Georgia-Alpharetta-11475 Great Oaks Way Lease - Opus South Corp. and NetBank Inc.
OFFICE
LEASE AGREEMENT
Opus South Corporation, a Florida corporation, as Landlord,
and
NetB@nk, Inc., a Georgia corporation, as Tenant
Dated: March 17, 1999
<PAGE>
TABLE OF CONTENTS
BASIC TERMS ......................................................................................................1
ARTICLE 1 LEASE OF PREMISES AND LEASE TERM...............................................................4
1.1 Premises................................................................................................4
1.2 Term, Delivery and Commencement.........................................................................4
1.3 Completion of Tenant's Work.............................................................................5
1.4 Effect of Occupancy.....................................................................................5
ARTICLE 2 RENTAL AND OTHER PAYMENTS......................................................................5
2.1 Base Rent...............................................................................................5
2.2 Additional Rent.........................................................................................6
2.3 Improvement Allowance...................................................................................6
2.4 Delinquent Rental Payments..............................................................................6
2.5 Independent Obligations.................................................................................6
ARTICLE 3 OPERATING EXPENSES - DEFINITION................................................................7
3.1 Operating Expenses......................................................................................7
3.2 Excess Operating Expenses...............................................................................8
3.3 Tenant's Prorata Share of Excess Operating Expenses.....................................................8
3.4 Controllable Expenses Cap...............................................................................9
ARTICLE 4 OPERATING EXPENSES - PAYMENT...................................................................9
4.1 Payment of Operating Expenses...........................................................................9
4.2 Estimation of Tenant's Prorata Share of Excess Operating Expenses.......................................9
4.3 Payment of Estimated Prorata Share of Excess Operating Expenses.........................................9
4.4 Re-Estimation of Tenant's Prorata Share of Excess Operating Expenses...................................10
4.5 Confirmation of Tenant's Prorata Share of Excess Operating Expenses....................................10
4.6 Not Used...............................................................................................10
4.7 Personal Property Taxes................................................................................10
4.8 Landlord's Right to Contest Taxes......................................................................11
4.9 Adjustment for Variable Operating Expenses.............................................................11
ARTICLE 5 USE...........................................................................................11
5.1 Permitted Use..........................................................................................11
5.2 Acceptance of Premises.................................................................................11
5.3 Increased Insurance....................................................................................12
5.4 Laws, Rules and Regulations............................................................................12
5.5 Common Areas...........................................................................................12
5.6 Parking................................................................................................13
5.7 Americans with Disabilities Act........................................................................13
-i-
<PAGE>
ARTICLE 6 HAZARDOUS MATERIALS...........................................................................13
6.1 Compliance with Hazardous Materials Laws...............................................................13
6.2 Indemnification........................................................................................14
ARTICLE 7 SERVICES......................................................................................14
7.1 Landlord's Obligations.................................................................................14
7.2 Tenant's Obligations...................................................................................15
7.3 Other Provisions Relating to Services..................................................................16
7.4 Effects on Utilities...................................................................................16
ARTICLE 8 MAINTENANCE AND REPAIR........................................................................16
8.1 Landlord's Obligations.................................................................................16
8.2 Tenant's Obligations...................................................................................17
8.3 Tenant's Waiver of Claims Against Landlord.............................................................17
ARTICLE 9 CHANGES AND ALTERATIONS.......................................................................18
9.1 Landlord Approval......................................................................................18
9.2 Tenant Responsibility for Cost and Insurance...........................................................18
9.3 Construction Obligations and Ownership.................................................................18
9.4 Liens..................................................................................................19
9.5 Indemnification........................................................................................19
ARTICLE 10 RIGHTS RESERVED BY LANDLORD...................................................................19
10.1 Landlord's Entry.......................................................................................19
10.2 Landlord's Cure........................................................................................20
ARTICLE 11 INSURANCE.....................................................................................20
11.1 Landlord's Casualty Insurance Obligations..............................................................20
11.2 Tenant's Casualty Insurance Obligations................................................................21
11.3 Landlord's Liability Insurance Obligations.............................................................21
11.4 Tenant's Liability Insurance Obligations...............................................................21
11.5 Tenant's Miscellaneous Insurance Obligations...........................................................22
11.6 Tenant's Indemnification of Landlord...................................................................22
11.7 Mutual Waivers.........................................................................................22
11.8 Landlord's Deductible..................................................................................23
11.9 Tenant's Property......................................................................................23
11.10 Increase in Insurance...............................................................................23
11.11 Tenant's Failure to Insure..........................................................................23
ARTICLE 12 DAMAGE OR DESTRUCTION.........................................................................24
12.1 Tenantable Within 180 Days.............................................................................24
12.2 Not Tenantable Within 180 Days.........................................................................24
12.3 Property Substantially Damaged.........................................................................24
12.4 Uninsured Casualty or Unavailable Insurance Proceeds...................................................24
12.5 Deductible Payments....................................................................................25
12.6 Landlord's Repair Obligations..........................................................................25
-ii-
<PAGE>
12.7 Rent Apportionment.....................................................................................25
12.8 Additional Tenant Termination Right....................................................................25
ARTICLE 13 EMINENT DOMAIN................................................................................26
13.1 Termination of Lease...................................................................................26
13.2 Landlord's Repair Obligations..........................................................................26
13.3 Tenant's Participation.................................................................................26
ARTICLE 14 ASSIGNMENT AND SUBLETTING.....................................................................27
14.1 Restriction on Transfers...............................................................................27
14.2 Definition of Assignment...............................................................................27
14.3 Affiliate and Transfer Assignment Rights...............................................................28
14.4 Recapture..............................................................................................28
14.5 Costs..................................................................................................28
14.6 Proceeds...............................................................................................28
ARTICLE 15 DEFAULTS; REMEDIES............................................................................29
15.1 Events of Default......................................................................................29
15.2 Remedies...............................................................................................30
15.3 Costs..................................................................................................31
15.4 No Waiver..............................................................................................32
15.5 Waiver by Tenant.......................................................................................32
ARTICLE 16 PROTECTION OF CREDITORS.......................................................................32
16.1 Subordination..........................................................................................32
16.2 Attornment.............................................................................................33
16.3 Estoppel Certificates..................................................................................33
16.4 Mortgagee Protection Clause............................................................................33
ARTICLE 17 TERMINATION OF LEASE..........................................................................34
17.1 Surrender of Premises..................................................................................34
17.2 Holding Over...........................................................................................34
ARTICLE 18 MISCELLANEOUS PROVISIONS......................................................................35
18.1 Notices................................................................................................35
18.2 Landlord's Continuing Obligations......................................................................35
18.3 Successors.............................................................................................35
18.4 Captions and Interpretation............................................................................35
18.5 Relationship of Parties................................................................................36
18.6 Entire Agreement.......................................................................................36
18.7 Severability...........................................................................................36
18.8 Landlord's Limited Liability...........................................................................36
18.9 Survival...............................................................................................36
18.10 Attorneys' Fees.....................................................................................36
18.11 Broker..............................................................................................37
18.12 Governing Law.......................................................................................37
-iii-
<PAGE>
18.13 Time is of the Essence..............................................................................37
18.14 Joint and Several Liability.........................................................................37
18.15 Not Used............................................................................................37
18.16 Delivery of Tenant Organization Documents...........................................................37
18.17 Provisions are Covenants and Conditions.............................................................38
18.18 Business Days.......................................................................................38
18.19 Force Majeure.......................................................................................38
18.20 Submission of Lease.................................................................................38
18.21 Not Used............................................................................................38
18.22 Usufruct............................................................................................38
18.23 Security Deposit....................................................................................38
18.24 Special Stipulations................................................................................39
-iv-
<PAGE>
EXHIBIT "A" LEGAL DESCRIPTION OF LAND
EXHIBIT "B" FLOOR PLAN
EXHIBIT "C" RULES AND REGULATIONS
EXHIBIT "D" WORK LETTER
EXHIBIT "D-1" BASE BUILDING CONDITION
EXHIBIT "E" SPECIAL STIPULATIONS
EXHIBIT "F" JANITORIAL SPECIFICATIONS
EXHIBIT "G" SUBORDINATION NON-DISTURBANCE AND ATTORNMENT
AGREEMENT
<PAGE>
LEASE AGREEMENT
This Lease Agreement (the "Lease") is made and entered into as of March
____, 1999 ("Effective Date"), by and between OPUS SOUTH CORPORATION, a Florida
corporation, as Landlord, and NETB@NK, INC., a Georgia corporation, as Tenant.
BASIC TERMS
The following terms ("Basic Terms") are hereby incorporated into and
made a part of this Lease. Each reference in this Lease to the Basic Terms shall
mean the information set forth below and shall be construed to incorporate all
of the terms provided under the particular section in this Lease pertaining to
such information. In the event of a conflict between the Basic Terms and the
particular section in this Lease, the particular section shall prevail.
1. Landlord: Opus South Corporation, a Florida corporation
2. Address of Landlord Normandale Properties South Corporation
for Payment of Rent: 4200 West Cypress Street
Suite 445
Telephone No.: (813) 876-1515
Facsimile No.: (813) 876-7955
3. Address of Landlord Opus South Corporation
for Notices: Suite 144
11675 Great Oaks Way
Alpharetta, Georgia 30202
Attn: Director of Real Estate
Telephone No.: (770) 521-0045
Facsimile No.: (770) 521-0046
With a copy to: Opus U.S. Corporation
700 Opus Center
9900 Bren Road East
Minnetonka, MN 55343
Attn: Law Department
Telephone No.: 612-936-4444
Facsimile No.: 612-936-9808
4. Tenant: NetB@nk, Inc., a Georgia corporation
<PAGE>
5. Address of Tenant NetB@nk, Inc.
for Notices: Royal Centre Three, Suite 100
11475 Great Oaks Parkway
Alpharetta, Georgia 30022
Attn: Robert E. Bowers
Telephone No.:
Facsimile No.:
6. Premises: 19,615 rentable square feet located on the first floor and
designated as Suite 100 within the Building located at 11475
Great Oaks Way, commonly known as Royal Centre Three situated
on the parcel of land in the City of Alpharetta, County of
Fulton, State of Georgia described on EXHIBIT "A", together
with the Improvements. The Premises are located within the
Building on EXHIBIT "B". (See Section 1.1).
7. Tenant's Work: The Improvements to be constructed by Landlord as described in
the Work Letter. (See Section 1.3)
8. Tenant Improvements: All Improvements other than the Tenant's Work (See Section 1.3)
9. Lease Term: Initial Lease Term: Approximately seven (7) years beginning on
the Commencement Date and ending on the last day of the
calendar month in which the seventh (7th) anniversary of the
Commencement Date occurs. (See Section 1.2)
10. Base Rent:
Lease Year Base Rent per rentable square foot of the Premises per annum
1 $20.75
2 $21.16
3 $21.58
4 $22.02
5 $22.46
6 $22.90
7 $23.36
The Base Rent is subject to
the provisions of Section
2.1 of this Lease.
- 2 -
<PAGE>
11. Base Year 1999
12. Tenant Insurance: Hazard: (At option of Tenant, see Section 11.2)
Full replacement value on
all tenant furniture,
fixtures, personal property
and equipment.
Liability: (See Section 11.4)
$3,000,000.00 combined limit
13. Security Deposit
or Guaranty: $33,917.60
14. Brokers: William Leonard & Company
- 3 -
<PAGE>
ARTICLE 1
LEASE OF PREMISES AND LEASE TERM
1.1 PREMISES.
Landlord, for and in consideration of the rents, covenants and
agreements hereinafter set forth, hereby leases to Tenant and Tenant hereby
leases from Landlord, upon and subject to the terms, covenants and conditions
hereinafter set forth, certain space situated within the office building
commonly known as Royal Centre Three ("Building"), currently being constructed
on that certain parcel of land situated in the City of Alpharetta ("City"),
County of Fulton ("County"), State of Georgia ("State") legally described on
EXHIBIT "A" attached hereto and incorporated herein ("Land") and shown and
designated on the floor plan ("Floor Plan") attached hereto as EXHIBIT "B" and
incorporated herein ("Premises"). The Land and Building are sometimes referred
to herein collectively as the "Property." The parties have each had the
opportunity to review the measurement calculations of the Premises and
conclusively agree that the Premises contains 19,615 rentable square feet, and
that such measurement is not subject to challenge or dispute by either Landlord
or Tenant.
1.2 TERM, DELIVERY AND COMMENCEMENT.
Landlord shall use commercially reasonable efforts to deliver occupancy
of the Premises to Tenant on or before June 1, 1999 ("Delivery Date"). Subject
to the provisions for Force Majeure contained in Section 18.19, the initial term
of this Lease ("Initial Term") shall commence on the earlier of (a) the date of
Substantial Completion (as defined in the Work Letter attached hereto as EXHIBIT
"D") of the Tenant's Work (as defined in Section 1.3) or (b) the date the
Tenant's Work would have been substantially completed in accordance with the
definition of Substantial Completion contained in the Work Letter but for Tenant
Delays (as defined in the Work Letter) ("Commencement Date"). The Initial Term
shall end on the last day of the calendar month in which the seventh (7th)
anniversary of the Commencement Date occurs. Any reference to the "Term" of this
Lease or similar reference shall be a reference to the Initial Term. Any
reference to "Lease Year" shall refer to each consecutive twelve (12) month
period during the Term commencing on the Commencement Date. However, if the
Commencement Date occurs on a day which is not the first day of the calendar
month, then the first Lease Year shall be for a period beginning on the
Commencement Date and ending on the last day of the calendar month in which the
Commencement Date occurs plus the following twelve (12) consecutive calendar
months.
Tenant shall, within ten (10) days of written request from Landlord,
execute an acknowledgment of the rentable square footage of the Premises, the
Base Rent, the Additional Rent, Commencement Date and any other terms of this
Lease. However, the failure of Tenant to execute such acknowledgment shall not
affect any obligation of Tenant hereunder or the determination of the
Commencement Date. If Tenant fails to execute and deliver such acknowledgment in
the form proposed by Landlord, Landlord and any prospective purchaser or
encumbrancer may conclusively presume and rely upon the following facts: (i)
that the Premises are in acceptable condition and were delivered in compliance
with all of the requirements of the
- 4 -
<PAGE>
Work Letter and (ii) the Commencement Date is the date specified in the
Landlord's acknowledgment and (iii) any other facts specified in Landlord's
acknowledgment are true and correct.
Tenant shall not occupy the Premises before the Commencement Date
without Landlord's prior written consent. Any early occupancy of the Premises by
Tenant shall be solely for the installation of Tenant's furniture, fixtures and
equipment and shall be subject to all of the terms and conditions of this Lease
other than the obligation to pay Base Rent (as defined in Section 2.1) and
Additional Rent (as defined in Section 2.2).
1.3 COMPLETION OF TENANT'S WORK.
Landlord shall use commercially reasonable efforts to complete, on or
before the Delivery Date, that portion of the improvements identified as
Tenant's Work in the Work Letter set forth in EXHIBIT "D" attached hereto and
incorporated herein. The cost of completing Tenant's Work shall be paid by
Landlord, but only up to the amount of the Improvement Allowance defined in
Section 2.3. All Additional Work (as defined in the Work Letter) shall be paid
for solely by Tenant.
1.4 EFFECT OF OCCUPANCY.
Subject to the punch list provisions of the Work Letter ("Punchlist"),
occupancy of the Premises by Tenant shall establish that Landlord has completed
Tenant's Work as required by this Lease. The Punchlist provisions of the Work
Letter are intended to provide Tenant with its sole and exclusive remedy for
incomplete or defective construction of the Tenant's Work, subject to Landlord's
obligation to repair any latent defects of which Tenant notifies Landlord, in
writing, on or before the date which is five (5) business days prior to the
first anniversary of the date Landlord achieves Substantial Completion of
Tenant's Work. The failure of Tenant to comply with the Punchlist provisions of
the Work Letter shall constitute a waiver by Tenant of any and all rights,
benefits, claims or warranties which may be available to Tenant in connection
with completion of Tenant's Work under the Work Letter, at law or in equity.
ARTICLE 2
RENTAL AND OTHER PAYMENTS
2.1 BASE RENT.
Tenant covenants to pay Landlord in advance on the first day of each
and every calendar month during the Term, without notice, demand, offset,
abatement or deduction, except as expressly provided elsewhere in this Lease, at
the address of Landlord specified at Item 2 of the Basic Terms, or at such other
place as Landlord may from time to time designate in writing, the rental
specified at Item 10 of the Basic Terms ("Base Rent"). In the event the
Commencement Date is not the first day of a calendar month and there are less
than fifteen (15) days remaining in such month, Tenant shall pay to Landlord the
Base Rent for such partial month and the next
- 5 -
<PAGE>
succeeding month on or before the Commencement Date. Base Rent for any partial
month shall be prorated on the basis of the number of days within such calendar
month.
2.2 ADDITIONAL RENT.
All charges payable by Tenant other than Base Rent, however denoted,
shall be deemed "Additional Rent." Unless this Lease provides otherwise, all
Additional Rent shall be paid with the next installment of Base Rent falling
due. Additional Rent for any partial month shall be prorated on the basis of the
number of days within such calendar month. All payments of Additional Rent that
are paid pursuant to an estimation provided by Landlord to Tenant shall be
payable without further demand therefor.
2.3 IMPROVEMENT ALLOWANCE.
Landlord shall provide Tenant an allowance of Twenty-Four and No/100
Dollars ($24.00) per rentable square foot within the Premises ("Improvement
Allowance") to be applied to the Cost of Tenant's Work (as defined in the Work
Letter). The Improvement Allowance shall be used by Landlord to complete
Tenant's Work and shall not be used to pay for any of the Additional Work. In
the event the Cost of Tenant's Work exceeds the Improvement Allowance, as
determined by Landlord pursuant to the Work Letter, Tenant shall pay fifty
percent (50%) of the Cost Differential (as defined in the Work Letter) to
Landlord within five (5) business days of Landlord's invoice therefor and prior
to Landlord commencing Tenant's Work and Tenant shall pay the remaining fifty
percent (50%) of the Cost Differential within five (5) business days following
the Commencement Date.
2.4 DELINQUENT RENTAL PAYMENTS.
Any installment of Base Rent, Additional Rent or any other charge
payable by Tenant under the provisions hereof and not paid within ten (10) days
of when due shall bear interest at Prime, as hereafter defined, plus four
percent (4%) per annum, not to exceed the maximum interest rate permitted by law
("Maximum Rate of Interest") from the date when the same is due hereunder
through the date the same is paid. For purposes of this Lease, the term "Prime"
shall mean the rate announced from time to time by Wachovia Bank of Georgia,
N.A. as its prime or reference rate. If Wachovia Bank of Georgia, N.A. shall
cease to announce its prime or reference rate, then Landlord shall select the
rate of another financial institution to be substituted therefor. The right to
require payment of interest shall be in addition to all of Landlord's rights and
remedies hereunder, at law or in equity.
2.5 INDEPENDENT OBLIGATIONS.
Any term or provision of this Lease to the contrary notwithstanding,
the covenants and obligations of Tenant to pay Base Rent and Additional Rent
hereunder shall be independent from any obligations, warranties or
representations of Landlord hereunder. Base Rent and Additional Rent are
sometimes collectively referred to herein as "Rent" or "rent."
- 6 -
<PAGE>
ARTICLE 3
OPERATING EXPENSES - DEFINITION
3.1 OPERATING EXPENSES.
"Operating Expenses" shall mean all expenses incurred with respect to
the ownership, maintenance and operation of the Property as determined by
Landlord's accountant in accordance with generally accepted accounting
principles consistently followed, including, but not limited to the following:
all taxes (as defined below); insurance premiums; maintenance and repair costs;
steam, electricity, water, sewer, gas and other utility charges; fuel; lighting;
window washing; janitorial services; trash and rubbish removal; wages payable to
employees of Landlord, whose duties are connected with the operation or
maintenance of the Property (but only for the portion of time allocable to work
related to the Property), together with all payroll taxes, unemployment
insurance, vacation allowances and disability, pension, profit sharing,
hospitalization, retirement and other so-called fringe benefits paid in
connection with such employees amounts paid to contractors or subcontractors for
work or services performed in connection with the operation and maintenance of
the Property; all costs of uniforms, supplies and materials used in connection
with the operation and maintenance of the Property; any expense imposed upon
Landlord, its contractors or subcontractors pursuant to law or pursuant to any
collective bargaining agreement covering such employees; all services, supplies,
repairs, replacements or other expenses for maintaining and operating the
Property; reasonable management fees; common expenses of the Royal Centre
Project, properly allocated among the Building and other buildings in the Royal
Centre Project; and such other expenses as may be ordinarily incurred in the
operation and maintenance of an office complex similar to the Property. The term
"taxes" shall mean any general real property tax, improvement tax, assessment,
special assessment, reassessment, commercial rental tax, in lieu tax, levy,
charge, penalty or similar imposition whatsoever imposed by any authority having
the direct or indirect power to tax, including but not limited to, (a) any city,
county, state or federal entity, (b) any school, agricultural, lighting,
drainage or other improvement or special assessment district, (c) any agency, or
(d) any private entity having the authority to assess the Property pursuant to
the Permitted Encumbrances. Property Taxes shall include (i) all charges or
burdens of whatsoever kind and nature incurred in the use, occupancy, ownership,
operation, leasing or possession of the Property, without particularizing by any
known name and whether any of the foregoing be general, special, ordinary,
extraordinary, foreseen or unforeseen, (ii) any tax or charge for fire
protection, street lighting, streets, sidewalks, road maintenance, refuse,
sewer, water or other services provided to the Property, and (iii) all costs and
expenses, including reasonable attorneys' fees, incurred in connection with any
appeal or contest of Property Taxes by Landlord pursuant to Section 4.6 below.
However, Property Taxes shall not include Landlord's state or federal income,
franchise, estate or inheritance taxes. In the event Landlord is entitled to pay
any of the above listed assessments or charges in installments over a period of
two or more calendar years, then only the minimum installment of such
assessments or charges shall be included within Property Taxes for such calendar
year.
The term "Operating Expenses" shall not include the cost of any capital
improvement to the Property other than replacements required for normal
maintenance and repair; the cost of repairs, restoration or other work
occasioned by fire, windstorm or other insured casualty, except
- 7 -
<PAGE>
for the amount of any deductible under any insurance policy; expenses incurred
in leasing or procuring tenants; leasing commissions; advertising expenses;
expenses for renovating space for tenants; legal expenses incident to
enforcement by Landlord of any lease; interest or principal payments on any
mortgage or other indebtedness of Landlord; depreciation allowance or expense;
the cost of any work or service performed for any tenant (including Tenant) at
such tenant's cost; salaries of officer and executives of Landlord; salaries of
employees above the grade of building manager or whose time is not spent
directly in the operation of the Property; the cost of any items to the extent
Landlord is reimbursed by insurance; rental under any ground lease or other
underlying lease; any costs paid to a corporation related to Landlord to the
extent such cost is in excess of the amount which would have been paid in the
absence of such relationship; charges (including applicable taxes) for
electricity, steam or other utilities provided to other tenants of the Building
in excess of the amounts of utilities to which Tenant is entitled under this
Lease; costs in connection with any repairs following a condemnation; costs and
expenses in connection with any refinancing or sale of the Property; and cost of
complying with any laws, rules, regulations or statutes which were in effect and
applicable to the Property as of the date of this Lease.
Notwithstanding the foregoing, in the event Landlord installs equipment
in, or makes improvements or alterations to, the Property which are for the
purpose of reducing energy, maintenance or other costs, or which are required
under any governmental laws, regulations or ordinances which were not required
on the Commencement Date, Landlord may include in Operating Expenses reasonable
charges for interest paid on such investment and reasonable charges for
depreciation of the same so as to amortize such investment over the reasonable
life of such equipment, improvement or alteration on a straight line basis.
Operating Expenses shall also be deemed to include expenses incurred by Landlord
in connection with city sidewalks adjacent to the Property, any pedestrian
walkway system (either above or below ground) and any other public facility to
which Landlord or the Property is from time to time subject in connection with
operation of the Property.
3.2 EXCESS OPERATING EXPENSES.
"Excess Operating Expenses" shall mean the amount of Operating Expenses
due and incurred by Landlord during any calendar year of the Term in excess of
the Operating Expenses for the Base Year.
3.3 TENANT'S PRORATA SHARE OF EXCESS OPERATING EXPENSES.
"Tenant's Prorata Share of Excess Operating Expenses" (based on the
rentable square footage of the Premises compared to the total rentable square
footage of the Building, which is 165,527) shall mean 11.85% of the Excess
Operating Expenses for the applicable calendar year.
- 8 -
<PAGE>
3.4 CONTROLLABLE EXPENSES CAP.
Notwithstanding anything to the contrary set forth hereinabove,
Landlord does hereby agree that, solely for purposes of determining Tenant's
Prorata Share of Excess Operating Expenses, the portion of the Operating
Expenses attributable to Controllable Expenses (as defined below) will not
increase by more than five percent (5%) per annum, on a cumulative, compounded
basis, over the amount of Controllable Expenses incurred for calendar year 1999,
after the 1999 figure is adjusted for occupancy, as provided in Section 4.9. The
term "Controllable Expenses" shall mean all Operating Expenses other than taxes,
insurance costs and utilities costs. Landlord shall use commercially reasonable
efforts to minimize Operating Expenses, taking into consideration Landlord's
intent to operate the Building as a first-class office building.
ARTICLE 4
OPERATING EXPENSES - PAYMENT
4.1 PAYMENT OF OPERATING EXPENSES.
Tenant covenants and agrees to pay during the Term, as Additional Rent,
Tenant's Prorata Share of Excess Operating Expenses, which are due and payable
during any calendar year of the Term. Tenant's Prorata Share of Excess Operating
Expenses due and payable during the calendar year in which the Lease commences
or terminates shall be prorated as of the Commencement Date or termination date,
as applicable, based upon the number of days of the Term within said calendar
year compared to three hundred sixty-five (365) days.
4.2 ESTIMATION OF TENANT'S PRORATA SHARE OF EXCESS OPERATING EXPENSES.
Landlord shall estimate for each calendar year of the Term (a) Excess
Operating Expenses, (b) Tenant's Prorata Share of Excess Operating Expenses and
(c) the annual and monthly Additional Rent attributable to Tenant's Prorata
Share of Excess Operating Expenses. Said estimates shall be in writing, shall be
delivered to Tenant at the addresses specified in the Basic Terms and shall be
reasonably based upon historical data and known or reasonably expected increases
or decreases.
4.3 PAYMENT OF ESTIMATED PRORATA SHARE OF EXCESS OPERATING EXPENSES.
Commencing January 1, 2000, Tenant shall pay, as Additional Rent, the
estimated amount of Excess Operating Expenses for each calendar year of the Term
in equal monthly installments, in advance, on the first day of each month during
such calendar year. In the event that said estimates are delivered to Tenant
after the first day of January of the applicable calendar year, said estimated
amount shall be payable as Additional Rent in equal monthly installments, in
advance, on the first day of each month over the balance of such calendar year,
with the number of installments being equal to the number of full calendar
months remaining in such calendar year.
- 9 -
<PAGE>
4.4 RE-ESTIMATION OF TENANT'S PRORATA SHARE OF EXCESS OPERATING
EXPENSES.
From time to time during any calendar year of the Term, Landlord may
re-estimate the amount of Excess Operating Expenses and Tenant's Prorata Share
of Excess Operating Expenses. In such event, Landlord shall also re-estimate the
monthly Additional Rent attributable to Tenant's Prorata Share of Excess
Operating Expenses for such calendar year in an amount sufficient to pay the
re-estimated monthly amount over the balance of such calendar year after giving
credit for payments made by Tenant on the previous estimate. Such re-estimate
shall be delivered to Tenant in writing in the manner specified in Section 4.2.
Tenant shall pay said re-estimated amount, in advance, on the first day of each
month remaining in such calendar year.
4.5 CONFIRMATION OF TENANT'S PRORATA SHARE OF EXCESS OPERATING
EXPENSES.
After the end of each calendar year of the Term, Landlord shall cause
its accountants to determine the actual amount of Excess Operating Expenses and
Tenant's Prorata Share of Excess Operating Expenses for such expired calendar
year and deliver a written certification from Landlord's property manager of the
amount thereof to Tenant. If for any calendar year Tenant paid less than the
amounts specified in said certification, Tenant shall pay the unpaid portion of
the same within twenty (20) days after receipt of such certification. If for any
calendar year Tenant paid more than the amounts specified in said certification,
Landlord shall, at Landlord's option, either (a) refund such excess to Tenant,
or (b) credit such excess against the next due monthly installment or
installments of estimated Additional Rent for the then existing calendar year.
Upon receipt of Landlord's written certification of the Excess Operating
Expenses for the expired calendar year, Tenant shall have the right to audit
Landlord's books with respect to Operating Expenses for the expired calendar
year. If Tenant elects to perform such audit, Tenant must notify Landlord of its
desire to perform such audit within thirty (30) days following Landlord's
certification of Excess Operating Expenses and the audit must be performed
within sixty (60) days of the date of such written certification. The audit must
be performed by a reputable independent certified public account (whose
compensation is not based upon achieving a reduction in Tenant's Excess
Operating Expenses nor upon the amount of any such reduction) or by an employee
of Tenant. The audit will be conducted during normal business hours in
Landlord's offices where such books are normally kept. Tenant and the party who
performs such audit must agree, in writing, prior to performing the audit, to
keep and maintain all information obtained in the audit absolutely confidential
except in any arbitration, lawsuit or other proceeding between Landlord and
Tenant and, in that event, such information shall be disclosed only to the
arbitration panel and/or the court, as necessary.
4.6 NOT USED.
4.7 PERSONAL PROPERTY TAXES.
Tenant shall pay, prior to delinquency, all taxes charged against trade
fixtures, furnishings, equipment or any other personal property belonging to
Tenant. Tenant shall use its best efforts to have such trade fixtures,
furnishings, equipment and personal property taxed separately from the Property.
If any of Tenant's trade fixtures, furnishings, equipment and
- 10 -
<PAGE>
personal property is taxed with the Property, Tenant shall pay Landlord for such
taxes within fifteen (15) days after Tenant receives a written statement from
Landlord for the same.
4.8 LANDLORD'S RIGHT TO CONTEST TAXES.
Landlord shall have the right, but not the obligation, to contest the
amount or validity, in whole or in part, of any of the Taxes. All reasonable
costs incurred in connection with any such contests by Landlord including,
without limitation, reasonable, actual fees and expenses of tax consultants and
attorneys, shall be included in Operating Expenses.
4.9 ADJUSTMENT FOR VARIABLE OPERATING EXPENSES.
Notwithstanding anything to the contrary set forth above, it is agreed
that in the event the Building is not fully occupied at any time during a
calendar year (including the Base Year), a reasonable and equitable adjustment
shall be made by Landlord in computing the Operating Expenses for such calendar
year so that Tenant's obligation for payment of any component of Operating
Expenses which adjusts based upon occupancy shall be equal to the amount which
Tenant would have paid for such component of Operating Expenses had the Building
been fully occupied at all times during such calendar year. Landlord agrees that
the amount included in the Base Year Operating Expenses for taxes will reflect
the taxes for the Building as fully assessed.
ARTICLE 5
USE
5.1 PERMITTED USE.
Tenant may use the Premises for general office purposes of a type
reasonable and customary for first-class office buildings only and for no other
purpose. Tenant shall not use the Property, or knowingly permit the Property to
be used, in violation of any Laws (as defined in Section 5.4) or in any manner
which would (a) violate any certificate of occupancy affecting the Property, (b)
make void or voidable any insurance now or hereafter in force with respect to
the Property, (c) cause structural injury to the Property, (d) cause the value
or usefulness of the Property or any portion thereof to substantially diminish
(reasonable wear and tear excepted), or (e) constitute a public or private
nuisance or waste. Promptly upon discovery of any prohibited use, Tenant will
take all necessary steps to discontinue such use.
5.2 ACCEPTANCE OF PREMISES.
Except for the Punchlist items and Landlord's obligation to repair
latent defects of which Tenant notifies Landlord, in writing, on or before the
date five (5) business days prior to the first anniversary of the date Landlord
achieves Substantial Completion of Tenant's Work, Tenant acknowledges that
neither Landlord nor any agent, contractor or employee of Landlord has made any
representation or warranty of any kind whatsoever with respect to the Premises
or the Building, specifically including but not limited to, suitability or
fitness for any particular purpose. Subject to the Punchlist items, Tenant
accepts the Premises in an "as is - where is" condition.
- 11 -
<PAGE>
5.3 INCREASED INSURANCE.
Tenant shall not do or permit to be done anything which will (a)
increase the premium of any insurance policy covering the Premises or the
Property, (b) cause a cancellation of or be in conflict with any such insurance
policy; (c) result in a refusal by any insurance company in good standing to
issue or continue any such insurance in amounts satisfactory to Landlord; or (d)
subject Landlord to any liability or responsibility for injury to any person or
property by reason of any operation in the Premises or use of the Property.
Tenant shall, at Tenant's expense, comply with all rules, orders, regulations
and requirements of insurers and of the American Insurance Association or any
other organization performing a similar function. Tenant shall promptly, upon
demand, reimburse Landlord for any additional premium charges for such policy or
policies caused by reason of Tenant's failure to comply with the provisions of
this section.
5.4 LAWS, RULES AND REGULATIONS.
Tenant acknowledges that this Lease is subject and subordinate to all
liens, easements, declarations, encumbrances, deeds of trust, reservations,
restrictions and other matters affecting the Property ("Permitted Encumbrances")
and any law, regulation, rule, order or ordinance of any governmental entity,
applicable to the Property or the use or occupancy thereof in effect on or after
the Effective Date ("Laws") or any of the Rules and Regulations (as defined
below) promulgated by Landlord. Tenant shall not violate any Permitted
Encumbrances, Laws or Rules and Regulations. A copy of the current Rules and
Regulations promulgated by Landlord are attached hereto and incorporated herein
as EXHIBIT "C", which Rules and Regulations may be amended by Landlord from time
to time in Landlord's sole discretion. Except for the Rules and Regulations
excluding Tenant from parking in designated portions of the parking facilities
comprising a portion of the Common Area, as specified in Section 5.5, Tenant
shall not be obligated to comply with any Rules and Regulations promulgated by
Landlord which are not imposed and enforced in a uniform and nondiscriminatory
manner with respect to all tenants in the Building. Landlord represents to
Tenant that none of the Laws or Permitted Encumbrances prohibit or materially
interfere with Tenant's ability to use the Premises for the use permitted under
this Lease.
5.5 COMMON AREAS.
Landlord hereby grants to Tenant the non-exclusive right, together with
all other occupants of the Building and their agents, employees and invitees, to
use the parking areas, driveways, lobby areas and other common areas of the
Property designated by Landlord from time to time ("Common Area"). Landlord
shall have the sole and exclusive control of the Common Area, as well as the
right to make changes to the Common Area. Landlord's rights shall include, but
not be limited to, the right to (a) restrain the use of the Common Area by
unauthorized persons; (b) place permanent or temporary kiosks, displays, carts
or stands in the Common Area and to lease same to tenants; (c) temporarily close
any portion of the Common Area (i) for repairs, improvements or alterations,
(ii) to discourage unauthorized use, (iii) to prevent dedication or an easement
by prescription, or (iv) for any other reason deemed sufficient
- 12 -
<PAGE>
in Landlord's judgment; (d) change the shape and size of the Common Area, add,
eliminate or change the location of any improvements located on the Common Area
and construct buildings on the Common Area, provided that any such changes shall
not materially and adversely affect Tenant's use of the Common Area; and (e)
impose Laws concerning use of the Common Area, including the right to exclude
Tenant, its agents, employees and invitees, from parking in designated portions
of the parking facilities comprising a portion of the Common Area.
5.6 PARKING.
Tenant's rights to use the parking facilities in the Common Area shall
be for unreserved spaces in an amount equal to five (5) spaces per each one
thousand (1,000) rentable square feet of the Premises. Within such total parking
allocation, two (2) spaces per each one thousand (1,000) rentable square feet of
the Premises will be provided in the covered, access-controlled parking
facility. Initially, Landlord will provide access cards to Tenant at no cost for
each space to which Tenant is entitled. Replacement cards must be paid for by
Tenant at Landlord's then current rate. Such parking spaces shall be provided to
Tenant at no charge throughout the Term of this Lease. Landlord will also
provide, throughout the Term, ten (10) spaces which will be marked for use only
by visitors of the Building.
5.7 AMERICANS WITH DISABILITIES ACT.
Landlord and Tenant acknowledge that the Property may be construed to
be a place of public accommodation under the Americans with Disabilities Act of
1990, as amended ("ADA"). Landlord represents and warrants that the Property
will not violate Title III of ADA (Title III) as interpreted and enforced by
local building inspection authorities as of the Commencement Date. Landlord
shall correct any violation of Title III within any part of the Common Area of
the Property, but shall not be required to correct any violation of Title III
within the Premises after the Commencement Date. Tenant shall correct any
violation of Title III within the Premises after the Commencement Date.
ARTICLE 6
HAZARDOUS MATERIALS
6.1 COMPLIANCE WITH HAZARDOUS MATERIALS LAWS.
Tenant shall not cause or permit any Hazardous Materials or Hazardous
Substances (as defined in any applicable state, federal or local environmental
Laws) to be brought upon, kept or used in connection with the Premises by
Tenant, its agents, employees, contractors or invitees, except for de minimis
amounts of materials, such as copying machine fluids, which are customary for
general office use and which are present in the Premises strictly in compliance
with all applicable Laws.
- 13 -
<PAGE>
6.2 INDEMNIFICATION.
Tenant shall indemnify, defend (with counsel reasonably acceptable to
Landlord) and protect Landlord against, and hold Landlord free and harmless
from, any and all claims, liabilities, damages, costs, penalties, forfeitures,
losses or expenses (including attorneys' fees and the costs and expenses of
enforcing this indemnity) ("Claims") for death or injury to any person or damage
to any property whatsoever arising or resulting in whole or in part, directly or
indirectly, from the presence, treatment, storage, transportation, disposal,
release or management of Hazardous Materials resulting from or in any way
related to Tenant's use of the Premises. Tenant's obligations hereunder shall
include, without limitation and whether foreseeable or unforeseeable, the costs
of (a) any required or necessary repair, clean-up, detoxification or
decontamination of the Property, (b) the implementation of any closure,
remediation or other required action in connection therewith and (c) any costs
and fees incurred in the enforcement of the indemnity action. The obligations of
Tenant under this section shall survive the expiration or other termination of
the Term.
ARTICLE 7
SERVICES
7.1 LANDLORD'S OBLIGATIONS.
Landlord shall provide the following services, the cost of which shall
be deemed Operating Expenses:
7.1.1 JANITORIAL SERVICE.
Nightly Janitorial services on Monday through Friday in the
Premises and on the Property as described in EXHIBIT "F" attached hereto and
made a part hereof.
7.1.2 ELECTRICAL ENERGY.
Electrical energy for lighting and operation of office
machines, air conditioning and heating as required for general office use during
the hours specified in Section 7.1.3. The electrical energy provided will be
sufficient for operation of personal computers and other equipment of similar
low electrical consumption, and for customary fluorescent office lighting but
will not be sufficient for main frame computers, computer rooms or for
non-standard lighting. Tenant shall not use any equipment or lighting requiring
electrical energy in excess of the above standards without receiving Landlord's
prior written consent, which consent shall not be unreasonably withheld but may
be conditioned upon Tenant paying all costs of installing the equipment and
facilities necessary to furnish such excess energy and an amount equal to the
average cost per unit of electricity for the Building applied to the excess use
as determined by an engineer selected by Landlord or by submeter. At the option
of either Landlord or Tenant, a submeter may be provided and installed at
Tenant's expense if allowable under the Laws. All Building standard lighting
bulbs, tubes, ballasts and starters within the Premises shall be replaced by
Landlord with the costs thereof included in Operating Expenses.
- 14 -
<PAGE>
7.1.3 HEATING AND AIR CONDITIONING.
Heat and air conditioning, sufficient to maintain comfortable
temperatures in Landlord's reasonable judgment, on Monday through Friday from
7:00 a.m. to 6:00 p.m. and on Saturdays which are not holidays from 8:00 a.m. to
1:00 p.m. The Building holidays shall be New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day. During other
hours, Landlord shall provide heat and air conditioning upon a reasonable
advance notice from Tenant to Landlord, which advance notice shall not be less
than twenty-four (24) hours; provided, however, that no advance notice will be
required if an automated key pad system is installed which allows Tenant to
access such after-hours service directly. Tenant, upon presentation of a bill
therefor, shall pay Landlord for such extended service at the rate of $20.00 per
hour, subject to increases based on actual increases in Landlord's cost to
provide such extended service (i.e., increases in utility, labor or maintenance
costs). If such extended service is not a continuation of that furnished during
the hours described above, Tenant may be required to pay for a minimum of three
(3) hours of such service. Air conditioning to the Premises is to be provided
based on standard lighting and general office use only.
7.1.4 WATER.
Hot and cold water from the standard building outlets for
lavatory, breakroom, restroom and drinking purposes.
7.1.5 PASSENGER ELEVATOR SERVICE.
Passenger elevator service in common with other tenants to be
provided by automatic elevators. Landlord shall have the right to restrict the
use of elevators for freight purposes to the freight elevator and to hours
determined by Landlord. Landlord shall have the right to limit the number of
elevators in operation on Saturdays, Sundays and holidays, but service shall be
provided through at least one (1) elevator at all times, except in emergencies.
7.2 TENANT'S OBLIGATIONS.
Tenant shall be solely responsible for the payment to Landlord of all
utilities which are separately submetered or separately charged (based on an
engineer's survey), if any, to the Premises or to Tenant and shall make such
payments to Landlord promptly upon invoice. Such amounts shall not be included
as Operating Expenses. Except as provided in Section 7.1 or the Work Letter,
Tenant shall also furnish and pay for all other utilities and services which
Tenant requires with respect to the Premises (including but not limited to
hook-up and connection charges).
- 15 -
<PAGE>
7.3 OTHER PROVISIONS RELATING TO SERVICES.
No interruption in, or temporary stoppage of, any of the aforesaid
services shall be deemed an eviction or disturbance of Tenant's use and
possession, relieve Tenant from any obligation herein set forth or render
Landlord liable for damages or, except as set forth below entitle Tenant to an
abatement of rent. In no event shall Landlord be required to provide any heat,
air conditioning, electricity or other service in excess of that permitted by
voluntary or involuntary guidelines or any applicable Laws. Landlord reserves
the right, from time to time, to make reasonable and non-discriminatory
modifications to the above standards for utilities and services. Notwithstanding
anything to the contrary set forth hereinabove, in the event that the essential
services to the Premises (which the parties hereby agree are electricity, water,
sanitary sewer, elevator and HVAC service) are interrupted and (i) the
interruption continues for five (5) or more consecutive business days, (ii) the
interruption is caused by a matter within Landlord's control, (iii) the
interruption renders all or a portion of the Premises untenantable and (iv)
Tenant actually discontinues use of all or a portion of the Premises, Tenant
shall be entitled to an abatement of Rent, beginning on the sixth (6th) business
day after such interruption begins, based on the portion of the Premises which
is untenantable and which Tenant has discontinued using, with such abatement to
continue until the applicable services have been materially restored by
Landlord. Landlord shall use commercially reasonable efforts to restore
interrupted services.
7.4 EFFECTS ON UTILITIES.
Tenant shall not, without the prior written consent of Landlord, use
any apparatus or device in or about the Premises which shall cause substantial
noise or vibration. Tenant shall not connect any apparatus or device to
electrical current or water except through the electrical and water outlets
installed by Landlord pursuant to the Work Letter.
ARTICLE 8
MAINTENANCE AND REPAIR
8.1 LANDLORD'S OBLIGATIONS.
Except as otherwise provided in this Lease, Landlord shall repair and
maintain the following in good order, condition and repair: (a) the foundations,
exterior walls and roof of the Building, (b) the electrical, mechanical,
plumbing, heating and air conditioning systems, facilities and components
located in the Building and the Premises (other than supplemental HVAC systems
that serve only the Premises, which shall be Tenant's obligation) and (c) the
Common Area. Landlord shall also maintain and repair windows, doors, plate glass
and the exterior surfaces of walls that are adjacent to Common Area, unless such
maintenance and repair becomes necessary in whole or in part due to (i) the
negligence of Tenant, its employees, agents, customers, licensees or invitees in
or about the Premises or Property, or (ii) damage caused by breaking and
entering into the Premises. The cost of Landlord's repair and maintenance
hereunder shall be included in Operating Expenses. Neither Base Rent nor
Additional Rent shall be reduced, nor shall Landlord be liable, for loss or
injury to or interference with property, profits or business arising from or in
connection with any such repairs or maintenance.
- 16 -
<PAGE>
8.2 TENANT'S OBLIGATIONS.
Tenant, at Tenant's sole cost and expense, shall keep and maintain the
Premises (including all non-structural interior portions, supplemental HVAC
systems and equipment; interior surfaces of exterior walls, interior moldings,
partitions and ceilings) in as good order, condition and repair as they were on
the Commencement Date, reasonable wear and tear and damage from fire and other
casualties excepted.
In the event that compliance with any Laws is required after the
Commencement Date, which is due in whole or in part to Tenant's specific use of
the Premises (as opposed to general office use) and/or Tenant's specific actions
or inactions with respect to the Premises, the cost of compliance shall be
Tenant's sole responsibility. Likewise, in the event any governmental authority
requires any alterations to the Building or the Premises as a result of Tenant's
particular use of the Building or as a result of any alterations to the Premises
by Tenant, Tenant shall be obligated for the cost of all such alterations. In
the event such alterations involve the structural, mechanical, electrical, life
safety or heating and air conditioning systems of the Building ("Structural
Alterations"), Landlord shall make such repairs after Tenant deposits with
Landlord an amount sufficient to pay for the cost thereof. In the event the
alterations are not Structural Alterations, Tenant shall make the repairs, at
Tenant's sole cost and expense, subject to the requirements of Article 9 below.
Tenant shall keep the Premises in a neat and sanitary condition and
shall not commit any nuisance or waste on the Premises or in, on or about the
Property. All uninsured damage or injury to the Premises or to the Property
caused by Tenant installing, removing or transporting any furniture, fixtures,
equipment or other property of Tenant, its agents, contractors, servants or
employees shall be repaired, restored and replaced promptly by Tenant at its
sole cost and expense to the satisfaction of Landlord. Tenant shall be solely
responsible for, shall indemnify, protect and defend Landlord against and hold
Landlord harmless from, any penetrations or perforations of the roof or exterior
walls to the Building caused by Tenant. It is the intention of Landlord and
Tenant that Tenant shall maintain the Premises in a first-class and fully
operative condition. All repairs made by Tenant shall be at least equal in
quality and workmanship to the original work and shall be made by Tenant in
accordance with all Laws. The maintenance obligations of Tenant shall apply even
if Tenant has vacated the Premises.
8.3 TENANT'S WAIVER OF CLAIMS AGAINST LANDLORD.
Except as otherwise expressly provided in the Work Letter or this
Lease, Landlord shall not be required to furnish any services or facilities, or
make any repairs or alterations, in, about or to the Premises or the Property.
- 17 -
<PAGE>
ARTICLE 9
CHANGES AND ALTERATIONS
9.1 LANDLORD APPROVAL.
Tenant shall have the right, without Landlord's consent, but with prior
notice to Landlord, to make alterations to the Premises which (i) are not
visible from the elevator lobby of the Building, (ii) do not affect the
structure of the Building or the Building mechanical, electrical, plumbing or
HVAC systems, (iii) do not involve the removal or addition or relocation of any
walls or partitions and (iv) do not cost in excess of $50,000 in any one
instance or in any series of related instances. Otherwise, Tenant shall not make
any alterations, additions or improvements to the Property ("Alterations")
without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed. Along with any request for Landlord's consent
and before commencement of the Alterations or delivery of any materials to be
used in the Alterations, Tenant shall furnish Landlord with plans and
specifications, and names and addresses of prospective contractors. All
Alterations shall be constructed (a) promptly by a contractor approved in
writing by Landlord in its sole discretion, (b) in a good and workmanlike
manner, (c) in compliance with all applicable Laws, and (d) in accordance with
all orders, rules and regulations of the Board of Fire Underwriters where the
Premises are located or any other body exercising similar functions.
9.2 TENANT RESPONSIBILITY FOR COST AND INSURANCE.
Tenant shall pay the cost and expense of all Alterations, including a
reasonable charge for Landlord's review, inspection and engineering time and for
any painting, restoring or repairing of the Premises or the Building occasioned
by the Alterations. Prior to commencement of construction of the Alterations,
Tenant shall deliver the following in form and amount satisfactory to Landlord:
(a) demolition and/or lien and completion bonds, (b) builder's all risk
insurance, (c) commercial general liability insurance insuring against
construction related risks and copies of contracts and all necessary permits and
licenses.
9.3 CONSTRUCTION OBLIGATIONS AND OWNERSHIP.
Tenant shall permit Landlord to inspect construction of the
Alterations. Upon completion of the Alterations, Tenant shall furnish Landlord
with contractor affidavits, unconditional lien releases, full and final waivers
of liens (in form satisfactory, under applicable Laws, to extinguish all lien
rights) and receipted bills covering all labor and materials expended and used
in connection with the Alterations. Tenant shall promptly remove any Alterations
constructed in violation of this Article 9 upon Landlord's written request. All
Alterations (other than Tenant's movable trade fixtures, furniture and
equipment) made or installed by Tenant shall become the property of and be
surrendered to Landlord upon termination of this Lease without payment therefor
by Landlord, unless otherwise agreed by Landlord.
- 18 -
<PAGE>
9.4 LIENS.
Tenant shall keep the Premises free from any mechanics', materialmens',
designers' or other liens arising out of any work performed, materials furnished
or obligations incurred by or for Tenant or any person or entity claiming by,
through or under Tenant. If any such liens are filed and Tenant does not provide
for release of the same of record, or provide Landlord with a bond or other
surety satisfactory to Landlord protecting Landlord and the Property against
such liens, within thirty (30) days after receipt of written notice thereof by
Tenant of such filing, Landlord may without waiving its rights and remedies
based upon such breach by Tenant and without releasing Tenant from any
obligations hereunder, cause such liens to be released by any means it shall
deem proper, including payment of the claim giving rise to such lien or posting
a bond to cause the discharge of such lien. In such event, all amounts paid by
Landlord shall immediately be due and payable by Tenant as Additional Rent.
9.5 INDEMNIFICATION.
Tenant hereby agrees to indemnify, protect and defend Landlord against,
and hold Landlord and the Property harmless from, any liability, cost,
obligation, expense (including without limitations reasonable attorneys' fees
and expenses incurred in enforcing this indemnity), or claim of any mechanics',
materialmens', designers' or other liens in any manner relating to or arising
out of any work performed, materials furnished or obligations incurred by or for
Tenant or any person or entity claiming by, through or under Tenant.
ARTICLE 10
RIGHTS RESERVED BY LANDLORD
10.1 LANDLORD'S ENTRY.
Landlord reserves the right at all reasonable times and upon reasonable
notice to Tenant to enter the Premises (except in emergencies, accompanied by an
employee of Tenant) to: (a) inspect the Premises; (b) show the Premises to
prospective purchasers, mortgagees, tenants (but only during the last year of
the Term) and underlying landlords; or (c) otherwise exercise and perform
Landlord's rights and obligations under this Lease. In the case of an emergency,
Landlord and/or its authorized representatives may enter the Premises at any
time using any and all means which Landlord may deem proper. Entry into the
Premises by Landlord in the event of any emergency shall not be construed as a
forcible or unlawful entry into, or detainer of, the Premises or as an eviction
of Tenant from the Premises or any portion thereof.
Tenant shall permit Landlord (or its designees) to erect, use,
maintain, replace and repair pipes, cables, conduits, plumbing and vents, and
telephone, electric and other wires or other items, in, to and through the
Premises, as and to the extent that Landlord may now or hereafter deem necessary
or appropriate for the proper operation and maintenance of the Building;
provided, however, that Landlord shall not materially interfere with Tenant's
business during any such entry.
- 19 -
<PAGE>
10.2 LANDLORD'S CURE.
If Tenant shall default in the performance of its obligations under
this Lease and if such default is not cured within the applicable periods
provided in Article 15, Landlord may but shall not be obligated to, make any
such payment or perform any such act on Tenant's part without waiving its rights
based upon any default of Tenant and without releasing Tenant from any
obligations hereunder. Except as may be specifically provided to the contrary in
this Lease, Tenant shall pay to Landlord, within ten (10) days after delivery by
Landlord to Tenant of statements therefor, sums equal to expenditures reasonably
made and obligations incurred by Landlord in connection with the remedying by
Landlord of Tenant's defaults. If there are any outstanding monetary obligations
of Tenant under this Lease attributable to the period prior to the expiration or
termination of this Lease, such obligations shall survive the termination or
expiration of this Lease and such amount shall be payable to Landlord within ten
(10) days after receipt of notice therefor from landlord.
ARTICLE 11
INSURANCE
11.1 LANDLORD'S CASUALTY INSURANCE OBLIGATIONS.
Landlord shall keep the Property insured for the benefit of Landlord,
its lenders and agents, in an amount equivalent to the full replacement value
thereof (excluding the Land, foundation, grading and excavation costs) against:
(a) loss or damage by fire; and
(b) such other risk or risks which are customarily covered with respect
to buildings and improvements similar in construction, general location, use,
occupancy and design to the Property, including but not limited to windstorms,
hail, explosion, vandalism, malicious mischief, civil commotion and such other
coverage as Landlord may deem appropriate or necessary.
These insurance provisions shall not limit or modify the obligations of
Tenant under any provision of this Lease. Such policy or policies of insurance
shall permit releases of liability as provided herein and/or waiver of
subrogation as to Tenant. Landlord waives, releases and discharges Tenant from
all claims or demands whatsoever which Landlord may have or acquire arising out
of damage to or destruction of the Property, or loss of use thereof occasioned
by fire or other casualty, which claim or demand may arise because of the
negligence or fault of Tenant, its agents, employees, customers or business
invitees, and Landlord agrees to look to the insurance coverage only in the
event of such loss. Notwithstanding the foregoing or anything to the contrary
elsewhere in this Lease, Tenant shall be obligated to continue to pay Rent in
the event of damage to or destruction of the Premises or the Property if such
damage or destruction is occasioned by the negligence or fault of Tenant, its
agents, employees, customers or business invitees. Premiums paid for insurance
under this section shall be included in Operating Expenses.
- 20 -
<PAGE>
11.2 TENANT'S CASUALTY INSURANCE OBLIGATIONS.
Tenant shall be solely responsible for but shall not be obligated to
keep all of its machinery, equipment, furniture, fixtures and personal property
(including all property under the care, custody or control of Tenant) which may
be located in, upon, or about the Premises insured in an amount equivalent to
the full insurable value thereof against:
(a) loss or damage by fire; and
(b) such other risk or risks which are customarily covered
with respect to a tenant's machinery, equipment, furniture, fixtures, personal
property and business located in a building similar in construction, general
location, use, occupancy and design to the Property, including but not limited
to, windstorms, hail, explosions, vandalism, theft, malicious mischief, civil
commotion and such other coverage as Tenant may deem appropriate or necessary.
To the extent Tenant keeps such insurance coverage, all policy or
policies of insurance shall permit release of liability as provided herein
and/or waiver of subrogation as to Landlord. Tenant waives, releases and
discharges Landlord, Landlord's lenders and its agents, employees and
contractors, from all claims or demands whatsoever which Tenant may have or
acquire arising out of damage to or destruction of the machinery, equipment,
furniture, fixtures, personal property or business, and loss of use thereof
occasioned by fire or other casualty, or by any cause whatsoever, including,
without limitation, damage caused by the negligence or fault of Landlord, its
agents, employees, contractors, and Tenant agrees to look to its insurance
coverage only (or if Tenant does not elect to carry such coverage, then to
Tenant's own funds) in the event of such loss.
11.3 LANDLORD'S LIABILITY INSURANCE OBLIGATIONS.
Landlord shall maintain commercial general liability insurance against
claims for personal injury, death or property damage occurring upon, in or about
the Property, such insurance to afford protection to Landlord, its lenders and
agents in amounts deemed reasonably to be appropriate by Landlord. Premiums paid
for insurance under this section shall be included in Operating Expenses.
11.4 TENANT'S LIABILITY INSURANCE OBLIGATIONS.
Tenant shall, at Tenant's sole cost and expense, maintain commercial
general liability insurance against claims for personal injury, death or
property damage occurring upon, in or about the Premises, with combined single
limits of not less than Three Million and No/100 Dollars ($3,000,000.00). Tenant
agrees to include contractual liability coverage in such policy insuring
Tenant's indemnification obligations under this Lease. Any such coverage shall
be deemed primary to any liability coverage secured by Landlord.
- 21 -
<PAGE>
11.5 TENANT'S MISCELLANEOUS INSURANCE OBLIGATIONS.
All policies of commercial general liability insurance shall be written
by companies reasonably satisfactory to Landlord, naming Landlord, Landlord's
lenders and agents as additional insureds thereunder. All policies, or a
memorandum or certificate of such insurance, shall be delivered to Landlord
endorsed "Premium Paid" by the company or agency issuing the same or accompanied
by other evidence satisfactory to Landlord that the premium thereon has been
paid. At such time as insurance limits required of tenants in office buildings
in the area in which the Property is located are generally increased to greater
amounts, Landlord shall have the right to require such greater limits as may
then be customary. All insurance policies required of Tenant shall be written on
an occurrence basis (not a claims made basis) so that they afford coverage for
all claims based upon acts, omissions, injury or damage, which claims occurred
or arose (or the onset of which occurred or arose) in whole or in part during
the policy period. All insurance policies required of Tenant shall require
thirty (30) days written notice by the insurer to Landlord prior to
cancellation.
11.6 TENANT'S INDEMNIFICATION OF LANDLORD.
Tenant agrees to indemnify, defend (with counsel reasonably acceptable
to Landlord) and protect Landlord, Landlord's lenders and managing agent,
against, and hold Landlord, Landlord's lenders and managing agent free and
harmless from, Claims arising from (a) any breach or default on the part of
Tenant in the performance of any covenant or agreement on the part of Tenant to
be performed pursuant to this Lease, (b) from any act or negligence on the part
of Tenant or its agents, contractors, servants, employees or licensees, and (c)
from any accident, injury or damage in or about the Premises and Property to the
extent caused by Tenant, its agents, contractors, servants, employees or
licensees.
11.7 MUTUAL WAIVERS.
Tenant waives, releases and discharges Landlord, Landlord's lenders and
its agents, employees and contractors, from all claims or demands whatsoever
which Tenant may have or acquire arising out of damage to or destruction of the
machinery, equipment, furniture, fixtures, personal property or business, and
loss of use thereof occasioned by fire or other casualty, or by any cause
whatsoever, including, without limitation, damage caused by the negligence or
fault of Landlord, its agents, employees, contractors, and Tenant agrees to look
to its insurance coverage only (or if Tenant does not elect to carry such
coverage, then to Tenant's own funds) in the event of such loss. Landlord
waives, releases and discharges Tenant, Tenant's lenders and its agents,
employees and contractors, from all claims or demands whatsoever which Landlord
may have or acquire arising out of damage to or destruction of the machinery,
equipment, furniture, fixtures, personal property or business, and loss of use
thereof occasioned by fire or other casualty, or by any cause whatsoever,
including, without limitation, damage caused by the negligence or fault of
Tenant, its agents, employees, contractors, and Landlord agrees to look to its
insurance coverage only (or if Landlord does not elect to carry such coverage,
then to Landlord's own funds) in the event of such loss. This paragraph shall
apply especially but not exclusively, to damage caused by the flooding of
basements or other subsurface areas and by refrigerators, sprinkling devices,
- 22 -
<PAGE>
air conditioning apparatus, water, snow, frost, steam, excessive heat or cold,
falling plaster, broken glass, sewage, gas, odors, noise or the bursting or
leaking of pipes or plumbing fixtures and shall apply regardless whether any
such damage results from an Act of God, the act or omission of other tenants or
occupants of the Property or any other persons. Both Landlord and Tenant shall
require to be included in all property insurance policies a waiver of
subrogation by the insurance carrier and each party shall provide to its
insurance carrier any notice required to make such waiver of subrogation
effective.
11.8 LANDLORD'S DEDUCTIBLE.
Provisions herein to the contrary notwithstanding, in the event any
damage to the Property results from any act or omission of Tenant, its agents,
employees or invitees, and all or any portion of the cost to repair the damage
falls within the deductible under Landlord's insurance policy, Tenant shall pay
to Landlord the amount of such deductible (not to exceed $5,000 per event) as
Additional Rent.
11.9 TENANT'S PROPERTY.
All machinery, equipment, furniture, fixtures and personal property of
Tenant, including all property under the care, custody and control of Tenant,
shall be at the risk of Tenant only, and Landlord shall not be liable for damage
thereto or theft, misappropriation or loss thereof Tenant agrees to indemnify,
defend (with counsel reasonably acceptable to Landlord) and protect Landlord
against, and hold Landlord free and harmless from, claims arising in connection
with such property.
11.10 INCREASE IN INSURANCE.
Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything therein which will in any way increase the
existing rate of or adversely affect in any other way any fire or other
insurance policy upon the Property or any of its contents, or cause a
cancellation of any insurance policy covering the Property or any of its
contents. Notwithstanding anything to the contrary contained herein, Tenant
shall promptly, upon demand, reimburse Landlord for the full amount of any
additional premium charged for such policy by reason of Tenant's failure to
comply with the provisions of this section, it being understood that such demand
for reimbursement shall not be Landlord's exclusive remedy.
11.11 TENANT'S FAILURE TO INSURE.
In the event Tenant fails to provide Landlord with evidence of
insurance required under Section 11.4 and Section 11.5, Landlord may but shall
not be obligated to, without further demand upon Tenant and without waiving or
releasing Tenant from any obligation contained in this Lease, effect such
insurance. In such event, Tenant agrees to repay, upon demand, all sums incurred
by Landlord in effecting such insurance. All such sums shall become Additional
Rent hereunder, but no such payment by Landlord shall relieve Tenant from any
default under this Lease.
- 23 -
<PAGE>
ARTICLE 12
DAMAGE OR DESTRUCTION
12.1 TENANTABLE WITHIN 180 DAYS.
If fire or other casualty shall render the whole or any material
portion of the Premises untenantable, and the Premises can reasonably be
expected to be made tenantable within one hundred eighty (180) days from the
date of such event, then Landlord shall repair and restore the Property and the
Premises to as near their condition prior to the fire or other casualty as is
reasonably possible within such one hundred eighty (180) day period (subject to
delays for causes beyond Landlord's reasonable control) and notify Tenant that
it will be doing so, such notice to be mailed within forty-five (45) days from
the date of such damage or destruction. In such case, this Lease shall remain in
full force and effect, but Rent for the period during which the Premises are
untenantable shall be abated prorata, based upon the portion of the Premises
which is untenantable; provided, however, if 40% or more of the Premises is
untenantable and Tenant discontinues use of all of the Premises, the Rent shall
be totally abated until the restoration is complete. If Landlord is required to
repair the Premises as aforesaid, said work shall be undertaken and prosecuted
with all due diligence and speed.
12.2 NOT TENANTABLE WITHIN 180 DAYS.
If fire or other casualty shall render the whole or any material part
of the Premises untenantable and the Premises cannot reasonably be expected to
be made tenantable within one hundred eighty (180) days from the date of such
event, then either party, by notice in writing to the other sent within
forty-five (45) days from the date of such damage or destruction, may terminate
this Lease effective upon a date within thirty (30) days from the date of such
notice.
12.3 PROPERTY SUBSTANTIALLY DAMAGED.
In the event that more than fifty percent (50%) of the value of the
Property is damaged or destroyed by fire or other casualty, and irrespective of
whether damage or destruction can be made tenantable within one hundred eighty
(180) days thereafter, then at Landlord's option, by written notice to Tenant
sent within forty-five (45) days from the date of such damage or destruction,
Landlord may terminate this Lease effective upon a date within ninety (90) days
from the date of such notice to Tenant.
12.4 UNINSURED CASUALTY OR UNAVAILABLE INSURANCE PROCEEDS.
If fire or other casualty shall render any portion of the Premises or
any material portion of the Property untenantable and the insurance proceeds and
deductible amount are not sufficient to make such repair or if Landlord's lender
requires all or a portion of the proceeds to be applied to the outstanding
balance due under the loan, then Landlord may, by notice to Tenant sent within
forty-five (45) days from the date of such damages or destruction, terminate
this Lease effective upon a date within forty-five (45) days from the date of
such notice.
- 24 -
<PAGE>
12.5 DEDUCTIBLE PAYMENTS.
If the Premises or the Property is damaged, and such damage is of the
type insured against under the casualty insurance maintained by Landlord
hereunder, the cost of repairing said damage up to the amount of the deductible
under said insurance policy shall be included as a part of the Operating
Expenses. If the damage was due to an act or omission of Tenant, Tenant shall
pay Landlord the entire amount of the deductible under Landlord's insurance
policies (not to exceed $5,000.00) as Additional Rent.
12.6 LANDLORD'S REPAIR OBLIGATIONS.
In the event (a) fire or other casualty shall render the whole or any
material part of the Premises untenantable and the Premises cannot reasonably be
expected to be made tenantable within one hundred eighty (180) days from the
date of such event and neither party hereto terminates this Lease pursuant to
its rights herein, (b) more than fifty percent (50%) of the value of the
Property is damaged or destroyed by fire or other casualty, and Landlord does
not terminate this Lease pursuant to its option granted herein or (c) fifty
percent (50%) or less of the value of the Property is damaged or destroyed by
fire or other casualty and neither the whole nor any material portion of the
Premises is rendered untenantable, then in any such event Landlord shall repair
and restore the Premises and the Property to as near their condition prior to
the fire or other casualty as is reasonably possible with a due diligence and
speed (subject to delays for causes beyond Landlord's reasonable control) and
the Rent for the period during which the Premises are untenantable shall be
abated prorata, based upon the portion of the Premises which is untenantable;
provided, however, if 40% or more of the Premises is untenantable and Tenant
discontinues use of all of the Premises, the Rent shall be totally abated until
the restoration is complete. In no event shall Landlord be obligated to repair
or restore any Tenant Improvements or special equipment or improvements
installed by Tenant at Tenant's expense.
12.7 RENT APPORTIONMENT.
In the event of a termination of this Lease pursuant to this Article
12, Rent shall be apportioned on a per diem basis and paid to the date of the
fire or other casualty.
12.8 ADDITIONAL TENANT TERMINATION RIGHT.
If either (i) Landlord undertakes to repair the Premises pursuant to
Section 12.1 above and fails to achieve such repair and restoration within one
hundred eighty (180) days of the date of such casualty, as such date may be
extended for force majeure delays, or (ii) neither Landlord nor Tenant elects to
terminate this Lease and Landlord undertakes the repair and restoration of the
Premises pursuant to Section 12.2 above and fails to achieve such repair and
restoration within thirty (30) days following the expiration of the estimated
repair period set forth in Landlord's notice, as such date may be extended for
force majeure delays, then, in either such event, Tenant shall have the right to
terminate this Lease by written notice to Landlord within thirty (30) days
following the expiration of the applicable time period. If Tenant does not
- 25 -
<PAGE>
exercise its termination right within such thirty (30) day period, Landlord
shall continue to repair and restore the Premises as required herein and Tenant
shall have no further rights to terminate this Lease.
ARTICLE 13
EMINENT DOMAIN
13.1 TERMINATION OF LEASE.
If the whole or any substantial part of the Premises is taken by any
public authority under the power of eminent domain or taken in any manner for
any public or quasi-public use, so as to render the remaining portion of the
Premises unsuitable for the purposes intended hereunder, then this Lease shall
terminate as of the day possession shall be taken by such public authority and
Landlord shall make a pro rata refund of any prepaid Rent. In the event that
fifty percent (50%) or more of the building area or fifty percent (50%) or more
of the value of the Property is taken by public authority under the power of
eminent domain then at Landlord's option by written notice to Tenant, mailed
within sixty (60) days from the date possession shall be taken by such public
authority, Landlord may terminate this Lease effective upon a date within ninety
(90) days from the date of such notice to Tenant.
13.2 LANDLORD'S REPAIR OBLIGATIONS.
In the event this Lease is not terminated pursuant to Section 13.1,
Landlord shall, at its sole cost and expense, restore the Premises and Property
to a complete architectural unit and the Base Rent provided for herein during
the period from and after the date of delivery of possession pursuant to such
proceedings to the termination of this Lease shall be reduced to a sum equal to
the product of the Base Rent provided for herein multiplied by a fraction, the
numerator of which is the fair market rent of the Premises after such taking and
after same has been restored to a complete architectural unit, and the
denominator of which is the fair market rent of the Premises prior to such
taking. In addition, Tenant's Prorata Share of Excess Property Taxes and
Tenant's Prorata Share of Excess Operating Expenses for the same period shall be
adjusted in accordance with Section 4.7 after due consideration of the rentable
square footage of the Premises after the date of delivery of possession pursuant
to such proceedings compared to the rentable square footage of the Building
after the date of delivery of possession pursuant to such proceedings.
13.3 TENANT'S PARTICIPATION.
All damages awarded for such taking under the power of eminent domain
or any like proceedings shall belong to and be the property of Landlord, Tenant
hereby assigning to Landlord its interest, if any, in said award. Tenant shall
have the right to prove in any condemnation proceedings and to receive any
separate award which may be made for damages to or condemnation of Tenant's
movable trade fixtures and equipment and for moving expenses; provided however,
Tenant shall in no event have any right to receive any award for its interest in
this Lease or for loss of leasehold.
- 26 -
<PAGE>
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 RESTRICTION ON TRANSFERS.
Except as provided in Section 14.3 below, Tenant shall not assign,
mortgage, pledge, transfer, sublease or otherwise encumber or dispose of this
Lease, or any interest therein, or in any manner assign, mortgage, pledge,
transfer or otherwise encumber or dispose of its interest or estate in the
Premises, or any portion thereof ("Transfer"), without obtaining Landlord's
prior written consent in each and every instance, which consent shall not be
unreasonably withheld or delayed. Landlord shall be deemed reasonable in
withholding such consent based on any of the following factors: (i) in
Landlord's reasonable judgment, the character, reputation or business of the
proposed assignee or subtenant is inconsistent with the desired tenant mix or
the quality of the other tenancies in the Building; (ii) the financial condition
of the proposed assignee is not equal to or better than the financial condition
of tenant; (iii) the proposed assignee or subtenant intends to make a use which
is not in keeping with the first-class nature of the Building or which will
violate an exclusive use right granted by Landlord to another tenant of the
Building; (iv) the proposed assignee or subtenant is an existing tenant of the
Building for whom Landlord has space available (on the date the existing tenant
desires to expand) in the Building and desires a length of term which Landlord
is willing to provide; or (v) the proposed assignee or subtenant is a potential
candidate for space in the Building who has asked for and received a bona fide
proposal from Landlord with respect to other space which Landlord currently has
available in the Building and which would be adequate to satisfy the
requirements of the potential assignee or subtenant (disregarding any difference
in rental rate between Landlord's Space and Tenant's Sublease Space) and such
candidate desires the space for a length of term which Landlord is willing to
provide. Notwithstanding anything to the contrary set forth hereinabove, if
Tenant has notified Landlord that it desires to expand the Premises by 50% or
more and Landlord has been unable to satisfy Tenant's expansion requirement
either by providing such additional space in the Building or by providing the
entire requirement in another building in the immediate vicinity owned by Opus
South Corporation or one of its affiliates and, as a result, Tenant desires to
sublease or assign the Premises so that it can relocate to another building,
then, in that event, Landlord shall not be deemed reasonable in withholding its
consent based on either item (iv) or item (v) above. No Transfer shall release
Tenant from its liability under this Lease.
14.2 DEFINITION OF ASSIGNMENT.
For the purposes of this Lease, an "assignment" prohibited by this
Section 9 shall be deemed to include the following: if Tenant is a partnership,
a withdrawal or change (voluntary, involuntary, by operation of law) of any one
or more of the partners thereof, or the dissolution of the partnership; or, if
Tenant consists of more than one person, a purported assignment, transfer,
mortgage or encumbrance (voluntary, involuntary, by operation of law or
otherwise) from one constituent member to any other constituent member, or to
any third party; or, if Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or any change in the ownership
(voluntary, involuntary, by operation of law, creation of new stock or
otherwise) of fifty percent (50%) or more of its capital stock from the
ownership existing on the
- 27 -
<PAGE>
date of execution hereof, or, the sale of fifty percent (50%) of the value of
the assets of Tenant. This paragraph shall not apply if the stock of Tenant is
publicly traded on a national stock exchange or over-the-counter.
14.3 AFFILIATE AND TRANSFER ASSIGNMENT RIGHTS.
Notwithstanding anything to the contrary set forth in Section 14.1
above, Tenant shall have the right to assign this Lease or sublease all or any
portion of the Premises to any entity which is wholly-owned by Tenant or is
owned by the same parent entity as Tenant or which owns all of Tenant, but
Tenant shall not be released from any of its obligations under this Lease
following any such assignment or sublease. In addition, in the event that all or
substantially all of the assets of Tenant are acquired by another entity or all
or substantially all of the stock of Tenant (or in either event a group,
division, or section of Tenant's business which includes the operations
conducted in the Premises) occurs and the resulting entity will have a net
worth, following the asset or stock acquisition, which is equal to or greater
than the net worth of Tenant immediately prior to the date of such transaction,
such assignment will not require the prior written consent of Landlord. Tenant
must provide Landlord written notice, at least ten (10) business days prior to
any assignment which will be governed by this Section 14.3 and which Tenant
believes does not require the consent of Landlord pursuant to the terms hereof.
14.4 RECAPTURE.
No less than thirty (30) days prior to the effective date of a proposed
assignment or sublease (other than one made pursuant to Subsection 14.2, Tenant
shall offer to reconvey to Landlord, as of said effective date, that portion of
the Premises which Tenant is seeking to assign or sublet, which offer shall
contain an undertaking by Tenant to accept, as full and adequate consideration
for the reconveyance, Landlord's release of Tenant from all future Rent and
other obligations under this Lease with respect to the Premises or the portion
thereof so reconveyed. Landlord, in its absolute discretion, shall accept or
reject the offered reconveyance within thirty (30) days of the offer and if
Landlord accepts, the reconveyance shall be evidenced by an agreement acceptable
to Landlord in form and substance. If Landlord fails to accept or reject the
offer within the thirty (30) day period, Landlord shall be deemed to have
rejected the offer.
14.5 COSTS.
Tenant agrees to pay on behalf of Landlord any and all reasonable costs
actually incurred by Landlord, including reasonable attorney's fees, occasioned
by such Transfer.
14.6 PROCEEDS.
If Landlord rejects or is deemed to have rejected Tenant's offer of
reconveyance and if Landlord gives its consent to any assignment of this Lease
or to any sublease, or if Tenant is otherwise permitted to make any assignment
or sublease pursuant to this Lease, Tenant shall in consideration therefore, pay
to Landlord, as Additional Rent 50% of any and all amounts by which the rent and
any other consideration paid by the subtenant or assignee exceeds the Rent
- 28 -
<PAGE>
due and payable by Tenant to Landlord hereunder, net of all reasonable costs and
expenses actually incurred by Tenant to procure the sublease or assignment
including construction costs, brokerage costs, legal fees, design costs and
concessions. With respect to a sublease of less than the entire Premises, the
Rent due under this Lease shall be appropriately prorated on a per rentable
square foot basis to determine any such excess amounts. Any such excess amounts
shall be paid by Tenant to Landlord as and when payable by the assignee or
subtenant to Tenant.
ARTICLE 15
DEFAULTS; REMEDIES
15.1 EVENTS OF DEFAULT.
The occurrence of any of the following shall constitute a default and
breach of this Lease by Tenant:
15.1.1 FAILURE TO PAY BASE RENT OR ADDITIONAL RENT.
If Tenant fails to pay Base Rent or Additional Rent as and
when due and does not cure such failure within ten (10) days following Tenant's
receipt of written notice from Landlord.
15.1.2 FAILURE TO PERFORM.
If Tenant fails to perform any of Tenant's nonmonetary
obligations under this Lease for a period of thirty (30) days after Tenant's
receipt of written notice from Landlord; provided that if performance as
required by this Lease reasonably requires more than thirty (30) days to
complete, Tenant shall not be in default if Tenant commences such performance
within the thirty (30) day period and thereafter diligently pursues its
completion and accomplishes the cure within ninety (90) days. Landlord shall not
be required to give such notice if Tenants failure to perform constitutes a
noncurable breach of this Lease.
15.1.3 REPEATED DEFAULTS.
Notwithstanding anything to the contrary set forth in Section
15.1.2 above, in the event Tenant fails to perform any non-monetary obligations
under this Lease on more than two (2) occasions in any calendar year, then any
further nonmonetary failure in such calendar year shall constitute an event of
default without any notice or opportunity to cure.
15.1.4 OTHER DEFAULTS.
If (a) Tenant makes a general assignment or general
arrangement for the benefit of creditors; (b) a petition for adjudication of
bankruptcy or for reorganization or rearrangement is filed by or against Tenant
and is not dismissed within thirty (30) days; (c) a trustee or receiver is
appointed to take possession of substantially all of Tenant's assets located at
the Premises or of Tenant's interest in this Lease and possession is not
restored to Tenant within thirty (30) days; or (d) substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease
- 29 -
<PAGE>
is subjected to attachment, execution or other judicial seizure which is not
discharged within thirty (30) days. If a court of competent jurisdiction
determines that any of the acts described in this subsection is not a default
under this Lease, and a trustee is appointed to take possession (or if Tenant
remains a debtor in possession) and such trustee or Tenant transfers Tenant's
interest hereunder, then Landlord shall receive, as Additional Rent, the
difference between the Rent (or any other consideration) paid in connection with
such assignment or sublease and the Rent payable by Tenant hereunder.
The notices required by this section are intended to satisfy
any and all notice requirements imposed by the Laws and are not in addition to
any such requirements.
15.2 REMEDIES.
Upon the occurrence of any default by Tenant, Landlord may at any time
and from time to time exercise any of the following remedies. Landlord's
exercise of any right or remedy shall not prevent it from exercising any other
right or remedy available at law or in equity.
15.2.1 TERMINATION OF TENANT'S RIGHT TO POSSESSION OF THE
PREMISES.
Terminate Tenant's right to possession of the Premises by any
lawful means, in which case Tenant shall immediately surrender possession of the
Premises to Landlord. In such case, this Lease shall continue in full force and
effect except for Tenant's right to possession. Termination of Tenant's right to
possession shall not be construed as an election by Landlord to terminate this
Lease and Tenant's obligations and liabilities hereunder unless and until
Landlord delivers written notice to Tenant expressly exercising such right of
termination.
15.2.2 RIGHT OF RE-ENTRY AND RELETTING.
Upon termination of Tenant's right to possession of the
Premises, Landlord may but shall not be obligated to, re-enter the Premises and
remove all persons and property from the Premises. Any property removed may be
stored in a public warehouse or elsewhere at the cost of and for the account of
Tenant. Upon such re-entry, Landlord may but shall not be obligated to, relet
the Premises or any part of them, to third parties for Tenant's account. Tenant
shall be liable immediately to Landlord for all costs and expenses incurred by
Landlord in re-entering or reletting the Premises, including but not limited to
(a) maintaining or preserving the Premises after such default, (b) recovering
possession of the Premises, removing persons and property from the Premises and
storing such property, including court costs and reasonable attorneys' fees
incurred in connection therewith, (c) reletting, renovating or altering the
Premises, and (d) real estate commissions paid or payable in connection with
reletting the Premises, said cost and expenses collectively referred to herein
as "Re-entry Costs". Reletting can be for a period shorter or longer than the
remaining Term. Tenant shall continue to pay Rent when due under this Lease,
less the Net Rent (as hereafter defined) actually received by Landlord from
reletting. Net Rent shall mean all rental actually received by Landlord from
reletting less the following: (i) any indebtedness from Tenant to Landlord other
than Rent, which shall be paid first, and (ii) the Reentry Costs, which shall be
paid second. In the event the rental actually received by Landlord
- 30 -
<PAGE>
from reletting exceeds the Rent, any sum remaining will be held by Landlord and
applied to future Rent under this Lease.
15.2.3 TERMINATION OF LEASE.
Terminate this Lease and all of Tenant's rights and
obligations hereunder by delivery of written notice to Tenant. Such termination
shall be effective upon delivery of such notice to Tenant and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event,
Landlord shall be entitled to recover from Tenant and Tenant shall pay to
Landlord immediately upon demand, all damages incurred by Landlord by reason of
Tenant's default, including without limitation (a) all Rent due and payable
under this Lease as of the effective date of the termination; (b) any amount
necessary to compensate Landlord for all detriment proximately caused by
Tenant's failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result therefrom, including but not
limited to, any costs or expenses incurred in (i) maintaining or preserving the
Premises after such default, (ii) recovering possession of the Premises,
removing persons and property from the Premises and storing such property,
including court costs and reasonable attorneys' fees incurred in connection
therewith (iii) reletting, renovating or altering the Premises, and (iv) real
estate commission paid or payable in connection with reletting the Premises; and
(c) an amount equal to the difference between the present worth, as of the
effective date of the termination, of the Rent for the balance of the Term
remaining after the effective date of the termination (assuming no termination)
and the present worth, as of the effective date of the termination, of a fair
and reasonable market rent for the Premises for the same period. For purposes of
this section, present worth shall be computed by utilizing a discount rate of
six percent (6%). Nothing in this section shall limit or prejudice Landlord's
right to prove and obtain damages in an amount equal to the maximum amount
allowed by the Laws, regardless of whether such damages are greater than the
amounts set forth herein.
15.3 COSTS.
Tenant shall reimburse and compensate Landlord upon demand, as
Additional Rent, for any actual pecuniary loss incurred by Landlord in
connection with, resulting from or related to any breach or default of Tenant
under this Lease, whether or not suit is commenced or judgment entered. Such
loss shall include all reasonable legal fees, costs and expenses incurred in the
negotiation, settlement or enforcement of rights or remedies of Landlord or
necessary to protect Landlord's interest under this Lease in a bankruptcy case
or proceeding under Title II of the United States Code, as amended. Tenant shall
also indemnify, defend (with counsel reasonably acceptable to Landlord) and
protect Landlord against, and hold Landlord free and harmless from, all Claims
incurred by Landlord if Landlord becomes or is made a party to any claim or
action (a) instituted by Tenant, by any third party against Tenant or by or
against any person holding any interest under or using the Premises by license
of or agreement with Tenant; (b) for foreclosure of any lien for labor or
material furnished to or for Tenant or such other person; (c) otherwise arising
out of or resulting from any act or transaction of Tenant or such other person;
or (d) necessary to protect Landlord's interest under this Lease in a bankruptcy
case or proceeding under Title II of the United States Code, as amended.
- 31 -
<PAGE>
15.4 NO WAIVER.
No failure by Landlord to insist upon the performance of any of the
terms of this Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance by Landlord of full or partial rent from Tenant or
any third party during the continuance of any such breach, shall constitute a
waiver of any such breach or of any of the terms of this Lease. None of the
terms of this Lease to be kept, observed or performed by Landlord or by Tenant,
and no breach thereof, shall be waived, altered or modified except by a written
instrument executed by Landlord and/or by Tenant, as the case may be. No waiver
of any default of Tenant herein shall be implied from any omission by Landlord
to take any action on account of such default. One or more waivers by Landlord
shall not be construed as a waiver of a subsequent breach of the same covenant,
term or condition. No statement on a payment check from Tenant or in a letter
accompanying a payment check shall be binding on Landlord. Landlord may, with or
without notice to Tenant, negotiate such check without being bound to the
conditions of such statement.
15.5 WAIVER BY TENANT.
Tenant hereby waives all claims resulting from Landlord's re-entry and
taking possession of the Premises and removing and storing the property of
Tenant as permitted under this Lease and will save Landlord harmless from all
losses, costs or damages occasioned thereby. No such reentry shall be considered
or construed to be a forcible entry by Landlord.
ARTICLE 16
PROTECTION OF CREDITORS
16.1 SUBORDINATION.
If and only if Landlord obtains a Subordination, Non-Disturbance and
Attornment Agreement in substantially the form of that attached hereto as
EXHIBIT "G", this Lease and all rights of Tenant therein, and all interest or
estate of Tenant in the Property or any portion thereof, shall be subject and
subordinate to the lien of any mortgage, deed of trust or other document of like
nature ("Mortgage") which now or at any time may be placed upon the Property or
any portion thereof, and to any replacements, renewals, amendments,
modifications, extensions or refinancing thereof, and to each and every advance
made under any Mortgage. Tenant agrees at any time hereafter, and from time to
time on demand of Landlord, to execute and deliver to Landlord any reasonable
instruments, releases or other documents that may be reasonably required for the
purpose of subjecting and subordinating this Lease to the lien of any Mortgage.
It is agreed that so long as Tenant is not in default in the payment of Rent or
the performance and observance of any covenant, condition, provision, term or
agreement to be performed and observed by Tenant under this Lease, the holder of
any Mortgage shall not interfere with, hinder, molest or disturb Tenant's rights
under this Lease. The lien of any such Mortgage shall not cover Tenant's trade
fixtures or other personal property located in or on the Premises. Landlord
represents and warrants that Landlord is the owner of fee title to the Property
and that, except for a deed to secure debt and other security instruments in
favor of Wachovia Bank of Georgia, N.A.
- 32 -
<PAGE>
("Wachovia"), the Property is not currently subject to any ground leases and is
not encumbered by any Mortgages. Landlord will deliver to Tenant, within thirty
(30) days following the date of this Lease, an SNDA in the agreed, attached
form, executed by Wachovia.
16.2 ATTORNMENT.
If Landlord's interest in the Premises is acquired by any ground
landlord, the holder of any Mortgage at a foreclosure sale or by any new person
or entity as a result of any transfer by Landlord, Tenant shall attorn to the
transferee of or successor to Landlord's interest in the Premises and recognize
such transferee or successor as landlord under this Lease provided such
transferee expressly assumes, in writing, all obligations of Landlord accruing
from and after the date of transfer. Tenant waives the protection of any statute
or rule of Law which gives or purports to give Tenant any right to terminate
this Lease or surrender possession of the Premises upon the transfer of
Landlord's interest.
16.3 ESTOPPEL CERTIFICATES.
16.3.1 CONTENTS.
Upon Landlord's written request, Tenant shall execute, acknowledge and
deliver to Landlord a written statement certifying: (a) that this Lease (and all
guaranties, if any) is unmodified and in full force and effect (or, if there
have been any modifications, that the same is in full force and effect, as
modified, and stating the modifications); (b) that this Lease has not been
canceled or terminated; (c) the last date of payment of Base Rent and Additional
Rent and the time period covered by such payments; (d) whether or not there are
then existing any breaches or defaults by Landlord known by Tenant under this
Lease, and if so, specifying the same and the steps being taken to remedy the
same; (e) specifying any setoffs or defenses in favor of Tenant against the
enforcement of this Lease (or of any guaranties); and (f) such other statements
as required by Landlord, any lender, prospective lender, investor or purchaser.
Tenant shall deliver such statement to Landlord within ten (10) business days
after Landlord's request. Any such statement by Tenant may be given by Landlord
to any lender, prospective lender, investor or purchaser of the Premises and may
be relied upon by such party as true and correct.
16.3.2 FAILURE TO DELIVER.
If Tenant does not deliver such statement to Landlord within
such ten (10) business day period, such failure shall constitute a default under
this Lease entitling Landlord to pursue remedies for breach.
16.4 MORTGAGEE PROTECTION CLAUSE.
Tenant agrees to give the holder of any Mortgage, by registered mail, a
copy of any notice of default served upon Landlord, provided that prior to such
notice Tenant has been notified in writing (by way of notice of assignment of
rents and leases or otherwise) of the address of such holder. Tenant further
agrees that if Landlord shall have failed to cure such default within the
- 33 -
<PAGE>
time provided for in this Lease, then such holder shall have an additional ten
(10) days within which to cure such default or if such default cannot be cured
within that time, then such additional time as may be necessary if, within such
ten (10) day period, the holder has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings if necessary to effect such cure) in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
ARTICLE 17
TERMINATION OF LEASE
17.1 SURRENDER OF PREMISES.
At the expiration of the Term, Tenant shall surrender the Premises in
the same condition as the same were in on the Commencement Date, reasonable wear
and tear excepted, permitted alterations and damage by casualty or condemnation
excepted, and shall surrender all keys to the Premises to Landlord's managing
agent or to Landlord at the place then fixed for the payment of Base Rent and
shall inform Landlord of all combinations on locks, safes and vaults, if any.
Tenant shall at such time remove all of its property therefrom and all
alterations and improvements placed thereon by Tenant if so requested by
Landlord. Tenant shall repair any damage to the Premises caused by such removal,
and any and all such property not so removed shall, at Landlord's option, become
the exclusive property of Landlord or be disposed of by Landlord at Tenant's
cost and expense without further notice to or demand upon Tenant. All property
of Tenant not removed on or before the last day of the Term shall be deemed
abandoned. Tenant hereby appoints Landlord its agent to remove, at Tenant's
cost, all property of Tenant from the Premises upon termination of this Lease
and to cause its transportation and storage for Tenant's benefit, all at the
sole cost and risk of Tenant and Landlord shall not be liable for damage, theft,
misappropriation or loss thereof and Landlord shall not be liable in any manner
in respect thereto.
17.2 HOLDING OVER.
In the event Tenant remains in possession of the Premises after
expiration of this Lease, and without the execution of a new lease, but with
Landlord's written consent, it shall be deemed to be occupying the Premises as a
tenant from month to month, subject to all the provisions, conditions and
obligations of this Lease insofar as the same can be applicable to a
month-to-month tenancy, except that the Base Rent shall be escalated to one
hundred fifty percent (150%) of Landlord's then current Base Rent for the
Premises according to Landlord's then current rental rate schedule for
prospective tenants. In the event Tenant remains in possession of the Premises
after expiration of this Lease and without the execution of a new lease and
without Landlord's written consent, Tenant shall be deemed to be occupying the
Premises without claim of right and Tenant shall pay a charge for each day of
occupancy an amount equal to one hundred fifty percent (150%) of the Base Rent
and Additional Rent (on a day basis) then currently being charged by Landlord on
new leases in the Property for space similar to the Premises.
- 34 -
<PAGE>
ARTICLE 18
MISCELLANEOUS PROVISIONS
18.1 NOTICES.
All notices, demands and requests which may be or are required to be
given, demanded or requested by either party to the other shall be in writing.
All notices, demands and requests shall be sent by United States registered or
certified mail, postage prepaid or by an independent overnight courier service,
addressed to the addresses specified in the Basic Terms or at such other place
as either party may designate to the other party by written notice given in
accordance with this section. Notices, demands and requests which shall be given
by mail shall be deemed delivered within three (3) business days of deposit with
the United States Post Office and if delivered by courier shall be deemed
delivered on the next business day after the day of deposit with such courier.
18.2 LANDLORD'S CONTINUING OBLIGATIONS.
The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners at the time in question of the fee title of the
Property. In the event of any transfer or conveyance of the Property, the then
grantor shall be automatically freed and relieved from and after the date of
such transfer or conveyance of all liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed provided such grantee assumes, in writing, all
obligations of Landlord accruing from and after the date of transfer; provided
that any funds in the hands of such grantor at the time of such transfer, in
which Tenant has an interest, shall be turned over to the grantee for payment to
Tenant in accordance with this Lease.
18.3 SUCCESSORS.
The covenants and agreements herein contained shall bind and inure to
the benefit of Landlord, its successors and assigns, and Tenant and its
permitted successors and assigns.
18.4 CAPTIONS AND INTERPRETATION.
The captions of the Articles and Sections of this Lease are to assist
the parties in reading this Lease and are not a part of the terms or provisions
of this Lease. Whenever required by the context of this Lease, the singular
shall include the plural and the plural shall include the singular. The
masculine, feminine and neuter genders shall each include the other. In any
provision relating to the conduct, acts or omissions of Tenant, the term
"Tenant" shall include Tenant's agents, employees, contractors, invitees,
successors or others using the Premises with Tenant's expressed or implied
permission.
- 35 -
<PAGE>
18.5 RELATIONSHIP OF PARTIES.
This Lease does not create the relationship of principal and agent, or
of partnership, venture, or of any association or relationship between Landlord
and Tenant, the sole relationship between Landlord and Tenant being that of
landlord and tenant.
18.6 ENTIRE AGREEMENT.
Any exhibits, addenda and schedules attached hereto, and the Work
Letter, shall be incorporated herein as though fully set forth herein. All
preliminary and contemporaneous negotiations are merged into and incorporated in
this Lease. This Lease Agreement together with the Exhibits contains the entire
agreement between the parties. No subsequent alteration, amendment, change or
addition to this Lease shall be binding upon Landlord or Tenant unless reduced
to writing and signed by the party to be charged with their performance.
18.7 SEVERABILITY.
If any covenant, condition, provision, term or agreement of this Lease
shall, to any extent, be held invalid or unenforceable, the remaining covenants,
conditions, provisions, terms and agreements of this Lease shall not be affected
thereby, but each covenant, condition, provision, term or agreement of this
Lease shall be valid and in force to the extent permitted by Law.
18.8 LANDLORD'S LIMITED LIABILITY.
Tenant agrees to look solely to Landlord's equity interest in the
Building (and to any insurance proceeds or condemnation awards not applied to
restoration, to net proceeds of sale and to rents not used to pay Operating
Expenses or debt service) for recovery of any judgment from Landlord, it being
agreed that Landlord (and if Landlord is a partnership, its partners, whether
general or limited, and if Landlord is a corporation, its directors, officers or
shareholders and if Landlord is a limited liability company, its governors,
managers or members) shall never be personally liable for any personal judgment
or deficiency decree or judgment against it, nor shall Tenant be entitled to
reach any of the general corporate assets of Landlord, or its parent corporation
or its affiliated corporations for satisfaction of any such judgment.
18.9 SURVIVAL.
All obligations (together with interest on money obligations at the
Maximum Rate of Interest) accruing prior to expiration of the Term shall survive
the expiration or other termination of this Lease.
18.10 ATTORNEYS' FEES.
In the event of any litigation or judicial action in connection with
this Lease or the enforcement thereof or the enforcement of any indemnity
obligation hereunder, the prevailing party in any such litigation or judicial
action shall be entitled to recover all costs and expenses of
- 36 -
<PAGE>
any such judicial action or litigation (including, but not limited to,
reasonable attorneys' fees, costs and expenditures fees) from the other party.
18.11 BROKER.
Landlord shall pay the broker(s), if any, listed in the Basic Terms,
pursuant to a separate agreement between Landlord and such broker(s). Landlord
and Tenant each represent and warrant to the other that it has not had any
dealings with any realtors, brokers or agents in connection with the negotiation
of this Lease except as may be specifically set forth in the Basic Terms and
agree to hold the other harmless from the failure to pay any realtors, brokers
or agents (other than the Brokers specified in the Basic Terms) and from any
cost, expense or liability for any compensation, commission or charges claimed
by any realtors, brokers or agents (other than the Brokers specified in the
Basic Terms) claiming by, through or on behalf of it with respect to this Lease
and/or the negotiation hereof. Landlord agrees to pay all amounts due to the
Brokers named in the Basic Terms as a result of this Lease.
18.12 GOVERNING LAW.
This Lease shall be governed by the laws of the State of Georgia. All
covenants, conditions and agreements of Tenant arising hereunder shall be
performable in the county wherein the Premises are located. Any suit arising
from or relating to this Lease shall be brought in the county wherein the
Premises are located, and the parties hereto waive the right to be sued
elsewhere.
18.13 TIME IS OF THE ESSENCE.
Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
18.14 JOINT AND SEVERAL LIABILITY.
All parties signing this Lease as Tenant shall be jointly and severally
liable for all obligations of Tenant.
18.15 NOT USED.
18.16 DELIVERY OF TENANT ORGANIZATION DOCUMENTS.
In the event Tenant is an entity, Tenant shall without charge to
Landlord, at any time and from time to time within ten (10) days after written
request by Landlord, deliver the following instruments and documents:
(a) Certificate of Good Standing from the state of
formation of Tenant and the State, confirming that
Tenant is in good standing under the corporate laws
governing formation;
- 37 -
<PAGE>
(b) A copy of Tenant's organizational documents and any
amendments or modifications thereof, certified as
true and correct by an appropriate official of
Tenant.
18.17 PROVISIONS ARE COVENANTS AND CONDITIONS.
All provisions, whether covenants or conditions, shall be deemed to be
both covenants and conditions.
18.18 BUSINESS DAYS.
As used herein, the term "business days" shall mean any day which is
not Saturday, Sunday or a legal holiday in the State.
18.19 FORCE MAJEURE.
If Landlord or Tenant shall be delayed or prevented from the
performance of any act required hereunder (excluding, however, the payment of
money) by reason of acts of God, strikes, lockouts, labor troubles, inability to
procure materials, respect of governmental laws or regulations, or by reason of
any order or direct of any legislative, administrative or judicial body, or any
government department, or by reason of not being able to obtain any licenses,
permissions or authorities required therefor, or other causes without fault or
beyond the reasonable control of Landlord or Tenant, performance of such acts by
Landlord or Tenant shall be excused for the period of the delay and the period
of the performance of any such acts shall be extended for a period equivalent to
the period of such delay. Such delays are sometimes referred to in this Lease as
"Force Majeure."
18.20 SUBMISSION OF LEASE.
Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or an option for lease and is not effective
as a lease or otherwise until execution and delivery by both Landlord and
Tenant.
18.21 NOT USED.
18.22 USUFRUCT. The parties hereby agree that the interest granted by
Landlord to Tenant under this Lease is not an interest in real estate and is not
a leasehold estate but is merely a usufruct.
18.23 SECURITY DEPOSIT. Tenant shall pay Landlord the sum of
Thirty-Three Thousand Nine Hundred Seventeen and 60/100 Dollars ($33,917.60)
(hereinafter referred to as "Security Deposit"), which shall be held by the
Landlord during the Term of this Lease, or any renewal thereof. The Security
Deposit may be commingled by Landlord with its other funds and under no
circumstances will Tenant be entitled to any interest on the Security Deposit.
The Security
- 38 -
<PAGE>
Deposit may be used by Landlord, at its discretion, to apply to any amount owing
to Landlord hereunder, or to pay the expenses of repairing any damage to the
Premises, except natural wear and tear occurring from normal use of the
Premises, which exists on the day Tenant vacates the Premises, but this right
shall not be construed to limit Landlord's right to recover additional sums from
Tenant for damages to the Premises. In addition to any other rights available to
Landlord hereunder, the Security Deposit shall be forfeited if this Lease should
be terminated prior to the normal Expiration Date of the original term, or of
any renewal thereof as a result of Tenant's default. If there is any balance of
the Security Deposit remaining after all payments have been made, the Security
Deposit, or such balance thereof remaining, will be refunded to the Tenant
within thirty (30) days after fulfillment by Tenant of all obligations
hereunder. Upon sale or conveyance of the Building, Landlord shall transfer or
assign the Security Deposit to any new owner of the Premises, and upon such
transfer all liability of Landlord for the Security Deposit shall terminate.
Notwithstanding anything to the contrary set forth hereinabove, if, during the
first Lease Year, Tenant makes all payments of Rent in a timely manner and no
event of default has occurred during such first Lease Year, Landlord agrees to
apply the Security Deposit as a credit to the first monthly installment of Rent
due during the second Lease Year.
18.24 SPECIAL STIPULATIONS. The Special Stipulations attached hereto as
EXHIBIT E form a part of this Lease and are hereby incorporated by this
reference. In the event of any conflict between the Special Stipulations and the
remaining provisions of this Lease, to the Special Stipulations shall control.
- 39 -
<PAGE>
Landlord and Tenant have signed this Lease on the dates specified
adjacent to their signatures below.
Dated: 3/17/99 LANDLORD:
------------------------------
Opus South Corporation, a
Florida corporation
By: /s/ NEIL RAUENHORST
--------------------------
Name: NEIL RAUENHORST
-----------------------
Title: PRESIDENT & CEO
-----------------------
Dated: 3/15/99 TENANT:
------------------------------
NetB@nk, Inc., a
Georgia corporation
By: /s/ D. R. GRIMES
--------------------------
Name: D. R. GRIMES
------------------------
Title: CEO
-----------------------
By: /s/ ROBERT E. BOWERS
--------------------------
Name: ROBERT E. BOWERS
------------------------
Title: CFO
--------------
- 40 -
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
All that tract or parcel of land lying and being in Land Lots 858 and 906, 1st
District, 2nd Section, City of Alpharetta, Fulton County, Georgia, being more
particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at a point formed by the
intersection of the northwesterly right-of-way of North Point Parkway, having a
120 foot right-of-way and the easterly right-of-way of Kimball Bridge Road,
having a varying right-of-way; thence, run northwesterly, along the
northwesterly right-of-way of North Point Parkway right-of-way in a generally
northeasterly direction, a distance of 1,991.27 feet to a point located at the
intersection of the northwesterly right-of-way of North Point Parkway and the
northeasterly right-of-way of Great Oaks Way, having a varying right-of-way,
which point is THE TRUE POINT OF BEGINNING. FROM SAID TRUE POINT OF BEGINNING AS
THUS ESTABLISHED, and leaving the northwesterly right-of-way of North Point
Parkway, run in a generally northwesterly direction along the northeasterly
right-of-way of said proposed Great Oaks Way, the following courses and
distances: South 77 degrees 39 minutes 14 seconds West, a distance of 28.28 feet
to a point; North 57 degrees 20 minutes 46 seconds West, a distance of 42.66
feet to a point; along an arc of curve to the right, having a radius of 391.74
feet, an arc distance of 66.71 feet (said arc being subtended by a chord bearing
North 52 degrees 28 minutes 05 seconds West, a chord distance of 66.63 feet) to
a point; along an arc of curve to the right, having a radius of 101.00 feet, an
arc distance of 8.55 feet (said arc being subtended by a chord bearing North 50
degrees 00 minutes 58 seconds West, a chord distance of 8.55 feet) to a point;
along an arc of curve to the right, having a radius of 392.87 feet, an arc
distance of 44.80 feet (said arc being subtended by a chord bearing North 49
degrees 10 minutes 32 seconds West, a chord distance of 44.78 feet) to a point;
along an arc of curve to the right, having a radius of 396.67 feet, an arc
distance of 60.21 feet (said arc being subtended by a chord bearing North 41
degrees 33 minutes 37 seconds West, a chord distance of 60.15 feet) to a point;
along an arc of curve to the right, having a radius of 79.00 feet, an arc
distance of 10. 14 feet (said arc being subtended by a chord bearing North 33
degrees 32 minutes 08 seconds West, a chord distance of 10.13 feet) to a point;
along an arc of curve to the right, having a radius of 403.74 feet, an arc
distance of 22.05 feet (said arc being subtended by a chord bearing North 28
degrees 17 minutes 42 seconds West, a chord distance of 22.05 feet) to a point;
North 26 degrees 43 minutes 49 seconds West a distance of 301.99 feet to a
point; along an arc of curve to the left, having a radius of 477.74 feet, an arc
distance of 208.16 feet (said arc being subtended by a chord bearing North 39
degrees 12 minutes 46 seconds West, a chord distance of 206.52 feet) to a point;
North 51 degrees 41 minutes 43 seconds West a distance of 78.93 feet to a point;
thence, leaving said proposed right-of-way of Great Oaks Way, run thence North
34 degrees 04 minutes 23 seconds East a distance of 48.00 feet to a point;
thence run North 71 degrees 45 minutes 16 seconds East, a distance of 606.66
feet to a point; thence run South 53 degrees 27 minutes 36 seconds East, a
distance of 614.17 feet to a point located on the northwesterly right-of-way of
the aforementioned North Point Parkway, thence run in a generally southwesterly
direction along said northwesterly right-of-way of North Point Parkway
<PAGE>
the following courses and distances; South 61 degrees 06 minutes 35 seconds
West, a distance of 148.92 feet to a point; along an arc of curve to the left,
having a radius of 1,014.93 feet, an arc distance of 504.06 feet (said arc being
subtended by a chord bearing South 46 degrees 52 minutes 54 seconds West, a
chord distance of 498.90 feet) to a point; South 32 degrees 39 minutes 14
seconds West a distance of 112.74 feet to a point, and THE TRUE POINT OF
BEGINNING.
The above described property contains 10.925 acres, more or less, and is shown
on and described according to that certain ALTA/ACSM Survey for Wachovia Bank of
Georgia , N.A., Opus South Corporation and Chicago Title Insurance Company dated
September 24, 1997, prepared by Engineering & Inspection Systems, Inc., John E.
Norton, Registered Land Surveyor No. 1848, which survey is incorporated herein
by reference.
- 2 -
<PAGE>
EXHIBIT "B"
FLOOR PLAN
[To Be Attached]
<PAGE>
EXHIBIT "C"
RULES AND REGULATIONS
1. Any sign, lettering, picture, notice or advertisement installed on or in any
part of the Premises and visible from the exterior of the Building, or visible
from the exterior of the Premises, shall be installed at Tenant's sole cost and
expense, and in such manner, character and style as Landlord may approve in
writing. In the event of a violation of the foregoing by Tenant, Landlord may
remove the same without any liability and may charge the expense incurred by
such removal to Tenant.
2. No awning or other projection shall be attached to the outside walls of the
Building. No curtains, blinds, shades or screens visible from the exterior of
the Building or visible from the exterior of the Premises, shall be attached to
or hung in, or used in connection with any window or door of the Premises
without the prior written consent of Landlord. Such curtains, blinds, shades,
screens or other fixtures must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
3. Tenant, its servants, employees, customers, invitees and guests shall not
obstruct sidewalks, entrances, passages, corridors, vestibules, halls,
elevators, or stairways in and about the Building which are used in common with
other tenants and their servants, employees, customers, guests and invitees, and
which are not a part of the Premises of Tenant. Tenant shall not place objects
against glass partitions or doors or windows which would be unsightly from the
Building corridors or from the exterior of the Building and will promptly remove
any such objects upon notice from Landlord.
4. Tenant shall not make excessive noises, cause disturbances or vibrations or
use or operate any electrical or mechanical devices that emit excessive sound or
other waves or disturbances or create obnoxious odors, any of which may be
offensive to the other tenants and occupants of the Building, or that would
Interfere with the operation of any device, equipment, radio, television
broadcasting or reception from or within the Building or elsewhere and shall not
place or install any projections, antennas, aerials or similar devices inside or
outside of the Premises or on the Building.
5. Tenant shall not waste electricity, water or air conditioning and shall
cooperate fully with Landlord to insure the most effective operation of the
Building's heating and air conditioning systems and shall refrain from
attempting to adjust any controls other than unlocked room thermostats, if any,
installed for Tenant's use. Tenant shall keep corridor doors closed.
6. Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry to the Premises closed and secured after normal business hours.
<PAGE>
7. No person or contractor not employed by Landlord shall be used to perform
janitorial work, window washing, cleaning, maintenance, repair or similar work
in the Premises without the written consent of Landlord, which shall not be
unreasonably withheld or delayed.
8. In no event shall Tenant bring into the Building inflammables, such as
gasoline, kerosene, naphtha and benzine, or explosives or any other article of
Intrinsically dangerous nature. If, by reason of the failure of Tenant to comply
with the provisions of this subparagraph, any insurance premium for all or any
part of the Building shall at any time be increased, Tenant shall make immediate
payment of the whole of the increased insurance premium, without waiver of any
of Landlord's other rights at law or in equity for Tenant's breach of this
Lease.
9. Tenant shall comply with all applicable federal, state and municipal laws,
ordinances and regulations, and Building rules and shall not directly or
indirectly make any use of the Premises which may be prohibited by any of the
foregoing or which may be dangerous to persons or property or may increase the
cost of insurance or, require additional insurance coverage.
10. Landlord shall have the right to prohibit any advertising by Tenant which in
Landlord's reasonable opinion tends to impair the reputation of the Building,
and upon written notice from Landlord, Tenant shall refrain from or discontinue
such advertising.
11. The Premises shall not be used for cooking (except normal break room use
such as coffee machines and microwave ovens for warming, but in no event shall
any open flame or electric element cooking take place), lodging, sleeping or for
any immoral or illegal purpose.
12. Tenant and Tenant's servants, employees, agents, visitors and licensees
shall observe faithfully and comply strictly with the foregoing rules and
regulations and such other and further appropriate rules and regulations as
Landlord or Landlord's agent may from time to time adopt. Reasonable notice of
any additional rules and regulations shall be given in such manner as Landlord
may reasonably elect.
13. Unless expressly permitted by the Landlord, no additional locks or similar
devices shall be attached to any door or window and no keys other than those
provided by the Landlord shall be made for any door. If more than two keys for
one lock are desired by the Tenant. The Landlord may provide the same upon
payment by the Tenant. Upon termination of this Lease or of the Tenant's
possession, the Tenant shall surrender all keys of the Premises and shall
explain to the Landlord all combination locks on safes, cabinets and vaults.
14. Any carpeting cemented down by Tenant shall be installed with a releasable
adhesive. In the event of a violation of the foregoing by Tenant, Landlord may
charge the expense incurred for or in connection with the removal of such
carpeting and adhesive, and any related repairs which may be necessary as a
result thereof, to Tenant.
- 2 -
<PAGE>
15. The water and wash closets, drinking fountains and other plumbing fixtures
shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds or other substances
shall be thrown therein. All damages resulting from any misuse of the fixtures
shall be borne by the Tenant who, or whose servants, employees, agents, visitors
or licensees, shall have caused the same. No person shall waste water by
interfering or tampering with the faucets or otherwise.
16. No electric circuits for any purpose shall be brought into the Premises
without Landlord's permission specifying the manner in which some may be done.
17. No bicycle or other vehicle, and no dog (except seeing eye dogs) or other
animal shall be allowed in offices, halls, corridors, or elsewhere in the
Building.
18. Tenant shall not throw anything out of the door or windows, or down any
passageways or elevator shafts.
19. All loading, unloading, receiving or delivery of goods, supplies or disposal
of garbage or refuse shall be made only through entryways and freight elevators
provided for such purposes and indicated by Landlord. Unless caused by the
negligence or willful misconduct of Landlord, its agents or employees, Tenant
shall be responsible for any damage to the Building or the property of its
employees or others and injuries sustained by any person whomsoever resulting
from the use or moving of such articles in or out of the Premises, and shall
make all repairs and improvements required by Landlord or governmental
authorities in connection with the use or moving of such articles.
20. All safes, equipment or other heavy articles shall be carried in or out of
the Premises only at such time and in such manner as shall be prescribed in
writing by Landlord and Landlord shall in all cases have the right to specify
the proper position of any such safe equipment or other heavy article, which
shall only be used by Tenant in a manner which will not interfere with or cause
damage to the Premises or the Building in which they are located, or to the
other tenants or occupants of said Building. Tenant shall be responsible for any
damage to the Building or the property of its employees or others and injuries
sustained by any person whomsoever resulting from the use or moving of such
articles in or out of the Premises, and shall make all repairs and improvements
required by Landlord or governmental authorities in connection with the use or
moving of such articles.
21. Canvassing, soliciting, and peddling in the Building is prohibited and each
Tenant shall cooperate to prevent the same.
22. Vending machines (other than those in break rooms which are exclusively for
the use of Tenant's employees and guests) shall not be installed without
permission of the Landlord.
23. Wherever in these Building Rules and Regulations the word "Tenant" occurs,
it is understood and agreed that it shall mean Tenant's associates, agents,
employees, clerks, servants, contractors and visitors. Wherever the word
"Landlord" occurs, it is understood and
- 3 -
<PAGE>
agreed that It shall mean Landlord's assigns, agents, employees, clerks,
servants, contractors and visitors.
24. Landlord shall have the right to enter upon the Premises upon reasonable
prior notice (except in emergencies) at all reasonable hours for the purpose of
inspecting the same.
25. Landlord shall have the right to enter the Premises at hours convenient to
the Tenant for the purpose of exhibiting the same to prospective tenants within
the one hundred eighty (180) day period prior to the expiration of this Lease
and at any time while an uncured event of default exists under this Lease.
26. Tenant, its agents, servants, employees, customers, invitees and guests
shall, when using the common parking facilities, if any, in and around the
Building, observe and obey all signs regarding fire lanes and no parking zones,
and when parking always park between the designated lines. Landlord reserves the
right to tow away, at the expense of the owner, any vehicle which is improperly
parked or parked In a no parking zone. All vehicles shall be parked at the sole
risk of the owner, and Landlord assumes no responsibility for any damage to or
loss of vehicles. No vehicles shall be parked on an overnight basis for any
extended period of time.
27. At all times the Property shall be in charge of Landlord's employee in
charge and (a) persons may enter the Property only in accordance with Landlord's
regulations, (b) persons entering or departing from the Property may be
questioned as to their business in the Property, and the right is reserved to
require the use of an Identification card or other access device and the
registering of such persons as to the hour of entry and departure, nature of
visit, and other information deemed necessary for the protection of the
Property, and (c) all entries into and departures from the Property will take
place through such one or more entrances as Landlord shall from time to time
designated provided; however, anything herein to the contrary notwithstanding.
Landlord shall not be liable for any lack of security in respect to the Property
whatsoever. Landlord will normally not enforce clauses (a), (b) and (c) above
from 7:00 a.m. to 6:00 p.m., Monday through Friday, and from 8:00 a.m. to 2:00
p.m. on Saturdays, but it reserves the right to do so or not to do so at any
time and from time to time at its sole discretion. In case of invasion, mob,
riot, public excitement, or other commotion, Landlord reserves the right to
prevent access to the Property during the continuance of the same by closing and
locking the doors or otherwise for the safety of the tenants or the protection
of the Property and the property therein. Landlord shall in no case be liable
for damages for any error or other action taken with regard to the admission to
or exclusion from the Property of any person.
28. All entrance doors to the Premises shall be locked when the Premises are not
in use. All corridor doors shall also be closed during times when the air
conditioning equipment in the Property is operating so as not to dissipate the
effectiveness of the system or place an overload thereon.
- 4 -
<PAGE>
29. Landlord reserves the right, upon reasonable prior notice to Tenant, at any
time and from time to time to rescind, alter or waive, in whole or in part, any
of these Rules and Regulations when it is deemed necessary, desirable, or proper
in Landlord's judgment, for its best interest or for the best interest of the
tenants of the Property.
- 5 -
<PAGE>
EXHIBIT "D"
WORK LETTER
1. Landlord shall construct, or cause to be constructed in the Premises, in
accordance with all applicable laws, rules, regulations and ordinances
(including ADA, as it currently exists and as currently interpreted by local
building code requirements), the improvements (the "Tenant's Work") described in
and shown on the Plans (hereinafter defined). Landlord shall cause a preliminary
layout to be prepared with Tenant's cooperation and for Tenant's approval. Upon
approval of the layout, Landlord shall prepare, or cause to be prepared, working
drawings for the construction of the standard building items and improvements,
adequate in detail to perform the Tenant's Work and shall have mechanical
(sprinkler, air conditioning, heating, electrical and plumbing) drawings
prepared by Landlord's mechanical engineer covering mechanical elements of the
Tenant's Work (together with the preliminary layout, the drawings are referred
to as the "Plans"). The Plans (and any modifications thereof) shall comply with
all governmental standards, regulations and requirements and shall be subject to
Tenant's approval (which approval shall not be unreasonably withheld). Tenant
shall not unreasonably withhold its approval of the Plans or any part thereof.
2. Prior to commencing Tenant's Work Landlord or Landlord's agent shall submit
to Tenant a written estimate of the Cost of Tenant's Work. Prior to submitting
such estimate to Tenant, Landlord will submit the Plans to Kinzey Construction
Co. ("Kinzey") and will ask Kinzey to submit a bid for the performance of
Tenant's Work. If Kinzey submits a conforming bid which is lower than the price
at which Landlord will construct Tenant's Work, Landlord will select Kinzey to
perform Tenant's Work and will enter into a construction contract with Kinzey.
In that event, Kinzey shall be obligated to obtain insurance reasonably
satisfactory to Landlord and to comply with all other reasonable construction
rules and regulations promulgated by Landlord for contractors performing work in
the Building, If Kinzey is selected, the amount set forth in Kinzey's bid will
be the amount included in the written estimate of the Cost of Tenant's Work. If
Tenant shall fail either (i) to approve said estimate within five (5) business
days from the receipt thereof, or (ii) provide change requests to the Plans
within five (5) business days from receipt thereof which will reduce the Cost of
Tenant's Work to an amount acceptable to Tenant, then the time between the
expiration of such five (5) business day period and the date Tenant takes either
such action shall be a Tenant Delay. If Tenant desires any changes in the Plans
after having approved the initial Plans and cost estimate, Tenant shall be
required to sign such field order changes requested by Landlord or Landlord's
contractors or agents to evidence any such change desired by Tenant. Tenant
acknowledges Tenant shall be responsible for any and all costs associated with
any such change in the Plans. Any other work desired by Tenant, such as
furniture, fixturing and telecommunications and computer cabling ("Additional
Work"), shall be performed by Tenant at Tenant's sole expense using contractors
and pursuant to planning approved by Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed.
3. (a) In addition to constructing Tenant's Work as described in this Work
Letter, Landlord will also, at Landlord's expense (and not out of the
Improvement Allowance), provide
<PAGE>
certain basic improvements in the Premises as described on "EXHIBIT D-1"
attached hereto and made a part hereof.
(b) The Improvement Allowance described in Section 2.3 of the Lease shall
be applied toward all design costs and all costs of obtaining materials and
constructing the Tenant's Work ("Cost of Tenant's Work"), such costs to include,
without limitation, the cost of preparing the Plans, the cost of any changes to
the Plans and any costs necessary to file the Plans with, and obtain the
necessary permits and approvals of, any governmental authority having
jurisdiction thereof. If the Improvement Allowance is not totally exhausted in
paying the Cost of Tenant's Work, the excess shall be promptly paid to Tenant.
(c) If the Cost of Tenant's Work exceeds the Improvement Allowance, the
amount of such excess ("Cost Differential") shall be paid by Tenant to Landlord
as provided in Section 2.3 of the Lease.
4. Landlord, at Landlord's discretion, may permit Tenant and Tenant's agents to
enter the Premises prior to the Commencement Date of the term of the Lease in
order that Tenant may do Additional Work required by Tenant to make the Premises
ready for Tenant's use and occupancy. If Landlord permits such entry prior to
such Commencement Date, such permission is conditioned upon Tenant and its
agents, contractors, employees and invitees working in harmony and not
interfering with Landlord and its agents, contractors and employees in doing
Tenant's Work and the Work for other tenants and occupants of the Building. If
at any time such entry shall cause or threaten to cause disharmony or
interference, Landlord shall have the right to withdraw such permission upon 24
hours notice to Tenant. Tenant agrees that any such entry into and occupation of
the Premises shall be deemed to be under all of the terms, covenants, conditions
and provisions of the Lease except as to the covenant to pay the rent, and
further agrees Landlord shall not be liable in any way for any injury, loss or
damage which may occur to any of Tenant's work and installations made in the
Premises or to properties placed therein prior to the Commencement Date of the
term of the Lease, the same being at Tenant's sole risk.
5. The Premises shall be deemed substantially completed ("Substantial
Completion") on the date Landlord substantially completes Tenant's Work in
accordance with the Plans and obtains a certificate of occupancy for the
Premises. If Tenant's Substantial Completion of the Premises by Landlord is
delayed due to any act or omission of Tenant or Tenant's representatives,
including any delays by Tenant in the submission of plans, drawings,
specifications or other information or in approving any drawings or estimates or
in giving any authorization or approval or as a result of Tenant's request for
materials that are not available by the time necessary to allow Landlord to
complete Tenant's Work by the targeted Delivery Date, ("Tenant Delay"), Landlord
will be deemed to have achieved Substantial Completion of the Premises on the
date when they would have been ready but for such Tenant Delay. Within five (5)
business days following Landlord's notice to Tenant that Substantial Completion
has been achieved, Tenant's authorized representative (______________) and
Landlord's authorized representative shall conduct a walk-through inspection of
the Premises and shall prepare a list of incomplete or defective items of
Tenant's Work ("Punchlist"). Landlord shall cause the
-2-
<PAGE>
Punchlist items to be completed or corrected as soon as reasonably possible and,
in any event within thirty (30) days of the Commencement Date.
- 3 -
<PAGE>
EXHIBIT "D-1"
BASE BUILDING CONDITION
1. STRUCTURE: The Building structure will be designed for a maximum floor
live load of 100 lb. per square foot for all tenant areas. Live structural loads
include all Tenant added weight to be supported by the Building structure
including walls, doors, furniture, equipment and people.
2. BUILDING SHELL: The Building shell will include a completely finished
Entrance Lobby front and rear on the ground floor. Each floor shall include two
sets of restrooms with ADA compliant drinking fountains and an elevator lobby.
Perimeter and interior columns are wrapped in sheetrock, taped, finished, sanded
and ready for paint. The perimeter knee wall below the windowsill is framed and
ready for sheetrock. The first floor also includes a completed exit corridor as
required by Life Safety Codes. Finishes in the corridor include vinyl wall
covering, vinyl base and carpet. Each floor will also have electrical/telephone,
janitorial and mechanical rooms, and four stairwells. The rest room facilities
on each floor of the premises will have granite lavatory tops, vitreous china
lavatories, and enclosed water closets for women plus urinals and enclosed water
closets for men. Facilities are ADA compliant. Ceramic tile will be placed on
restroom floors and walls. The exit stairwells will be finished with vinyl wall
covering, rubber stair treads and landings in order to promote circulation
between floors.
3. FLOORS: A concrete floor will be installed with a smooth trowel finish
for installation of glued-down carpet. The floor will be poured level and
finished in accordance with current ACI Standard Specifications 117.
4. LIFE SAFETY SYSTEM: A life safety system will be installed in accordance
with the more stringent of applicable national, state and local codes or the
Americans with Disabilities Act Regulation throughout the Building, including
all corridors and stairwells. It shall consist of fire sprinklers, fire alarm
system, elevator recall, emergency lighting, and exit signs as required by
applicable codes per Building plans and specifications. The sprinkler system
will have an approved water flow alarm connection and tamper-proof detection
device connected to a central station. It will include all distribution of
mains, laterals, and heads per sprinkler subcontractor approved shop drawings.
Sprinkler heads shall be of the "semi-recessed" type.
5. DEMISING WALLS: Slab-to-slab sheetrock on each side of the
demising/party walls with sound batt insulation from finished floor to deck
above. Minimum fire rating: 1 hour. Each wall shall be taped, spackled, sanded,
prime-painted and ready to receive finish material. Demising wall cost is shared
between tenants. Corridor walls are as described in and will be installed as
described in the Building Plans and Specifications. In the case of demising
walls between tenants, one-half of the wall is a tenant cost.
6. CORRIDOR WALLS: Fire rated public exit corridors will be installed where
required by local codes. Public side of the corridor walls will receive vinyl
wall covering. The tenant
<PAGE>
side of the corridor will be taped, finished and ready for paint. Painting of
the tenant side of corridors is a tenant cost. Interior tenant partitions shall
consist of 3 5/8" metal studs with one layer of 5/8" gypsum board on each side,
taped, floated, sanded and ready for paint. Paint shall consist of two coats of
flat latex paint. Cost of corridor not shown on Building Plans and
Specifications and necessary for tenant's layout, is a tenant cost. Interior
tenant walls are a tenant cost.
7. CEILING GRID AND TILE: Tenant areas will have a 2x2 ceiling grid in
place with the ceiling tile stacked on the floor. Ceiling tile shall be
fine-textured and non-directional with a reveal edge, equivalent to
Armstrong-Minatone and will have an average noise reduction coefficient of .55.
Tile will be stacked in boxes in the tenant areas for installation as a tenant
cost.
8. DOORS: Tenant Entry doors are solid core mahogany doors 3' x 8'10" tall.
Interior doors are solid core, mahogany veneer with stained finish, 3' x 8'4".
Frames: Knock down steel frames. Hardware: Standard door hardware is Schlage
mortised latchsets with bright chrome finish. Each door shall be hung on two
pair of hinges with similar finish. Entry and interior tenant doors are a tenant
cost.
9. CARPET: Carpeting will be installed in elevator lobbies and in common
corridors shown on base Building plans. Carpet in above areas will be direct,
glue down and have a weight of 34 ounce per square yard. Vinyl base equal to
Roppe will be installed in all carpeted areas. Building standard carpet in
tenant areas shall be purchased and installed at an allowance of $12.00 per
square yard as a tenant cost.
10. WINDOW TREATMENT: Provide and install window treatment on the exterior
windows. Landlord will supply thin-lined, 1" horizontal blinds equal to
Bali-Graber quality.
11. LIGHT FIXTURES: Building standard lighting to provide a minimum of 50
foot-candles maintained at desk level throughout the Premises. Modern
fluorescent lighting fixtures, based on one fixture per 80 usable square feet.
The light fixtures will be 2' by 4', three lamp fixtures. Recessed parabolic
fixtures will be provided which contain eight cell parabolic lens, and minimum
three inch baffle depth. Lamps are to be of the T-8, 3500 degree Kelvin energy
saving type. Ballasts shall also be energy efficient, electronic type.
Connecting whips are attached to the fixtures. These fixtures with attachment
whips are stacked on the floor as part of the base Building. Installation of 2 x
4 fluorescent fixtures is a tenant cost.
12. TELEPHONE SERVICE: Telephone service will be provided by the local
utility and brought to tenant's telephone room. Base Building will include
necessary conduit/sleeves to distribute telephone service between floors.
Sleeves will be provided for the installation of fiber optic cable to the main
Building telephone room. Phone line construction within the tenant space is a
tenant cost.
13. PLUMBING: All sinks and special plumbing is a tenant cost.
- 2 -
<PAGE>
14. FIRE AND EMERGENCY PROTECTION: Installation of all emergency lighting
systems, exit signage and fire extinguishers within a tenant's space as required
by local, state, and federal codes and ordinances is a tenant cost. Minor
relocation of base Building sprinklers may become necessary based upon tenant
layout and would be a tenant cost.
15. HVAC: The Building is conditioned utilizing a Trane "Self Contained,
Water Cooled, Packaged System" consisting of two units per floor, perimeter slot
diffusers fed by fan powered units with strip heat and interior zones served by
VAV boxes are installed in the Building. All interior low-pressure supplies
downstream of VAV's and special returns are tenant costs. There are 33 zones per
floor at approximately 1,250 square feet per zone. Additional zones and/or
special control areas may be added as a tenant cost. The location of interior
thermostats and diffusers will be configured according to Tenant's final space
plan and as part of tenant's cost. The testing and balancing of the tenant's
Premises and additional zones for conference rooms or special computer rooms are
tenant costs.
16. MILLWORK: All millwork is a tenant cost.
17. DESIGN: All design work as well as the cost to prepare partition,
electrical, finish, reflected ceiling, mechanical and plumbing plans is a tenant
cost.
18. INTERIOR GLASS: All interior glass is a tenant cost.
19. SECURITY: An electronically controlled card-access security system is
installed in the Building. A card-access reader is installed on each entry door
to the Building. Each card can be separately coded for individual employee
access, and the system can be configured for several authorized access levels.
If the Tenant selects the same manufacturer to provide an access-card system for
its Premises, one card can be programmed to gain access to the Building as well
as to the Premises. Any security system designed for leased space is a tenant
cost. A closed-circuit surveillance camera system is installed in the Building.
Cameras are installed at several locations on the first floor and at both
entries to the covered parking deck. The monitor for this system is located at
the security guard station in the main Building lobby. Security guard coverage
will be after business hours, weeknights and on weekends. Guard hours are
subject to change. Tenants and visitors entering and exiting the Building after
hours will be asked to sign a guest registry.
- 3 -
<PAGE>
EXHIBIT "E"
SPECIAL STIPULATIONS
1. RENEWAL OPTION. Provided no Event of Default exists at the time of
exercise or as of the commencement date of the Renewal Term (as defined
below), Tenant shall have the right to extend the term of this Lease
for five (5) years ("Renewal Term") with respect to all, but not any
lesser portion of the then current Premises upon all of the following
terms and conditions:
a. Tenant must provide Landlord notice of its exercise of the
option for the Renewal Term not less than nine (9) full months
prior to the expiration date of the Initial Term.
b. The Base Rent for each Lease Year of the Renewal Term shall be
as follows:
Lease Year 1 $23.36
Lease Year 2 $23.83
Lease Year 3 $24.30
Lease Year 4 $24.79
Lease Year 5 $25.29
c. During the Renewal Term Tenant shall continue to pay Tenant's
Prorata Share of Excess Operating Expenses as provided in the
Lease, and the Base Year shall remain the same.
d. Except for Base Rent at the new rate determined pursuant to
subsection b. above, all of the terms and conditions of the
Lease shall remain the same and shall remain in full force and
effect throughout the Renewal Term; provided, however, that
any free rent, improvement allowances, moving allowances,
lease assumption payments, plan design allowances (or
payments) or other similar concessions provided for in the
Initial Term of the Lease shall not apply during the Renewal
Term.
2. RIGHT OF FIRST REFUSAL. Provided no Event of Default then exists under
this Lease and subject and subordinate to all expansion rights of MCI,
Tenant shall have a continuing right of first refusal ("Refusal Right")
to lease that certain space consisting of approximately 10,348 rentable
square feet located as shown on EXHIBIT "B" ("REFUSAL SPACE").
a. If Landlord receives any bona-fide offer for any portion of
the Refusal Space and Landlord is willing to accept to such
bona fide offer, Landlord shall provide written notice to
Tenant ("Refusal Notice"). The Refusal Notice shall specify
the material terms and conditions on which Landlord is willing
to lease the applicable portion of the Refusal Space to the
third party who has made the
<PAGE>
offer. Tenant shall have ten (10) days following its receipt
of any Refusal Notice to notify Landlord, in writing, that
Tenant elects to lease all of the portion of the Refusal Space
specified in the Refusal Notice. If Tenant fails to respond
within such ten (10) day period, Tenant's Refusal Right shall
be deemed waived with respect to the Refusal Space specified
in the Refusal Notice and Landlord shall be free to lease the
applicable portion of the Refusal Space to the third party who
made the bona-fide offer. If Landlord does not enter into a
lease with such third party or if such third party's lease is
terminated or expires (without being renewed), Tenant shall
once again be entitled to the Refusal Right prior to Landlord
leasing the applicable portion of the Refusal Space to a third
party.
b. If Tenant exercises his Refusal Right, the commencement date
with respect to the Refusal Space ("Refusal Space Commencement
Date") shall be the earlier of (i) sixty (60) days after
Landlord delivers the applicable Refusal Space to Tenant or,
(ii) the date on which Tenant begins conducting business in
all or any portion of the Refusal Space. The Term of the Lease
with respect to the Refusal Space shall be coterminus with the
Term with respect to the remainder of the Premises; provided,
however, if the remainder of the Term from the Refusal Space
Commencement Date to the expiration of the Initial Term is
less than three (3) years, Tenant may only exercise this
Refusal Right by simultaneously extending the Term of the
Lease with respect to the original Premises so that there are
at least three (3) full years remaining in the Term of the
Lease with respect to all of the Premises including the
Refusal Space. If Tenant exercises this right to extend the
Term for less than all of the Renewal Term, the Renewal Term
shall be reduced to the period of time remaining after
expiration of the initial Term, as so extended.
c. The terms and conditions applicable to the Refusal Space shall
be those set forth in the Refusal Notice; provided, however,
if the terms set forth in the Refusal Notice include
improvement allowances or other financial concessions and the
term proposed in the Refusal Notice is in excess of the
remainder of the Term of the Lease (as it may be extended
pursuant to paragraph 2(b) above), all such improvement
allowances or other financial concessions shall be reduced to
an amount determined by multiplying the applicable improvement
allowance or financial concession by a fraction, the numerator
of which is the number of months remaining in the Term of the
Lease (as it may have been extended) and the denominator of
which is the total number of months in the term described in
the Refusal Notice. Except as provided above in this Section
2, and except for the terms and conditions set forth in the
Refusal Notice, the Refusal Space shall be added to the
Premises on all the terms and conditions set forth in this
Lease.
3. SATELLITE DISH/TELECOMMUNICATIONS. In addition to the other rights
granted by this Agreement, Tenant shall have the non-exclusive right
but not the obligation, for the duration of the Lease Term to install,
maintain and operate not more than two (2) microwave and satellite
dishes/antennas (not in excess of 1' in diameter), mounted on a
- 2 -
<PAGE>
non-penetrating structure, and related plenum-routed cabling
(collectively, the "Antennas") on the Building's roof (the "Roof"). The
location for any Antennas shall be designated by Landlord. Tenant must
obtain the prior approval of Landlord for the exact design and
specifications of the Antennas and of the plans for the installation
(including screening) of the Antennas, which approval shall not be
unreasonably withheld or delayed. All costs of installation,
maintenance and removal and any required repairs to the Building due to
such removal (if required by Landlord, in its sole discretion, upon
expiration or termination of this Lease) shall be paid by Tenant.
Tenant may only enter the Roof to install or maintain the Antennas with
the accompaniment of a Building engineer. Tenant's Antennas may not
interfere with the operation of any other telecommunication equipment
installed on the Roof by Landlord, its other tenants or its licensees.
Tenant hereby indemnifies Landlord from all claims, damages, costs and
expenses arising out of the installation, maintenance, use or removal
of the Antennas by Tenant. Landlord reserves the right to require
Tenant to relocate the Antennas temporarily if necessary in connection
with repairs, replacement, alterations or improvements to the roof.
Notwithstanding anything to the contrary set forth hereinabove, Tenant
will first explore the viability of satellite dishes placed on ground
mounted pads at locations designated by Landlord. If such ground
mounted satellite dishes adequately serve the Premises, Tenant will not
install any Antennas. Tenant's obligations with respect to any ground
mounted satellite dishes will be the same as Tenant's obligations with
respect to the Antennas.
4. SIGNS. Building standard suite entry signs shall be installed on the
doors to the Premises on each floor or adjacent to the entry to the
Premises as part of Tenant's Work and the cost thereof shall be paid by
Landlord and not deducted from the Improvement Allowance. Tenant shall
also be entitled to a pro rata share of the entries in the Building
directory at no cost to Tenant. Otherwise, Tenant shall not paint or
place signs, placards, or other advertisements of any character upon
the windows or inside walls of the Premises except with the consent of
Landlord which consent may be withheld by Landlord in its absolute
discretion. In addition, Landlord does hereby agree that Tenant shall
be entitled to an entry (non-exclusive) on a monument sign at the
entrance to the Building. The exact location, size, appearance,
materials and design of the monument sign will be selected by Landlord.
The sign will be designed by Landlord's architect. Tenant's entry on
such sign shall be at Tenant's expense, which entry may include
Tenant's corporate logo In the event Tenant subleases space so that
there are not at least 15,000 rentable square feet in the Premises
which are not subject to a sublease, the monument sign right described
herein shall immediately cease and Landlord shall have the right to
remove such sign at Tenant's expense. Upon the expiration or
termination of the Lease, Tenant shall be responsible for removing
Tenant's entry from the monument sign, and for restoring any damage to
the monument resulting from such removal.
5. QUIET ENJOYMENT. So long as Tenant is not in default under the terms of
this Lease, neither Landlord nor anybody claiming by, through or under
Landlord shall interfere with Tenant's quiet use and enjoyment of the
Premises throughout the Term (and the renewal term, if exercised).
- 5 -
<PAGE>
6. DIESEL GENERATOR. Subject to the terms and conditions of this special
stipulation No. 6, Landlord hereby agrees to allow Tenant to install a
diesel powered back-up generator to serve the Premises. The location of
such generator, the method of installation, the contractor used for
such installation and the method of screening of any such generator
shall all be subject to the prior written approval of Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed.
All costs and expenses in connection with the installation, operation
and maintenance of such diesel generator shall be borne by Tenant.
Tenant shall be obligated, at its sole expense, to remove such
generator upon the expiration or termination of this Lease. Tenant does
hereby indemnify and hold Landlord from and against any and all claims,
damages, costs and expenses including, without limitation, any
violations of environmental laws, rules and regulations which arise out
of Tenant's installation or use of such generator.
7. DELAY IN SUBSTANTIAL COMPLETION. If Landlord fails to achieve
Substantial Completion of Tenant's Work (as accelerated by all Tenant
Delays) on or before September 1, 1999, as such date may be extended
for force majeure delays, Tenant shall have the right to terminate this
Lease. Tenant may exercise this right only by written notice to
Landlord on or before September 30, 1999. If Tenant exercises this
right, neither party shall have any further rights, duties, liabilities
or obligations under this Lease. If Tenant does not exercise this right
on or before September 30, 1999, Tenant shall be deemed to have waived
its right to terminate. Notwithstanding anything to the contrary set
forth hereinabove, if Kinzey is selected as the contractor to perform
Tenant's Work, this paragraph shall be of no force and effect
whatsoever and Tenant shall have no right whatsoever to terminate this
Lease if Landlord fails to achieve Substantial Completion of Tenant's
Work on or before September 1, 1999.
- 4 -
<PAGE>
EXHIBIT "F"
JANITORIAL SERVICES
Building surfaces and furnishings shall be maintained in first class
condition, free of odors, spots, stains, visible soil, dust, dirt, scuff marks,
and dirt/chemical build-up. Fixtures that are not in proper working order (e.g.,
lights, towel/towel tissue dispensers, toilets, etc.) shall receive proper
maintenance. Specifically, the following services shall be provided by the
Landlord:
OFFICES
A. DAILY
1. Empty wastebaskets and replace liners as needed.
2. Empty and damp clean ashtrays/receptacles.
3. Dust building furnishings including desks, chairs, and bases,
partitions, telephones, tables, filing cabinets, bookcases,
and shelves.
4. Spot clean desk tops. 5. Clean counter tops.
6. Clean and sanitize drinking fountains.
7. Vacuum carpets.
8. Spot clean carpet and spot mop any hard surface floors with
spills.
9. Spot clean door.
10. Dust mop all hard surfaced floors.
11. Sweep all stairways.
12. Remove all trash and recyclable materials.
13. Wet wipe all tables in eating areas.
B. WEEKLY
1. Low dust all vertical surfaces (floor to 6') including
permanent fixtures/ decorations attached to walls.
2. Clean entire desk tops (where possible).
3. Remove fingerprints from doors, frames, light switches, kick
and push plates, handles and telephones.
4. Spot clean interior window glass. 5. Wash tile floors.
C. MONTHLY
1. Dust Venetian blinds.
2. Remove cobwebs from ceiling areas.
3. Dust air grilles and light fixtures.
4. Vacuum upholstered furniture.
5. Polish and buff (no wax) resilient floors.
6. Clean carpet in high traffic areas (entrances, lobbies, lunch
rooms, main traffic aisles) with dry chemical and/or
extraction method.
<PAGE>
D. QUARTERLY
1. Clean inside windows and partition glass.
2. Polish furniture.
3. High dust surface above 6'.
4. Clean carpet in moderate traffic areas (interior aisles,
private offices, conference rooms) with a dry chemical and/or
extraction method.
5. Wash exterior windows.
E. ANNUALLY
1. Clean carpet in light traffic areas (general office) with a
dry chemical and/or extraction method.
F. AS NECESSARY
1. Replace light bulbs.
LAVATORIES
A. TWICE DAILY
1. Refill all dispensers.
2. Remove all wastepaper and refuse.
B. NIGHTLY
1. Sweep floors.
2. Wash floors.
3. Clean fixtures (toilet, dispensers, sinks, pipes) with
disinfectant.
4. Clean and polish all metal and mirrors.
5. Clean partitions.
C. QUARTERLY
1. Completely wash partitions/walls.
2. Machine scrub floors.
- 2 -
<PAGE>
EXHIBIT "G"
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT made this _____________ day of ________________, 19___,
among WACHOVIA BANK OF GEORGIA, N.A., a national banking association chartered
pursuant to the laws of the United States of America (hereinafter referred to as
"Lender"), _________________ (hereinafter referred to as "Tenant"), and
________________ (hereinafter referred to as "Landlord").
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into a certain lease
(hereinafter referred to as the " Lease ") dated ___________________, amended
_____________________, relating to the premises described in EXHIBIT "A"
attached hereto and by this reference made a part hereof (hereinafter referred
to as the "Premises"); and
WHEREAS, Lender has made or has committed to make a loan to Landlord in
the principal amount of $___________________ secured by a mortgage or security
deed (hereinafter referred to as the "Mortgage") and an assignment of leases and
rents from Landlord to Lender covering the Premises; and
WHEREAS, Tenant has agreed that the Lease shall be subject and
subordinate to the Mortgage held by Lender, provided Tenant is assured of
continued occupancy of the Premises under the terms of the Lease;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
contained, the sum of Ten Dollars ($10.00) and other good and valuable
considerations the receipt and sufficiency of which are hereby acknowledged, and
notwithstanding anything in the Lease to the contrary, it is hereby agreed as
follows:
1. Lender, Tenant and Landlord do hereby covenant and agree that the
Lease with all rights, options, liens and charges created thereby, is and shall
continue to be subject and subordinate in all respects to the Mortgage and to
any renewals, modifications, consolidations, replacements and extensions thereof
and to all advancements made thereunder.
2. Lender does hereby agree with Tenant that, in the event Lender
becomes the owner of the Premises by foreclosure, conveyance in lieu of
foreclosure or otherwise, so long as Tenant complies with and performs its
obligations under the Lease, (a) Lender will take no action which will interfere
with or disturb Tenant's possession or use of the Premises or other rights under
the Lease, and (b) the Premises shall be subject to the Lease and Lender shall
recognize Tenant as the tenant of the Premises for the remainder of the term of
the Lease in accordance with the provisions thereof, provided, however, that
Lender shall not be subject to any offsets or defenses which Tenant might have
against any prior Landlord except those which arose under the provisions of the
Lease out of such Landlord's default and accrued after Tenant
<PAGE>
had notified Lender and given Lender the opportunity to cure same as hereinbelow
provided, nor shall Lender be liable for any act or omission of any prior
Landlord, nor shall Lender be bound by any rent or additional rent which Tenant
might have paid for more than the current month to any prior Landlord nor shall
it be bound by any amendment or modification of the Lease made after the date
hereof without its consent.
3. Tenant does hereby agree with Lender that, in the event Lender
becomes the owner of the Premises by foreclosure, conveyance in lieu of
foreclosure or otherwise, then Tenant shall attorn to and recognize Lender as
the Landlord under the Lease for the remainder of the term thereof, and Tenant
shall perform and observe its obligations thereunder, subject only to the terms
and conditions of the Lease. Tenant further covenants and agrees to execute and
deliver upon request of Lender, or its assigns, an appropriate agreement of
attornment to lender and any subsequent titleholder of the Premises.
4. So long as the Mortgage remains outstanding and unsatisfied, Tenant
will mail or deliver to Lender, at the address and in the manner hereinbelow
provided, a copy of an notices permitted or required to be given to the Landlord
by Tenant under and pursuant to the terms and provisions of the Lease. At any
time before the rights of the Landlord shall have been forfeited or adversely
affected because of any default of the Landlord, or within the time permitted
the Landlord for curing any default under the Lease as therein provided (but not
less than sixty (60) days from the receipt of notice), Lender may, but shall
have no obligation to, pay any taxes and assessments, make any repairs and
improvements, make any deposits or do any other act or thing required of the
Landlord by the terms of the Lease; and all payments so made and all things so
done and performed by Lender shall be as effective to prevent the rights of the
Landlord from being forfeited or adversely affected because of any default under
the Lease as the same would have been if done and performed by the Landlord.
5. Tenant acknowledges that Landlord will execute and deliver to Lender
an assignment of the Lease as security for said loan, and Tenant hereby
expressly consents to such assignment.
6. Landlord and Tenant hereby certify to Lender that the Lease has been
duly executed by Landlord and Tenant and is in full force and effect; that the
Lease and any modifications and amendments specified herein are a complete
statement of the agreement between Landlord and Tenant with respect to the
leasing of the Premises, and the Lease has not been modified or amended except
as specified herein; that to the knowledge of Landlord and Tenant, no party to
the Lease is in default thereunder; that no rent under the Lease has been paid
more than thirty (30) days in advance of its due date; and that Tenant, as of
this date, has no charge, lien or claim of offset under the Lease, or otherwise,
against the rents or other charges due or to become due thereunder.
7. Unless and except as otherwise specifically provided herein, any and
all notices, elections, approvals, consents, demands, requests and responses
thereto ("Communications") permitted or required to be given under this
Agreement shall be in writing, signed by or on behalf of the party giving the
same, and shall be deemed to have been properly given and shall
- 2 -
<PAGE>
be effective upon the earlier of receipt thereof or deposit thereof in the
United States mail, postage prepaid, certified with return receipt requested, to
the other party at the address of such other party set forth hereinbelow or at
such other address within the continental United States as such other party may
designate by notice specifically designated as a notice of change of address and
given in accordance herewith; provided, however, that the time period in which a
response to any communication must be given shall commence on the date of
receipt thereof, and provided further that no notice of change of address shall
be effective with respect to Communications sent prior to the time of receipt
thereof Receipt of communications hereunder shall occur upon actual delivery
whether by mail telecopy transmission, messenger, courier service, or otherwise)
to an individual party or to an officer or general or limited partner of a party
or to any agent or employee of such party at the address of such party set forth
hereinbelow, subject to change as provided hereinabove. An attempted delivery in
accordance with the foregoing, acceptance of which is refused or rejected, shall
be deemed to be and shall constitute receipt; and an attempted delivery in
accordance with the foregoing by mail, messenger, or courier service (whichever
is chosen by the sender) which is not completed because of changed address of
which no notice was received by the sender in accordance with this provision
prior to the sending of the Communication shall also be deemed to be and
constitute receipt. Any communication, if given to Lender, must be addressed as
follows, subject to change as provided hereinabove:
Wachovia Bank of Georgia, N.A.
Real Estate Finance Division
191 Peachtree Street Mail Code 1810
Atlanta, Georgia 30303
and, if given to Tenant, must be addressed as follows, subject to change as
provided hereinabove:
and, if given to Landlord, shall be addressed as follows:
8. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors,
successors-in-title and assigns. When used herein, the term "Landlord" refers to
Landlord and to any successor to the interest of Landlord under the Lease.
- 3 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
under seal as of the date first above written.
Signed, sealed and delivered in..... LENDER:
the presence of:
WACHOVIA BANK OF GEORGIA
By:
---------------------------- -----------------------------------------
Unofficial Witness Name:
---------------------------------------
Title:
--------------------------------------
(BANK SEAL)
----------------------------
Notary Public
Commission Expiration Date:
(NOTARIAL SEAL)
Signed, sealed and delivered in TENANT:
the presence of:
By:
---------------------------- -----------------------------------------
Unofficial Witness Name:
---------------------------------------
Title:
--------------------------------------
Notary Public
Commission Expiration Date:
(NOTARIAL SEAL)
- 4 -
<PAGE>
Signed, sealed and delivered in LANDLORD:
the presence of:
By:
---------------------------- -----------------------------------------
Unofficial Witness Name:
---------------------------------------
Title:
--------------------------------------
Notary Public
Commission Expiration Date:
(NOTARIAL SEAL)
- 5 -