Georgia-Norcross-3890 Steve Reynolds Boulevard Lease - Weeks Realty LP and Novoste Corp.
COVER PAGE
The capitalized terms in this Lease shall have the meanings ascribed to
them below, and each reference to such term in the Lease shall incorporate such
meaning therein as if fully set forth therein.
LANDLORD: WEEKS REALTY, L.P., a Georgia limited partnership, with its
principal office located at 4497 Park Drive, Norcross, Georgia
30093
TENANT: NOVOSTE CORPORATION, a corporation duly organized and existing
under the laws of the State of Florida.
LEASED
PREMISES: (a) Address: 3890 Steve Reynolds Boulevard
Norcross, GA 30093
(b) Suite: N/A
(c) Rentable Area: 48,800 square feet
(d) Pro Rata Share: 100%
(e) Project: Gwinnett Pavilion
TERM: Five (5) years
COMMENCEMENT DATE: December 1, 1998
TERMINATION DATE: November 30, 2003
BASE RENT
(PER YEAR): $390,400.00
BASE YEAR: 1999
SECURITY DEPOSIT: $6,159.00
TENANT'S AGENT: Ken Ashley
Cushman & Wakefield
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NOVOSTE CORPORATION
LEASE AGREEMENT
TABLE OF CONTENTS
SECTION PAGE
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1 LEASED PREMISES ........................................................1
2 TERM.....................................................................1
3 RENTAL...................................................................1
4 DELAY IN DELIVERY........................................................2
5 USE OF LEASED PREMISES...................................................2
6 UTILITIES................................................................3
7 ACCEPTANCE OF PREMISES...................................................3
8 ALTERATIONS, MECHANICS' LIENS............................................3
9 QUIET CONDUCT/QUIET ENJOYMENT............................................4
10 FIRE INSURANCE, HAZARDS..................................................4
11 LIABILITY INSURANCE......................................................5
12 INDEMNIFICATION..........................................................5
13 WAIVER OF CLAIMS.........................................................5
14 REPAIRS..................................................................6
15 SIGNS, LANDSCAPING.......................................................6
16 ENTRY BY LANDLORD........................................................6
17 TAXES AND INSURANCE INCREASE.............................................7
18 ABANDONMENT..............................................................8
19 DESTRUCTION..............................................................8
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20 ASSIGNMENT AND SUBLETTING................................................9
21 INSOLVENCY OF TENANT.....................................................9
22 BREACH BY TENANT.........................................................9
23 ATTORNEYS' FEES/COLLECTION CHARGES.......................................10
24 CONDEMNATION.............................................................10
25 NOTICES..................................................................11
26 WAIVER...................................................................11
27 EFFECT OF HOLDING OVER...................................................11
28 SUBORDINATION............................................................12
29 ESTOPPEL CERTIFICATE.....................................................12
30 PARKING..................................................................12
31 MORTGAGEE PROTECTION.....................................................12
32 PROTECTIVE COVENANTS.....................................................13
33 RELOCATION...............................................................13
34 BROKERAGE COMMISSIONS....................................................13
MISCELLANEOUS PROVISIONS.....................................................13
EXHIBITS:
EXHIBIT "A": Site Plan
EXHIBIT "B": Floor Plan of the Leased Premises
EXHIBIT "C": Tenant's Acceptance of Premises
EXHIBIT "D": Subordination, Non-disturbance and
Attornment Agreement
EXHIBIT "E": Special Stipulations
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STATE OF GEORGIA
GWINNETT COUNTY
This Lease Agreement is made this ______ day of ____________, 1998, by and
between WEEKS REALTY, L.P., a Georgia limited partnership, hereinafter referred
to as "Landlord", and NOVOSTE CORPORATION, hereinafter referred to as "Tenant".
LEASED PREMISES
1.01 Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the property hereinafter referred to as the LEASED PREMISES, described
as approximately 48,800 rentable square feet of office/warehouse at 3890 Steve
Reynolds Boulevard, Norcross, Georgia 30093, Gwinnett County, in Gwinnett
Pavilion, as shown on the plan attached hereto as Exhibit "A" and by reference
incorporated herein. The building in which the Leased Premises are located is
herein referred to as the "Building"; and the real property on which the
building is situated is herein referred to as the "Land".
TERM
2.01 TO HAVE AND TO HOLD said Leased Premises for a term of Five (5)
years, commencing on December 1, 1998, and continuing until midnight on November
30, 2003.
RENTAL
3.01 As rental for the Leased Premises, Tenant agrees to pay to Landlord,
without offset or abatement, the sum of
December 1, 1998 - November 30, 2001 $32,533.33/month $390,400.00/year
December 1, 2001 - November 30, 2002 $33,834.67/month $406,016.00/year
December 1, 2002 - November 30, 2003 $35,176.67/month $422,120.00/year
on or before the first day of each calendar month beginning on December 1, 1998
and thereafter for the remainder of the term, together with any other additional
rental as hereinafter set forth. Tenant shall pay interest at a rate of twelve
percent (12%) per annum on all late payments of rent. If the Lease shall
commence on any date other than the first day of a calendar month, or end on any
date, other than the last day of a calendar month, rent for such month shall be
prorated. Tenant has deposited with Landlord, upon delivery of this Lease
Agreement, an amount equal to Thirty-Two Thousand Five Hundred Thirty-Three and
33/100 ($32,533.33) Dollars, which to be applied as first month's Base Rental
Landlord shall hold an amount equal to Six Thousand One Hundred Fifty-Nine and
no/100 ($6,159.00) Dollars from Tenant's previous lease agreement, and upon
execution of this Lease, shall apply said amount to be held as a refundable
security deposit for this Lease. Landlord may apply all or any part of the
security deposit to cure
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any default by Tenant hereunder and Tenant shall promptly restore to the
security deposit all amounts so applied upon invoice therefor. If Tenant shall
fully perform each provision of this Lease, any portion of the security deposit
which has not been appropriated by Landlord in accordance with the provisions
hereof shall be returned to Tenant, without interest, within thirty (30) days
after the expiration of the term of this Lease.
3.02 The rental provided in paragraph 3.01 "Rental" above, includes an
allowance ("Allowance") in the amount of $4.10 per square foot, not to exceed
$200,000.00 in the Leased Premises for the construction of tenant improvements
on the basis set forth in the plans and specifications attached, or to be
attached, hereto in Exhibit "B". Landlord shall submit to Tenant an estimate of
Landlord's tenant improvement cost ("Landlord's Estimate of Costs") for Tenant's
review and approval. Tenant will be deemed to have approved and accepted
Landlord's Estimate of Costs, unless Tenant shall have, within ten (10) calendar
days from receipt of the same, in writing, questioned or objected to costs to be
included as tenant improvement costs. If the total of the approved Landlord's
Estimate of Costs shall be greater than the Allowance, then Tenant shall pay to
Landlord such excess by cash payment within thirty (30) days after approval of
Landlord's Estimate of Costs and invoice, as hereafter provided. If the costs of
construction of the tenant improvements exceeds Landlord's Estimate of Costs for
reasons other than changes or delays initiated by Tenant, then Tenant shall not
be responsible for such excess costs.
3.03 In addition to the Base Rental, Tenant agrees to pay Landlord as
additional rental, its pro rata share of the amounts described in subparagraphs
(a) and (b) below. Each year during the term hereof, Landlord shall give Tenant
written notice of its estimate of the amount of common area maintenance charges
and common area utility charges (collectively "Charges") for the Leased Premises
for the calendar year. Tenant shall, thereafter, during that calendar year, pay
to Landlord one-twelfth (1/12) of the amount set forth in said statement at such
time as its monthly installments of Base Rental hereunder are due and payable.
At such time as Landlord is able to determine the actual Charges for such
calendar year, Landlord shall deliver to Tenant a statement thereof and in the
event the estimated Charges differ from the actual Charges, any adjustment
necessary shall be made to additional rental payments next coming due under this
paragraph. If Tenant has paid more than ten percent (10%) in excess of the
actual amount due from Tenant, Landlord shall pay interest on the overpayment,
and Landlord shall credit such excess against the next additional rent payments
coming due under this paragraph.
(a) Landlord agrees to maintain those areas around the Building and in the
Project, including parking areas, planted areas, signs and landscaped areas
which are from time to time designated by Landlord. Tenant agrees to pay to
Landlord as additional rental all ground maintenance charges and other common
area charges and expenses for the Building and the Land ("CAM Charges"). The
term "grounds maintenance" shall include, without limitation, all landscaping,
planting, lawn and grounds care, all repairs and maintenance to the grounds,
signs and other common areas
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around the Building and in the Project and to all sidewalks, driveways, loading
areas and parking areas. CAM Charges shall not include items of a capital
nature.
(b) In the event any utilities furnished to the Building or the Leased
Premises are not separately metered, Tenant shall pay to Landlord, as additional
rental, the cost of the gas, water, electricity, fuel, irrigation costs, light
and heat, garbage collection services and for all other sanitary services
rendered to the Leased Premises used by Tenant.
3.04 Tenant agrees to pay as additional rent to Landlord, upon demand, its
pro rata share of any utility surcharges, or any other costs levied, assessed or
imposed by, or at the direction of, or resulting from statutes or regulations,
or interpretations thereof, promulgated by any Federal, State, Municipal or
local governmental authorities in connection with the use or occupancy of the
Leased Premises not including penalties and late fees.
DELAY IN DELIVERY OF POSSESSION
4.01 If Landlord, for any reason whatsoever except gross negligence or
willful misconduct, cannot deliver possession of the Leased Premises to Tenant
at the commencement of the term of this Lease, this Lease shall not be void or
voidable, nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom, but in that event there shall be a proportionate reduction
of rent covering the period between the commencement of the term and the time
when Landlord can deliver possession. If delay is longer than three (3) months,
Landlord will provide Tenant such space (not exceeding in area the Leased
Premises) as Landlord may have available, until the Leased Premises can be
completed, at no charge to Tenant. The term of this Lease shall be extended by
such delay.
USE OF LEASED PREMISES
5.01 The Leased Premises may be used and occupied only for general
manufacturing and assembly, development and testing of medical devices,
warehousing and distribution, showroom and offices and for no other purpose or
purposes, without Landlord's prior written consent. Tenant shall promptly comply
at its sole expense with all laws, ordinances, orders, and regulations affecting
the Leased Premises and their cleanliness, safety, occupation and use. Tenant
shall not do or permit anything to be done in or about the Leased Premises that
will in any way increase the fire insurance premium upon the building. Tenant
will not perform any act or carry on any practices that may injure the building
or be a nuisance or menace to tenants of adjoining premises. Tenant shall not
cause, maintain or permit any outside storage on or about the Leased Premises,
including pallets or other refuse. The rear loading areas of the Tenant's unit
must be clean and unobstructed. On or before the Commencement Date, Tenant shall
take possession of, and, thereafter, continuously occupy the Leased Premises
during the term of this Lease, and operate thereon the normal business
operations of Tenant.
5.02 Tenant shall, at Tenant's sole cost and expense, comply fully with
all environmental laws and regulations, and all other legal requirements,
applicable to
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Tenant's operations at, on or within, or to Tenant's use and occupancy of, the
Leased Premises. Tenant shall not (either with or without negligence) cause or
permit the escape, disposal or release of any biologically or chemically active
or other hazardous substances, or materials. Tenant shall not allow the storage
or use of such substances or materials in any manner not sanctioned by law or by
the highest standards prevailing in the industry for the storage and use of such
substances or materials, nor allow to be brought into the Project any such
materials or substances except to use in the ordinary course of Tenant's
business, and then only after written notice is given to Landlord of the
identity of such substances or materials. Without limitation, hazardous
substances and materials shall include those described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws and
the regulations adopted under these acts. If any governmental agency shall ever
require testing to ascertain whether or not there has been any release of
hazardous materials, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as additional charges if such requirement applies
to the Leased Premises. In addition, Tenant shall execute affidavits,
representations and the like from time to time at Landlord's request concerning
Tenant's best knowledge and belief regarding the presence of hazardous
substances or materials on the Leased Premises. In all events, Tenant shall
indemnify Landlord in the manner elsewhere provided in this lease from any
release of hazardous materials on the Leased Premises occurring while Tenant is
in possession, or elsewhere if caused by Tenant or persons acting under Tenant.
The within covenants shall survive the expiration or earlier termination of the
lease term.
5.03 Landlord represents and warrants to the best of its knowledge and
belief there are no hazardous substances currently located on the Leased
Premises.
UTILITIES
6.01 Landlord shall not be liable in the event of any interruption in the
supply of any utilities unless the interruption in supply of utilities is caused
by the negligence of Landlord, its agents, servants or employees (but Landlord
shall not be responsible for the actions of independent contractors). In the
event Landlord is responsible for an interruption in the supply of utilities as
provided herein, and such interruption adversely affects Tenant's ability to
conduct its business in the Leased Premises for more than two consecutive
business days, Tenant shall be entitled to an abatement of base rental for each
day after the second business day during which the interruption continues as its
sole remedy for such interruption. Tenant agrees that it will not install any
equipment which will exceed or overload the capacity of any utility facilities
and that if any equipment installed by Tenant shall require additional utility
facilities, the same shall be installed by Tenant at Tenant's expense in
accordance with plans and specifications approved in writing by Landlord. Tenant
shall be solely responsible for and shall pay all charges for use or consumption
of sanitary sewer, water, gas, electricity and any other utility services
serving the Leased Premises. In the event Landlord determines that it is
advisable to separately meter any utility services provided to the Leased
Premises, Landlord shall
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have the right to install a sub-meter and bill Tenant for the actual cost
thereof, which shall be paid to Landlord within fifteen (15) days following
billing.
ACCEPTANCE OF LEASED PREMISES
7.01 By entry hereunder, Tenant acknowledges that it has examined the
Leased Premises and accepts the same as being in the condition called for by
this Lease, and as suited for the uses intended by Tenant, except for latent
defects and/or hazardous materials. Upon delivery of possession of the Leased
Premises to Tenant, Tenant agrees to execute and deliver to Landlord a Tenant's
Acceptance of Premises, in the form attached hereto as Exhibit "C".
ALTERATIONS, MECHANICS' LIENS
8.01 Structural alterations may not be made to the Leased Premises without
prior written consent of Landlord, and any alterations of the Leased Premises
excepting movable furniture and trade fixtures shall at Landlord's option become
part of the realty and belong to Landlord.
8.02 Should Tenant desire to alter the Leased Premises and Landlord gives
written consent to such alterations, at Landlord's option, Tenant shall contract
with a contractor approved by Landlord for the construction of such alterations.
8.03 Notwithstanding anything in paragraph 8.02 above, Tenant may, upon
written consent of Landlord, install trade fixtures, machinery or other trade
equipment in conformance with all applicable laws, statutes, ordinances, rules,
regulations, and the same may be removed upon the termination of this Lease
provided Tenant shall not be in default under any of the terms and conditions of
this Lease, and the Leased Premises are not damaged by such removal. Tenant
shall return the Leased Premises on the termination of this Lease in the same
condition as when rented to Tenant, reasonable wear and tear only excepted.
Tenant shall keep the Leased Premises, the building and property in which the
Leased Premises are situated free from any liens arising out of any work
performed for, materials furnished to, or obligations incurred by Tenant. All
such work provided for above, shall be done at such times and in such manner as
Landlord may from time to time designate. Tenant shall give Landlord written
notice five (5) days prior to employing any laborer or contractor to perform
work resulting in an alteration of the Leased Premises so that Landlord may post
a notice of non-responsibility.
QUIET CONDUCT/QUIET ENJOYMENT
9.01 Tenant shall not commit, or suffer any waste upon the Leased
Premises, or any nuisance, or other act or thing which may disturb the quiet
enjoyment of any other tenant in the Building or any building in the project in
which the Leased Premises are located.
9.02 So long as Tenant is not in default in the payment of rent, or other
charges or in the performance of any of the other terms, covenants, or
conditions of the Lease,
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Tenant shall not be disturbed by Landlord or anyone claiming by, through or
under Landlord in Tenant's possession, enjoyment, use and occupancy of the
Leased Premises during the original or any renewal term of the Lease or any
extension or modification thereof.
FIRE INSURANCE, HAZARDS
10.01 No use shall be made or permitted to be made of the Leased Premises,
nor acts done which might increase the existing rate of insurance upon the
building or cause the cancellation of any insurance policy covering the
building, or any part thereof, nor shall Tenant sell, or permit to be kept, used
or sold, in or about the Leased Premises, any article which may be prohibited by
the Standard form of fire insurance policies. Landlord hereby represents and
warrants that Tenant's current use of the Leased Premises shall not increase the
existing rate of insurance upon the Building or cause the cancellation of any
insurance policy covering the Building, or any part thereof. Tenant shall, at
its sole cost and expense, comply with any and all requirements pertaining to
the Leased Premises, of any insurance organization or company, necessary for the
maintenance of reasonable fire and public liability insurance, covering the
Leased Premises, building and appurtenances.
10.02 Tenant shall maintain in full force and effect on all of its
inventory, fixtures and equipment in the Leased Premises a policy or policies of
fire and extended coverage insurance with standard coverage endorsement to the
extent of at least eighty percent (80%) of their insurable value. During the
term of this Lease the proceeds from any such policy or policies of insurance
shall be used for the repair or replacement of the fixtures, and Landlord will
sign all documents necessary or proper in connection with the settlement of any
claim or loss by Tenant. Landlord will not carry insurance on Tenant's
possessions. Tenant shall furnish Landlord with a certificate of such policy
within thirty (30) days of the commencement of this Lease, and whenever
required, shall satisfy Landlord that such policy is in full force and effect.
LIABILITY INSURANCE
11.01 Tenant, at its own expense, shall provide and keep in force with
companies acceptable to Landlord public liability insurance for the benefit of
Landlord and Tenant jointly against liability for bodily injury and property
damage in the amount of not less than Three Million Dollars ($3,000,000.00) in
respect to injuries to or death of more than one person in any one occurrence,
in the amount of not less than One Million Dollars ($1,000,000.00) in respect to
injuries to or death of any one person, and in the amount of not less than One
Million Dollars ($1,000,000.00) per occurrence in respect to damage to property,
such limits to be for any greater amounts as may be reasonably indicated by
circumstances from time to time existing. Tenant shall furnish Landlord with a
certificate of such policy within thirty (30) days of the commencement date of
this Lease and whenever required shall satisfy Landlord that such policy is in
full force and effect. Such policy shall name Landlord as an additional insured
and shall be primary and non-contributing with any insurance carried by
Landlord. The policy shall contain a contractual liability endorsement. The
policy shall further provide that it shall not be canceled or altered without
twenty (20) days prior written notice to Landlord.
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INDEMNIFICATION
12.01 Tenant shall indemnify and hold harmless Landlord against and from
any and all claims arising from Tenant's use of the Leased Premises (other than
those arising solely from negligence or intentional misconduct of Landlord or
its agents or employees), or the conduct of its business or from any activity,
work, or thing done, permitted or suffered by the Tenant in or about the Leased
Premises, and shall further indemnify and hold harmless Landlord against and
from any and all claims arising from any breach or default in the performance of
any obligation on Tenant's part to be performed under the terms of this Lease,
or arising from any act, neglect, fault or omission of the Tenant, or of its
agents or employees, and from and against all costs, reasonable attorney's fees,
expenses and liabilities actually incurred in or about such claim or any action
or proceeding brought relative thereto and in case any action or proceeding be
brought against Landlord by reason of any such claim, Tenant upon notice from
Landlord shall defend the same at Tenant's expense by counsel, chosen by Tenant
and who is reasonably acceptable to Landlord. Landlord acknowledges that
Tenant's insurance company counsel shall be sufficient for purposes of this
Section 12.01. Tenant, as a material part of the consideration to Landlord,
hereby assumes all risk of damage to property or injury to persons in or about
the Leased Premises from any cause whatsoever except that which is caused by the
failure of Landlord to observe any of the terms and conditions of this Lease
where such failure has persisted for an unreasonable period of time after
written notice of such failure, and Tenant hereby waives all claims in respect
thereof against Landlord.
12.02 Landlord shall indemnify Tenant and hold Tenant harmless against and
from all claims arising from the negligence or willful misconduct of Landlord,
its agents, employees or contractors, with respect to the Leased Premises that
is not insured against or required to be insured against under the insurance
policies Tenant is required to maintain under this Lease.
12.03 The obligations of Landlord and Tenant under this paragraph arising
by reason of any occurrence taking place during the term of this Lease shall
survive the termination or expiration of this Lease.
WAIVER OF CLAIMS
13.01 Tenant, as a material part of the consideration to be rendered to
Landlord, hereby waives all claims against Landlord for damages to goods, wares
and merchandise in, upon or about the Leased Premises and for injury to Tenant,
its agents, employees, invitees, or third persons in or about the Leased
Premises from any cause arising at any time, except as provided in Sections
12.01 and 12.02 above.
REPAIRS
14.01 Tenant shall, at its sole cost, keep and maintain the Leased
Premises and appurtenances and every part thereof (excepting exterior walls and
roofs which Landlord agrees to repair) including by way of illustration and not
by way of limitation all
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windows, and skylights, doors, any store front and the interior of the Leased
Premises, including all plumbing, heating, air conditioning, sewer, electrical
systems and all fixtures and all other similar equipment serving the Leased
Premises in good and sanitary order, condition, and repair. Tenant shall
maintain, but shall not be responsible to replace items of a capital nature,
except the HVAC system. Tenant shall be responsible for all pest control within
the Leased Premises, including, but not limited to the eradication of any ants
or termites should infestation be observed during the term of the Lease. Tenant
shall, at its sole cost, keep and maintain all utilities, fixtures and
mechanical equipment used by Tenant in good order, condition, and repair. All
windows shall be washed and cleaned as often as necessary to keep them clean and
free from smudges and stains. In the event Tenant fails to maintain the Leased
Premises as required herein or fails to commence repairs (requested by Landlord
in writing) within thirty (30) days after such request, or fails diligently to
proceed thereafter to complete such repairs, Landlord shall have the right in
order to preserve the Leased Premises or portion thereof, and/or the appearance
thereof, to make such repairs or have a contractor make such repairs and charge
Tenant for the cost thereof as additional rent, together with interest at the
rate of twelve percent (12%) per annum from the date of making such payments.
14.02 Landlord agrees to keep in good repair the roof, foundations, and
exterior walls of the Leased Premises except repairs rendered necessary by the
negligence of Tenant, its agents, employees or invitees. Landlord gives to
Tenant exclusive control of Leased Premises and shall be under no obligations to
inspect said Leased Premises. Tenant shall promptly report in writing to
Landlord any defective condition known to it which Landlord is required to
repair, and Landlord shall move with reasonable diligence to repair such item.
Failure to report such defects shall make Tenant responsible to Landlord for any
liability incurred by Landlord by reason of such defects.
14.03 Prior to Tenant's occupancy, Landlord will inspect the heating,
ventilation and air conditioning equipment, certify that it is in good working
order and not beyond its useful life and make any necessary repairs or
replacements. Tenant shall obtain upon occupancy and keep current during the
lease term a service maintenance contract on the heating, ventilation and air
conditioning (HVAC) equipment serving the Leased Premises. The contract shall be
between Tenant and a dealer-authorized company acceptable to Landlord, and shall
at a minimum provide for an equipment check and tune-up service each spring and
fall, and filter and lubrication service every three months. A copy of said
contract shall be provided to Landlord, as well as any modification, extension,
renewal or replacement thereof.
14.03 Tenant may relocate its new air conditioning units currently
installed in 4350 International Boulevard to the Leased Premises. Tenant will
make all roof and structural repairs at 4350 International Boulevard associated
with the removal of such air conditioning units.
SIGNS, LANDSCAPING
15.01 Landlord shall have the right to control landscaping and Tenant
shall make no alterations or additions to the landscaping. Landlord shall have
the right to approve
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the placing of signs and the size and quality of the same. Tenant shall place no
exterior signs on the Leased Premises without the prior written consent of
Landlord. Any signs not in conformity with the Lease may be immediately removed
by Landlord.
ENTRY BY LANDLORD
16.01 Tenant shall permit Landlord and Landlord's agents to enter the
Leased Premises at all reasonable times and with reasonable advance notice for
the purpose of inspecting the same or for the purpose of maintaining the
building, or for the purpose of making repairs, alterations, or additions to any
portion of the building, including the erection and maintenance of such
scaffolding, canopies, fences and props as may be required, or for the purpose
of posting notices of non-responsibility for alterations, additions, or repairs,
or for the purpose of showing the Leased Premises to prospective tenants, or
placing upon the building any usual or ordinary "for sale" signs, without any
rebate of rent and without any liability to Tenant for any loss of occupation or
quiet enjoyment of the Leased Premises thereby occasioned; and shall permit
Landlord at any time within six (6) months prior to the expiration of this
Lease, to place upon the Leased Premises any usual or ordinary "to let" or "to
lease" signs. For each of the aforesaid purposes, Landlord shall at all times
have and retain a key with which to unlock all of the exterior doors about the
Leased Premises but will not enter without prior notice. Landlord agrees to
protect any and all of Tenant's proprietary information from third party
invitees in connection with said entry.
TAXES AND INSURANCE INCREASE
17.01 Tenant shall pay before delinquency any and all taxes, assessments,
license fees, and public charges levied, assessed, or imposed and which become
payable during the Lease upon Tenant's fixtures, furniture, appliances and
personal property installed or located in the Leased Premises.
17.02 Tenant shall pay, as additional rental during the term of this Lease
and any extension or renewal thereof, the amount by which all taxes (as herein
defined) for each tax year exceeds all taxes for the tax year. In the event the
Leased Premises are less than the area of the entire property assessed for such
taxes for any such tax year, then the tax for any such year applicable to the
Leased Premises shall be determined by proration on the basis that the Leased
Premises bears to the of the entire property assessed. The term "taxes" shall
include all ad valorem taxes, special assessments, and governmental charges
assessed against the Building or the Land; and such term shall also include any
reasonable expenses, including fees and disbursements of attorneys, tax
consultants, arbitrators, appraisers, experts and other witnesses, incurred by
Landlord in contesting any taxes or the assessed valuation of all or any part of
the Building or the Land. If the final year of the lease term fails to coincide
with the tax year, then any excess for the tax year during which the term ends
shall be reduced by the pro rata part of such tax year beyond the lease term.
The agent's commission shall not apply to any such additional rental resulting
from the provisions of this paragraph.
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17.03 Tenant agrees to pay the amount for all taxes levied upon or
measured by the rent payable hereunder, whether as a so-called sales tax,
transaction privilege tax, excise tax, or otherwise (but no income taxes of
Landlord shall be payable by Tenant). Such taxes shall be due and payable at the
same time as and in addition to each payment of rent.
17.04 Commencing in the year 2000 and during each remaining year of the
lease term or any extension or renewal thereof, in the event that the insurance
premiums payable by the Landlord for insurance coverage on the property are
increased, whether such increase is due to an increase in the valuation of the
building, or in the applicable rate of insurance, then Tenant agrees to pay
Landlord as additional rental, the increase in said insurance premiums over the
base amount paid in the year 1999. The term "insurance" shall include all fire
and extended coverage insurance on the Building and all liability insurance
coverage on the common areas of the Building, and the grounds, sidewalks,
driveways and parking areas on the Land, together with such other insurance
coverages, including, but not limited to, rent interruption insurance, as are
from time to time obtained by Landlord. If during the final year of the Lease,
or any extension or renewal thereof, the term does not coincide with the year
upon which the insurance rate is determined, the increase in premiums for the
portion of that year shall be prorated according to the number of months during
which Tenant is in possession of the Leased Premises.
17.05 On or about January 1 of each calendar year during the term of this
Lease, Landlord shall provide Tenant with a good faith estimate of the amount by
which taxes and insurance will exceed the base amounts during such calendar
year. Tenant shall thereafter pay one-twelfth (1/12) of its pro rata share of
such increase at such time as its monthly installments of Base Rental hereunder
are due and payable. When the actual bills have been received by Landlord,
Landlord shall notify Tenant of the actual taxes and insurance for such calendar
year. If Tenant has paid more than ten percent (10%) in excess of the actual
amount due from Tenant, Landlord shall pay interest on the overpayment and ,
Landlord shall credit such excess against the next additional rent payments
coming due; if Tenant has not paid enough, Tenant shall pay the remainder to
Landlord within fifteen (15) days following receipt of a statement from
Landlord.
17.06 The provisions of paragraphs 17.01, 17.02, 17.03, 17.04 and 17.05
hereof shall survive the expiration or earlier termination of this Lease.
ABANDONMENT
18.01 Tenant shall not vacate nor abandon the Leased Premises at any time
during the term of this Lease; and if Tenant shall abandon, vacate or surrender
the Leased Premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to Tenant and left on the Leased Premises shall, at
the option of the Landlord, be deemed abandoned and be and become the property
of Landlord.
<PAGE>
DESTRUCTION
19.01 If the Leased Premises or any portion thereof are destroyed by
storm, fire, lightning, earthquake or other casualty, Tenant shall immediately
notify Landlord. In the event the Leased Premises cannot, in Landlord's
reasonable judgment, be restored within one hundred eighty (180) days of the
date of such damage or destruction, this Lease shall terminate as of the date of
such destruction, and all rent and other sums payable by Tenant hereunder shall
be accounted for as between Landlord and Tenant as of that date. Landlord shall
notify Tenant within thirty (30) days of the date of the damage or destruction
whether the Leased Premises can reasonably be restored within one hundred eighty
(180) days. If this Lease is not terminated as provided in this Paragraph,
Landlord shall, to the extent insurance proceeds payable on account of such
damage or destruction are available to Landlord (with the excess proceeds
belonging to Landlord), within a reasonable time, repair, restore, rebuild,
reconstruct or replace the damaged or destroyed portion of the Leased Premises
to a condition substantially similar to the condition which existed prior to the
damage or destruction. Provided, however, Landlord shall only be required to
repair, restore, rebuild, reconstruct and replace the Landlord's Work shown on
Exhibit "B", and Tenant shall, at its sole cost and expense, upon completion of
the Landlord's Work, repair, restore, rebuild, reconstruct and replace, as
required, any and all improvements installed in the Leased Premises by Tenant
and all trade fixtures, personal property, inventory, signs and other contents
in the Leased Premises, and all other repairs not specifically required of
Landlord hereunder, in a manner and to at least the condition existing prior to
the damage. Tenant's obligation to pay Base Rent shall abate until Landlord has
repaired, restored, rebuilt, reconstructed or replaced the Leased Premises, as
required herein, in proportion to the part of the Leased Premises which are
unusable by Tenant. If the damage or destruction is due to the act, neglect,
fault or omission of Tenant, there shall be no rent abatement except to the
extent of rent loss insurance. In the event of any dispute between Landlord and
Tenant relative to the provisions of this paragraph, they may each select an
arbitrator, the two arbitrators so selected shall select a third arbitrator and
the three arbitrators so selected shall hear and determine the controversy and
their decision thereon shall be final and binding on both Landlord and Tenant
who shall bear the cost of such arbitration equally between them. Landlord shall
not be required to repair any property installed in the Leased Premises by
Tenant. Tenant waives any right under applicable laws inconsistent with the
terms of this paragraph and in the event of a destruction agrees to accept any
offer by Landlord to provide Tenant with comparable space within the project in
which the Leased Premises are located on the same terms as this Lease.
Notwithstanding the provisions of this paragraph, if any such damage or
destruction occurs within the final two (2) years of the term hereof, then
Landlord, in its sole discretion, may, without regard to the aforesaid 180-day
period, terminate this Lease by written notice to Tenant.
ASSIGNMENT AND SUBLETTING
20.01 Landlord shall have the right to transfer and assign, in whole or in
part its rights and obligations in the building and property that are the
subject of this Lease.
<PAGE>
Tenant shall not assign this Lease or sublet all or any part of the Leased
Premises without the prior written consent of the Landlord, which consent shall
not be unreasonably withheld or delayed. In the event of any assignment or
subletting, Tenant shall nevertheless at all times, remain fully responsible and
liable for the payment of the rent and for compliance with all of its other
obligations under the terms, provisions and covenants of this Lease. If all or
any part of the Leased Premises are then assigned or sublet, Landlord, in
addition to any other remedies provided by this Lease or provided by law, may at
its option, collect directly from the assignee or subtenant all rents becoming
due to Tenant by reason of the assignment or sublease, and Landlord shall have a
security interest in all properties on the Leased Premises to secure payment of
such sums. Any collection directly by Landlord from the assignee or subtenant
shall not be construed to constitute a novation or a release of Tenant from the
further performance of its obligations under this Lease. In the event that
Tenant sublets the Leased Premises or any part thereof, or assigns this Lease
and at any time receives rent and/or other consideration which exceeds that
which Tenant would at that time be obligated to pay to Landlord, Tenant shall
pay to Landlord 100% of the gross excess in such rent as such rent is received
by Tenant and 100% of any other consideration received by Tenant from such
subtenant in connection with such sublease or, in the case of any assignment of
this Lease by Tenant, Landlord shall receive 100% of any consideration paid to
Tenant by such assignee in connection with such assignment. In addition, should
Landlord agree to an assignment or sublease agreement, Tenant will pay to
Landlord on demand the sum of $500.00 to partially reimburse Landlord for its
costs, including reasonable attorneys' fees, incurred in connection with
processing such assignment or subletting request.
20.02 Notwithstanding the foregoing, Tenant may freely transfer and assign
this Lease or sublet all or any portion of the Leased Premises (i) to any
affiliate or subsidiary of Tenant or (ii) in connection with any merger,
consolidation or sale of assets of Tenant, without having to obtain any consent
or approval of Landlord; provided, however, that any such assignment or
subletting shall not result in Tenant being released or discharged from any
liability under this Lease except to the extent Tenant ceases to exist following
any such merger or consolidation. Tenant shall provide Landlord with written
notice of such assignment or subletting prior to or promptly following the
effective date of such assignment or subletting.
INSOLVENCY OF TENANT
21.01 Either (a) the appointment of a trustee to take possession of all or
substantially all of the assets of Tenant, or (b) a general assignment by Tenant
for the benefit of creditors, or (c) any action taken or suffered by Tenant
under any insolvency or bankruptcy act shall, if any such appointments,
assignments or action continues for a period of thirty (30) days, constitute a
breach of this Lease by Tenant, and Landlord may at its election without notice,
terminate this Lease and in that event be entitled to immediate possession of
the Leased Premises and damages as provided below.
<PAGE>
BREACH BY TENANT
22.01 In the event of a default, Landlord in addition to any and all other
rights or remedies that it may have hereunder, at law or in equity shall have
the right to either terminate this Lease or from time to time, without
terminating this Lease relet the Leased Premises or any part thereof for the
account and in the name of Tenant or otherwise, for any such term or terms and
conditions as Landlord in its sole discretion may deem advisable with the right
to make reasonable alterations and repairs to the Leased Premises. Tenant shall
pay to Landlord, as soon as ascertained, the costs and expenses actually
incurred by Landlord in such reletting or in making such reasonable alterations
and repairs. Should such rentals received from time to time from such reletting
during any month be less than that agreed to be paid during that month by Tenant
hereunder, the Tenant shall pay such deficiency to Landlord. Such deficiency
shall be calculated and paid monthly.
22.02 No such reletting of the Leased Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a notice of
such intention be given to Tenant or unless the termination thereof be decreed
by a court of competent jurisdiction. Notwithstanding any such reletting without
termination, Landlord may immediately or at any time thereafter terminate this
Lease, and this Lease shall be deemed to have been terminated upon receipt by
Tenant of notice of such termination; upon such termination Landlord shall
recover from Tenant all damages that Landlord may suffer by reason of such
termination including, without limitation, all arrearages in rentals, costs,
charges, additional rentals, and reimbursements, the cost (including court costs
and attorneys' fees actually incurred) of recovering possession of the Leased
Premises, the actual or estimated (as reasonably estimated by Landlord) cost of
any alteration of or repair to the Leased Premises which is necessary or proper
to prepare the same for reletting and, in addition thereto, Landlord shall have
and recover from Tenant the difference between the present value (discounted at
a rate per annum equal to the discount rate of the Federal Reserve Bank of
Atlanta at the time the Event of Default occurs) of the rental to be paid by
Tenant for the remainder of the lease term, and the present value (discounted at
the same rate) of the rental for the Leased Premises for the remainder of the
lease term, taking into account the cost, time and other factors necessary to
relet the Leased Premises; provided, however that such payment shall not
constitute a penalty or forfeiture, but shall constitute full liquidated damages
due to Landlord as a result of Tenant's default. Landlord and Tenant acknowledge
that Landlord's actual damages in the event of a default by Tenant under this
Lease will be difficult to ascertain, and that the liquidated damages provided
above represent the parties' best estimate of such damages. The parties
expressly acknowledge that the foregoing liquidated damages are intended not as
a penalty, but as full liquidated damages, as permitted by Section 13-6-7 of the
Official Code of Ga. Annotated.
ATTORNEY'S FEES
23.01 If Landlord and Tenant litigate any provision of this Lease or the
subject matter of this Lease, the unsuccessful litigant will pay to the
successful litigant all costs and expenses, including reasonable attorneys' fees
and court costs, actually incurred by
<PAGE>
the successful litigant at trial and on any appeal. If, without fault, either
Landlord or Tenant is made a party to any litigation instituted by or against
the other, the other will indemnify the faultless one against all loss,
liability, and expense, including reasonable attorneys' fees and court costs,
incurred by it in connection with such litigation.
CONDEMNATION
24.01 If, at any time during the term of this Lease, title to the entire
Leased Premises should become vested in a public or quasi-public authority by
virtue of the exercise of expropriation, appropriation, condemnation or other
power in the nature of eminent domain, or by voluntary transfer from the owner
of the Leased Premises under threat of such a taking then this Lease shall
terminate as of the time of such vesting of title, after which neither party
shall be further obligated to the other except for occurrence antedating such
taking. The same results shall follow if less than the entire Leased Premises be
thus taken, or transferred in lieu of such a taking, but to such extent that it
would be legally or commercially impossible or impractical for Tenant to occupy
the portion of the Leased Premises remaining, and impossible for Tenant to
reasonably conduct his trade or business therein.
24.02 Should there be such a partial taking or transfer in lieu thereof,
but not to such an extent as to make such continued occupancy and operation by
Tenant an impossibility, then this Lease shall continue on all of its same terms
and conditions subject only to an equitable reduction in rent proportionate to
such taking.
24.03 In the event of any such taking or transfer, whether of the entire
Leased Premises, or a portion thereof, it is expressly agreed and understood
that all sums awarded, allowed or received in connection therewith shall belong
to Landlord, and any rights otherwise vested in Tenant are hereby assigned to
Landlord, and Tenant shall have no interest in or claim to any such sums or any
portion thereof, whether the same be for the taking of the property or for
damages, or otherwise. Nothing herein shall be construed, however, to preclude
Tenant from prosecuting any claim directly against the condemning authority for
loss of business, moving expenses, damage to, and cost of, trade fixtures,
furniture and other personal property belonging to Tenant; provided, however,
that Tenant shall make no claim which shall diminish or adversely affect any
award claimed or received by Landlord.
NOTICES
25.01 All notices, statements, demands, requests, consents, approvals,
authorization, offers, agreements, appointments, or designations under this
Lease by either party to the other shall be in writing and shall be sufficiently
given and served upon the other party, (i) by depositing same in the United
States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested; (ii) by recognized
overnight, third party prepaid courier service (such as Federal Express),
requiring signed receipt; (iii) by delivering the same in person to such party;
or (iv) by prepaid telegram, telecopy or telex with delivery of an original copy
of any such notice delivered pursuant to (ii) or (iii) above to be received no
later than the
<PAGE>
next business day. Notice personally delivered or sent by courier service,
telegram, telecopy or telex shall be effective upon receipt. Any notice mailed
in the foregoing manner shall be effective three (3) business days after its
deposit in the United States mail. Either party may change its address for
notices by giving notice to the other as provided above. For purposes of notice,
the addresses of the parties shall be as follows:
(a) To Tenant at the Leased Premises;
(b) To Landlord, addressed to Landlord at 4497 Park Drive, Norcross,
Georgia 30093, with a copy to such other place as Landlord may from
time to time designate by notice to Tenant.
WAIVER
26.01 The waiver by Landlord of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of such term,
covenant, or condition or any subsequent breach of the same or any other term,
covenant, or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant, or condition of this Lease, other than the
failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
EFFECT OF HOLDING OVER
27.01 If Tenant should remain in possession of the Leased Premises after
the expiration of the lease term and without executing a new lease, then such
holding over shall be construed as a tenancy from month to month, subject to all
the conditions, provisions, and obligations of this Lease insofar as the same
are applicable to a month to month tenancy, except that the rent payable
pursuant to subparagraph 3.01 hereof shall be 150% of the rent payable pursuant
to subparagraph 3.01.
SUBORDINATION
28.01 This Lease, at Landlord's option, shall be subordinate to any ground
lease, first priority mortgage, first priority deed of trust, or first priority
security deed now or hereafter placed upon the real property of which the Leased
Premises are a part and to any and all advances made on the security thereof and
to all renewals, modifications, consolidations, replacements and extensions
thereof.
28.02 Tenant agrees to execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any such ground lease,
mortgage, deed of trust, or security deed, as the case may be, including
specifically a subordination, non-disturbance and attornment agreement
substantially in the form hereto attached as Exhibit "D", and failing to do so
within ten (10) days after written demand, does hereby make, constitute and
irrevocably appoint Landlord as Tenant's attorney in fact and in Tenant's name,
place and stead, to do so. If requested to do so, Tenant agrees to attorn to
<PAGE>
any person or other entity that acquires title to the real property encompassing
the Leased Premises, whether through judicial foreclosure, sale under power, or
otherwise, and to any assignee of such person or other entity. Landlord
represents that it is not currently in default under any existing mortgage or
ground lease.
ESTOPPEL CERTIFICATE
29.01 Upon twenty (20) days notice from Landlord to Tenant, Tenant shall
deliver a certificate dated as of the first day of the calendar month in which
such notice is received, executed by an appropriate officer, partner or
individual, in the form as Landlord may require and stating but not limited to
the following: (i) the commencement date of this Lease; (ii) the space occupied
by Tenant hereunder; (iii) the expiration date hereof; (iv) a description of any
renewal or expansion options; (v) the amount of rental currently and actually
paid by Tenant under this Lease; (vi) the nature of any default or claimed
default hereunder by Landlord and (vii) that Tenant is not in default hereunder
nor has any event occurred which with the passage of time or the giving of
notice would become a default by Tenant hereunder.
PARKING
30.01 Tenant shall be entitled to utilize the parking facilities located
on the Land. Tenant agrees to park all Tenant's trucks in the parking spaces
provided at the rear of the building. "Parking" as used herein means the use by
Tenant's employees, its visitors, invitees, and customers for the parking of
motor vehicles for such periods of time as are reasonably necessary in
connection with use of and/or visits to the Leased Premises. No vehicle may be
repaired or serviced in the parking area and any vehicle deemed abandoned by
Landlord will be towed from the project and all costs therein shall be borne by
the Tenant. No area outside of the Leased Premises shall be used by Tenant for
storage without Landlord's prior written permission. There shall be no parking
permitted on any of the streets or roadways located in Gwinnett Pavilion.
MORTGAGEE PROTECTION
31.01 In the event of any default on the part of Landlord, Tenant will
give notice by registered or certified mail to any beneficiary of a deed or
trust or holder of a security deed or mortgage covering the Leased Premises
whose address shall have been furnished it, and shall offer such beneficiary or
holder a reasonable opportunity to cure the default, including time to obtain
possession of the Leased Premises by power of sale or a judicial foreclosure, if
such should prove necessary to effect a cure.
PROTECTIVE COVENANTS
32.01 This Lease is subject to the Protective Covenants of Gwinnett
Pavilion, and to such rules and regulations as may hereafter be adopted and
promulgated. In addition, Tenant shall comply with all covenants, restrictions
and other matters of record in the deed records of the county in which the
Leased Premises are located which affect or encumber the Leased Premises, the
Building or the Land.
<PAGE>
RELOCATION
33.01 Intentionally deleted.
BROKERAGE COMMISSIONS
34.01 Tenant's Agent and Landlord's Agent (collectively, "Agent") shall
each be entitled to receive a commission in the amounts, and upon the terms and
conditions, contained in a commission agreement between Landlord and such
parties.
34.02 Tenant warrants and represents to Landlord that, other than Agent,
no other party is entitled, as a result of the actions of Tenant, to a
commission or other fee resulting from the execution of this Lease; and in the
event Tenant extends or renews this Lease, or expands the Leased Premises, and
Tenant's Agent is entitled to a commission under the above-referenced commission
agreement, Tenant shall pay all commissions and fees payable to any party (other
than Tenant's Agent) engaged by Tenant to represent Tenant in connection
therewith. Landlord warrants and represents to Tenant that, except as set forth
above, no other party is entitled, as a result of the actions of Landlord, to a
commission or other fee resulting from the execution of this Lease. Landlord and
Tenant agree to indemnify and hold each other harmless from any loss, cost,
damage or expense (including reasonable attorneys' fees) incurred by the
nonindemnifying party as a result of the untruth or incorrectness of the
foregoing warranty and representation, or failure to comply with the provisions
of this subparagraph.
34.03 Tenant's Agent is representing Tenant in connection with this Lease,
and is not representing Landlord. Landlord's Agent, or employees of Landlord or
its affiliates, are representing Landlord and are not representing Tenant.
34.04 The parties acknowledge that certain officers, directors,
shareholders, or partners of Landlord or its general partner(s), are licensed
real estate brokers and/or salesmen under the laws of the State of Georgia.
Tenant consents to such parties acting in such dual capacities.
MISCELLANEOUS PROVISIONS
A. Whenever the singular number is used in this Lease and when required by
the context, the same shall include the plural, and the masculine gender shall
include the feminine and neuter genders, and the word "person" shall include
corporation, firm or association. If there be more than one tenant, the
obligations imposed upon Tenant under this Lease shall be joint and several.
B. The headings or titles to paragraphs of this Lease are for convenience
only and shall have no effect upon the construction or interpretation of any
part of this Lease.
<PAGE>
C. This instrument contains all of the agreements and conditions made
between the parties to this Lease and may not be modified orally or in any other
manner than by agreement in writing signed by all parties to this Lease.
D. Where the consent of a party is required, such consent will not be
unreasonably withheld.
E. This Lease shall create the relationship of Landlord and Tenant between
Landlord and Tenant; no estate shall pass out of Landlord; Tenant has only a
usufruct, not subject to levy and/or sale and not assignable by Tenant except as
provided in paragraph 20.01 hereof.
F. Except as otherwise expressly stated, each payment required to be made
by Tenant shall be in addition to and not in substitution for other payments to
be made by Tenant.
G. All covenants and agreements to be performed by Tenant under any of the
terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent.
H. No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of rent due shall be deemed to be other than on account
of the amount due, and no endorsement or statement on any check or payment of
rent shall be deemed an accord and satisfaction. Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
installment or payment of rent, or pursue any other remedies available to
Landlord.
I. Subject to paragraph 20, the terms and provisions of this Lease shall
be binding upon and inure to the benefit of the heirs, executors,
administrators, successors, and assigns of Landlord and Tenant. In the event of
any conveyance by Landlord of its interest in and to the Leased Premises, the
Building or the Land, all obligations under this Lease of the conveying party
shall cease and Tenant shall thereafter look solely to the party to whom the
Leased Premises were conveyed for performance of all of Landlord's duties and
obligations under this Lease.
J. Tenant acknowledges and agrees that Landlord shall not provide guards
or other security protection for the Leased Premises and that any and all
security protection shall be the sole responsibility of Tenant.
K. This Lease shall be governed by Georgia law.
L. Time is of the essence of each term and provision of this Lease.
M. Tenant shall not record this Lease or a memorandum thereof without the
written consent of Landlord. Upon the request of Landlord, Tenant shall join in
the execution of a memorandum or so-called "short form" of this Lease for the
purpose of
<PAGE>
recordation. Said memorandum or short form of this Lease shall describe the
parties, the Leased Premises and the lease term, and shall incorporate this
Lease by reference.
N. Landlord's liability for performance of its obligations under the terms
of this Lease shall be limited to its interest in the Leased Premises.
O. Special Stipulations are attached hereto as Exhibit "E" and by
reference incorporated herein.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
<PAGE>
IN WITNESS WHEREOF, the parties hereto who are individuals have set their
hands and seals, and the parties who are corporations have caused this
instrument to be duly executed by its proper officers and its corporate seal to
be affixed, as of the day and year first above written.
Signed, sealed and delivered LANDLORD:
as to Landlord, in the
presence of: WEEKS REALTY, L.P.,
a Georgia limited partnership
___________________________ By: Weeks GP Holdings, Inc.
a Georgia corporation,
its sole general partner
___________________________
Notary Public By:____________________________
Name:__________________________
Its:___________________________
Signed, sealed and delivered TENANT:
as to Tenant, in the presence
of: NOVOSTE CORPORATION
By:____________________________
___________________________
Name:__________________________
___________________________ Its:___________________________
Notary Public
ATTEST:
By:____________________________
Name:__________________________
Its:___________________________
(Corporate Seal)
<PAGE>
EXHIBIT "C"
ACCEPTANCE OF PREMISES
Tenant: ____________________________________________________
Landlord: ____________________________________________________
Date Lease Signed: _____________________________________________
Term of Lease: _____________________________________________
Address of Leased Premises: Suite ______ containing approximately______________
square feet, located at
_________________________________________________________
_________________________________________________________
Commencement Date: _________________________________________
Expiration Date: _________________________________________
The above described premises are accepted by Tenant as suitable for the purpose
for which they were let. The above described lease term commences and expires on
the dates set forth above. Tenant acknowledges that it has received from
Landlord ________ number of keys to the Leased Premises. It is understood that
there is a punch list which will be completed after move-in and will be an
exhibit to the Tenant Estoppel.
TENANT LANDLORD
________________________________ __________________________________
(Type Name of Tenant) (Type Name of Landlord)
By: ____________________________ By: ______________________________
(Signature) (Signature)
________________________________ __________________________________
(Type Name and Title) (Type Name and Title)
<PAGE>
EXHIBIT "D"
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ___ day of __________, 19__, between with
offices at __________________________ ("Tenant") and __________________________
(herein, together with its successors, transferees and assigns, the
"Mortgagee");
W I T N E S S E T H:
WHEREAS, Mortgagee is about to or has heretofore granted to
__________________ , a Georgia limited partnership (the "owner") a first
mortgage loan, which loan is secured by a security deed (herein "Mortgage")
dated as of _______ , 199_ and duly recorded on _______, 199_ in the land
records of Gwinnett County, Georgia; and
WHEREAS, the Mortgage is to be a first and prior lien upon the Owner's fee
estate in the real property described in Exhibit "A" annexed hereto ("Mortgaged
Premises"); and
WHEREAS, Tenant is occupying a portion of the Mortgaged Premises under a
lease dated as of _______ , 199_ in which Owner is Landlord (the "Lease")
covering that portion of the Mortgaged Premises therein more particularly
described (the "Leased Premises"); and
WHEREAS, Tenant desires to be assured of its continued and undisturbed
occupancy of the Leased Premises should the Mortgage be foreclosed or the
Mortgaged Premises sold pursuant to any power of sale contained therein and
Mortgagee is agreeable thereto.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement and in further consideration of the sum of ONE DOLLAR ($1.00) each to
the other in hand paid, the receipt whereof is hereby acknowledged, Tenant and
Mortgagee mutually covenant and agree as follows:
FIRST: The Lease and all of Tenant's rights, interest and estate therein
and thereunder are hereby made subject and subordinate to the lien of the
Mortgage and to any extensions, renewals, replacements, modifications, additions
or consolidations thereof and to all rights, title and interest of Mortgagee and
its successors and assigns therein and thereunder.
SECOND: In the event, however, proceedings shall ever be instituted by
Mortgagee to foreclose or liquidate the Mortgage, the Tenant's possession of its
leased portion of the Mortgaged Premises shall not be disturbed by the
foreclosure proceedings
<PAGE>
and the Mortgaged Premises shall be sold at any foreclosure sale subject to
Tenant's possession on condition that:
(a) there shall be, at the time of commencement of foreclosure
proceedings, as well as all subsequent times, no default by Tenant
in the due and timely observance and performance of any covenant and
agreement in the Lease to be observed and performed by Tenant; and
(b) the Tenant shall not have entered into any agreement modifying any
term, condition or agreement of the Mortgagee-approved Lease without
the prior written consent of Mortgagee.
THIRD: Tenant shall attorn to Mortgagee while Mortgagee is in possession
of the Mortgaged Premises, or to a Receiver appointed in any action or
proceeding to foreclose the Mortgage. In the event of the completion of
foreclosure proceedings and sale of the Mortgaged Premises or in the event the
Mortgagee should otherwise acquire possession of the Mortgaged Premises, the
Tenant will promptly upon demand attorn to the purchaser at the foreclosure sale
or to the Mortgagee, as the case may be, and will recognize such purchaser or
the Mortgagee as the Tenant's landlord. The Tenant agrees to execute and
deliver, at any time and from time to time, upon the request of the Mortgagee or
the purchaser at the foreclosure sale, as the case may be, any instrument which
may be necessary or appropriate to such successor landlord to evidence such
attornment. The Tenant shall, upon demand of the Mortgagee or any Receiver or
purchaser at the foreclosure sale, pay to the Mortgagee or to such Receiver or
purchaser, as the case may be, all rental monies then due or as they thereafter
become due.
FOURTH: Upon the attornment provided for in preceding Paragraph THIRD the
Tenant's occupancy shall thereafter be in full force and effect as under a
direct Lease between Mortgagee, the Receiver or the purchaser at the foreclosure
sale, as the case may be, and Tenant. It is specifically understood and agreed
that Mortgagee or any such Receiver or purchaser shall not be:
(a) liable for any act, omission, negligence or default of any prior
landlord, or
(b) subject to any offsets, claims or defenses which Tenant might have
against any prior landlord; or
(c) bound by any rent or additional rent which Tenant might have paid
for more than one month in advance to any prior landlord; or
(d) bound by any amendment or modification of the Lease made without the
prior written consent of the Mortgagee.
<PAGE>
FIFTH: On and after the date Tenant in good standing attorns to Mortgagee
or any Receiver or subsequent owner in pursuance of its agreement herein set
forth, Mortgagee, the Receiver or such subsequent owner will undertake and
perform all subsequent obligations of the Landlord as set forth in the Lease for
the benefit of and undisturbed occupancy of Tenant under the Lease.
SIXTH: Tenant agrees it will not amend, modify nor abridge the Lease in
any way, nor cancel or surrender the same without prior written approval of the
Mortgagee other than by reason of a continued uncured material default of the
landlord under the Lease, nor will the Lease ever merge into the fee in the
event that Mortgagee acquires fee title to the Mortgaged Premises.
SEVENTH: Any notices or other communication to be given hereunder by
either party shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes if sent by registered or certified mail with
return receipt requested to the other party hereto at its address above stated
or such other address of which written notification has been timely given to the
other party.
EIGHTH: Mortgagee has and shall have the continuing right to execute and
record in the Land Records of Gwinnett County, Georgia at any time, in its
unilateral discretion, a Declaration of Subordination for the purpose of thereby
subordinating its rights, title and interest in and under the Mortgage to the
rights, title and interest of Tenant under the Lease. Such Declaration of
Subordination shall, at Mortgagee's election, operate, function and be in full
force and effect for whatever period of time Mortgagee declares therein that it
shall be in force not exceeding the term of the Lease and any extensions thereof
and the said Declaration may be voided unilaterally by Mortgagee when it so
elects.
NINTH: Tenant waives any and all rights it may have to execute and record
after the date hereof any document purporting to again or further subordinate
its right, title or interest under the Lease to the lien of either the Mortgage
or any other mortgage or deed of trust or any ground lease or any agreement
modifying or amending the Mortgage except with the written consent of Mortgagee.
TENTH: This Agreement cannot be changed orally but only in writing signed
by both parties hereto.
ELEVENTH: This Agreement may be recorded by either party at its own
expense in the Land Records of Gwinnett County, Georgia whenever, in its sole
discretion, either party elects so to do.
<PAGE>
TWELFTH: All of the terms, covenants and conditions hereof shall run with
the Mortgaged Premises and shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, acknowledged and delivered the day and year first above written.
SIGNED, SEALED AND DELIVERED TENANT:
in the presence of:
___________________________
___________________________ BY:_____________________________
MORTGAGEE:
___________________________ BY:_____________________________
___________________________
The undersigned Owner of the leased and mortgaged premises hereby consents
to the foregoing Agreement and agrees to be bound by and subject to the terms
thereof.
BY:_____________________________
<PAGE>
EXHIBIT "E"
SPECIAL STIPULATIONS
Option to terminate:
Effective as of the end of the thirty-sixth (36) month of the lease term,
Tenant has the option to terminate this Lease Agreement, provided that Tenant
provides Landlord with written notice of its intention to terminate at least 90
days prior to the termination date and provided that Tenant pays to Landlord a
sum equal to three (3) month's base rental as set forth in paragraph 3.01
hereof, and payments of all unamortized tenant improvements, and commissions due
to Broker. It is hereby acknowledged that any such amount required to be paid by
Tenant in connection with such early termination is not a penalty but a
reasonable estimate of the loss that would be incurred by Landlord as a result
of such early termination of this Lease and, in that regard, constitutes
liquidated damages with respect to such loss.
In no event shall Tenant be entitled to exercise any rights under this
Section at any time during which either (i) Tenant is in default, or an event of
default exists with respect to Tenant, under this Lease, or (ii) this Lease is
not in full force and effect; and any purported exercise by Tenant of its
cancellation rights hereunder that is not made in strict and timely accordance
herewith or that is made at a time when Tenant is in default hereunder shall be
void and of no force or effect whatsoever.
On or prior to the termination date, Tenant will surrender possession of
the Leased Premises to Landlord in accordance with the provisions of this Lease
as if the termination date were the expiration date of this Lease.