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SUBLEASE AGREEMENT
------------------
THIS SUBLEASE AGREEMENT (this "Sublease") is made and entered into as of
the 15 day of December, 1997, by and between PREMIERE COMMUNICATIONS, INC., a
Florida corporation, (the "Sublandlord") and ENDEAVOR TECHNOLOGIES, INC., a
Georgia corporation (the "Subtenant"), to be effective as of the "Commencement
Date", as hereinafter defined.
WITNESSETH:
-----------
WHEREAS, Sublandlord, by Agreement of Lease dated March 3, 1997, (the
"Master Lease"), leased from Corporate Property Investors (the "Landlord") the
entire 4th floor comprising 20,838 rentable square feet (the "Premises"), along
with additional space on other floors, of that certain building commonly known
as the Lenox Building, located at 3399 Peachtree Road, N.E., Atlanta, Georgia
(the "Building"), such Premises being more particularly described on Exhibit B
to the Master Lease (a copy of which Master Lease is attached hereto as Exhibit
-------
"A" and made a part hereof); and
-
WHEREAS, Subtenant desires to sublease the Premises on the terms and
conditions set forth below;
NOW THEREFORE, for and in consideration of the sum of TEN and NO/100
Dollars, the mutual promises set forth below, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby agree as follows:
1. Premises; Term
--------------
Sublandlord hereby subleases to Subtenant, and Subtenant hereby subleases
from Sublandlord, the Premises for a term (the 'Sublease Term") commencing on
the date (the "Commencement Date") which is the earlier of (i) the date of
occupancy agreed to by Sublandlord and Subtenant, or (ii) February 1, 1998, and
ending on the date which is two (2) years from such date (the "Expiration Date")
unless sooner terminated according to the terms hereof.
2. Subordination
-------------
This Sublease is hereby expressly made subject and subordinate to the
Master Lease and shall be upon the same terms, covenants and conditions provided
in the Master Lease as applicable to the Premises (except such as by their
nature are inapplicable to or inconsistent with this Sublease). Subtenant
acknowledges that its possession and use of the Premises shall at all times. be
subject to the rights of Landlord set forth in the Master Lease. Sublandlord
shall have no liability to Subtenant for any acts of the Landlord pursuant to
the Master Lease. The provisions of the Master Lease pertaining to the Premises
are deemed included herein and made a part hereof ("Sublandlord" being
substituted for "Landlord" and "Subtenant" being substituted for "Tenant"),
except that Subtenant's obligations for each subject addressed in this Sublease,
including rental obligations, are limited to the terms of this Sublease.
3. Obligations-Under Master Lease
------------------------------
For the purposes of this Sublease only, Subtenant hereby assumes all of the
responsibilities and obligations to be performed on the part of Sublandlord as
tenant under the Master Lease with respect to the Premises for the entire
Sublease Term (other than the obligations to pay rent and additional rent and
other
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<PAGE> 2
amounts which are governed by this Sublease). Such undertaking shall in no way
relieve Sublandlord of its obligations under the Master Lease. Both Sublandlord
and Subtenant covenant and agree not to do, permit or allow any act which would
violate or constitute a breach of or a default under the Master Lease. Upon any
breach by Subtenant of any of the terms, covenants, or agreements to be
performed or observed under this Sublease by Subtenant, Sublandlord may exercise
any of the rights given to the Landlord under the Master Lease, subject to the
limitations thereof and hereof, and the exercise thereof shall not be in
derogation of, but shall be in addition to any other remedies available to
Sublandlord, hereunder or under law or equity.
4. Termination
-----------
A. Termination of Master Lease
---------------------------
In the event the Master Lease is terminated pursuant to its terms prior to
the expiration of the term of this Sublease, this Sublease shall automatically
cease and terminate as of the date upon which the Master Lease is terminated.
Upon any such termination of the Master Lease, all rent due hereunder shall be
prorated from the first day of the month of termination, and neither p shall
have any further obligation or liability to the other arising out of this
Sublease ex for the payment by Subtenant of such amounts of rent as so prorated
and any other amounts accrued as of the date of termination, and except for
rights or obligations that had accrued prior to the effective date of the
termination of this Sublease. To the extent that Sublandlord has over (30)
days' notice of such termination, Sublandlord agrees to give Subtenant
reasonable notice at least thirty (30) days prior to any such termination date.
B. Other Termination
-----------------
In the event of termination of that certain Equipment Lease between
Sublandlord and Subtenant dated of even date herewith (the "Equipment Lease") or
that certain Co-Marketing and Integration Agreement between Sublandlord and
Subtenant dated of even date herewith (the "Co-Marketing Agreement"), either
party hereto, provided it is not responsible for a default causing such
termination, shall have the right to terminate this Sublease upon written notice
to the other party, which termination shall be effective on the date on which
such other agreement terminates, unless the parties may agree to another
effective date. In the event of such termination on, Subtenant shall surrender
the Premises to Sublandlord in the manner described in the Master Lease, and
neither party shall have any further rights or obligations under this Sublease,
except for rights or obligations that had accrued prior to the effective date of
the term on of this Sublease.
5. Rent
----
A. Base Rent for Premises
----------------------
Subtenant shall pay Sublandlord as the annual base rent (the "Base Rent")
for the Premises during the Sublease Term the sum of Four Hundred Thirty, Seven
Thousand Five Hundred Ninety Eight Dollars ($437,598.00) payable in advance in
equal monthly installments of Thirty Six Thousand Four Hundred Sixty Six and
501100 ($36,466.50) beginning on the Commencement Date and continuing on the day
ten (10) days in advance of each payment to be made under the Master Lease
(recognizing that payments due under the Master Lease a re due in advance on the
first day of the month) during the Sublease Term ("Due Date"), and continuing
each and every month thereafter, without demand, deduction, set-off or abatement
whatsoever, said payments of Base Rent to be made directly to Sublandlord at the
address of Sublandlord set forth herein. Appropriate prorations shall be made
in the event the Commencement Date is not a Due Date or in the event that the
Sublease terminates prior to a Due Date.
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<PAGE> 3
B. Additional Rent for Premises
----------------------------
Subtenant shall also pay Sublandlord, as additional rent, as and when the
same shall become due and payable under the provisions of the Master Lease all
costs and expenses including, without limitation, all taxes and assessments, all
insurance costs and repair costs pertaining specifically to the Premises or
prorated in the event the same applies to the entire leasehold interest of
Sublandlord under the Master Lease due under the Master Lease for each year
during the Sublease Term (collectively, the "Additional Rent"). Sublandlord
agrees to provide Subtenant with an invoice and the corresponding bill from the
Landlord for the Additional Rent.
C. Late Charge
-----------
Any rental amounts not paid when due shall bear interest at the rate of one
and one-half percent (1.5%) per month until paid.
6. Condition of Premises
---------------------
Subtenant represents that it has made a thorough examination and inspection
of the Premises and is familiar with the condition of such property, and
Subtenant agrees to accept the Premises in their "as is" condition, as of the
date of this Sublease. Except as provided in the Co-Marketing Agreement,
Subtenant agrees that it enters into this Sublease without any representations
or warranties by Sublandlord, its agents, representatives, servants or employees
or any other person, as to the condition or use by Subtenant of the Premises.
7. Exclusion from Master Lease
---------------------------
The following Articles or Sections of the Master Lease are expressly
excluded from this Sublease and shall not apply to Subtenant: any renewal
options, or options to lease additional space in the Building, or rights of
first refusal with regard to space in the Building. Subtenant acknowledges and
agrees the such rights are personal to Sublandlord and that Subtenant shall have
no rights to exercise such options and renewals, if any, contained in the Master
Lease.
8. Services, Utilities, Maintenance and airs
-----------------------------------------
Subtenant acknowledges and agrees that Sublandlord shall provide, only via
the Landlord, maintenance or repair of the Premises, utilities or r services
described as being provided by the Landlord in the Master Lease. Subtenant
agrees that, in cooperation with the Sublandlord, it shall look solely to the
Landlord and not to Sublandlord for the rendition of all such services and the
performance of all obligations required to be furnished and performed in the
Premises. Subtenant shall receive directly from the Landlord all services and
utilities and the performance of all obligations which the Landlord is required
to provide in and for the benefit of the Premises, and Sublandlord shall have no
liability whatsoever in event that Landlord fails to furnish or perform any such
services or obligations during the Sublease Term. However, Sublandlord agrees
to cooperate with Subtenant in good faith, in dealings with and notices to
Landlord regarding services, utilities, maintenance and repair of the Premises.
9. Additional Services
-------------------
Subtenant covenants and agrees to pay any fees and expenses assessed by
Landlord pursuant to the Master Lease resulting from Subtenant's use and
occupancy of the Premises. In addition, if other services
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<PAGE> 4
not provided by Landlord (the "Other Services") are obtained for the joint
benefit of Subtenant and Sublandlord, as mutually agreed to by the parties, the
parties shall share the cost of such services on a fair and equitable basis. If
Other Services are desired, solely for the benefit of Subtenant, Subtenant shall
bear all of such costs, and Sublandlord agrees to cooperate with Subtenant, to
the extent reasonably requested, in obtaining such Other Services, provided same
are at no cost to Sublandlord.
10. Use of Premises
---------------
Subtenant shall use the Premises only for the "Permitted Use' as defined in
the Master Lease, and shall not use the Premises for any use or purpose which
would violate the Master Lease. Subtenant shall not change its use of the
Premises without the prior written consent of the Sublandlord, in its reasonable
discretion and Landlord, in the manner provided in the Master Lease. During the
Sublease Term, Subtenant agrees to assume any responsibility previously borne by
Sublandlord in its capacity as tenant under the Master Lease regarding the
Occupational Safety Health Act, the Americans with Disabilities Act, and the
legal use or adaptability of the Premises and the compliance thereof to all
applicable laws and regulations enforced during the Sublease Term.
11. Alterations
-----------
Subtenant shall make no alterations, additions, installations or
improvements of any kind ("Alterations") to the Premises without the prior
written consent of Landlord (in accordance with the Master Lease) and
Sublandlord, in its reasonable discretion. Except as provided in the Co-
Marketing Agreement, any Alterations made to the Premises With consent shall be
at the sole cost and expense of Subtenant, and Subtenant agrees to restore the
Premises to their original condition at its sole cost if so requested by
Sublandlord or Landlord at the end of the Sublease Term. Any and all approved
Alterations shall be made in conformity with the applicable terms and conditions
of the Master Lease. Subtenant shall submit is proposed Alterations,
simultaneously to Landlord and Sublandlord for consent, subject to the
provisions of the Master Lease.
12. Assignment and Subletting
-------------------------
A. Consent Required
----------------
Subtenant shall not voluntarily or by operation of law assign, transfer,
mortgage, sublet, or otherwise transfer or encumber all or any part of
Subtenant's interest in this Sublease or the Premises without the prior written
consent of the Landlord (in accordance with the apple provisions of the Master
Lease) and Sublandlord, in Sublandlord's reasonable discretion. Any attempted
assignment, transfer, mortgage, encumbrance or subletting without such consent
shall be void, and shall constitute a breach of this Sublease.
B. No Release
----------
Regardless of any consent by Sublandlord, no subletting or assignment shall
release Subtenant of Subtenant's obligation, or alter the primary liability of
Subtenant to pay the Base Rent, Additional Rent, and to perform all other
obligations to be performed by Subtenant hereunder. The acceptance of rent by
Sublandlord from any other person shall not be deemed a waiver by Sublandlord of
any provision hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by any assignee of Subtenant or any successor of Subtenant in the
performance of any of the terms hereof, Sublandlord may proceed directly against
Subtenant without the necessity of exhausting remedies against said assignee or
such additional sublessee.
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<PAGE> 5
C. Fees
----
In the event Subtenant shall assign or sublet the Premises or request the
consent of Sublandlord to any assignment or subletting, or if Subtenant shall
request the consent of Sublandlord for any act that Subtenant proposes to do,
then Subtenant shall reimburse Sublandlord for any fees Sublandlord is required
to pay as tenant pursuant to the Master Lease, by reason of such act.
13. Consents and Approvals
----------------------
Sublandlord shall not be liable for any damages if Sublandlord withholds or
delays any consent or approval requested by Subtenant, and as to any consent or
approval which the Sublandlord has agreed in writing not to unreasonably
withhold or delay, Subtenant shall have only the remedy of specific performance
or injunction.
14. Indemnity
---------
Subtenant shall indemnify and hold harmless Sublandlord and the Landlord
from and against any and all claims arising from Subtenant's use of the
Premises, or from the conduct of Subtenant's business or from any activity, work
or thing done, permitted or suffered by Subtenant in or about the Premises or
elsewhere, except to the extent resulting from a material breach of
Sublandlord's obligations under the Co-Marketing Agreement, and shall further
indemnify and hold harmless the Sublandlord and the Landlord from and against
any all claims arising from any breach or default in the performance of any
obligation on Subtenant's part to be performed under the terms of this Sublease,
or arising from any negligence of Subtenant or any of Subtenant's agents,
contractors, or employees, (excluding Sublandlord to the extent it is a
contractor of Subtenant under the Co-Marketing Agreement), and from and against
all costs, attorneys' fees, expenses and liabilities incurred in the defense of
any such claim or any action or proceeding brought thereon. Subtenant agrees
that should any action or proceeding be brought against Sublandlord or the
Landlord by reason of any such claim, upon notice from Sublandlord or the
Landlord, Subtenant shall defend the same at Subtenant's expense by counsel
reasonably satisfactory to Sublandlord.
Subtenant, as a material part of the consideration to Sublandlord, hereby
assumes all risk of damage to property or injury to persons, in, upon or about
the Premises arising from Subtenant's use of the Premises, subject to the terms
of the Equipment Lease as to damages to property addressed therein, and
Subtenant hereby waives all claims in respect thereof against Sublandlord.
Subtenant hereby agrees that Sublandlord shall not be liable for injury to
Subtenant's business or any loss of income, therefrom or for damage to the
goods, wares, merchandise or other property of Subtenant, Subtenant's
shareholders, employees, invitees, customers; or any other person in or about
the Premises, nor shall Sublandlord be liable for injury to any person including
Subtenant's shareholders, employees, agents or contractors, whether such damage
or injury is caused by or results from fire, steam, electricity, gas, water or
rain, or from the breakage, leakage, obstruction or other defects of pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures,
or from any other cause whether the said damage or injury results from
conditions arising upon the Premises or upon portions of the Building, or from
other sources or places, and regardless of whether the cause of such damage or
injury or the means of repairing the same is inaccessible to Subtenant.
Sublandlord shall not be liable for any damages arising from any act, omission
or neglect of the Landlord or any tenant of the Building.
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<PAGE> 6
15. Insurance
---------
Sublandlord shall have no obligation to provide insurance or perform any
repair, replacement, or any other requirement imposed upon the Landlord as
landlord pursuant to the Master Lease in the event of damage to all of or any
part of the Building. However, Sublandlord agrees to keep in place, for the
Premises, such policies of insurance as are required of it as tenant pursuant to
the Master Lease. Subtenant shall obtain and maintain insurance policies
identical to those required to be maintained by Sublandlord as tenant pursuant
to the Master Lease (but only with regard to the Premises herein described and
not the entirety of the premises leased pursuant to the Master Lease), and
Sublandlord and Landlord shall be named as additional insureds. Subtenant
acknowledges and agrees that the Landlord and Sublandlord shall not be
responsible or liable to Subtenant for any loss or damage at the Premises.
16. Estoppel Certificate
--------------------
A. Requirements
------------
Subtenant shall, at any time, upon not less than ten (10) days' prior
written notice from Sublandlord, execute, acknowledge and deliver to Sublandlord
a statement in writing (i) certifying that this Sublease is unmodified and in
full force and effect (or, if modified, stating the nature of such modification
and certifying that this Sublease, as so modified, is in full force and effect)
and the extent to which the rent and other charges are paid in advance, if any;
and (ii) acknowledging that there are not, to Subtenant's knowledge, any uncured
defaults on the part of Sublandlord hereunder, or specifying such defaults if
any are claimed. Any such statement may be conclusively relied upon by any
prospective assignee or mortgagees of the Premises.
B. Failure to Comply
-----------------
Subtenant's failure to provide such statement within such times shall be a
default by Subtenant under this Sublease, and shall be conclusive upon Subtenant
(i) that this Sublease is in full force and effect, without modification except
as may be represented by Sublandlord; (ii) that there are no uncured defaults in
the performance by Sublandlord or Landlord; and (iii) that not more than one
month's rent has been paid in advance.
17. Eminent Domain
--------------
In the event of any condemnation of the Premises, all awards and
compensation, or proceeds payable to Sublandlord pursuant to the Master Lease
shall be the property of Sublandlord. No part of any condemnation awards,
compensation or proceeds shall be payable to Subtenant.
18. Rules and Regulations
---------------------
Subtenant shall faithfully observe and comply with all rules and
regulations described in or annexed to the Master Lease, as amended from time to
time.
19. Tax on Tenant's Personal Property
---------------------------------
Subtenant shall pay all taxes levied or assessed upon Subtenant's personal
property and shall deliver satisfactory evidence of such payment to Sublandlord,
if requested.
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20. Right to Additional Space
-------------------------
Subtenant acknowledges that it shall have no rights under this Sublease to
lease any other space in the Building.
21. Option to Extend
----------------
If Subtenant and Sublandlord mutually agree (and Landlord consents),
Subtenant shall have the option to renew this Sublease for one (1) additional
one-year period under the same terms and conditions as this Sublease, except
that the Base Rent to be paid hereunder shall be adjusted upward by the amount
of the increase under the Master Lease, if any.
22. Arbitration
-----------
Any dispute arising out of this Sublease shall, at the option of either
party, be settled by arbitration. Within ten (10) days after either party shall
have requested arbitration in writing, the parties shall agree on an impartial
arbitrator, and failing agreement, he shall be selected by the American
Arbitration Association at the request of either party. The arbitration shall
be conducted in accordance with the then current rules of commercial arbitration
of the American Arbitration Association, and judgment upon the award granted by
the arbitrator may be entered in any court having jurisdiction thereof. Fees,
costs and expenses of the arbitrator shall be borne by the party against whom
the arbitration shall be determined, or in such proportions as the arbitrator
shall designate.
23. Abatement of Rent
-----------------
Subtenant shall receive no abatement of any rent due under this Sublease
for any part of the Sublease Term.
24. Severability
------------
The invalidity of any provision of this Sublease as determined by a court
of competent jurisdiction shall in no way affect the validity of any other
provision hereof.
25. Time of Essence
---------------
Time is of the essence of this Sublease.
26. Captions
--------
Captions of Articles or subdivisions thereof are not a part hereof and are
intended for reference purposes.
27. Notices
-------
All notices or demands given or required to be given hereunder shall be in
writing and shall be sent by hand delivery, overnight courier, or by certified
or registered mail, return receipt requested, addressed to the parties'
addresses set forth below or to each other address as either party may specify
in writing in accordance with this notice provision. Any such notice so given
shall be deemed given and shall be effective on the day of its receipt by the
respective party.
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PRIOR TO OCCUPANCY:
------------------
Sublandlord: Premiere Communications, Inc.
-----------
3399 Peachtree Road, N.E.
Lenox Building, Suite 400
Atlanta, Georgia 30326
Attention: Patrick G. Jones
with a copy to:
Premiere Communications, Inc.
3399 Peachtree Road, N.E.
Lenox Building, Suite 400
Atlanta, Georgia 30326
Attention: Julianne F. Vaio
Subtenant: Endeavor Technologies, Inc.
---------
1100 Lake Hearn Drive, Suite 370
Atlanta, Georgia 30342-1524
Attention: W. Michael Heekin
AFTER OCCUPANCY:
---------------
Sublandlord: Premiere Communications, Inc.
-----------
3399 Peachtree Road, N.E.
Lenox Building, Suite 700
Atlanta, Georgia 30326
Attention: Patrick G. Jones
with a copy to:
Premiere Communications, Inc.
3399 Peachtree Road, N.E.
Lenox Building, Suite 400
Atlanta, Georgia 30326
Attention: Julianne F. Vaio
Subtenant: Endeavor Technologies; Inc.
---------
3399 Peachtree Road, N.E.
Lenox Building, Suite 400
Atlanta, Georgia 30326
Attention: W. Michael Heekin
28. Brokers
-------
Subtenant warrants and represents to Sublandlord that it has dealt with no
broker or real estate agent or made no agreement or created any liability with
respect to this Sublease and/or the Premises or in connection with the payment
of brokerage or other commissions to anyone, and Subtenant hereby agrees to
indemnify, defend and hold Sublandlord harmless from and against all liability,
cost, or expense arising out
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<PAGE> 9
of the claims of any other broker or real estate agent claiming by, through or
under Subtenant for a commission in connection with this Sublease and/or the
transaction contemplated by this Sublease.
Sublandlord warrants and represents to Subtenant that it has dealt with no
broker or real estate agent or made no agreement or created any liability with
respect to this Sublease and/or the Premises or in connection with the payment
of brokerage or other commissions to anyone, and Sublandlord hereby agrees to
indemnify, defend and hold Subtenant harmless from and against all liability,
cost, or expense rising out of the claims of any other broker or real estate
agent claiming by, through or under Sublandlord for a commission in connection
with this Sublease and/or the transaction contemplated by this Sublease.
29. Consents Required
-----------------
This Sublease is expressly conditioned upon the written consent of the
Landlord. Upon execution of this Sublease, Sublandlord will promptly request
such written consent. If such consent has not been received by Sublandlord
within (30) days from the date of hereof, then, at the option of either party,
upon written notice to the other at anytime after such 30-day period, this
Sublease shall be deemed canceled, null and void and of no further force and
effect, and neither party shall have any claim of any kind or nature against the
other provided such notice is sent before the Landlord's written consent is
delivered to Sublandlord. In no event shall Sublandlord be obligated to deliver
possession of the Premises to Subtenant until date upon which Sublandlord
notifies Subtenant that it has received the written consent of the Landlord.
30. Condition of Premises on Termination
------------------------------------
Upon the expiration or other termination of the term of this Sublease,
Subtenant covenants and agrees that it shall quit and surrender the Premises in
the condition required pursuant to the terms of the Master Lease, shall remove
all Subtenant's Personal property therefrom (except such items, including,
without limitation, such fixtures, equipment, improvements and Alterations,
which are required to remain a part of the Premises pursuant to the Master
Lease), and shall make any repairs or restorations required by reason of each
removal to put the Premises in the condition required pursuant to the Master
Lease.
31. Waivers
-------
No waiver by Sublandlord of any provision hereof shall be deemed a waiver
of any provision hereof or of any subsequent breach by Subtenant of the same or
any provision. The consent or approval by Sublandlord of any act shall not be
deemed to render unnecessary obtaining subsequent consent or approval from
Sublandlord or any subsequent act by Subtenant. The acceptance of rent
hereunder by Sublandlord shall not be a waiver of any preceding breach by
Subtenant of any provision hereof, regardless of knowledge by Sublandlord of
such preceding breach at the time of acceptance of each rent.
32. Recording
---------
Subtenant shall not record this Sublease, and such recordation shall, at
the option of Sublandlord, constitute a non-curable default of Subtenant
hereunder.
33. Holding Over
------------
Subtenant shall have no right to hold over at the Premises beyond the
Expiration Date or earlier termination of this Sublease. If Subtenant remains
in possession after the expiration or earlier termination of the Sublease Term
without the express written consent of Sublandlord, such occupancy shall, at the
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<PAGE> 10
Sublandlord's option, be deemed an act of trespass, and Subtenant shall pay as
liquidated damages (and not as rent) an amount equal to three times the Base
Rent in effect at the time for the expiration or termination of this Sublease,
prorated on a daily basis for each such day of continued occupancy, plus all
other charges payable hereunder. In the event of any such holdover, Subtenant
shall also pay as liquidated damages (and not as rent) all amounts payable by
Sublandlord to Landlord incurred as a result of such holdover, including but not
limited to all amounts payable by Sublandlord to the Landlord pursuant to the
Master Lease as a result of such continued occupancy by Subtenant. Nothing
herein shall be deemed to limit Sublandlord's rights to forcibly evict
Subtenant, or any other rights or remedies available to Sublandlord. No receipt
of money by Sublandlord form Subtenant after expiration or termination of this
Sublease shall reinstate or extend this Sublease.
34. Cumulative Remedies
-------------------
No remedy or election Hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
35. Covenants and Conditions
------------------------
Each provision of this Sublease performable by Subtenant shall be deemed
both a covenant and a condition.
36. Choice of Law
-------------
This Sublease shall be governed by the laws of the State of Georgia.
37. Attorneys' Fees
---------------
In the event Sublandlord, without any fault on its part, is a party to any
litigation commenced by or against Subtenant or by or against any parties in
possession of the Premises or any part thereof claiming under Subtenant,
Subtenant shall pay, as additional rent, all costs including, without implied
limitation, reasonably attorneys' fees incurred by or imposed by or upon
Sublandlord in connection with such litigation, and the costs of enforcement of
this Sublease against Subtenant.
38. Sublandlord's Access
--------------------
Sublandlord and its agents shall have the right to enter the Premises at
reasonable times, upon reasonable notice to Subtenant, for the purpose of
inspecting the same, showing the same to prospective assignees, lenders or
lessees, all without undue interruption to Subtenant's business. In addition,
Sublandlord shall have the right to enter the Premises to perform such actions
as are required of it as tenant pursuant to the Master Lease. Notwithstanding
the foregoing, without notice, Sublandlord shall have the right to enter the
Premises to repair, maintain, inspect or otherwise deal with any equipment in or
improvements to the Premises necessary for Sublandlord to operate in the
remainder of the office space covered by the Master Lease, including, without
limitation, repair or additions of wiring to riser space between floors of the
Building. Subject to the above, and provided Subtenant is not in default
hereunder or under the Master Lease, Sublandlord covenants that Subtenant shall
have the right to possession and quiet enjoyment of the Premises during the term
of this Sublease.
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39. Security Deposit
----------------
Upon the execution of this Sublease, Subtenant shall pay to Sublandlord the
sum of $0.00 as security for Subtenant's performance of its obligations under
----
this Sublease. Upon termination of this Sublease, provided Subtenant is not
then in default of any of the terms hereof, the security deposit shall be
returned to Subtenant, without interest, less any amounts due Sublandlord upon
termination.
40. Corporate Authority
-------------------
Each individual executing this Sublease on behalf of Subtenant or
Sublandlord represents and warrants that he is duly authorized to execute and
deliver this Sublease on behalf of such party.
41. Amendments
----------
This Sublease may be modified only in writing, signed by the parties in
interest at the time of the modification.
42. Landlord's Liability
--------------------
Subtenant acknowledges and agrees to the following with respect to the
Landlord:
A. In the event of a sale or transfer of all or any portion of the
Building or any undivided interest therein, or in the event of the making of a
lease of all or substantially all of the Building, or in the event of a sale or
transfer of the Landlord's fee or leasehold estate, the grantor, transferor or
lessor, as the case may be, shall thereafter be entirely relieved of all terms,
covenants and obligations thereafter to be performed by Landlord under the
Master Lease and this Sublease to the extent of the interest or portion so sold,
transferred or leased. Upon the termination of any such lease, the lessor
thereunder shall become and remain liable as Landlord hereunder only so long as
there shall not be made another such lease.
B. Subtenant agrees that it has no direct rights to Landlord, but if it
did, that it shall look solely to the estate and property of Landlord in the
Building and the land constituting the "Building Parcel", as such term is
defined in the Master Lease (subject of prior rights, if any, of holders of
superior interests) for the collection of any judgment (or other judicial
process requiring the payment of money by Landlord in the event of any default
or breach by Landlord with respect to any of the terms, covenants and conditions
of this Lease to be observed or performed by Landlord; and no other assets of
Landlord or any Person (as defined in the Master Lease) having any interest in
Landlord shall be subject to levy, execution or other procedures for the
satisfaction of Subtenant's remedies.
C. Corporate Property Investors is the designation of the Trustees under
a Declaration of Trust dated June 24, 1971, as amended, and neither the
shareholders nor the Trustee, officers, employees or agents of the Trust created
thereby shall be liable hereunder and, subject to Section 6.2B of the Master
Lease, all persons shall look solely to the trust estate for the payment of any
c hereunder or for the performance hereof.
[remainder of this page intentionally left blank]
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<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the day and year first above written.
SUBLANDLORD:
-----------
Signed, sealed and delivered PREMIERE COMMUNICATIONS, INC.,
this 15th day of December, 1997, a Florida corporation
in the presence of:
/s/ Wade H. Stribling By: /s/ Patrick G. Jones
-------------------------------- -----------------------------
Witness
Title: Senior Vice President
--------------------------
/s/ Pamela Callon Evans
--------------------------------
Notary Public
My Commission Expires
9-14-2000
--------------------------------
[NOTARIAL SEAL] [CORPORATE SEAL]
SUBTENANT:
---------
Signed, sealed and delivered ENDEAVOR TECHNOLOGIES, INC.,
this 15th day of December, 1997, a Georgia corporation
in the presence of:
/s/ Wade H. Stribling By: /s/ W. Michael Heekin
-------------------------------- -----------------------------
Witness
Title: Chief Operating Officer
--------------------------
/s/ Sherry D. Hall
--------------------------------
Notary Public
My Commission Expires
Notary Public, Fulton County, Georgia
-------------------------------------
My Commission Expires October 23, 2000
--------------------------------------
[NOTARIAL SEAL] [CORPORATE SEAL]
[consent of Landlord on following page]
-12-
<PAGE> 13
CONSENT OF LANDLORD
-------------------
Corporate Property Investors, as Landlord under the Master Lease, hereby
consents to the within Sublease by Endeavor Technologies, Inc., pursuant to
Article 7.2(c) of the Master Lease and further acknowledges that any right to
terminate the Master Lease by virtue of the granting of this Sublease is hereby
waived.
LANDLORD:
CORPORATE PROPERTY INVESTORS, a
Massachusetts business trust
Dated: December 16, 1997 By: /s/
----------------- ---------------------------------
Title:
-------------------------------
-13-
<PAGE> 14
EXHIBIT A
MASTER LEASE
(SEE ATTACHED)
-14-
<PAGE> 15
Leasepgs.LB as of 3/3/97
Premier.LB
AGREEMENT OF LEASE
BETWEEN
CORPORATE PROPERTY INVESTORS
AND
PREMIERE COMMUNICATIONS, INC.
15
<PAGE> 16
AGREEMENT OF LEASE made as of , 1996 between CORPORATE
PROPERTY INVESTORS, a Massachusetts business trust, having its principal place
of business at 3 Dag Hammarskjold Plaza (305 East 47th Street), New York, N. Y.
l00l7 (Landlord) and Premiere Communications, Inc., a Georgia Corporation,
having its principal place of business at 3399 Peachtree Road, N.E., Atlanta,
Georgia (Tenant).
R E C I T A L
- - - - - - -
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord, the Premises, located in the Building known as The Lenox Building,
3399 Peachtree Road, N.E., Atlanta, Georgia 30326, for the Term commencing on
the Commencement Date, subject to the terms, covenants, conditions and
provisions of this Lease. If the Commencement Date is not the first day of a
month, Rent for the month in which the Commencement Date occurs shall be
prorated to the end of the month, the first full monthly installment of Rent
shall be due on the first day of the next month and after the expiration of the
number of years in the Term, the Term shall expire on the last day of the same
month in which the Commencement Date occurred.
ARTICLE l. DEFINITIONS
Whenever used in this Lease, the following terms shall have the meanings
indicated below.
<TABLE>
<S> <C>
Premises - Suite No. 300 and 400, Third (3rd) and as
Fourth (4th) Floors - shown on Exhibit B
Term - Seven (7) years, expiring on August 31,
2004
Commencement Date - September 1, 1997
Size of the Premises - 40,886 square feet of rentable floor space
Tenant's Pro Rata Share - 11.17 percent
Fixed Rent - $858,606.00 per year from September 1,
1997 through March 31, 2001;
$899,492.00 per year from April 1, 2001
through August 31, 2004.
Guarantor - None
Broker - Tramell Crow Company, 3101 Tower Creek
Parkway, Suite 400, Atlanta, Georgia 30339
Permitted Use - Only for executive, administrative and/or
general office use.
Security Deposit - None, except that Tenant shall deposit
with Landlord the first (1st) months'
Fixed Rent, upon execution and delivery of
this Lease.
</TABLE>
16
<PAGE> 17
<TABLE>
<S> <C> <C>
Additional Rent - All amounts, except Fixed Rent, payable by Tenant
under Articles 3, 5, 7 and 9 of this Lease.
Affiliate - Any Person which controls or is controlled by the
Person in question or is controlled by the same
Persons which shall then control the Person in
question and any Person which is a member with
the Person in question in a relationship of joint
venture, partnership or other form of business
association; the term "control" means, with
respect to a corporation, the ownership of stock
possessing, or the right to exercise, at least
twenty-five (25%) percent of the total combined
voting power of all classes of the controlled
corporation, issued, outstanding and entitled to
vote for the election of directors, whether such
ownership be direct ownership or indirect
ownership through control of another corporation
or corporations.
Auxiliary Areas - The Entry Plaza, the Lobby Court, the Loop System
and the Promenade, as shown on Exhibit A.
Building - The Lenox Building
Atlanta, Georgia, as shown on
Exhibit A.
Building Parcel - The area designated as such on
Exhibit A.
Entry Plaza - The area designated as such on
Exhibit A.
Event of Default - As defined in Section 9.1
Governmental Authority - The United States, the State of Georgia, the City
of Atlanta, and any political subdivision thereof
or any local public or quasi-public authority,
agency, department, commission, board, bureau or
instrumentality of any of them including, with
respect to matters pertaining to insurance,
boards of fire underwriters to the extent they
have power to impose conditions on the issuance
of policies or the coverage thereof.
Governmental Requirements - Any law, ordinance, code, order, rule or
regulation of any Governmental Authority.
Landlord - The party named as Landlord herein until a sale,
transfer or lease, and thereafter the Person or
Persons who shall, for the time being, be liable
for the obligations of Landlord under the
provisions of Section 6.2 of this Lease.
Landlord's Additional Work - None.
</TABLE>
17
<PAGE> 18
<TABLE>
<S> <C> <C>
Landlord's Standard Work - None.
Landlord's Work - None
Lobby Court - The area designated as such on
Exhibit A.
Loop System - The area designated as such on
Exhibit A.
Necessary Approvals - Any permit, license, certificate or approval or
other evidence of compliance with any requirement
necessary to the lawful occupancy of the Premises
and the issuance of the insurance required to be
carried hereunder for the Permitted Uses.
Operating Costs - As defined in Section 3.2 H.
Parking Garage - The decked parking structure located on the
Building Parcel, as shown on Exhibit A.
Person - A natural person, firm, partnership, association
or corporation, as the case may be.
Promenade - The area designated as such on
Exhibit A.
Rent - The Fixed Rent and the Additional Rent.
Standard Building Hours - 8:00 AM to 6:00 PM Monday
and Days through Friday and 8:00 AM to 1:00 PM on
Saturdays, or any combination thereof of days and
hours selected by Landlord but in no event to
exceed 55 hours in the aggregate from Monday
through Saturday. Standard Building Hours and
Days shall be deemed to exclude holidays, curfews
or other restricted days designated as such by
Governmental Authority.
Taxes - As defined in Section 3.2 D.
Tenant Improvement - As set forth in Exhibit C.
Agreement
Tenant's Plan - As defined in the Tenant Improvement Agreement.
Exhibit A - Site Plan
Exhibit B - Floor Plan
Exhibit C - None
Exhibit D - Parking Space Exhibit
Exhibit E - Commencement Date and Ratification of Lease
Agreement.
</TABLE>
18
<PAGE> 19
Exhibit F - Cleaning Schedule
Exhibit G - Building Rules and Regulations
ARTICLE 2. CONSTRUCTION - COMMENCEMENT DATE
Section 2.l Preparation of the Premises.
---------------------------
(A) Landlord shall perform Landlord's Work, as set forth in the Tenant
Improvement Agreement annexed hereto as Exhibit C. Tenant agrees to comply with
all of the terms and provisions of the Tenant Improvement Agreement.
(B) Landlord shall not be required to commence Landlord's Work unless
(i) the parties shall have agreed upon the cost of Landlord's Additional Work,
and (ii) said cost, less Landlord's Allowance, as defined in the Tenant
Improvement Agreement, is paid to Landlord.
(C) Landlord shall give Tenant ten (10) days' written notice of the
anticipated date of substantial completion of Landlord's Work, and Tenant shall
have the right during said ten-day period to enter into the Premises for the
purpose of installing its personal property and equipment and otherwise
preparing the Premises for its occupancy. During said ten-day period, (i)
neither Tenant nor its agents or employees shall interfere with Landlord's Work
or with any other work being done by Landlord and Landlord's agents and
employees in other parts of the Building, (ii) Tenant shall comply with all
reasonable rules and regulations promulgated by Landlord, its agents or
employees, (iii) the labor employed by Tenant shall be harmonious and compatible
with the labor employed by Landlord in the Building, it being agreed that if in
Landlord's judgment such labor is incompatible, Tenant shall forthwith upon
Landlord's demand withdraw Tenant's labor from the Premises, (iv) Tenant shall
procure and deliver to Landlord workmen's compensation, public liability,
property damage and such other insurance policies, in such amounts, as shall be
reasonably acceptable to Landlord in connection with the preparation work being
done by Tenant in the Premises, and shall cause Landlord to be named as an
insured thereunder, and (v) all the terms, provisions and agreements of this
Lease, except for the obligation to pay Rent, shall apply.
Section 2.2 Commencement Date.
-----------------
(A) The Term of this Lease shall commence on the date that Landlord
notifies Tenant that it has substantially completed Landlord's Work. Within ten
(10) days after the Commencement Date, Landlord's representative and Tenant's
representative shall jointly examine the Premises and shall compile a list of
any remaining items of work which Landlord may be obligated to complete ("punch
list items"). The taking of possession of the Premises by Tenant shall be
deemed an acceptance of the Premises and an acknowledgement that Landlord's Work
has been substantially completed, but Landlord shall thereafter complete the
punch list items.
(B) If Tenant takes possession of the Premises prior to the Commencement
Date, Tenant's obligation to pay Rent hereunder and to observe and perform all
other conditions and agreements hereunder shall commence on such earlier date of
possession, but the Term of the Lease shall not be affected thereby.
(C) In the event that substantial completion of Landlord's Work is
delayed by reason of delays caused or occasioned by Tenant, then at Landlord's
option the Term of this Lease shall commence on the date that this Lease would
have commenced had not the completion of Landlord's Work been so delayed by
Tenant (or as reasonably determined by Landlord) or such occurrence shall
constitute a default on the part of Tenant hereunder entitling Landlord to
exercise all rights and remedies provided for herein in the event of Tenant's
default.
19
<PAGE> 20
(D) Landlord's Work shall be deemed to have been substantially completed
when the Premises may be lawfully occupied and the heating, ventilation, air
conditioning, mechanical and elevator systems serving the Premises are operable.
(E) Tenant shall, upon the demand of Landlord, promptly execute,
acknowledge and deliver to Landlord an instrument substantially similar to that
annexed hereto as Exhibit E, confirming the dates of commencement and expiration
of the Term of this Lease and such other matters as are set forth on Exhibit E.
Section 2.3 Ownership of Improvements.
-------------------------
All installations, alterations, additions, improvements and fixtures now
or at any time hereafter attached to or located upon the Premises, made or
installed by either party, shall be the property of Landlord and shall, unless
Landlord otherwise elects by giving Tenant notice at least thirty (30) days
prior to the expiration or sooner termination of the Term, remain upon and be
surrendered with the Premises at the expiration or sooner termination of the
Term. None of the foregoing shall be deemed to include any of Tenant's
furniture and personal property which is removable without damage to the
Premises.
ARTICLE 3. RENT
Section 3.l Payment.
-------
All Rent shall be paid in the lawful money of the United States which
shall be legal tender in payment of all debts and dues, public and private, at
the time of payment, at the address of Landlord set forth in this Lease or at
such other place as Landlord in writing may designate, without any set-off or
deduction whatsoever and without any prior demand therefor. Tenant shall pay
the annual Fixed Rent in equal monthly installments in advance on the first day
of each calendar month included in the Term. Unless another time shall be
herein expressly provided, Additional Rent shall be due and payable on demand or
together with the next succeeding installment of Fixed Rent, whichever shall
first occur. For any portion of a calendar month included at the beginning or
end of the Term, Tenant shall pay l/30th of each monthly installment of Rent for
each day of such portion, payable in advance at the beginning of such portion.
Section 3.2 Additional Rent.
---------------
(A) Tenant shall pay to Landlord, as Additional Rent, Tenant's Pro Rata
Share of Taxes which in any calendar year exceed the actual Taxes for the 1997
calendar year. Said amount shall be prorated if the Commencement Date does not
coincide with the beginning or the expiration date does not coincide with the
end of a calendar year.
(B) Commencing on the Commencement Date, Tenant shall pay, with each
monthly installment of Fixed Rent, one-twelfth (1/12) of the amount reasonably
estimated by Landlord to be due as Tenant's Pro Rata Share of excess Taxes for
the following calendar year. If Taxes for the following calendar year are not
known, monthly installments shall be based on the current calendar year with
immediate adjustment as soon as said Taxes become known. If at the time any
Taxes or installments thereof are required to be paid the total amount of
Tenant's monthly payments on account of excess Taxes are insufficient to pay
Tenant's Pro Rata Share thereof, Tenant shall pay such deficiency within five
(5) days after demand therefor. If any payment on account of excess Taxes shall
be due for the calendar year in which the Commencement Date occurs, Tenant shall
pay said amount to Landlord within thirty (30) days following Landlord's demand
therefor.
(C) Should any taxing authority impose any separate additional taxes on
the value of any improvements made by Tenant, or include machinery, equipment,
fixtures, inventory or other personal property or assets of Tenant, then Tenant
20
<PAGE> 21
shall pay the entire tax attributable to such items. Tenant shall pay any
sales, use, occupancy, value added (if the value added is not in lieu of Taxes
as described in Section 3.2D) or similar tax hereafter levied or imposed in
connection with the Fixed or Additional Rent payable by Tenant.
(D) The term Taxes shall mean (i) the total amount of Taxes payable with
respect to the Building and the Building Parcel and all improvements thereon,
including the Parking Garage, plus (ii) one-quarter (1/4) of the total amount of
Taxes payable with respect to or attributable to the Auxiliary Areas. Taxes
shall include all real estate taxes, assessments, water and sewer rents and
other governmental impositions and charges of every kind and nature whatsoever,
extraordinary as well as ordinary, foreseeable and unforeseeable, including any
and all fees or expenses incurred in connection with the institution,
prosecution, conduct and maintenance of negotiations, settlements, actions or
proceedings with respect to the amount of any Taxes, and each and every
installment thereof which shall or may during the Term of this Lease be levied,
assessed, imposed, become due and payable or a lien upon or arise in connection
with the use, occupancy or possession of or grow due or payable out of or for,
the Building, the Parking Garage, the land constituting the Building Parcel or
any part thereof or improvements thereon, and the Auxiliary Areas or any part
thereof or improvements thereon, but excluding, however, any of the foregoing
relating to any charge which is measured by the consumption by the actual user
of the item or service for which the charge is made. A Tax bill or copy thereof
submitted by Landlord to Tenant shall be conclusive evidence of the amount of
Taxes or installments thereof.
(E) Nothing herein contained shall be construed to include as part of
the Taxes described in Section 3.2 D any inheritance, estate, succession,
transfer, gift, franchise, corporation income or profit tax or capital levy that
is or may be imposed upon Landlord; provided, however, that if, at any time
during the Term, the method of taxation prevailing at the time of the execution
of this Lease shall be altered so that in lieu of or as a substitute for the
whole or any part of the Taxes now levied, assessed or imposed on real estate as
such, there shall be levied, assessed or imposed (i) a tax on the rents received
from real estate, or (ii) a license fee measured by the rents receivable by
Landlord for the Building or the Parking Garage or any portion thereof or (iii)
a tax or license fee imposed on Landlord which is otherwise measured by or
based, in whole or in part, upon the Building or the Parking Garage or any
portion thereof or (iv) any other tax or levy imposed in lieu of or as a
supplement to Taxes which are in existence as of the date of the execution of
this Lease, then the same shall be included in the determination of Tenant's Pro
Rata Share of excess Taxes, computed as if the amount of such tax or fee so
payable were that due if the Building, the Parking Garage, the Building Parcel
and Auxiliary Areas were the only property of Landlord subject thereto.
(F) In the event Landlord shall obtain a Tax refund as a result of tax
reduction proceedings, then, after the final conclusion of all appeals or other
remedies, Tenant shall, provided Tenant is not then in default, be entitled to
its Pro Rata Share of the net refund obtained, based upon any amount paid by
Tenant which is the subject of the refund. As used herein, the term "net
refund" means the refund plus interest thereon, if any, paid by the Governmental
Authority less appraisal, administrative, engineering, expert testimony,
attorney, printing and filing fees and all other costs and expenses of the
proceeding. Tenant shall not have the right to institute or participate in any
such proceedings, it being understood that the commencement, maintenance,
settlement, or conduct thereof shall be in the sole discretion of Landlord.
(G) Tenant shall pay to Landlord, as Additional Rent, Tenant's Pro Rata
Share of Operating Costs which in any calendar year exceed the actual Operating
Costs for the 1997 calendar year. Said amount shall be pro-rated if the
Commencement Date does not coincide with the beginning or the expiration date
does not coincide with the end of a calendar year. As soon as practicable after
the end of the calendar year in which the Commencement Date occurs, Landlord
shall notify Tenant as to the amount, if any, payable by Tenant as its Pro Rata
21
<PAGE> 22
Share of excess Operating Costs, and Tenant shall pay said amount to Landlord
within thirty (30) days thereafter. Commencing with the next calendar year and
for each succeeding calendar year (or portion thereof) during the Term of this
Lease, Tenant shall pay its Pro Rata Share of excess Operating Costs, as
reasonably estimated by Landlord, in equal monthly installments along with
Tenant's monthly installments of Fixed Rent. Estimates of Operating Costs shall
be revised annually by Landlord.
(H) The term Operating Costs shall mean (i) the total cost and expense
incurred by Landlord in operating and maintaining the Building and the land
constituting the Building Parcel and all improvements thereon, specifically
excluding the Parking Garage, plus (ii) one-quarter (1/4) of the total cost and
expense incurred by Landlord in operating and maintaining the Auxiliary Areas.
Operating Costs shall include, without limitation, costs for: (i) operation,
maintenance and repair of the Building and Auxiliary Areas, including the
equipment and machinery used in conjunction therewith and the costs of
inspection and depreciation thereof; (ii) maintenance, repair and replacement of
paved areas, curbs, walkways, landscaping, drainage and other outdoor facilities
on the Building Parcel and Entry Plaza; (iii) painting and redecorating; (iv)
security services and the regulation of automobile and pedestrian traffic; (v)
insurance, including, without limitation, public liability, property damage,
sign, casualty and rent insurance; (vi) utilities, including ordinary usage of
electricity, heat, air conditioning, ventilation, domestic water and sewer
facilities in tenant areas; (vii) refuse collection and removal; (viii)
janitorial and cleaning services, including ordinary cleaning of tenant areas
and janitorial supplies and equipment; (ix) sanitary control and extermination;
(x) capital improvements made to the Building and/or Auxiliary Areas which can
reasonably be expected to reduce Operating Costs, as well as capital
improvements made in order to comply with any statutes, rules, regulations or
directives hereafter promulgated by any Governmental Authority relating to
energy, conservation, public safety or security, as amortized by Landlord over
the useful life of the improvements; (xi) personnel to implement all of the
aforementioned, including fringe benefits and workmen's compensation insurance
covering such personnel; (xii) contractual management fees and other expenses
directly related to the on-site management of the Building and Auxiliary Areas;
and (xiii) other similar costs of the type incurred in the operation of
comparable properties.
(I) Not later than one hundred eighty (180) days after the end of each
calendar year, Landlord shall furnish to Tenant a statement showing in
reasonable detail the information necessary for the calculation and
determination of Landlord's actual Operating Costs. If the total of all monthly
charges paid by Tenant on account of excess Operating Costs during such calendar
year shall be less than Tenant's Pro Rata Share thereof for such calendar year,
as shown by such statement, Tenant shall pay to Landlord the difference within
thirty (30) days after receipt of such statement.
Section 3.3 Late Payments.
-------------
From and after the due date of any payment of Rent, interest shall accrue
thereon at the rate of the lesser of 1 1/2% per month or the maximum rate
permitted by law.
ARTICLE 4. COMMON AREAS
Section 4.l Common Areas. Landlord hereby grants to Tenant a non-
------------
exclusive license to use (a) the hallways, elevators, lobby and other public
conveniences of the Building, (b) such other areas in or adjoining the Building
as may from time to time be designated by Landlord for use in common by Landlord
and the tenants of the Building, and (c) the Auxiliary Areas, individually and
collectively referred to as "common areas". Except for the Auxiliary Areas and
such other areas as may be specifically designated by Landlord, Tenant shall
have no rights whatsoever with respect to the use of adjacent property now or
hereafter owned or operated by Landlord.
22
<PAGE> 23
(A) No schedule, exhibit, plan, drawing, rendering, brochure, or the
like shall be deemed to create a warranty, representation or agreement on the
part of Landlord that the Building or common areas will be or will continue to
be exactly as indicated thereon. Landlord reserves the right to (i) increase,
reduce or change the number, type, size, location, elevation, nature and use of
any of the common areas and (ii) to make changes, additions, alterations, or
improvements in or to the Building and common areas. Except as herein provided,
Tenant shall have no rights with respect to the land or improvements below
exterior floor slab level or above the interior surface of the finished ceiling
of the Premises or air rights or any easements, in, on, about, below or above
the Premises. This Lease grants no parking rights to Tenant. Such rights, if
any, shall be created and governed by a separate written agreement.
(B) The common areas shall be subject to such reasonable rules and
regulations as Landlord may, from time to time, adopt. Landlord reserves the
right to close all or any portion of the common areas for the minimum length of
time as may, in the opinion of Landlord's counsel, be legally sufficient to
prevent a dedication thereof or the accrual of any rights of the public therein,
and to do and perform such other acts in and to the common areas as in the use
of Landlord's good business judgment will improve the use thereof.
ARTICLE 5. UTILITIES - SERVICES
Section 5.1 Electricity. Landlord will furnish electricity to the
-----------
Premises, subject to the restrictions and limitations herein set forth. Except
as otherwise provided herein, the furnishing of electricity shall be included in
Operating Costs.
Section 5.2 Other Utilities. Except for electricity, domestic water and
---------------
sewer services as provided herein and included in Operating Costs, Tenant shall
be solely responsible and shall pay separately for all charges for telephone and
for any other utilities used in the Premises.
Section 5.3 Practices. The following practices shall apply in
---------
connection with Landlord's obligation to furnish electricity and in connection
with Tenant's use thereof:
(A) Electricity shall be made available to Tenant during Standard
Building Hours and Days.
(B) Subject to Section 5.10 and paragraph (C) of this Section 5.3, it is
understood that Tenant shall use electricity only during Standard Building Hours
and Days, only for Building standard lighting and ordinary office equipment, and
not in excess of 5.0 watts per square foot of floor space.
(C) Landlord or Landlord's consultants shall have the right to inspect
the Premises in order to determine whether Tenant's use of electricity deviates
from or exceeds the conditions herein set forth. Each such inspection shall be
conducted in such a manner as to minimize interference with Tenant's operations
at the Premises. If Tenant's use of electricity deviates from or exceeds the
conditions set forth in this Lease, Tenant shall reimburse Landlord for the cost
of such inspection and Landlord shall have the right to require Tenant to pay,
from the date the condition first exists, the costs of excess electricity
consumption, as reasonably estimated by Landlord or Landlord's consultants or as
determined based on the consumption shown on an electric metering device
installed by Landlord at Tenant's expense, and/or to require Tenant to provide,
at Tenant's expense, all remedial action or equipment required to conform
Tenant's installations and operations to the conditions set forth in this Lease.
Any such charges payable by Tenant shall be deemed Additional Rent, payable to
Landlord within ten (10) days after demand.
23
<PAGE> 24
Section 5.4 Elevator Service.
----------------
Landlord shall furnish elevator facilities during Standard Building
Hours and Days and at other times as reasonably required to provide access to
the Premises. Landlord may designate hours of use and elevators in the Building
for use for shipping and delivery, and Tenant agrees to use (and to cause any
Persons claiming through or under Tenant to use) only the elevator or elevators
so designated for all shipments and deliveries.
Section 5.5 Heat. When necessary, Landlord shall furnish heat to the
----
Premises during Standard Building Hours and Days.
Section 5.6 Air Conditioning. During the Term of this Lease, Landlord
----------------
shall furnish to the Premises (i) conditioned air at reasonable temperatures and
pressures and in reasonable volumes and velocities during Standard Building
Hours and Days, when considered necessary by Landlord for the comfortable
occupancy of the Premises, and (ii) mechanical ventilation during Standard
Business Hours and Days when conditioned air or heat is not being furnished.
Landlord shall not be responsible if the normal operation of the Building
air conditioning or heating systems shall fail to provide heat or conditioned
air at reasonable temperatures and pressures or in reasonable volumes or
velocities in any portions of the Premises (a) if any machinery or equipment
installed by or on behalf of Tenant or any Person claiming through or under
Tenant, shall have an electrical load in excess of the electric load
per square foot of floor space of the Premises for which the HVAC system was
designed, or by reason of a human occupancy factor in excess of one person per
100 square feet of floor space or (b) because of any rearrangement of
partitioning or other alterations made or performed by or on behalf of Tenant or
any Person claiming through or under Tenant. Whenever the air conditioning or
heating systems are in operation, Tenant shall cause all windows in the Premises
to be kept closed and cause all window blinds in the Premises to be kept down.
Tenant shall cooperate fully with Landlord and abide by all regulations and
requirements which Landlord may reasonably prescribe for the proper functioning
and protection of the ventilation, air conditioning and heating systems.
In the event the Premises shall contain a supplemental air conditioning
unit(s) (the "AC Unit"), Tenant shall, at its sole cost and expense, be
responsible for all maintenance, repair and replacement of the AC Unit. Tenant
shall throughout the Term of this Lease, maintain with a responsible company,
approved by Landlord, a service contract for the AC Unit.
Section 5.7 Cleaning.
--------
Landlord shall cause the Premises, (excluding any portions thereof
used for the storage, preparation, service or consumption of food or beverages)
to be cleaned and shall cause Tenant's ordinary office waste paper refuse to be
removed, all at regular intervals, in accordance with standards and practices
adopted from time to time by Landlord for the Building. Tenant understands that
the cost of ordinary cleaning is included in Operating Costs. Tenant shall pay
as Additional Rent, within five days after Landlord's billing, Landlord's
regularly established rates or, if there are no such rates, at reasonable rates,
for the removal of any of Tenant's refuse or rubbish other than ordinary office
waste paper refuse, and Tenant, at Tenant's expense, shall cause all portions of
the Premises used for the storage, preparation, service or consumption of food
or beverages to be cleaned daily and to be regularly exterminated against
infestation by vermin or insects.
Section 5.8 Water. Landlord shall furnish Tenant with domestic water
-----
for ordinary lavatory or drinking purposes and Tenant understands that the cost
of domestic water service is included in Operating Costs. If Tenant requires or
consumes water for any purpose in addition to ordinary lavatory and drinking
purposes, Tenant shall pay as Additional Rent the cost thereof as reasonably
estimated by Landlord, or Landlord may install, at Tenant's expense, hot and
cold
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water meters and thereby measure Tenant's consumption of water for all purposes.
Tenant shall keep any such meters and installation equipment in good working
order and repair, at Tenant's expense, and shall pay for water consumed as shown
on said meters and sewer charges thereon, as and when bills are rendered.
Section 5.9 Directory. Tenant shall be allotted Tenant's Pro Rata Share
---------
of the number of directory lines on the Building directory. The Building
directory shall list only the names of Persons who occupy the Premises in
compliance with this Lease.
Section 5.10 Extra Services. If Tenant requests Landlord to furnish or
--------------
uses any electricity, elevator services, heat, conditioned air, mechanical
ventilation, cleaning, water or other services during hours or days other than
Standard Building Hours and Days, Tenant shall pay as Additional Rent, for such
services at the standard rates then fixed by Landlord for the Building or, if no
such rates are then fixed, at reasonable rates. Landlord shall not be required
to furnish any such services during such periods unless Landlord has received
reasonable advance notice from Tenant and Landlord is able to provide same.
Section 5.11 Interruption of Services. Landlord reserves the right to
------------------------
temporarily stop any service or facility provided by Landlord when necessary by
reason of construction in other parts of the Building, accident or emergency, or
for repairs, alterations, replacements or improvements, which, in Landlord's
judgment, are desirable or necessary, or required to be made by Landlord or
Tenant pursuant to this Lease, until said repairs, alterations, replacements or
improvements shall have been completed. The exercise of such right by Landlord
shall not constitute an actual or constructive eviction, in whole or in part, or
entitle Tenant to any abatement or diminution of Rent, or relieve Tenant from
any of its obligations under this Lease. Landlord shall prosecute such work
with continuity, diligence and dispatch and shall not be liable to any extent to
Tenant if any of said services or facilities is interrupted or otherwise
impaired.
Section 5.12 Security. Landlord reserves the right to lock all
--------
entrances to the Building at such times, other than Standard Building Hours, as
Landlord may deem advisable for the protection of the Building and its
occupants. Persons entering or leaving the Building at times when it is locked
may be required to sign the Building register, and the lobby attendant, if any,
may refuse to admit to the Building, while it is so locked, any person not
displaying satisfactory identification evidencing his or her right of access to
the Building. Landlord assumes no responsibility and shall not be liable for
any damages resulting from an error with respect to such identification, or from
admission to the Building of any unauthorized individual.
ARTICLE 6. LANDLORD'S ADDITIONAL COVENANTS
Section 6.1 Repairs by Landlord. Landlord shall keep the exterior,
-------------------
foundations, finish, downspouts, gutters, and roof of the Building and the
Building's plumbing, electrical, heating, ventilating, elevator and air
conditioning systems (except the components of such systems which exclusively
serve or operate within the Premises) in good order, condition and repair and
shall make necessary structural repairs to the exterior walls of the Building,
the dividing walls between the Premises and adjoining space occupied or to be
occupied by others, and the load-bearing walls and load-bearing columns, if any,
within the Premises; provided that Landlord shall not be obligated hereby to do
any work required to be done because of any damage caused by any act, misuse,
omission or negligence of Tenant and its invitees or licensees, their respective
officers, agents and employees or their visitors. Landlord shall not be
required to commence any such repair until after notice from Tenant that the
same is necessary, which notice, except in the case of an emergency, shall be in
writing and shall allow Landlord a reasonable time in which to commence such
repair.
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Section 6.2 Landlord's Liability.
--------------------
(A) In the event of a sale or transfer of all or any portion of the
Building or any undivided interest therein, or in the event of the making of a
lease of all or substantially all of the Building, or in the event of a sale or
transfer of the Landlord's fee or leasehold estate, the grantor, transferor or
lessor, as the case may be, shall thereafter be entirely relieved of all terms,
covenants and obligations thereafter to be performed by Landlord under this
Lease to the extent of the interest or portion so sold, transferred or leased;
provided that (i) any amount then due and payable to Tenant or for which
Landlord or the then grantor, transferor or lessor would otherwise then be
liable to pay to Tenant (it being understood that the owner of an undivided
interest in the fee or any such lease shall be liable only for his or its
proportionate share of such amount) shall be paid to Tenant, (ii) the interest
of the grantor, transferor or lessor, as Landlord, in any funds then in the
hands of Landlord or the then grantor, transferor or lessor in which Tenant has
an interest, shall be turned over, subject to such interest, to the then
grantee, transferee or lessee, and (iii) notice of such sale, transfer or lease
shall be delivered to Tenant. Upon the termination of any such lease, the
lessor thereunder shall become and remain liable as Landlord hereunder only so
long as there shall not be made another such lease.
(B) Tenant agrees that it shall look solely to the estate and property
of Landlord in the Building and the land constituting the Building Parcel
(subject to prior rights, if any, of holders of superior interests) for the
collection of any judgment (or other judicial process) requiring the payment of
money by Landlord in the event of any default or breach by Landlord with respect
to any of the terms, covenants and conditions of this Lease to be observed or
performed by Landlord; and no other assets of Landlord or any Person having any
interest in Landlord shall be subject to levy, execution or other procedures for
the satisfaction of Tenant's remedies.
(C) Corporate Property Investors is the designation of the Trustees
under a Declaration of Trust dated June 24, 1971, as amended, and neither the
shareholders nor the Trustees, officers, employees or agents of the Trust
created thereby shall be liable hereunder and, subject to Section 6.2B, all
persons shall look solely to the trust estate for the payment of any claims
hereunder or for the performance hereof.
ARTICLE 7. TENANT'S ADDITIONAL COVENANTS
Section 7.1 Affirmative Covenants.
---------------------
Tenant covenants that at all times during the Term Tenant, at its sole
cost and expense, shall:
(A) Use the Premises only for the Permitted Use and for no other purpose
and in no event shall Tenant permit the use of the Premises in violation of any
Governmental Requirements;
(B) Take good care of the Premises and the fixtures therein and make all
improvements, repairs and replacements to the Premises not required to be made
by Landlord as and when needed to preserve the Premises in good working order
and condition, except that Tenant shall not be required to make any structural
repairs or structural replacements to the Premises unless necessitated by the
acts or omissions of Tenant or any Persons claiming through or under Tenant, or
by the use or occupancy or manner of use or occupancy of the Premises by Tenant
or any such Person. All repairs and replacements made by or on behalf of Tenant
or any Person claiming through or under Tenant shall be at least equal in
quality and class to the original work or installation.
(C) Make all repairs, alterations, additions or replacements to the
Premises, including appurtenances, equipment, facilities and fixtures therein,
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arising out of Tenant's use or occupancy of the Premises necessary to satisfy
any Governmental Requirement; and otherwise comply with the orders and
regulations of any Governmental Authority.
(D) Pay promptly when due the cost of any work in or to the Premises, so
that the Premises and Building shall, at all times, be free of liens for labor
and materials; procure all Necessary Approvals before undertaking such work; do
all such work in a good and workmanlike manner acceptable to Landlord, employing
materials of good quality; comply with any Governmental Requirement relating
thereto. Tenant shall not, at any time prior to or during the Term, directly or
indirectly employ, or permit the employment of, any contractor, mechanic or
laborer in the Premises if such employment will interfere or cause conflict with
other contractors, mechanics, or laborers engaged in the construction,
maintenance or operation of the Building by Landlord, Tenant or others. In the
event of any such interference or conflict, Tenant, upon demand of Landlord,
shall cause all contractors, mechanics or laborers causing such interference or
conflict to leave the Building immediately.
(E) Indemnify and save Landlord harmless of and from all loss, cost,
liability, damage and expense, including, but not limited to, reasonable counsel
fees, penalties and fines, incurred in connection with or arising from (i) any
default by Tenant in the observance or performance of any of the terms,
covenants or conditions of this Lease on Tenant's part to be observed or
performed, or (ii) the use or occupancy or manner of use or occupancy of the
Building or Premises by Tenant or any Person claiming through or under Tenant,
or (iii) any acts, omissions or negligence of Tenant or any such Person, or the
contractors, agents, servants, employees, visitors or licensees of Tenant or any
such Person, in or about the Premises or the Building either prior to, during or
after the expiration of the Term, or (iv) any claims by any Persons by reason of
injury to persons or damage to property occasioned by any use, occupancy, act,
omission or negligence referred to herein.
(F) Maintain with responsible companies approved by Landlord (i)
comprehensive liability insurance, with contractual liability endorsement
covering the matters set forth in paragraph E above, against all claims, demands
or actions for injury to or death of person and damage to property, to the limit
of not less than $3,000,000 per occurrence and/or in the aggregate, arising
from, related to, or in any way connected with Tenant's use or occupancy of the
Premises, or caused by actions or omissions of Tenant, its agents, servants and
contractors, which insurance shall name Landlord and its agents as additional
insureds; and (ii) fire insurance, with such extended coverage, vandalism,
malicious mischief and sprinkler leakage endorsements attached as Landlord
reasonably may, from time to time, require, covering all trade fixtures and
equipment, furniture, furnishings, improvements or betterments installed or made
by Tenant in, on or about the Premises to the extent of at least 80% of their
replacement value, without deduction for depreciation, but in any event in an
amount sufficient to prevent Tenant from becoming a co-insurer under provisions
of applicable policies. Tenant's insurance shall be in form satisfactory to
Landlord and shall provide that it shall not be subject to cancellation,
termination or change except after at least ten (10) days' prior written notice
to Landlord. All policies required pursuant to this paragraph F or duly
executed certificates for the same shall be deposited with Landlord not less
than ten (10) days prior to the day Tenant is expected to take occupancy and any
renewals of said policies not less than fifteen (15) days prior to the
expiration of the term of such coverage. Landlord and Tenant mutually agree
that with respect to any loss which is covered by insurance then being carried
by them respectively, or required to be carried, or as to any coverage which
Landlord agrees need not be carried, the party suffering a loss releases the
other of and from any and all claims with respect to such loss; and they further
mutually agree that their respective insurance companies shall have no right of
subrogation against the other on account thereof.
(G) Landlord and its agents and employees shall not be liable for, and
Tenant waives all claims for, loss or damage to person or property sustained by
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Tenant resulting from any accident or occurrence (unless caused by the
negligence of Landlord, its agents, servants or employees other than accidents
or occurrences against which Tenant is insured) in or upon the Premises or the
Building, including, but not limited to, claims for damage resulting from: (i)
equipment or appurtenances becoming out of repair; (ii) injury occasioned by
wind; (iii) any defect in or failure of plumbing, heating, air conditioning or
ventilation equipment, electric wiring, gas, water, steam or other pipes,
stairs, porches, railings or walks; (iv) broken glass; (v) the backing up of any
pipe or downspout; (vi) the bursting, leaking or running of any pipe, drain or
tank in, upon or about the Building or the Premises; (vii) the escape of steam
or hot water; (viii) water, snow or ice upon or coming through the roof or
windows, walks or otherwise; (ix) the falling of any fixture, plaster, concrete,
glass, metal, tile or stucco; and (x) any act, omission or negligence of other
occupants of the Building.
(H) Permit Landlord and its agents to have access in and about the
Premises including, without limitation, the right (i) to enter the Premises to
examine the Premises and/or to perform any obligation of Landlord under this
Lease or any other lease to which Landlord is party and/or to exercise any right
or remedy reserved to Landlord in this Lease; (ii) to erect, install, use and
maintain in concealed locations columns, beams, pipes, ducts and conduits in and
through the Premises; (iii) to exhibit the Premises to others; (iv) to make such
repairs, alterations, improvements or additions, or to perform such maintenance
as Landlord may deem necessary or desirable; and (v) to take all materials into
and upon the Premises that may be required in connection with any such
decorations, repairs, alterations, improvements, additions or maintenance. All
parts (except surfaces facing the interior of the Premises) of all walls,
windows and doors bounding the Premises (including exterior Building walls, core
corridor walls, doors and entrances), all balconies, terraces and roofs adjacent
to the Premises, all space in or adjacent to the Premises used for shafts,
stairways, chutes, pipes, conduits, ducts, fan rooms, mechanical facilities,
service closets and other Building facilities, and the use thereof, as well as
access thereto through the Premises for the purposes of operation, maintenance,
alteration and repair, are hereby reserved to Landlord. Landlord also reserves
the right at any time to change the arrangement or location of entrances,
passageways, doors, doorways, corridors, elevators, stairs, toilets and other
public parts of the Building, provided any such change does not permanently and
unreasonably obstruct Tenant's access to the Premises. The exercise by Landlord
or its agents of any right reserved to Landlord in this paragraph shall not
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of Rent, or relieve Tenant from any of its
obligations under this Lease.
(I) Pay on demand Landlord's expenses, including reasonable attorneys'
fees, resulting from the breach by Tenant of, or incurred in enforcing any
obligation of Tenant under this Lease, or in curing any default by Tenant
hereunder.
(J) Forthwith cause to be discharged of record, by payment, bonding or
otherwise, any mechanic's lien at any time filed against the Premises or the
Building for any work, labor, services or materials claimed to have been
performed at or furnished to the Premises for or on behalf of Tenant or anyone
holding the Premises through or under Tenant. Nothing contained in this Lease
shall be construed as a consent on the part of Landlord to subject Landlord's
estate in the Premises to any lien or liability under applicable law.
(K) Upon the expiration or other termination of the Term, quit and
surrender the Premises to Landlord, broom clean, in good order and condition,
ordinary wear and tear and casualty covered by Landlord's insurance excepted,
and at Tenant's expense, remove all property of Tenant and each alteration,
addition or improvement made by Tenant as to which Landlord shall have made the
election provided for in Section 2.3 hereof. Tenant shall repair all damages to
the Premises caused by such removal and restore the Premises to the same
condition as existed prior to the installation of the items so removed. Any
improvements
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or installations required to be but not so removed shall be deemed to have been
abandoned by Tenant and may be retained or disposed of, as Landlord shall
desire. However, Tenant shall be responsible for the cost of removal and
disposal and for restoration of the Premises.
(L) This Lease is and all of Tenant's rights hereunder are subject and
subordinate to any mortgages, security deeds or deeds of trust (collectively,
Mortgages) that now exist or may hereafter be placed upon the Building, the
Building Parcel or any part thereof and all advances made under any such
Mortgages and the interest thereon and all renewals, replacements, amendments,
modifications, consolidations and extensions thereof. If any mortgagee succeeds
to Landlord's interest under this Lease by foreclosure or otherwise, Tenant will
attorn to such mortgagee and will recognize such mortgagee as Tenant's landlord
under this Lease. Tenant shall execute and deliver, in recordable form,
whatever instruments may be required to acknowledge or further effectuate the
provisions of this paragraph. This Lease shall also be subject and subordinate
to any ground or underlying (including operating) lease that may hereafter be
placed on the Building Parcel or the Building and all renewals, replacements,
modifications and extensions thereof, and Tenant shall attorn to the lessee
thereunder and recognize such lessee as Tenant's landlord under this Lease.
However, termination of any such lease shall not result in the termination of
this Lease nor of Tenant's obligations hereunder.
(M) Conform and cause its employees to conform to all reasonable rules
and regulations promulgated by Landlord for the management and use of the
Building and Auxiliary Areas. Such rules and regulations shall be uniform and
shall not discriminate against Tenant or its employees.
Section 7.2 Negative Covenants.
------------------
Tenant covenants at all times during the Term and such further time as
Tenant occupies the Premises or any part thereof:
(A) Tenant shall not use or occupy, or permit the use or occupancy of,
the Premises or any part thereof for any purpose other than for office purposes,
nor in any manner which shall adversely affect any services furnished by
Landlord to Tenant or to any other occupant of the Building. Tenant shall not
injure, overload, deface or otherwise harm the Premises or any part thereof or
any equipment or installation therein.
(B) Tenant shall not make or perform, or permit the making or
performance of, any alterations, subdivisions, installations, decorations,
improvements, additions or other physical changes in or about the Premises,
including those necessary to satisfy any Governmental Requirement (referred to
collectively as "alterations"), without Landlord's prior consent. Landlord
agrees not unreasonably to withhold its consent to any nonstructural alterations
proposed to be made by Tenant to adapt the Premises for Tenant's business
purposes. All alterations shall be made at Tenant's sole cost and expense and
at such time and in such manner as Landlord may, from time to time, designate;
alterations shall be made only by contractors or mechanics approved by Landlord,
such approval not unreasonably to be withheld; all business machines and
mechanical equipment shall be placed and maintained by Tenant in settings
sufficient to absorb and prevent vibration, noise and annoyance to other
occupants of the Building; Tenant shall submit to Landlord detailed plans and
specifications for each proposed alteration and shall not commence any such
alteration without first obtaining Landlord's approval of such plans and
specifications; all permits, approvals and certificates required by all
Governmental Authorities shall be timely obtained by Tenant and submitted to
Landlord; notwithstanding Landlord's approval of plans and specifications for
any alteration, alterations shall be made and performed in full compliance with
all Governmental Requirements; all materials and equipment to be incorporated in
the Premises as a result of all alterations shall be new and first quality; no
such materials or equipment shall be subject to any lien, encumbrance, chattel
mortgage or title retention or security agreement. In the event the cost of an
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alteration exceeds the amount of three monthly installments of Fixed Rent,
Landlord shall have the right to require Tenant to obtain performance and labor
and material payment bonds from surety companies and in such forms as Landlord
shall require in amounts at least equal to the cost of the proposed work.
(C) Not to assign, sell, mortgage, pledge, or in any manner transfer
this Lease or any interest therein, or sublet the Premises or parts thereof or
grant "desk space" privileges or any concession. A transfer or change in the
ownership of Tenant's or the Guarantor's stock or a change in the composition of
any noncorporate Tenant without, in either case, a legitimate business purposes
shall, unless such stock is publicly traded, be deemed an assignment. Consent
by Landlord to an assignment, subletting, concession or license shall not be
construed to relieve Tenant from obtaining the express consent of Landlord to
any further assignment or subletting or to the granting of any concession or
license for the use of any part of the Premises; nor shall the collection of
Rent by Landlord from any assignee, subtenant or other occupant, after default
by Tenant, be deemed a waiver of this covenant or the acceptance of the
assignee, subtenant or occupant as Tenant or a release of Tenant from the
further performance by Tenant of the covenants of this Lease on Tenant's part to
be performed.
Tenant may, in writing, request Landlord's consent to an assignment of
this Lease or a subletting of all (but not less than all) of the Premises
provided however, that (i) the proposed assignee or subtenant is not then (a) an
existing tenant or an Affiliate of an existing tenant in the Building or (b) a
person with whom Landlord is then negotiating, or has entered into negotiations
within the six months prior to Tenant's request for Landlord's consent, for
space in the Building and (ii) the rental rate for any subletting is no less
than the then going market rental rate (including Fixed Rent and Additional
Rent) for space in the Building which Landlord is then offering to Lease. Such
request shall include the name of the proposed assignee or subtenant, a copy of
the proposed instruments relating to the transaction, certified financial
statements of the proposed assignee or subtenant and its officers, directors and
stockholders, and such information as to the financial responsibility, business
and standing of the proposed assignee or subtenant as Landlord may reasonably
require. Upon receipt of such request and information from Tenant, Landlord
shall have the right, to be exercised in writing within thirty (30) days after
such receipt, to terminate this Lease, as of the date set forth in Landlord's
notice of its exercise of such right, which date of termination shall be not
less than sixty (60) nor more than one hundred twenty (120) days following the
service of Landlord's notice.
(i) In the event Landlord shall exercise such cancellation right,
Tenant shall surrender possession of the Premises on the date set forth in such
notice in accordance with the provisions of this Lease relating to surrender of
the Premises at the expiration of the Term. In no event shall the Premises be
subdivided or partially sublet nor any request made for permission to do so.
(ii) In the event that Landlord shall not exercise its right to cancel
this Lease as above provided, Landlord's consent to such request shall not be
unreasonably withheld, provided such sublease or assignment is effected by a
legal document in form and substance satisfactory to Landlord, and subparagraph
(iii) of this paragraph shall apply with respect to possible adjustment of
rentals. In no event shall any assignment or subletting to which Landlord may
have consented relieve Tenant from its obligations to perform all of the terms,
covenants and conditions of this Lease on its part to be performed.
(iii) If under an assignment or sublease consented to by Landlord the
rent, additional rent, other charges, and/or other consideration, money or thing
of value payable thereunder or payable in connection with the transaction exceed
the Rent provided in this Lease, Tenant or, at Landlord's option, the sublessee
or assignee shall pay said excess rent or other consideration to Landlord as
Additional Rent hereunder as and when the same becomes due under said assignment
or sublease.
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(iv) If Tenant is a corporation, Tenant shall have the right, without
the consent of Landlord, to assign its interest in this Lease to a parent or
wholly owned subsidiary of Tenant or any corporation which is a successor to
Tenant either by merger or consolidation, or in connection with a public
offering of Tenant's stock, provided that the successor shall have a tangible
net worth, determined in accordance with accepted accounting standards, at least
equal to the tangible net worth of Tenant at the time of the transaction.
However, no such assignment shall be valid unless within ten (10) days prior to
the effective date thereof Tenant shall deliver to Landlord (a) a duplicate
original instrument of assignment, in form and substance satisfactory to
Landlord, duly executed by Tenant, (b) an instrument in form and substance
satisfactory to Landlord, duly executed by the assignee, in which such assignee
shall assume observance and performance of and agree to be personally bound by,
all of the terms, covenants and conditions of this Lease on Tenant's part to be
observed and performed and (c) evidence of compliance with the conditions of
this paragraph.
(D) Tenant shall have no right to affix any sign to the Premises or its
windows, or to any part of the common area or the Building unless and until the
sign has been approved by Landlord. Landlord shall have the right, at Tenant's
expense, to remove any sign affixed by Tenant prior to such approval.
(E) Not to obstruct or encumber or use the common areas for any purpose
other than ingress and egress to and from the Premises. Tenant shall not commit
or allow to be committed any waste upon the Premises, or any public or private
nuisance or other act or thing which disturbs the quiet enjoyment of any other
tenant in the Building.
ARTICLE 8. DESTRUCTION: CONDEMNATION
Section 8.1 Fire or Other Casualty.
----------------------
(A) Tenant shall give prompt notice to Landlord in case of fire or other
damage to the Premises or the Building.
(B) If the Premises or the Building shall be damaged by fire or other
casualty, Landlord, at Landlord's expense, but only to the extent of the net
insurance proceeds available for such purpose, shall repair such damage.
However, Landlord shall have no obligation to repair any damage to, or to
replace, Tenant's leasehold improvements or betterments, furniture, furnishings,
decorations or any other installations made by Tenant. If the Premises shall be
rendered untenantable by reason of any such damage, the Fixed Rent only shall
abate for the period from the date of such damage to the date when such damage
shall have been repaired by Landlord, and if only a part of the Premises shall
be so rendered untenantable, the Fixed Rent for such period shall abate in the
proportion which the part of the Premises rendered untenantable bears to the
total Premises. However, if, prior to the date when all of such damage shall
have been repaired by Landlord, any part of the Premises so damaged shall be
rendered tenantable and shall be used or occupied by Tenant or Persons claiming
through or under Tenant, then the amount by which the Fixed Rent shall abate
shall be equitably apportioned for the period from the date of any such use or
occupancy to the date when Landlord shall have repaired all such damage.
Notwithstanding the foregoing provisions of this paragraph, if prior to or
during the Term, (i) the Premises shall be rendered wholly untenantable by fire
or other casualty and Landlord shall decide not to restore the Premises, or (ii)
the Building shall be so damaged by fire or other casualty that, in Landlord's
opinion, substantial alteration, demolition, or reconstruction of the Building
shall be required (whether or not the Premises shall have been rendered
untenantable), then, in either of such events, Landlord, at Landlord's option,
may give to Tenant, within ninety (90) days after such fire or other casualty, a
five (5) day notice of termination and, if such notice is given, this Lease and
the Term hereof shall come to an end (whether or not said Term shall have
commenced) upon the expiration of said five (5) days with the same effect as if
the date of expiration of said five (5) days were the expiration date of this
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Lease. In such event, the Rent shall be apportioned as of such date and any
prepaid portion of Rent for any period after such date shall be refunded to
Tenant.
(C) If this Lease shall not be terminated as above provided, Landlord
shall, at its expense, repair or restore the Premises with reasonable diligence
and dispatch to the condition obtaining immediately prior to the casualty,
except that Landlord shall not be required to repair or restore any of Tenant's
furniture, furnishings, decorations or any installations or alterations, as
defined in paragraph 7.2B, made by Tenant. All insurance proceeds payable to
Tenant for such items shall be held in trust by Tenant and upon the completion
by Landlord of repair or restoration, Tenant shall prepare the Premises for
occupancy by Tenant in the manner obtaining immediately prior to the damage or
destruction, in accordance with the provisions of paragraph 7.2B.
Section 8.2 Eminent Domain.
--------------
(A) If all or substantially all of the Building or the Premises shall be
acquired or condemned by eminent domain for any public or quasi-public use or
purpose, then this Lease and all rights of Tenant shall terminate as of the date
of title vesting in such proceeding.
(B) If part of the Building shall be acquired or condemned by eminent
domain for any public or quasi-public use or purpose, and such acquisition shall
affect a portion of the Premises or the access to same, then Landlord shall have
the option (i) to terminate this Lease as of the date of title vesting or (ii)
to repair and alter the Building, including the area leased to Tenant, and this
Lease shall not be affected thereby, except for proportional reduction of the
Fixed Rent if the leased area shall be diminished by such vesting.
(C) In case of any taking or condemnation, whether or not the Term of
this Lease shall terminate, the entire award shall be the property of Landlord,
and Tenant hereby assigns to Landlord all its right, title and interest in and
to any such award. However, Tenant shall be entitled to claim, prove and
receive in the condemnation proceeding such awards as may be allowed for
fixtures and other equipment installed by Tenant, relocation and loss of Lease,
but only if such awards shall be made by the condemnation court in addition to
the award made by it for the land and the Building or part thereof so taken.
(D) In the case of any taking or condemnation, the current Fixed Rent
and Additional Rent shall be apportioned as of the date of vesting of title and,
if the Term of this Lease shall not have been terminated as of said date, Tenant
shall be entitled to a pro rata reduction in the Fixed Rent payable hereunder
based on the proportion which the floor area so taken bears to the entire floor
area of the Premises immediately prior to such taking.
(E) If this Lease is not terminated pursuant to the provisions of this
Section 8.2, Landlord shall, at its expense, but only to the extent of an
equitable proportion of the net award or other compensation (after deducting
legal and all other fees in connection with obtaining said award) for the
portion of the Building taken or conveyed (excluding any award for land), make
such repairs of alterations as are in Landlord's reasonable judgment necessary
to constitute the Building a complete architectural and tenantable unit.
ARTICLE 9. DEFAULTS AND REMEDIES
Section 9.1 Default. The occurrence, at any time prior to or during the
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Term, of any one of the following events shall constitute an "Event of Default":
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(A) If Tenant shall default in the payment when due of any installment
of Fixed Rent or in the payment when due of any Additional Rent, and such
default shall continue for a period of ten (10) days after notice by Landlord to
Tenant of such default; or
(B) If Tenant shall default in the observance or performance of any
other term, covenant or condition of this Lease on Tenant's part to be observed
or performed and Tenant shall fail to remedy such default within twenty (20)
days after notice by Landlord to Tenant of such default; or if such default is
not capable of being cured within said twenty (20) day period, then if Tenant
shall fail to commence the cure within said period or shall not thereafter
diligently prosecute to completion all steps necessary to remedy such default;
or if the Premises shall become vacant, deserted or abandoned; or if Tenant
shall assign or sublet the Premises in violation of Section 7.2 C.
Upon the occurrence of any one or more such Events of Default, Landlord
may, at any time thereafter, give Tenant a five (5) day notice of termination of
this Lease and, in the event such notice is given, this Lease and the Term shall
come to an end (whether or not the Term shall have commenced) upon the
expiration of said five (5) days with the same effect as if the date of
expiration of said five (5) days were the expiration date of this Lease, but
Tenant shall remain liable for damages as herein provided.
Section 9.2 Remedies of Landlord.
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(A) If this Lease shall have been terminated, or if Tenant shall default
in the payment of Rent or in the observance of any other term, condition or
covenant and such default is continuing, then, in any of such events, Landlord
may without notice, institute, in accordance with the laws and service of
process requirements of the State of Georgia, dispossess or unlawful detainer
proceedings, dispossess Tenant or other occupants of the Premises, and remove
their effects and hold the Premises as if this Lease had not been made. Nothing
herein shall be deemed to require Landlord to give the notices herein provided
for prior to the commencement of a dispossess or unlawful detainer proceeding
for non-payment of Rent or a plenary action for the recovery of Rent on account
of any default in the payment of Rent, it being intended that such notices are
for the sole purpose of creating a conditional limitation hereunder pursuant to
which this Lease shall terminate and Tenant shall become a holdover Tenant.
(B) In case of any such default, re-entry, expiration and/or dispossess
or unlawful detainer proceedings or otherwise, in addition to any other remedy
now or hereafter available to Landlord, (i) the Rent shall become due thereupon
and be paid up to the time of such re-entry, dispossess and/or expiration; (ii)
Landlord may relet the Premises or any part thereof for a term which may be
less than or exceed the period which would otherwise have constituted the
balance of the Term, and may grant concessions of free rent; and (iii) Tenant or
the legal representative of Tenant shall also pay Landlord, as damages for the
failure of Tenant to observe and perform Tenant's covenants herein contained,
for each month of the period which would otherwise have constituted the balance
of the Term, any deficiency between (x) the sum of (a) one monthly installment
of Fixed Rent and (b) any Additional Rent that would have been payable for the
month in question but for such re-entry or termination and (y) the net amount,
if any, of the rents collected on account of the lease or leases of the Premises
for each month of the period which would otherwise have constituted the balance
of the Term. The reasonable refusal or failure of Landlord to relet the
Premises or any part thereof shall not release or affect Tenant's liability for
damages provided Landlord shall have made the same effort and on the same terms
to relet the Premises as with respect to other vacant space in the Building;
however, Landlord shall not be required to prefer the reletting of the Premises
over any other space in the Building. In computing such damages there shall be
added to the said deficiency all expenses actually incurred by Landlord in
connection with the reletting, including court costs, attorneys' fees and
disbursements, the cost of alterations for a new tenant, brokerage fees, and the
cost of putting the Premises in good order and otherwise preparing same for
reletting. Damages shall
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be paid in monthly installments by Tenant on the rent day specified in this
Lease and any suit brought to collect the amount of the deficiency for any month
shall not prejudice the rights of Landlord to collect the deficiency for any
subsequent or prior month by a similar proceeding. Landlord, at Landlord's
option, may make such alterations, repairs, replacements and/or decorations in
the Premises as Landlord considers advisable for the purpose of reletting the
Premises; and the making of such alterations and/or decorations shall not
release Tenant from liability hereunder as aforesaid.
(C) In the event of a breach or threatened breach by Tenant of any of
the covenants or provisions hereof, Landlord shall have the right of injunction
and the right to invoke any remedy allowed at law or in equity as if re-entry,
summary proceedings and other remedies were not herein provided for. Mention in
this Lease of any particular remedy shall not preclude Landlord from any other
remedy.
Section 9.3 Landlord's Right to Cure Defaults.
---------------------------------
Landlord may cure, after notice of default is served, any default by Tenant
under this Lease; and whenever Landlord so elects, all costs and expenses
incurred by Landlord in curing a default, including, without limitation,
reasonable attorneys' fees, together with interest on the amount of costs and
expenses so incurred at the rate provided in Section 3.3 hereof, shall be paid
by Tenant to Landlord on demand as Additional Rent.
Section 9.4 Waiver of Default. No consent or waiver, express or
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implied, by Landlord or Tenant to or of any breach of any covenant, condition or
duty of the other shall be construed as a consent or waiver to or of any other
breach of the same or any other covenant, condition or duty of the other, unless
in writing signed by the party against whom such waiver is sought.
Section 9.5 Security Deposit. Tenant has deposited with Landlord the
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Security Deposit as security for the punctual performance by Tenant of each and
every obligation of Tenant under this Lease. In the event of any default by
Tenant, Landlord may apply or retain all or any part of the security to cure the
default or to reimburse Landlord for any sum which Landlord may spend by reason
of the default. In the case of every such application or retention, Tenant
shall, on demand, pay to Landlord the sum so applied or retained, which sum
shall be added to the Security Deposit so that the same shall be restored to its
original amount. If at the end of the Term Tenant shall not be in default under
this Lease, the Security Deposit, or any balance thereof, shall be returned to
Tenant within thirty (30) days. If Landlord shall sell the Building or shall
lease the Building, in either case subject to this Lease, or shall otherwise
assign or dispose of this Lease, Landlord may assign and turn over the Security
Deposit or any balance thereof to Landlord's grantee, lessee or assignee, and
Tenant hereby releases and relieves Landlord from any and all liability for the
return of said deposit and shall look solely to said grantee, lessee or
assignee; it being expressly agreed that this provision shall apply to each and
every sale, conveyance or lease of the Building or assignment or disposition of
this Lease.
ARTICLE 10. MISCELLANEOUS PROVISIONS
Section 10.1 Notices. Any notice or demand from Landlord to Tenant or
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from Tenant to Landlord shall be in writing and shall be deemed duly served if
mailed by registered or certified mail, return receipt requested, addressed, if
to Tenant, at the Building, or to such other address as Tenant shall have last
designated by notice in writing to Landlord, and if to Landlord, at the address
of Landlord set forth herein or such other address as Landlord shall have last
designated by notice in writing to Tenant. Notice shall be deemed served when
mailed.
Section 10.2 Brokerage. Tenant and Landlord warrant that they have had
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no dealings with any broker or agent in connection with this Lease other than
the Broker, if any, named herein, and each covenants to pay, hold harmless and
indemnify the other from and against any and all cost, expense or liability for
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any compensation, commissions and/or charges claimed by any other broker or
agent with whom they had dealings with respect to this Lease or the negotiation
thereof.
Section 10.3 Estoppel Certificates. Each of the parties agrees that it
---------------------
will, at any time and from time to time, within ten (10) business days following
written notice by the other party, execute, acknowledge and deliver to the other
party a statement in writing certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), and the dates
to which Rent and any other payments due hereunder from Tenant have been paid
and stating whether or not to the best of knowledge of the signer of such
certificate the other party is in default in performance of any covenant,
agreement or condition contained in this Lease, and, if so, specifying each such
default of which the signer may have knowledge.
Section 10.4 Applicable Law and Construction. The laws of the State of
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Georgia shall govern the validity, performance and enforcement of this Lease.
The invalidity or unenforceability of any provision of this Lease shall not
affect or impair any other provision. The submission of this document to Tenant
for examination does not constitute an offer to lease, or a reservation of or
option to lease, and becomes effective only upon execution and delivery thereof
by Landlord and Tenant. All negotiations, considerations, representations and
understandings between the parties are incorporated in this Lease. Landlord or
Landlord's agents have made no representations or promises with respect to the
Building or the Premises, except as herein expressly set forth. The headings of
the several articles and sections contained herein are for convenience only and
do not define, limit or construe the contents of such articles or sections.
Whenever herein the singular number is used, the same shall include the plural,
and the neuter gender shall include the masculine and feminine genders.
Section 10.5 Transfer of Tenants. Landlord hereby reserves the right,
-------------------
at its sole option and upon giving at least sixty (60) calendar days advance
written notice to Tenant, to transfer and remove Tenant from the Premises (and
from any other space to which Tenant was relocated pursuant to this Section
10.5) at any time prior or after occupancy of the Premises to any other
available space in the Building of substantially equal area. Landlord hereby
agrees to bear the expense of such transfer and removal, as well as the expense
of any renovations or alteration which are necessary to make the new space
conform substantially in layout and appointment with the Premises. If Landlord
moves Tenant to such new space, every term and condition of this Lease shall
remain in full force and effect, except that the Fixed Rent and Tenant's Pro
Rata Share shall be adjusted to reflect any change in the rentable floor area of
the new space, and such new space shall thereafter be deemed to be the Premises
as though Tenant had entered into an express written amendment of this Lease
with respect thereto. Failure of Tenant to cooperate with Landlord pursuant to
this provision and to remove itself from the Premises shall permit Landlord (i)
to enter the Premises and to remove Tenant and its property therefrom, by force
if necessary, and to relocate Tenant and its property in the new space provided
by Landlord pursuant to this provision, all without being liable to Tenant in
any manner whatsoever for such acts except for the expenses which are provided
in this Section 10.5 to be paid by Landlord or (ii) to cancel and terminate this
Lease effective ninety (90) days from the date of original notification by
Landlord.
Section 10.6 Construction on Adjacent Premises or Buildings. Tenant
----------------------------------------------
understands that while the Building is under construction and until it is fully
occupied, both Landlord and other occupants of the Building will be performing
work, aspects of which may involve areas in close proximity to the Premises. If
any excavation or other building operation shall be about to be made or shall be
made on any premises adjoining or above or below the Premises or on any other
portion of the Building, Tenant shall permit Landlord or the adjoining owner,
and their respective agents, employees, licensees and contractors, to enter the
Premises and to shore the foundations and/or walls thereof, and to erect
scaffolding and/or protective barricades around and about the Premises (but not
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so as to preclude entry thereto) and to do any act or thing necessary for the
safety or preservation of the Premises. Tenant's obligations under this Lease
shall no |
