and prosecuted
with all due diligence and speed.
12.2 NOT TENANTABLE WITHIN 180 DAYS.
If fire or other casualty shall render the whole or any material part
of the Premises untenantable and the Premises cannot reasonably be expected to
be made tenantable within one hundred eighty (180) days from the date of such
event, then either party, by notice in writing to the other sent within
forty-five (45) days from the date of such damage or destruction, may terminate
this Lease effective upon a date within thirty (30) days from the date of such
notice.
12.3 PROPERTY SUBSTANTIALLY DAMAGED.
In the event that more than fifty percent (50%) of the value of the
Property is damaged or destroyed by fire or other casualty, and irrespective of
whether damage or destruction can be made tenantable within one hundred eighty
(180) days thereafter, then at Landlord's option, by written notice to Tenant
sent within forty-five (45) days from the date of such damage or destruction,
Landlord may terminate this Lease effective upon a date within ninety (90) days
from the date of such notice to Tenant.
12.4 UNINSURED CASUALTY OR UNAVAILABLE INSURANCE PROCEEDS.
If fire or other casualty shall render any portion of the Premises or
any material portion of the Property untenantable and the insurance proceeds and
deductible amount are not sufficient to make such repair or if Landlord's lender
requires all or a portion of the proceeds to be applied to the outstanding
balance due under the loan, then Landlord may, by notice to Tenant sent within
forty-five (45) days from the date of such damages or destruction, terminate
this Lease effective upon a date within forty-five (45) days from the date of
such notice.
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12.5 DEDUCTIBLE PAYMENTS.
If the Premises or the Property is damaged, and such damage is of the
type insured against under the casualty insurance maintained by Landlord
hereunder, the cost of repairing said damage up to the amount of the deductible
under said insurance policy shall be included as a part of the Operating
Expenses. If the damage was due to an act or omission of Tenant, Tenant shall
pay Landlord the entire amount of the deductible under Landlord's insurance
policies (not to exceed $5,000.00) as Additional Rent.
12.6 LANDLORD'S REPAIR OBLIGATIONS.
In the event (a) fire or other casualty shall render the whole or any
material part of the Premises untenantable and the Premises cannot reasonably be
expected to be made tenantable within one hundred eighty (180) days from the
date of such event and neither party hereto terminates this Lease pursuant to
its rights herein, (b) more than fifty percent (50%) of the value of the
Property is damaged or destroyed by fire or other casualty, and Landlord does
not terminate this Lease pursuant to its option granted herein or (c) fifty
percent (50%) or less of the value of the Property is damaged or destroyed by
fire or other casualty and neither the whole nor any material portion of the
Premises is rendered untenantable, then in any such event Landlord shall repair
and restore the Premises and the Property to as near their condition prior to
the fire or other casualty as is reasonably possible with a due diligence and
speed (subject to delays for causes beyond Landlord's reasonable control) and
the Rent for the period during which the Premises are untenantable shall be
abated prorata, based upon the portion of the Premises which is untenantable;
provided, however, if 40% or more of the Premises is untenantable and Tenant
discontinues use of all of the Premises, the Rent shall be totally abated until
the restoration is complete. In no event shall Landlord be obligated to repair
or restore any Tenant Improvements or special equipment or improvements
installed by Tenant at Tenant's expense.
12.7 RENT APPORTIONMENT.
In the event of a termination of this Lease pursuant to this Article
12, Rent shall be apportioned on a per diem basis and paid to the date of the
fire or other casualty.
12.8 ADDITIONAL TENANT TERMINATION RIGHT.
If either (i) Landlord undertakes to repair the Premises pursuant to
Section 12.1 above and fails to achieve such repair and restoration within one
hundred eighty (180) days of the date of such casualty, as such date may be
extended for force majeure delays, or (ii) neither Landlord nor Tenant elects to
terminate this Lease and Landlord undertakes the repair and restoration of the
Premises pursuant to Section 12.2 above and fails to achieve such repair and
restoration within thirty (30) days following the expiration of the estimated
repair period set forth in Landlord's notice, as such date may be extended for
force majeure delays, then, in either such event, Tenant shall have the right to
terminate this Lease by written notice to Landlord within thirty (30) days
following the expiration of the applicable time period. If Tenant does not
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exercise its termination right within such thirty (30) day period, Landlord
shall continue to repair and restore the Premises as required herein and Tenant
shall have no further rights to terminate this Lease.
ARTICLE 13
EMINENT DOMAIN
13.1 TERMINATION OF LEASE.
If the whole or any substantial part of the Premises is taken by any
public authority under the power of eminent domain or taken in any manner for
any public or quasi-public use, so as to render the remaining portion of the
Premises unsuitable for the purposes intended hereunder, then this Lease shall
terminate as of the day possession shall be taken by such public authority and
Landlord shall make a pro rata refund of any prepaid Rent. In the event that
fifty percent (50%) or more of the building area or fifty percent (50%) or more
of the value of the Property is taken by public authority under the power of
eminent domain then at Landlord's option by written notice to Tenant, mailed
within sixty (60) days from the date possession shall be taken by such public
authority, Landlord may terminate this Lease effective upon a date within ninety
(90) days from the date of such notice to Tenant.
13.2 LANDLORD'S REPAIR OBLIGATIONS.
In the event this Lease is not terminated pursuant to Section 13.1,
Landlord shall, at its sole cost and expense, restore the Premises and Property
to a complete architectural unit and the Base Rent provided for herein during
the period from and after the date of delivery of possession pursuant to such
proceedings to the termination of this Lease shall be reduced to a sum equal to
the product of the Base Rent provided for herein multiplied by a fraction, the
numerator of which is the fair market rent of the Premises after such taking and
after same has been restored to a complete architectural unit, and the
denominator of which is the fair market rent of the Premises prior to such
taking. In addition, Tenant's Prorata Share of Excess Property Taxes and
Tenant's Prorata Share of Excess Operating Expenses for the same period shall be
adjusted in accordance with Section 4.7 after due consideration of the rentable
square footage of the Premises after the date of delivery of possession pursuant
to such proceedings compared to the rentable square footage of the Building
after the date of delivery of possession pursuant to such proceedings.
13.3 TENANT'S PARTICIPATION.
All damages awarded for such taking under the power of eminent domain
or any like proceedings shall belong to and be the property of Landlord, Tenant
hereby assigning to Landlord its interest, if any, in said award. Tenant shall
have the right to prove in any condemnation proceedings and to receive any
separate award which may be made for damages to or condemnation of Tenant's
movable trade fixtures and equipment and for moving expenses; provided however,
Tenant shall in no event have any right to receive any award for its interest in
this Lease or for loss of leasehold.
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ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 RESTRICTION ON TRANSFERS.
Except as provided in Section 14.3 below, Tenant shall not assign,
mortgage, pledge, transfer, sublease or otherwise encumber or dispose of this
Lease, or any interest therein, or in any manner assign, mortgage, pledge,
transfer or otherwise encumber or dispose of its interest or estate in the
Premises, or any portion thereof ("Transfer"), without obtaining Landlord's
prior written consent in each and every instance, which consent shall not be
unreasonably withheld or delayed. Landlord shall be deemed reasonable in
withholding such consent based on any of the following factors: (i) in
Landlord's reasonable judgment, the character, reputation or business of the
proposed assignee or subtenant is inconsistent with the desired tenant mix or
the quality of the other tenancies in the Building; (ii) the financial condition
of the proposed assignee is not equal to or better than the financial condition
of tenant; (iii) the proposed assignee or subtenant intends to make a use which
is not in keeping with the first-class nature of the Building or which will
violate an exclusive use right granted by Landlord to another tenant of the
Building; (iv) the proposed assignee or subtenant is an existing tenant of the
Building for whom Landlord has space available (on the date the existing tenant
desires to expand) in the Building and desires a length of term which Landlord
is willing to provide; or (v) the proposed assignee or subtenant is a potential
candidate for space in the Building who has asked for and received a bona fide
proposal from Landlord with respect to other space which Landlord currently has
available in the Building and which would be adequate to satisfy the
requirements of the potential assignee or subtenant (disregarding any difference
in rental rate between Landlord's Space and Tenant's Sublease Space) and such
candidate desires the space for a length of term which Landlord is willing to
provide. Notwithstanding anything to the contrary set forth hereinabove, if
Tenant has notified Landlord that it desires to expand the Premises by 50% or
more and Landlord has been unable to satisfy Tenant's expansion requirement
either by providing such additional space in the Building or by providing the
entire requirement in another building in the immediate vicinity owned by Opus
South Corporation or one of its affiliates and, as a result, Tenant desires to
sublease or assign the Premises so that it can relocate to another building,
then, in that event, Landlord shall not be deemed reasonable in withholding its
consent based on either item (iv) or item (v) above. No Transfer shall release
Tenant from its liability under this Lease.
14.2 DEFINITION OF ASSIGNMENT.
For the purposes of this Lease, an "assignment" prohibited by this
Section 9 shall be deemed to include the following: if Tenant is a partnership,
a withdrawal or change (voluntary, involuntary, by operation of law) of any one
or more of the partners thereof, or the dissolution of the partnership; or, if
Tenant consists of more than one person, a purported assignment, transfer,
mortgage or encumbrance (voluntary, involuntary, by operation of law or
otherwise) from one constituent member to any other constituent member, or to
any third party; or, if Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or any change in the ownership
(voluntary, involuntary, by operation of law, creation of new stock or
otherwise) of fifty percent (50%) or more of its capital stock from the
ownership existing on the
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date of execution hereof, or, the sale of fifty percent (50%) of the value of
the assets of Tenant. This paragraph shall not apply if the stock of Tenant is
publicly traded on a national stock exchange or over-the-counter.
14.3 AFFILIATE AND TRANSFER ASSIGNMENT RIGHTS.
Notwithstanding anything to the contrary set forth in Section 14.1
above, Tenant shall have the right to assign this Lease or sublease all or any
portion of the Premises to any entity which is wholly-owned by Tenant or is
owned by the same parent entity as Tenant or which owns all of Tenant, but
Tenant shall not be released from any of its obligations under this Lease
following any such assignment or sublease. In addition, in the event that all or
substantially all of the assets of Tenant are acquired by another entity or all
or substantially all of the stock of Tenant (or in either event a group,
division, or section of Tenant's business which includes the operations
conducted in the Premises) occurs and the resulting entity will have a net
worth, following the asset or stock acquisition, which is equal to or greater
than the net worth of Tenant immediately prior to the date of such transaction,
such assignment will not require the prior written consent of Landlord. Tenant
must provide Landlord written notice, at least ten (10) business days prior to
any assignment which will be governed by this Section 14.3 and which Tenant
believes does not require the consent of Landlord pursuant to the terms hereof.
14.4 RECAPTURE.
No less than thirty (30) days prior to the effective date of a proposed
assignment or sublease (other than one made pursuant to Subsection 14.2, Tenant
shall offer to reconvey to Landlord, as of said effective date, that portion of
the Premises which Tenant is seeking to assign or sublet, which offer shall
contain an undertaking by Tenant to accept, as full and adequate consideration
for the reconveyance, Landlord's release of Tenant from all future Rent and
other obligations under this Lease with respect to the Premises or the portion
thereof so reconveyed. Landlord, in its absolute discretion, shall accept or
reject the offered reconveyance within thirty (30) days of the offer and if
Landlord accepts, the reconveyance shall be evidenced by an agreement acceptable
to Landlord in form and substance. If Landlord fails to accept or reject the
offer within the thirty (30) day period, Landlord shall be deemed to have
rejected the offer.
14.5 COSTS.
Tenant agrees to pay on behalf of Landlord any and all reasonable costs
actually incurred by Landlord, including reasonable attorney's fees, occasioned
by such Transfer.
14.6 PROCEEDS.
If Landlord rejects or is deemed to have rejected Tenant's offer of
reconveyance and if Landlord gives its consent to any assignment of this Lease
or to any sublease, or if Tenant is otherwise permitted to make any assignment
or sublease pursuant to this Lease, Tenant shall in consideration therefore, pay
to Landlord, as Additional Rent 50% of any and all amounts by which the rent and
any other consideration paid by the subtenant or assignee exceeds the Rent
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due and payable by Tenant to Landlord hereunder, net of all reasonable costs and
expenses actually incurred by Tenant to procure the sublease or assignment
including construction costs, brokerage costs, legal fees, design costs and
concessions. With respect to a sublease of less than the entire Premises, the
Rent due under this Lease shall be appropriately prorated on a per rentable
square foot basis to determine any such excess amounts. Any such excess amounts
shall be paid by Tenant to Landlord as and when payable by the assignee or
subtenant to Tenant.
ARTICLE 15
DEFAULTS; REMEDIES
15.1 EVENTS OF DEFAULT.
The occurrence of any of the following shall constitute a default and
breach of this Lease by Tenant:
15.1.1 FAILURE TO PAY BASE RENT OR ADDITIONAL RENT.
If Tenant fails to pay Base Rent or Additional Rent as and
when due and does not cure such failure within ten (10) days following Tenant's
receipt of written notice from Landlord.
15.1.2 FAILURE TO PERFORM.
If Tenant fails to perform any of Tenant's nonmonetary
obligations under this Lease for a period of thirty (30) days after Tenant's
receipt of written notice from Landlord; provided that if performance as
required by this Lease reasonably requires more than thirty (30) days to
complete, Tenant shall not be in default if Tenant commences such performance
within the thirty (30) day period and thereafter diligently pursues its
completion and accomplishes the cure within ninety (90) days. Landlord shall not
be required to give such notice if Tenants failure to perform constitutes a
noncurable breach of this Lease.
15.1.3 REPEATED DEFAULTS.
Notwithstanding anything to the contrary set forth in Section
15.1.2 above, in the event Tenant fails to perform any non-monetary obligations
under this Lease on more than two (2) occasions in any calendar year, then any
further nonmonetary failure in such calendar year shall constitute an event of
default without any notice or opportunity to cure.
15.1.4 OTHER DEFAULTS.
If (a) Tenant makes a general assignment or general
arrangement for the benefit of creditors; (b) a petition for adjudication of
bankruptcy or for reorganization or rearrangement is filed by or against Tenant
and is not dismissed within thirty (30) days; (c) a trustee or receiver is
appointed to take possession of substantially all of Tenant's assets located at
the Premises or of Tenant's interest in this Lease and possession is not
restored to Tenant within thirty (30) days; or (d) substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease
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is subjected to attachment, execution or other judicial seizure which is not
discharged within thirty (30) days. If a court of competent jurisdiction
determines that any of the acts described in this subsection is not a default
under this Lease, and a trustee is appointed to take possession (or if Tenant
remains a debtor in possession) and such trustee or Tenant transfers Tenant's
interest hereunder, then Landlord shall receive, as Additional Rent, the
difference between the Rent (or any other consideration) paid in connection with
such assignment or sublease and the Rent payable by Tenant hereunder.
The notices required by this section are intended to satisfy
any and all notice requirements imposed by the Laws and are not in addition to
any such requirements.
15.2 REMEDIES.
Upon the occurrence of any default by Tenant, Landlord may at any time
and from time to time exercise any of the following remedies. Landlord's
exercise of any right or remedy shall not prevent it from exercising any other
right or remedy available at law or in equity.
15.2.1 TERMINATION OF TENANT'S RIGHT TO POSSESSION OF THE
PREMISES.
Terminate Tenant's right to possession of the Premises by any
lawful means, in which case Tenant shall immediately surrender possession of the
Premises to Landlord. In such case, this Lease shall continue in full force and
effect except for Tenant's right to possession. Termination of Tenant's right to
possession shall not be construed as an election by Landlord to terminate this
Lease and Tenant's obligations and liabilities hereunder unless and until
Landlord delivers written notice to Tenant expressly exercising such right of
termination.
15.2.2 RIGHT OF RE-ENTRY AND RELETTING.
Upon termination of Tenant's right to possession of the
Premises, Landlord may but shall not be obligated to, re-enter the Premises and
remove all persons and property from the Premises. Any property removed may be
stored in a public warehouse or elsewhere at the cost of and for the account of
Tenant. Upon such re-entry, Landlord may but shall not be obligated to, relet
the Premises or any part of them, to third parties for Tenant's account. Tenant
shall be liable immediately to Landlord for all costs and expenses incurred by
Landlord in re-entering or reletting the Premises, including but not limited to
(a) maintaining or preserving the Premises after such default, (b) recovering
possession of the Premises, removing persons and property from the Premises and
storing such property, including court costs and reasonable attorneys' fees
incurred in connection therewith, (c) reletting, renovating or altering the
Premises, and (d) real estate commissions paid or payable in connection with
reletting the Premises, said cost and expenses collectively referred to herein
as "Re-entry Costs". Reletting can be for a period shorter or longer than the
remaining Term. Tenant shall continue to pay Rent when due under this Lease,
less the Net Rent (as hereafter defined) actually received by Landlord from
reletting. Net Rent shall mean all rental actually received by Landlord from
reletting less the following: (i) any indebtedness from Tenant to Landlord other
than Rent, which shall be paid first, and (ii) the Reentry Costs, which shall be
paid second. In the event the rental actually received by Landlord
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from reletting exceeds the Rent, any sum remaining will be held by Landlord and
applied to future Rent under this Lease.
15.2.3 TERMINATION OF LEASE.
Terminate this Lease and all of Tenant's rights and
obligations hereunder by delivery of written notice to Tenant. Such termination
shall be effective upon delivery of such notice to Tenant and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event,
Landlord shall be entitled to recover from Tenant and Tenant shall pay to
Landlord immediately upon demand, all damages incurred by Landlord by reason of
Tenant's default, including without limitation (a) all Rent due and payable
under this Lease as of the effective date of the termination; (b) any amount
necessary to compensate Landlord for all detriment proximately caused by
Tenant's failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom, including but not
limited to, any costs or expenses incurred in (i) maintaining or preserving the
Premises after such default, (ii) recovering possession of the Premises,
removing persons and property from the Premises and storing such property,
including court costs and reasonable attorneys' fees incurred in connection
therewith (iii) reletting, renovating or altering the Premises, and (iv) real
estate commission paid or payable in connection with reletting the Premises; and
(c) an amount equal to the difference between the present worth, as of the
effective date of the termination, of the Rent for the balance of the Term
remaining after the effective date of the termination (assuming no termination)
and the present worth, as of the effective date of the termination, of a fair
and reasonable market rent for the Premises for the same period. For purposes of
this section, present worth shall be computed by utilizing a discount rate of
six percent (6%). Nothing in this section shall limit or prejudice Landlord's
right to prove and obtain damages in an amount equal to the maximum amount
allowed by the Laws, regardless of whether such damages are greater than the
amounts set forth herein.
15.3 COSTS.
Tenant shall reimburse and compensate Landlord upon demand, as
Additional Rent, for any actual pecuniary loss incurred by Landlord in
connection with, resulting from or related to any breach or default of Tenant
under this Lease, whether or not suit is commenced or judgment entered. Such
loss shall include all reasonable legal fees, costs and expenses incurred in the
negotiation, settlement or enforcement of rights or remedies of Landlord or
necessary to protect Landlord's interest under this Lease in a bankruptcy case
or proceeding under Title II of the United States Code, as amended. Tenant shall
also indemnify, defend (with counsel reasonably acceptable to Landlord) and
protect Landlord against, and hold Landlord free and harmless from, all Claims
incurred by Landlord if Landlord becomes or is made a party to any claim or
action (a) instituted by Tenant, by any third party against Tenant or by or
against any person holding any interest under or using the Premises by license
of or agreement with Tenant; (b) for foreclosure of any lien for labor or
material furnished to or for Tenant or such other person; (c) otherwise arising
out of or resulting from any act or transaction of Tenant or such other person;
or (d) necessary to protect Landlord's interest under this Lease in a bankruptcy
case or proceeding under Title II of the United States Code, as amended.
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15.4 NO WAIVER.
No failure by Landlord to insist upon the performance of any of the
terms of this Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance by Landlord of full or partial rent from Tenant or
any third party during the continuance of any such breach, shall constitute a
waiver of any such breach or of any of the terms of this Lease. None of the
terms of this Lease to be kept, observed or performed by Landlord or by Tenant,
and no breach thereof, shall be waived, altered or modified except by a written
instrument executed by Landlord and/or by Tenant, as the case may be. No waiver
of any default of Tenant herein shall be implied from any omission by Landlord
to take any action on account of such default. One or more waivers by Landlord
shall not be construed as a waiver of a subsequent breach of the same covenant,
term or condition. No statement on a payment check from Tenant or in a letter
accompanying a payment check shall be binding on Landlord. Landlord may, with or
without notice to Tenant, negotiate such check without being bound to the
conditions of such statement.
15.5 WAIVER BY TENANT.
Tenant hereby waives all claims resulting from Landlord's re-entry and
taking possession of the Premises and removing and storing the property of
Tenant as permitted under this Lease and will save Landlord harmless from all
losses, costs or damages occasioned thereby. No such reentry shall be considered
or construed to be a forcible entry by Landlord.
ARTICLE 16
PROTECTION OF CREDITORS
16.1 SUBORDINATION.
If and only if Landlord obtains a Subordination, Non-Disturbance and
Attornment Agreement in substantially the form of that attached hereto as
EXHIBIT "G", this Lease and all rights of Tenant therein, and all interest or
estate of Tenant in the Property or any portion thereof, shall be subject and
subordinate to the lien of any mortgage, deed of trust or other document of like
nature ("Mortgage") which now or at any time may be placed upon the Property or
any portion thereof, and to any replacements, renewals, amendments,
modifications, extensions or refinancing thereof, and to each and every advance
made under any Mortgage. Tenant agrees at any time hereafter, and from time to
time on demand of Landlord, to execute and deliver to Landlord any reasonable
instruments, releases or other documents that may be reasonably required for the
purpose of subjecting and subordinating this Lease to the lien of any Mortgage.
It is agreed that so long as Tenant is not in default in the payment of Rent or
the performance and observance of any covenant, condition, provision, term or
agreement to be performed and observed by Tenant under this Lease, the holder of
any Mortgage shall not interfere with, hinder, molest or disturb Tenant's rights
under this Lease. The lien of any such Mortgage shall not cover Tenant's trade
fixtures or other personal property located in or on the Premises. Landlord
represents and warrants that Landlord is the owner of fee title to the Property
and that, except for a deed to secure debt and other security instruments in
favor of Wachovia Bank of Georgia, N.A.
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("Wachovia"), the Property is not currently subject to any ground leases and is
not encumbered by any Mortgages. Landlord will deliver to Tenant, within thirty
(30) days following the date of this Lease, an SNDA in the agreed, attached
form, executed by Wachovia.
16.2 ATTORNMENT.
If Landlord's interest in the Premises is acquired by any ground
landlord, the holder of any Mortgage at a foreclosure sale or by any new person
or entity as a result of any transfer by Landlord, Tenant shall attorn to the
transferee of or successor to Landlord's interest in the Premises and recognize
such transferee or successor as landlord under this Lease provided such
transferee expressly assumes, in writing, all obligations of Landlord accruing
from and after the date of transfer. Tenant waives the protection of any statute
or rule of Law which gives or purports to give Tenant any right to terminate
this Lease or surrender possession of the Premises upon the transfer of
Landlord's interest.
16.3 ESTOPPEL CERTIFICATES.
16.3.1 CONTENTS.
Upon Landlord's written request, Tenant shall execute, acknowledge and
deliver to Landlord a written statement certifying: (a) that this Lease (and all
guaranties, if any) is unmodified and in full force and effect (or, if there
have been any modifications, that the same is in full force and effect, as
modified, and stating the modifications); (b) that this Lease has not been
canceled or terminated; (c) the last date of payment of Base Rent and Additional
Rent and the time period covered by such payments; (d) whether or not there are
then existing any breaches or defaults by Landlord known by Tenant under this
Lease, and if so, specifying the same and the steps being taken to remedy the
same; (e) specifying any setoffs or defenses in favor of Tenant against the
enforcement of this Lease (or of any guaranties); and (f) such other statements
as required by Landlord, any lender, prospective lender, investor or purchaser.
Tenant shall deliver such statement to Landlord within ten (10) business days
after Landlord's request. Any such statement by Tenant may be given by Landlord
to any lender, prospective lender, investor or purchaser of the Premises and may
be relied upon by such party as true and correct.
16.3.2 FAILURE TO DELIVER.
If Tenant does not deliver such statement to Landlord within
such ten (10) business day period, such failure shall constitute a default under
this Lease entitling Landlord to pursue remedies for breach.
16.4 MORTGAGEE PROTECTION CLAUSE.
Tenant agrees to give the holder of any Mortgage, by registered mail, a
copy of any notice of default served upon Landlord, provided that prior to such
notice Tenant has been notified in writing (by way of notice of assignment of
rents and leases or otherwise) of the address of such holder. Tenant further
agrees that if Landlord shall have failed to cure such default within the
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time provided for in this Lease, then such holder shall have an additional ten
(10) days within which to cure such default or if such default cannot be cured
within that time, then such additional time as may be necessary if, within such
ten (10) day period, the holder has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings if necessary to effect such cure) in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
ARTICLE 17
TERMINATION OF LEASE
17.1 SURRENDER OF PREMISES.
At the expiration of the Term, Tenant shall surrender the Premises in
the same condition as the same were in on the Commencement Date, reasonable wear
and tear excepted, permitted alterations and damage by casualty or condemnation
excepted, and shall surrender all keys to the Premises to Landlord's managing
agent or to Landlord at the place then fixed for the payment of Base Rent and
shall inform Landlord of all combinations on locks, safes and vaults, if any.
Tenant shall at such time remove all of its property therefrom and all
alterations and improvements placed thereon by Tenant if so requested by
Landlord. Tenant shall repair any damage to the Premises caused by such removal,
and any and all such property not so removed shall, at Landlord's option, become
the exclusive property of Landlord or be disposed of by Landlord at Tenant's
cost and expense without further notice to or demand upon Tenant. All property
of Tenant not removed on or before the last day of the Term shall be deemed
abandoned. Tenant hereby appoints Landlord its agent to remove, at Tenant's
cost, all property of Tenant from the Premises upon termination of this Lease
and to cause its transportation and storage for Tenant's benefit, all at the
sole cost and risk of Tenant and Landlord shall not be liable for damage, theft,
misappropriation or loss thereof and Landlord shall not be liable in any manner
in respect thereto.
17.2 HOLDING OVER.
In the event Tenant remains in possession of the Premises after
expiration of this Lease, and without the execution of a new lease, but with
Landlord's written consent, it shall be deemed to be occupying the Premises as a
tenant from month to month, subject to all the provisions, conditions and
obligations of this Lease insofar as the same can be applicable to a
month-to-month tenancy, except that the Base Rent shall be escalated to one
hundred fifty percent (150%) of Landlord's then current Base Rent for the
Premises according to Landlord's then current rental rate schedule for
prospective tenants. In the event Tenant remains in possession of the Premises
after expiration of this Lease and without the execution of a new lease and
without Landlord's written consent, Tenant shall be deemed to be occupying the
Premises without claim of right and Tenant shall pay a charge for each day of
occupancy an amount equal to one hundred fifty percent (150%) of the Base Rent
and Additional Rent (on a day basis) then currently being charged by Landlord on
new leases in the Property for space similar to the Premises.
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ARTICLE 18
MISCELLANEOUS PROVISIONS
18.1 NOTICES.
All notices, demands and requests which may be or are required to be
given, demanded or requested by either party to the other shall be in writing.
All notices, demands and requests shall be sent by United States registered or
certified mail, postage prepaid or by an independent overnight courier service,
addressed to the addresses specified in the Basic Terms or at such other place
as either party may designate to the oth |
