Exhibit 10a
OFFICE BUILDING LEASE
Between
Perimeter 400 Partners
(Landlord)
and
CIS Technologies, Inc. A Delaware Corporation
(Tenant)
"Perimeter 400 Center"
OFFICE BUILDING
Atlanta Georgia
(City)
(State)
OFFICE BUILDING LEASE AGREEMENT
STATE OF GEORGIA
COUNTY OF FULTON
THIS LEASE AGREEMENT is made and entered into this 8th day of August, 1995, by
and between the Landlord and Tenant hereinafter named.
Definitions and Basic Provisions
The following definitions and basic provisions hall be construed in
conjunction with and limited by the references thereto in other provisions of
this lease:
(a) "Landlord": Perimeter 400 Partners
(b) "Tenant": CIS Technologies, Inc., a Delaware Company
(c) "Demised Premises": approximately 9,793 square feet on Floor 8th, suite
no. 800 in the building(s) located at 1100 Johnson Ferry Road, N.E. Atlanta,
GA 30342 Center II ("Building") such premises being shown and outlined on the
plan attached hereto as Exhibit A.
(d) "Lease Term": a period of 72 months commencing on November 1, 1995 and
ending on October 31, 2001.
(e) "Basic Rental": a total sum of $1,094,367.60 payable by Tenant, subject
to adjustment as provided herein, on the first day of each calendar month of
the Lease year, in advance, at the office of the Landlord in monthly
installments as follows:
From the Commencement Date through the last day of the 12 month of the
Lease Term, equal monthly payments of $14,689.50;
From the first day of the 13 month through the last day of the 24 month
of the Lease Term, equal monthly payments of $14,893.52.
From the first day of the 25 month through the last day of the 36 month
of the Lease Term, equal monthly payments of $15,097.54; See 1A.
All rental payments shall be paid to the order of Perimeter 400 Partners
without notice, offset, reduction or abatement, subject to adjustment as set
forth in this Lease, except as expressly provided otherwise herein.
If the term shall commence upon a day other than the first day of a
calendar month, then Tenant shall pay, on or before the commencement date of
the term the monthly installment of Basic Rental prorated on a per diem basis
with respect to that fractional calendar month. All rental payments
thereafter will be for a full calendar month and will be in the amount as
specified in clause (e) above.
(f) "Prepaid Rental": $14,689.50 representing payment of rental for the
first full month and partial month, if any, of the Lease Term.
(g) "Security Deposit": $31,419.20
(h) "Permitted Use": General office use for sales, service, administrative,
and billing services related to the Health Care Industry.
(i) "Prorata Share": initially 2.7371%
(j) "Rider(s)" consisting of 3 page(s) with sections numbered consecutively
55 through 58 attached hereto and made a part hereof.
(k) "Guarantor(s)": None
Granting Clause
In consideration of the obligation of Tenant to pay Basic Rental, Operating
Expenses, and Taxes as herein provided and in consideration of the other
terms, covenants and conditions hereof, Landlord hereby demises and leases to
Tenant, and Tenant hereby takes from Landlord, the Demised Premises to have
and to hold the same for the Lease Term specified herein, all upon the terms
and conditions set forth in this Lease.
Services By Landlord
Landlord agrees to furnish Tenant while occupying the Demised Premises the
following services:
(a) Hot and cold water at those points of supply provided for general use of
all Building tenants.
(b) Air conditioning, heat and electric current (for lighting and fractional
horsepower machines only) during reasonable hours of generally recognized
business days, as determined by Landlord in such quantity and of such quality
as Landlord determines in its sole judgement is reasonably necessary for
Tenant's comfortable use and enjoyment of the Demised Premises.
(c) Elevator service, if any, in common with other tenants for ingress to
and egress from the Demised Premises.
(d) Janitorial cleaning services as may in the judgment of Landlord be
reasonably required.
(e) Electrical lighting for public areas and special service areas of the
Building in the manner and to the extent deemed by Landlord to be standard.
1. From the first day of the 37 month through the last day of the 48 month
of the Lease Term, equal monthly payments of $15,301.56.
From the first day of the 49 month through the last day of the 60 month
of the Lease Term, equal monthly payments of $15,505.58.
From the first day of the 61 month through the last day of the 72 month
of the Lease Term, equal monthly payments of $15,709.60.
1A.1
Landlord shall have no obligation to furnish services to Tenant other than
those specified above. Should Landlord provide additional services to Tenant,
Tenant shall pay separately for such additional services (including, but not
limited to, heating and air conditioning services provided during hours other
than as set forth in the applicable provisions of this paragraph) at rates to
be established from time to time by Landlord. Charges for any service for
which Tenant is required to pay shall be due and payable within ten (10) days
after they are billed. If Tenant fails to make payment for any such services,
Landlord, in addition to all other rights and remedies available to Landlord
under this Lease, or at law or in equity, may, with notice to Tenant,
discontinue any or all of such additional services and such discontinuance
shall not be deemed to constitute an eviction or disturbance of Tenant's use
and possession of the Demised Premises or relieve Tenant from paying Basic
Rental or performing any of its other obligations under this Lease.
Failure to any extent to furnish, or any stoppage of these defined services,
resulting from causes beyond control of Landlord or from any cause, shall not
render Landlord liable in any respect for damages to either person or
property, nor be construed as an eviction of Tenant or work an abatement of
rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof.
Should any equipment or machinery break down, or for any cause cease to
function properly, Landlord shall use reasonable diligence to repair same
promptly, but Tenant shall have no claim for rebate of rent or damages on
account of any interruptions in service occasioned thereby or resulting
therefrom.
This lease is conditioned upon faithful performance by Tenant of the following
agreements, covenants, rules and regulations, herein set out and agreed to by
Tenant.
Payments
1. (A) To pay all rents and sums provided to be paid by Tenant hereunder
at the times and in the manner herein provided. The obligation of Tenant to
pay Basic Rental is an independent covenant, and no act or circumstance
whether constituting breach of covenant by Landlord or not, shall release
Tenant of the obligation to pay Basic Rental, Operating Expenses and Taxes.
(B) To pay Landlord, on a retail cost basis, for parts and labor, for
all replacement of electric lamps, fluorescent and otherwise and ballasts
following the initial installation of same, upon demand, by Landlord.
SUBSECTION (C) DELETED IN ITS ENTIRETY
Repairs by Tenant
2. Tenant will, at Tenant's own cost and expense, keep the demised Premises
and all other improvements to the extent covered by this Lease in sound
condition and good repair, and shall repair or replace any damage or injury
done to the Building, or any part thereof by Tenant or Tenant's agents,
employees, invitees and visitors, and if Tenant fails to make such repair or
replacements promptly, or within 15 days after occurrence, and to the
satisfaction of Landlord, Landlord may at its option make such repair or
replacement, and Tenant shall repay the cot thereof plus interest at the
Interest Rate (as hereinafter defined) to Landlord on demand. Tenant waives
all right to make repairs at the expense of Landlord, or to deduct the cost
the cost thereof from the rent. Tenant will not commit or allow any waste or
damage to be committed on any portion of the Demised Premises, and shall at
the termination of this Lease by lapse of time or otherwise, deliver up the
Demised Premises to Landlord in as good condition as at the date of
possession, ordinary wear and tear excepted, and upon such termination of this
Lease Landlord shall have the right to re-enter and resume possession of the
Demised Premises.
Assignment or Subletting
3. Tenant will not sell, mortgage, transfer, or assign this Lease, or allow
same to be assigned by operation of law or otherwise, or sublet the Demised
Premises, or any part thereof, or use or permit same to be used for any
purpose other than stated in the use clause hereof without the prior written
consent of Landlord, which consent will not be unreasonably withheld.
Notwithstanding the foregoing, in the event the Tenant desire to assign or
sublet the Demised Premises, Tenant shall provide Landlord with not less than
ninety (90) days written notice of Tenant's request, specifying in detail any
and all terms of such assignment or sublease. Landlord reserves the right to
cancel and terminate this Lease within thirty (30) days upon receipt of such
notice from Tenant of its request to assign or sublet the Demised Premises.
In the event Landlord consents to an assignment or sublease of the Demised
Premises, which assignment or sublease results in rental payments in excess of
the monthly payments due and owing under the terms of this Lease Agreement,
such excess rental payments shall be deemed to be rental payments due and
owing Landlord. Any sale, hypothecation, transfer, assignment or subletting
which is not in compliance with the provisions of this Article shall be
voidable by Landlord and shall, at the option of Landlord, constitute a
default under this Lease. Landlord's acceptance of rent directly from any
subtenant, assignee or other transferee shall not be construed as Landlord's
approval or consent thereto nor Landlord's agreement to accept the attornment
of any subtenant in the event of any termination of this Lease. In no event
shall Landlord's consent to an assignment or subletting be construed as (1)
relieving Tenant from the obligation to obtain Landlord's express written
consent to any further assignment or subletting or (ii) releasing Tenant from
any liability or obligation hereunder whether or not then accrued, and Tenant
shall continue to be fully, jointly and severally liable hereunder. As a
further condition to Landlord's consent to any subleasing, assignment or other
transfer of part or all of Tenant's interest in the Premises (i) Tenant shall
be required to pay Landlord's reasonable attorneys' fees and other costs
incurred in connection with the review and execution thereof; (ii) any
sublessee of part or all of Tenant's interest in the Premises shall agree that
in the event Landlord gives such sublessee notice that Tenant is in default
under this Lease, such sublessee shall thereafter make all sublease or other
payments directly to Landlord, which payments will be received by Landlord
without any liability whether to honor the sublease or otherwise (except to
credit such payments against sums due under this Lease); and such sublessee
shall agree to attorn to Landlord, or its successors and assigns, at its
request, should this Lease be terminated for any reason, except that in no
event shall Landlord or its successors or assigns be obligated to accept such
attornment; and (iii) Landlord may require that Tenant not then be in default
under this Lease in any respect. In the event that Tenant files any type of
petition in bankruptcy or has same filed against it and Landlord does not
elect to terminate this Lease or is deemed to have waived its right to
terminate this Lease, and in the event that the trustee or receiver appointed
by the bankruptcy court attempts to assume this Lease and thereupon assign it
to a third party, then Landlord shall have the right to terminate this Lease
within thirty (30) days upon gaining actual knowledge of such attempted
assumption and assignment, or upon being given written notice of same by
Tenant, whichever is alter.
Alterations, Additions and Improvements
4. Tenant will not make or allow to be made any alterations, additions, or
improvements in or to the Demised Premises without the written consent of
Landlord before performance; such consent will not be unreasonably withheld,
but Landlord may impose, as a condition of such consent, such requirements as
Landlord in its sole discretion may deem reasonable or desirable, including,
without limiting the generality of the foregoing, requirements as to the
manner in which, the time or times at which, and the contractor by whom such
work shall be done. Tenant shall not incorporate any hazardous materials (as
hereinafter defined) into the Demised Premises during the performance of the
alterations, additions, or improvements. All alterations, additions or
improvements when made to the Demised Premises by Tenant shall be surrendered
to Landlord and become the property of Landlord upon termination in any manner
of this Lease, but this clause shall not apply to movable non-attached
fixtures or furniture of Tenant. If, however, prior to termination of this
Lease, or within fifteen (15) days thereafter, Landlord so directs by written
notice to Tenant, Tenant shall promptly remove such alterations, additions, or
improvements, which were placed in or on the Demised Premises by Tenant and
which are designated in said notice and shall repair any damage occasioned by
such removal and in default thereof Landlord may effect said removals and
repairs at Tenant's sole cost and expense. All work with respect to
alterations, additions, and improvements must be done in a good and
workmanlike manner and diligently prosecuted to completion to the end that the
improvements on the Demised Premises shall at all times be a complete unit
except during the period of work. Any such alterations, additions and
improvements shall be performed and done strictly in accordance with the laws
and ordinances relating
thereto, and with the requirements of all carriers of
insurance on the Demised Premises and the Building and the Board of
Underwriters, Fire Rating Bureau, or similar organization. Tenant shall
obtain at its sole cost and expense all required licenses and permits. In
performing the work of any such alterations, additions or improvements, Tenant
shall have the work performed in such a manner so as not to obstruct the
access to the Building or the demised premises of any other tenant. Before
commencing any such work or construction in or about the Demised Premises,
Tenant shall notify Landlord in writing of the expected date of commencement
thereof. Landlord shall have the right at any time and from time to time to
post and maintain on the Demised Premises such notices as Landlord deems
necessary to protect the Demised Premises and Landlord from liens of
mechanics, laborers, materialmen, suppliers or vendors. If any mechanic's
lien is filed against the Demised Premises or the real estate of which the
Demised Premises form a part, which lien concerns the Tenant and/or the
Demised Premises, Tenant shall cause same to be discharged within ten (10)
days after the lien is filed by Tenant paying or bonding over said lien.
Notwithstanding the foregoing, Tenant shall use Landlord's contractors
for alterations to or alterations affecting any of the following: heating,
ventilation, air conditioning, electrical, plumbing and life safety systems.
Tenant shall promptly pay to Landlord's contractors, when due, the cost of all
such alterations. Tenant shall also pay to Landlord a fifteen percent (15%)
administrative fee to reimburse Landlord for all overhead, general conditions,
fees and other costs and expenses arising from the involvement of Landlord or
landlord's agent with the alterations. Said percentage shall be payable
within thirty (30) days after completion of the alterations.
Legal Use and Violations of Insurance Coverage
5. Tenant will not occupy or use, nor permit any portion of the Demised
Premises to be occupied or used for any business or purpose which is unlawful
in part or in whole or deemed to be disreputable in any manner, or extra
hazardous on account of fire, not permit anything to be done which will in any
way increase the rate of fire insurance on the Building or contents, and in
the event that, by reason of acts of Tenant, there shall be any increase in
rate of insurance on the Building or contents created by Tenant's acts or
conduct of business, then Tenant hereby agrees to pay such increase.
Nor will Tenant use or occupy the Premises or permit the same to be used
for any purpose whatsoever other than the Permitted Use defined herein.
Tenant acknowledges and understands that the proper tenant mix of the
Office Building is essential to the successful operation of the Office
Building and that the restriction against the unauthorized use of the premises
is not intended to act as a restraint on trade but to protect and insure the
correct tenant mix.
Laws and Regulations
6. Tenant will maintain the Demised Premises in a clean and healthful
condition and comply with all laws, ordinances, orders, rules and regulations
(state, federal, municipal, and other agencies or bodies having any
jurisdiction thereof) with reference to conditions or occupancy of the Demised
Premises. Tenant shall not cause or permit any hazardous material to be
brought upon, stored, produced, emitted, disposed or used upon, above or
beneath the Building by Tenant, its agencies, employees or contractors.
Hazardous material means any material or substance defined as a "hazardous
substance" pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act as amended, or as defined in any other federal, state or
local statute, law, ordinance or regulation.
Indemnity, Liability and Loss or Damage
7. By moving into the Demised Premises or taking possession thereof, Tenant
accepts the Demised Premises as suitable for the purposes for which the same
are leased and accepts the Building and each and every appurtenance thereof,
and Tenant by said acts waives any and all defects therein, except for blatant
defects due to Landlord's negligence.
Landlord shall not be liable to Tenant or Tenant's agents, employees,
guests, invitees or to any person claiming by, through or under Tenant for any
injury to person, loss or damage to property, or for loss or damage to
Tenant's business, occasioned by or through the acts or omissions of Landlord
or any other person, or due to the Building or the Demised Premises or any
part thereof or any appurtenances thereto becoming out of repair, due to the
happening of any accident or event in or about the Building or the Demised
Premises, or by any other cause whatsoever except Landlord's negligence or
willful wrong to the extent Landlord is not prevented by law from contracting
against such liability. Tenant shall indemnify Landlord and save it harmless
from all suits, actions, damages, liability and expense in connection with
loss of life, bodily or personal injury or property damage arising from or out
of any occurrence in, upon, at or from the Demised Premises or the occupancy
or use by Tenant of the Demised Premises or any part thereof to the extent
occasioned wholly or in part by any action or omission of Tenant, its agents,
contractors, employees, servants, invitees, or licensees. If Landlord shall
without fault on its part, be made a party to any action commenced by or
against Tenant, the Tenant shall protect and hold Landlord harmless and shall
pay all costs, expenses, and reasonable attorneys' fees.
Building Rules and Regulations
8. Tenant and Tenant's agents, employees, and invitees will comply fully
with all requirements of the Building Rules and Regulations which are attached
as Exhibit B and made a part hereof as though fully set out herein. Landlord
shall at all times have the right to change such Rules and Regulations or to
amend them in such reasonable manner as may be deemed advisable for safety,
care and cleanliness of the premises and for the preservation of good order
therein, all of which Rules and Regulations, changes and amendments will be
forwarded to Tenant in writing and shall be carried out and observed by
Tenant.
Entry for Repairs and Inspection
9. Tenant will permit Landlord or owner, or their officers, agents and
representatives, the right tot enter into and upon all parts of the Demised
Premises, at all reasonable hours to inspect same or clean or make repairs or
alterations or additions as Landlord may deem necessary, and Tenant shall not
be entitled to any abatement or reduction of rent by reason thereof. In the
event of an emergency, Tenant hereby grants to Landlord the right to enter the
Demised Premises at any time. In addition, Tenant shall permit Landlord or
Landlord's agent and any other person authorized by the same to enter the
Demised Premises during the last six months of the Lease Term for the purpose
of exhibiting the Demised Premises to prospective lessees.
Nuisance
10. Tenant will conduct its business, and control its agents, employees,
invitees and visitors in such a manner as not to create any nuisance,
interfere with, annoy or disturb other tenants or Landlord in the management
of the Building.
Eminent Domain and Force Majeure
11. (A) If, in the reasonable opinion of the Landlord, the whole of the
Demised Premises, or so much thereof as to render the balance unusable by
Tenant is taken under power of eminent domain, or sold, transferred or
conveyed in lieu thereof, this Lease shall automatically terminate as of the
date of such condemnation, or as of the date possession is taken by the
condemning authority, whichever is later. No award for any partial or entire
taking shall be apportioned and Tenant hereby releases any claim to and
assigns to Landlord any award which may be made in such taking or
condemnation, together with any and all rights of Tenant now or hereafter
arising in or to the same or any part thereof, provided, however, that nothing
contained herein shall be deemed to give Landlord any interest in, or to
require Tenant to assign to Landlord, any award made to Tenant for the taking
of personal property and fixtures belonging to Tenant and removable by Tenant
at the expiration of the term hereof as provided hereunder or for the
interruption of, or damage to, Tenant's business. In the event of a partial
taking, or a sale, transfer or conveyance in lieu thereof, which does not
result in a termination of this Lease, pursuant to the foregoing, the Basic
Rental shall be apportioned according to the ratio that the part of the
Demised Premises remaining usable by Tenant bears to the total area of the
Demised Premises.
(B) Landlord shall not be liable or responsible for any loss or damage
to any property or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition or order
of a government body or authority, or other matter beyond the control of
Landlord or for any damage or inconvenience which may arise through repair or
alteration of any part of the Building or failure to make any such repairs, or
from any cause whatever except to the extent caused by Landlord's gross
negligence.
Lien for Rent
12. In consideration of the mutual benefits arising by virtue of this Lease,
Tenant does hereby mortgage unto Landlord all property of Tenant now or
hereafter placed in or upon the Demised Premises (except such part of Tenant's
property or merchandise as may be exchanged, replaced or sold from time to
time in the ordinary course of operations or trade), and such property is
hereby subject to a lien in favor of Landlord and shall be and remain subject
to such lien of Landlord for payment of all Basic Rental, Operating Expenses
and Taxes and other sums agreed to be paid by Tenant herein. Said lien shall
be in addition to and cumulative of the Landlord's lien provided by law. At
any time and from time to time, upon request by Landlord, Tenant will make,
execute and deliver or cause to be made, executed and delivered, to Landlord,
and where appropriate, filed and from time to time thereafter to be refiled at
such time and in such offices and places as shall be deemed desirable by
Landlord, any and all security agreements, financing statements, and other
documents ("Instrument") as may, in the opinion of Landlord, be necessary or
desirable in order
to effectuate, complete, enlarge or perfect, or to continue
and preserve (a) the obligations of Tenant under this Lease, and (b) the lien
and security interest granted by this paragraph as a first and prior lien and
security interest upon Tenant's interest in this Lease and the personal
property of Tenant located in the Demised Premises, whether now or hereafter
acquired by Tenant except as to any existing security interest granted to any
vendor of Tenant. Upon any failure by Tenant so to do, Landlord may make,
execute, file, or refile any and all such instruments for and in the name of
Tenant, and Tenant hereby irrevocably appoints Landlord the agent and
attorney-in-fact of Tenant so to do. The lien and security interest hereof
will automatically attach, without further act, to all after acquired personal
property attached to and/or used in the operation of the Tenant's business in
the Demised Premises or any part thereof.
Abandonment
13. If the Demised Premises are abandoned or vacated by Tenant, Landlord
shall have the right, but not the obligation, to: (a) relet same for the
remainder of the period covered hereby; and if the Basic Rental, Operating
Expenses and Taxes are not received through such reletting at least equal to
the Basic Rental, Operating Expense and Taxes provided hereunder, Tenant shall
pay and satisfy any deficiencies between the amount of Basic Rental, Operating
Expenses and Taxes called for under this Lease and that received through
reletting and all expenses incurred by any such reletting, including but not
limited to, the cost of advertising, brokerage fees, renovating, altering and
decorating for a new tenant, and/or (b) provide for the storage of any
personal property remaining in the Demised Premises without liability of any
kind or for the cost of storage or the return of the personal property to
Tenant or take title to the abandoned personal property which title shall pass
to Landlord under this lease as a Bill of Sale without additional payments or
credit from Landlord to Tenant. Notwithstanding the foregoing, during the
last ninety (90) days of the term of this Lease, if Tenant removes a
substantial portion of Tenant's property or Tenant has been in physical
absence for ten (10) days it shall constitute a vacation and Landlord may
enter the Demised Premises for purposes of renovating, altering and decorating
the Demised Premises for occupancy at the end of the term b a new tenant
without in any way affecting Tenant's obligation to pay Basic Rental,
Operating Expenses and Taxes and comply with all other terms and conditions of
this Lease. Nothing herein shall be construed as in any way denying Landlord
the right, in case of abandonment, vacation of the Demised Premises, or other
breach of the contract by Tenant, to treat the same as an entire breach, and
at Landlord's option, immediately sue for the entire breach of this contract
and any and all damages occasioned Landlord thereby.
Holding Over
14. In addition to performing all of Tenant's other obligations set forth in
this Lease, Tenant shall pay to Landlord an amount equal to 200% of the
monthly installment of Basic Rental and 200% of the monthly installment of
Operating Expenses and Taxes payable by Tenant during the last month of the
Lease Term on the 1st day of each month or a portion thereof for which Tenant
shall retain possession of the Demised Premises or any part thereof after the
expiration or termination of the Lease Term or of Tenant's right of
possession, whether by lapse of time or otherwise, and also shall pay all
costs incurred and damages sustained by Landlord, whether direct or
consequential, on account of such holding over. The provisions of this
paragraph shall not be deemed to limit or constitute a waiver of any rights or
remedies of Landlord provided herein or at law. No holding over by Tenant
after the terms of this Lease, either with or without the consent and
acquiescence of Landlord, shall operate to extend this Lease for a longer
period than one month; and holding over with the consent of Landlord in
writing shall thereafter constitute this agreement a Lease from month to
month. The foregoing provisions of this Article 14 are in addition to and do
not affect Landlord's right of re-entry or any other rights of Landlord
hereunder or as otherwise provided by law.
Attorneys' Fees
15. In the event Tenant defaults in the performance of any of the terms,
covenants, agreements or conditions contained in this Lease, and Landlord
places the enforcement of this Lease, or any part thereof, or the collection
of any Basic Rental, Operating Expenses or Taxes due, or to become due
hereunder or recovery of the possession of the Demised Premises in the hands
of an attorney or files suit upon the same, Tenant agrees to pay Landlord
reasonable attorneys' fees, and payment of the same shall be secured in like
manner as is herein provided, as to all remedies which may be invoked by
landlord to secure payment of Basic Rental, Operating Expenses and Taxes. See
Rider paragraph 58.
Damage or Destruction
16. If the Demised Premises or the Building shall be damaged by any cause or
means whatsoever not caused or contributed to by the negligence or fault of
Tenant, its employees, agents, invitees or visitors, and if insurance proceeds
have been made available therefore, and if said damage can be repaired within
a period of ninety (90) working days by using standard working methods and
procedures, Landlord shall within a reasonable time after the occurrence of
said damage, and to the extent of the insurance proceeds available therefore,
enter and make repairs, and this Lease shall not be affected but shall
continue in full force and effect. However, if said damage cannot be repaired
within a period of ninety (90) working days by using standard working methods
and procedures, then this Lease shall cease and terminate as of the date of
such occurrence, and Tenants hall pay Basic Rental, Operating Expenses, or
Taxes hereunder to such date and immediately surrender the Demised Premises to
Landlord, unless within a period of sixty (60) days from the date of such
occurrence Landlord shall elect to keep this Lease in force and to restore the
Demised Premises to substantially the condition as existed prior to the date
of such occurrence by giving Tenant written notice of such election within
said sixty (60) day period. If in any event Landlord so elects to continue
the Lease and restore the Demised Premises, Landlord shall within a reasonable
time after the date of the notice of said election enter and make repairs, and
this Lease shall not be affected, except that Basic Rental hereunder shall be
reduced or abated from the date of the casualty until such time the repairs
are substantially completed and stays in the proportion that the Demised
Premises are untenantable. If, however, such damage is contributed to or
results from the fault of Tenant, Tenant's employees, agents, invitees or
visitors, and if Landlord does not have insurance covering such damage, such
damage shall be repaired by and at the expense of Tenant under the control,
direction and supervision of Landlord, and the Basic Rental, Operating
Expenses and Taxes shall continue without abatement or reduction. The
completion of the repairs of all such damages is subject to reasonable delays
resulting from survey of such damage, obtaining plans and letting contracts
for repair, adjustment or insurance loss, strikes, labor difficulties,
unavailability of material, or other causes beyond the control of the party
obligated to make such repairs. Notwithstanding anything to the contrary
contained in this Article 16, Landlord shall not have any obligation
whatsoever to repair, reconstruct or restore the Demised Premises on account
of the damage resulting from any casualty covered under this Article 16 which
occurs during the last twelve (12) months of the term of this Lease (or any
extension thereof), nor shall Landlord be required to expend funds to repair,
reconstruct or restore beyond the extent of insurance proceeds received by
Landlord. Landlord shall not be required to repair any injury or damage by
any cause, or to make any repairs or replacement of any property insured in he
Demised Premises by Tenant, and if the Demised Premises are not restored and
the Lease not terminated then Tenant shall not be obligated to pay Basic
Rental, operating expenses and taxes from and after the date of the casualty.
Insurance
17. Tenant agrees during the term hereof to carry a broad form comprehensive
policy of commercial general liability insurance covering the Demised Premises
in an amount of not less than $2,000,000.00 combined single limit per
occurrence, personal injury and property damage insurance with companies
satisfactory to Landlord in the name of Tenant (with Landlord and, if
requested by Landlord, any mortgagee, trust deed holder, ground lessors agent
or secured party with a substantial interest in this Lease and/or the Building
named as additional insureds in the policy or by endorsement). Tenant also
agrees to pay the premiums therefore and to deliver copies of said policies
and/or endorsements thereto to Landlord, and the failure of Tenant to either
obtain said insurance or deliver copies of said policies or certificates
thereof to Landlord shall permit Landlord to procure said insurance and pay
the requisite premiums therefor; which premiums shall be repayable to Landlord
with the next monthly rental payment. Each insurer under the policies
required hereunder shall agree by endorsement on the policy issued by it or by
independent instrument furnished to Landlord that will give Landlord no less
than thirty (30) days written notice before the policy or policies in question
shall be altered or cancelled. All such insurance policies shall be primary,
noncontributing and shall contain cross-liability coverage or an endorsement.
The amounts of such insurance required hereunder shall be subject to
adjustment from time to time as requested by Landlord based upon Landlord's
determination as to the amounts of such insurance generally required at such
time for comparable tenants, premises and buildings in the general
geographical location of the Building or as requested by any ground lessor or
lender with an interest in the Building or property on which the Building is
situated.
Transfer of Landlord's Rights
18. Landlord shall have the right to transfer and assign, in whole or in
part, all and every feature of its rights and obligations hereunder and in the
Building and property referred to herein.
Default Clause
19. In the event: (a) Tenant fails to comply with any term, provision,
condition, or covenant of this Lease or any of the Rules and Regulations now
or hereafter established for the government of the Building; (b) Tenant
deserts or vacates the Demised Premises; (c) any petition is filed by or
against Tenant under any section or chapter of the Bankruptcy Reform Act of
1978, as amended, or under any similar law or statute of the United States or
of any state thereof; (d) Tenant becomes insolvent or makes a transfer in
fraud of creditors; (e) Tenant makes an assignment for benefit of creditors,
(f) a receiver is appointed for Tenant or any of the assets of Tenant; or (g)
any representation or warranty made by Tenant is not accurate and correct,
Landlord shall have the option to do any one or more of the following without
any notice or demand, in addition to and not in limitation of any other remedy
permitted by law or by this Lease:
(1) Take immediate possession of the Demised Premises, but if Tenant
shall fail to vacate the Demised Premises, Landlord may,
without notice and without prejudice to any other remedy Landlord may have,
enter upon and take possession of the Demised Premises and expel or remove
Tenant and its effects, by force if necessary, without being liable to
prosecution or any claim for damages therefor, and Tenant agrees to
indemnify Landlord for all loss, damage and expense including reasonable
attorneys' fees which Landlord may suffer by reason of such termination.
(2) Declare the entire amount of the Basic Rental, Operating Expenses
and Taxes which would have become due and payable during the remainder of the
term of this Lease to be due and payable immediately, in which event, Tenant
agrees to pay the same at once, together with all Basic Rental, Operating
Expenses and Taxes theretofore due, to Landlord at the address specified
herein or hereunder, provided, however, that such payments shall not
constitute a penalty or forfeiture or liquidated damages, but shall merely
constitute payment in advance of the Basic Rental, Operating Expenses and
Taxes for the remainder of the said term. The acceptance of such payment by
Landlord shall not constitute a waiver of any failure of Tenant thereafter
occurring to comply with any term, provision, condition or covenant of this
Lease.
(3) Relet the Demised Premises and receive the rent therefor, and in
such event, Tenant shall pay Landlord the cost of advertising, brokerage fees,
renovating, repairing and altering the Demised Premises for a new tenant or
tenants and any deficiency that may arise by reason of such reletting, on
demand, at the address of Landlord specified herein or hereunder, provided,
however, the failure or refusal of Landlord to relet the Demised Premises
shall not release or affect Tenant's liability for Basic Rental, Operating
Expenses and Taxes or for damages and such Basic Rental, Operating Expenses
and Taxes and damages shall be paid by Tenant on the dates specified herein.
(4) Landlord may, as agent of Tenant, do whatever Tenant is obligated
to do by the provisions of this Lease and may enter the Demised Premises, by
force if necessary, without being liable to prosecution or any claim for
damages therefor, in order to accomplish this purpose. Tenant agrees to
reimburse Landlord immediately upon demand for any expenses which Landlord may
incur in thus effecting compliance with this Lease on behalf of Tenant, and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action, whether caused by the negligence of
Landlord or otherwise.
(5) Terminate this Lease, whereupon Tenant shall promptly reimburse
Landlord for the amount of actual damages suffered by Landlord.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by
law.
Cross Defaults
20. In the event Tenant, or Tenant's subsidiary or affiliate, shall have
other leases for other premises in the Building, any default by Tenant or its
subsidiary or affiliate under any lease shall be deemed to be a default under
all other leases and Landlord shall be entitled to enforce all rights and
remedies against all such leases as provided for a default herein.
Binding Effect
21. This Lease shall also inure to the benefit of the successors and assigns
of Landlord, and, with the written consent of Landlord first had and obtained,
but not otherwise, to the benefit of the heirs, executors and/or
administrators, successors and assigns of Tenant.
Remedies
22. No act or thing done by Landlord or its agents during the term hereof
shall be deemed an acceptance of a surrender of the Demised Premises, and no
agreement to accept a surrender of the Demised Premises shall be valid unless
made in writing and signed by Landlord. The mention in this Lease of any
particular remedy shall not preclude Landlord from any other remedy Landlord
might have, either in law or in equity, nor shall the waiver of or redress for
any violation of any covenant or condition in this Lease contained or any of
the Rules and Regulations attached hereto or hereafter adopted by Landlord,
prevent a subsequent act, which would have originally constituted a violation,
from having all the force and effect of an original violation. The receipt by
Landlord of Basic Rental, Operating Expenses and Taxes with knowledge of the
breach of any covenant in this Lease contained shall not be deemed a waiver of
such breach. The failure of Landlord to enforce any of the Rules and
Regulations attached hereto, or hereafter adopted, against Tenant and/or any
other tenant in the Building shall not be deemed a wavier. Waiver of said
Rules or Regulations by Landlord shall be in writing and signed by Landlord.
In case it should be necessary or proper for Landlord to bring any action
under this Lease to consult or place said Lease or any amount payable by
Tenant thereunder with an attorney concerning or for the enforcement of any of
the Landlord's rights hereunder, then Tenant agrees in each and any such case
to pay to Landlord reasonable attorneys' fees.
Quiet Possession
23. Landlord hereby covenants that Tenant, upon paying Basic Rental,
Operating Expenses and Taxes as herein reserved, and performing all covenants
and agreements herein contained on part of Tenant, shall and may peacefully
and quietly have, hold and enjoy the Demised Premises.
Improvements
24. If any improvements are made with respect to the Demised Premises at the
Tenant's expense or under any agreement with the Tenant whereby the Tenant is
given an allowance or rent reduction in exchange for Landlord's agreement to
install or allow to be installed leasehold improvements such as by way of
example but not limitation: wall coverings, floor coverings or carpet,
paneling, doors and hardware, any and all of such improvements shall become
the property of the Landlord and shall in no event be removed by the Tenant.
Possession
25. If for any reason the Demised Premises shall not be ready for occupancy
by Tenant at the time of commencement of this Lease, this Lease shall not be
affected thereby, nor shall Tenant have any claim against Landlord by reason
thereof, but not Basic Rental, Operating Expenses or Taxes shall be payable
for the period during which the Demised Premises shall not be ready for
occupancy. All claims for damages arising out of any such delay are waived
and released by Tenant. With respect to the foregoing, if delivery of
possession of the Demised Premises shall be delayed beyond the date specified
for the commencement of the Lease Term, it is understood and agreed that the
commencement of the Lease Term shall be extended to the date that the Demised
Premises are tendered to the Tenant in which event the termination date of the
Lease Term shall be correspondingly extended. In the event of such delay in
tendering the Demised Premises to the Tenant the Landlord shall not be liable
to Tenant for any damage whatsoever resulting from the delay in the delivery
of possession of the Demised Premises. notwithstanding the foregoing, it is
understood that if and to the extent that Landlord is unable to deliver timely
possession of the Demised Premises to Tenant due to delays by Tenant, then the
Basic Rental, Operating Expense and Taxes reserved shall commence to accrue on
the date possession of the Premises would have been delivered to Tenant but
for the delays of Tenant. If permission is given to Tenant to occupy the
Demised Premises prior to the date of commencement of the term hereof, such
occupancy shall be subject to all of the provisions of this Lease (including
the payment of Basic Rental, Operating Expenses and Taxes), however, the Lease
term shall be extended by the number of days of such early occupancy.
Condition of Premises
26. Tenant acknowledges that neither Landlord nor any agent of Landlord have
made any representation or warranty with respect to the Demised Premises or
the Building or with respect to the suitability of either for the conduct of
Tenant's business or profession. The taking of possession of the Demised
Premises by Tenant shall conclusively establish that the Demised Premises and
the Building were at such time in satisfactory condition.
Estoppel Certificate
27. Tenant shall at any time and from time to time, upon not less than ten
(10) days prior written notice from Landlord, execute, acknowledge and deliver
to Landlord a statement in writing certifying that this Lease is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect), the dates to which the Basic Rental, Operating Expenses and Taxes
and other charges, if any, are paid in advance and the amount of Tenant's
security deposit, if any, and acknowledging that there are not, to Tenant's
knowledge, any uncured defaults, on the part of Landlord hereunder, and that
there are no events or conditions then in existence which, with the passage of
time or notice or both, would constitute a default on the part of Landlord
hereunder, or specifying such defaults, events or conditions, if any are
claimed, and such further matters regarding the Lease or the Demised Premises
as Landlord may request. It is expressly understood and agreed that any such
statement may be relied upon by any prospective purchaser or encumbrancer of
all or any portion of the Building or Property on which the Building is
situated. Tenant's failure to deliver such statement within such time shall,
at the option of landlord, constitute a default under this Lease and, in the
event, shall be conclusive upon Tenant that this Lease is in full force and
effect without modification except as may be represented by Landlord in any
such certificate prepared by landlord and delivered to Tenant for execution.
Signs
28. Tenant will not place or suffer to be placed or maintained on any
exterior door, wall or window of the Demised Premises any sign, awning or
canopy, or advertising matter or other thing of any kind, and will not place
or maintain any decoration, lettering or advertising matter on the glass of
any window or door of the Demised Premises without first obtaining Landlord's
prior written
approval and consent in each instance. Tenant further agrees to
maintain any such sign, awning, canopy, decoration, lettering, advertising
matter or other thing as may be approved, in good condition at all times.
Personal Property Taxes
29. With respect to Tenant's fixtures, furnishings, equipment and all other
personal property located in the Demised Premises, Tenant shall pay prior to
delinquency all taxes assessed against or levied thereon and when possible,
shall cause same to be assessed and billed separately from the property of
Landlord, but if same shall be assessed and taxed with the property of
Landlord, Tenant shall pay to Landlord its share of such taxes within ten (10)
days after Landlord's delivery to Tenant of a statement in writing setting
forth the amount of such taxes applicable to Tenant's property. In addition,
Tenant shall pay promptly when due all taxes imposed upon Tenant's rents,
gross receipts, charges and business operations.
Subordination
30. Tenant hereby subordinates this Lease and all rights of Tenant hereunder
to any mortgage or mortgages, or vendor's lien, or similar instruments which
now are or which may from time to time be placed upon the premises covered by
this Lease, and such deed to secure debt, mortgage or mortgages or liens or
other instruments shall be superior to and prior to this Lease. Tenant
further covenants and agrees that if the mortgagee or other lien holder
acquired the Demised Premises as a purchaser at any such foreclosure sale (any
such mortgagee or other lien-holder or purchaser at the foreclosure sale being
each hereinafter referred to as the "Purchaser at Foreclosure"), Tenant shall
thereafter, but only at the option of the Purchaser at Foreclosure, as
evidenced by the written notice of its election given to Tenant within a
reasonable time thereafter, remain bound by novation or otherwise to the same
effect as if a new and identical Lease between the Purchaser at Foreclosure,
as Landlord, and Tenant, as tenant, had been entered into for the remainder of
the term of the Lease in effect at the institution of the foreclosure
proceedings. No Purchaser at Foreclosure shall be liable for any default by
Landlord or any other matter which occurred prior to the date such successor
succeeded to Landlord's interest in this Lease nor shall such Purchaser at
Foreclosure be bound by or subject to any offsets or defenses which Tenant may
have against Landlord. No Purchaser at Foreclosure shall be bound to
recognize any prepayments by more than thirty (30) days of Basic Rental or
Tenant's share of Operating Expenses and Taxes. Tenant agrees to execute any
instrument or instruments which may be deemed necessary or desirable further
to effect the subordination of this Lease to each such mortgage, lien or
instrument or to confirm any election to continue the Lease in effect in the
event of foreclosure, as above provided. Tenant hereby irrevocably appoints
Landlord as its special attorney-in-fact to execute and deliver any document
or documents provided for herein for and in the name of Tenant. Such power,
being coupled with an interest, is irrevocable.
Severability Clause
31. If any clause or provision of this Lease is illegal, invalid, or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or
provision that is illegal, invalid or unenforceable, there be added as a part
of this Lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable. The caption of each paragraph hereof is added as a
matter of convenience only and shall be considered to be of no effect on the
construction of any provision or provisions of this Lease.
Security Deposit
32. Upon the occurrence of any event of default by Tenant, Landlord may,
from time to time, without prejudice to any other remedy use the Security
Deposit paid to Landlord by Tenant as herein provided to the extent necessary
to make good any arrears of Basic Rental, Operating Expenses, Taxes and any
other damage, injury, expense or liability caused to Landlord by such event of
default. If any portion of said deposit is so used or applied, Tenant shall,
within five (5) days after written demand therefor, deposit cash with Landlord
in an amount sufficient to restore the security deposit to it original amount.
Tenant shall not be entitled to interest on the security deposit. Tenant
shall not grant anyone a security interest of any kind in such security
deposit and no such security agreement shall be binding on Landlord. If
Tenant shall fully and faithfully perform every provision of this Lease to be
performed by it, the security deposit, or any balance thereof remaining, shall
be returned to Tenant at the expiration of the Lease term and upon Tenant's
vacation of the Premises. Such Security Deposit shall not be considered an
advance payment of rental or a measure of Landlord's damages in case of
default by Tenant.
In the event the Landlord should have good cause to doubt the full and
faithful performance of every provision of this lease by the Tenant, the
Landlord shall have the right to demand that the Tenant post an additional
Security Deposit in an amount equal to the current monthly amount of Basic
Rental, Operating Expenses and Taxes. Upon the showing by the Tenant that
this full and faithful performance is no longer in doubt, the additional
Security Deposit shall be returned to the Tenant.
Waiver of Subrogation
33. Each of Landlord and Tenant hereby waives any and every claim for
recovery from the other for any and all loss or damage to the Building or
Demised Premises or to the contents thereof, whether such loss or damage is
due to the negligence of Landlord or Tenant or its respective agents or
employees, to the extent that the amount of such loss or damage is recovered
under its policies of insurance; provided, however, that the foregoing waiver
shall not be operative in any case where the effect thereof is to invalidate
any insurance coverage of the waiving party or increase the cost of such
insurance coverage; provided further, however, that Landlord and Tenant each
agree to give written notice of the terms of this mutual waiver to each
insurance company which has issued, or in the future may issue, policies of
physical damage to it, and to have said insurance policies property endorsed,
if necessary, to prevent the invalidation of said insurance coverage by reason
of said waiver.
Adjustment of Rental
34. (a) Operating Expenses:
(1) The term "Operating Expenses" shall mean all costs of management,
operating and maintenance of the land, the Building and other improvements
thereon and appurtenances thereto of which the Demised Premises are a part,
all accrued and based on a calendar year period, including by way of
illustration but not limitation, utilities, insurance premiums, management
fees, janitorial and cleaning services, compliance with laws, ordinances,
rules and regulations, licenses, permits and inspection fees, heating and
cooling, maintenance and repairs, general administration costs and expenses,
labor and supplies, capital expenditures which are intended to result in labor
or cost saving device or operation and capital expenditures required by any
governmental ordinance, law, rule or regulation in which case the capital
expenditures may be amortized as reasonably determine by Landlord with
interest thereon and included on an annual basis in the Operating Expenses,
whether such Operating Expenses, or any portion thereof, are paid by the
Landlord, or paid directly by the Tenant, excluding, however, depreciation;
principal and interest payments on mortgage loans; costs of repairs,
alterations or replacements caused by casualty losses to the extent
customarily insured against by owners of office buildings of similar size,
age, and construction in he area; cost of tenant improvements and commissions
paid for leasing.
(2) It is agreed that the Basic Rental provided for herein includes
the Tenant's Prorata Share of Operating Expenses. If the amount of such
Operating Expenses for the entire Building exceeds $ those of calendar year
1995 in any calendar year, Tenant shall pay its Prorata Share of the excess in
the manner hereinafter set forth. It is further agree that if the Actual
Operating Expenses for the entire Building for any calendar year exceeds the
greater of the (i) estimated Annual Operating Expenses or (ii) the Actual
Operating Expenses for the entire Building the Tenant shall pay the Landlord
without reduction or setoff, within ten (10) days of billing, as additional
rental the Tenant's share of such excess.
(3) If the amount of Actual Annual Operating Expenses for the entire
Building for the immediately preceding year is less than the estimated Annual
Operating Expenses for such year, Landlord shall credit the Tenant, Tenant's
share of such amount and shall reimburse Tenant by deducting, monthly, from
its estimated payments of Operating Expenses for the current year, one-twelfth
(1/12) of such share.
(4) It is further agreed and understood that approximately January 1st
of each calendar year or as soon thereafter as the information can be
obtained, Landlord shall estimate the Annual Operating Expenses for the
current calendar year. The Landlord shall notify Tenant of such calculations
and (i) effective each January 1st, during the lease term and on the first
(1st) day of each of the succeeding eleven (11) months of each calendar year,
Tenant shall pay the Landlord one-twelfth (1/12) of its share of the estimated
Annual Operating Expenses for the current year.
(b) Taxes:
It is agreed that the Basic Rental provided for herein includes the
Tenant's Prorata Share of all real property taxes, other similar charges on
real property or improvements, personal property taxes or any other tax,
assessment, or water and sewer charge and all cots and fees incurred in
connection therewith ("Taxes"), which may be levied or assessed by any lawful
authority against the land and improvements or the Building if the amount of
such taxes, assessments, costs, fees and
charges exceeds $ those of calendar year 1995, in any calendar year,
Tenant shall pay its Prorata Share of the excess in the same manner as
provided above for payment of Operating Expenses.
(c) Operating Expenses and Taxes shall at all times herein be computed
separately.
(d) If the average occupancy in any calendar year is less than ninety
percent (90%), then the Operating Expenses for such year shall be adjusted to
reflect what the Operating Expenses would have been at an average occupancy of
ninety-five percent (95%).
(e) It is further agreed that the provisions of Article 34 shall
survive the termination of this Lease and be applicable to such portion of the
calendar year as this Lease was in effect.
(f) In no event shall any provision of this Article 34 result in any
reduction in the Basic Rental.
(g) Delay in computing any item of Operating Expenses or Taxes shall
neither be deemed a default by Landlord or a wavier of the right to collect
the item of Operating Expenses or Taxes in question. Notwithstanding anything
seemingly to the contrary in this Lease, Tenant shall make monthly payments on
account of each item of Operating Expenses and Taxes, the amount of which is
to be estimated by Landlord, based on the amount that Landlord's most recent
estimate thereof exceeds the amount of Operating Expenses and Taxes included
in Basic Rental, until Landlord notifies Tenant of a revision to such
estimate.
(h) Tenant acknowledges that the amounts of Operating Expenses and
Taxes included in the Basic Rental in Section 34 hereof are amounts agreed
upon by Landlord and Tenant and do not purport to be estimates of the
Operating Expenses and Taxes for the year in which the Lease Term commences or
for any other year.
Net Worth
35. Tenant shall maintain at all times a net worth in excess of that at the
signing of this Lease. If at any time Tenant's net worth should not exceed
that amount, Tenant shall notify Landlord of this fact in writing.
Defaults by Tenant on Third Party Agreements
36. Tenant shall not default on any of its covenants under any loan
agreements with any lending, mortgage or financial institution. Nor shall
Tenant default on any loan or financial agreement with any third party wherein
there is an outstanding balance owed by Tenant. Tenant immediately shall
advise Landlord in writing if any such default by Tenant should occur.
Sale of Assets
37. Tenant shall not transfer any portion of his assets outside the ordinary
course of his business so that the effect causes the Tenant to default under
paragraph 36 of this lease.
Interest on Past Due Obligations
38. All payments becoming due under this Lease and remaining unpaid when due
shall bear interest until paid at a rate per annum (the "Interest Rate") equal
to 18%. Tenant recognizes that late payment of Basic Rental or any other sum
due hereunder will result in administrative expenses to Landlord, the extent
of which additional expenses are extremely difficult and economically
impractical to ascertain and Tenant hereby agrees that the amounts discussed
herein are reasonable. Tenant theretofore agrees that when Basic Rental,
Operating Expenses, Taxes or any other sum is due and payable from Tenant to
Landlord pursuant to the terms of this Lease, and such amount remains unpaid
five (5) days after such amount is due, the amount of such unpaid Basic
Rental, Operating Expenses, Taxes or other sum shall be increased by a late
charge to be paid to Landlord by Tenant equal to the greater of (a) $100.00 or
(b) 10% of the unpaid Basic Rental or other sum.
The provisions of this Paragraph shall in no way relieve Tenant of the
obligation to pay Basic Rental, Operating Expenses, Taxes or other payments on
or before the date on which they are due, nor shall the collection by Landlord
of any amount under this paragraph impair (a) the ability of Landlord to
collect the amount charged under this paragraph or (b) Landlord's Remedies set
forth in Section 19 of this Lease.
Relocation
39. (a) In the event Tenants Demised Premises or a portion of Tenants
Demised Premises is less than 5,000 RSE then at any time hereafter, Landlord
shall have the right to substitute for the Demised Premises then being leased
or to be leased hereunder (the "Existing Premises") other premises within the
Building herein referred to as the "New Premises" provided that the New
Premises shall be of at least substantially the same size and shall either
have substantially the same perimeter configuration or a perimeter
configuration substantially as usable for the purposes for which the Existing
Premises were being used by Tenant or, if possession of the Existing Premises
had not yet been received by Tenant, then for the purposes for which the
Existing Premises were to be used by Tenant.
(b) If Tenant shall not have received possession of the Existing
Premises, then, as of the date Landlord gives notice of a substitution, such
substitution shall be effective, the New Premises shall be the Demised
Premises hereunder and the Existing Premises shall cease to be the Demised
Premises hereunder.
(c) The provisions of this subparagraph (c) shall apply if Tenant
shall have already received possession of the Existing Premises as of the date
Landlord gives notice of substitution. Tenant shall vacate and surrender the
Existing Premises not later than the later of the 30th day after the date that
Landlord shall notify Tenant of Landlord's intent to make the substitution in
question or the 15th day after Landlord shall have substantially completed the
work to be done by Landlord in the New Premises pursuant to this subparagraph
(c). As of the sooner of such 15th day or the date of such surrender and
vacation, the New Premises shall be the Demised Premises leased under this
Lease and the Existing Premises shall cease to be the Demised Premises leased
under this Lease. Landlord shall (A) pay the actual and reasonable out-of-
pocket expenses of Tenant's moving of its property from the Existing Premises
to the New Premises, and (B) shall improve the New Premises so that they are
substantially similar to the Existing Premises and promptly reimburse Tenant
for its actual and reasonable out-of-pocket costs in connection with the
relocation of any telephone or other communications equipment from the
Existing Premises to the New Premises. However, instead of only paying the
expenses of Tenant's moving of its property, Landlord may elect to either move
Tenant's property or provide personnel to do so under Tenant's direction, in
which event such move may not be made except during evenings, weekends or
holidays, so as to incur the lease inconvenience to Tenant.
(d) Tenant shall not be entitled to any compensation for any
inconvenience or interference with Tenant's business, nor to any abatement or
reduction in Basic Rental, nor shall Tenant's obligations under this Lease be
otherwise affected, as a result of the substitution, except as otherwise
provided in this Section 39.
Tenant agrees to cooperate with Landlord so as to facilitate the prompt
completion by Landlord of its obligations under this subparagraph. Without
limiting the generality of the preceding sentence, Tenant agrees to promptly
provide to Landlord such approvals, instructions, plans, specifications or
other information as may be reasonably requested by Landlord.
Inability to Perform
40. This Lease and the obligations of Tenant hereunder shall not be affected
or impaired because Landlord is unable to fulfill any of its obligations
hereunder or is delayed in doing so, if such inability or delay is caused by
reason of strike or other labor troubles, or act of God, or any other cause
beyond the control of Landlord.
Incorporation of Prior Agreements; Amendments
41. This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior
agreement or understanding pertaining to any such matter shall be effective
for any purpose. No provision of this Lease may be amended or added to except
by an agreement in writing signed by the parties hereto or their respective
successors in interest. Any written addenda to this Lease, when signed or
initialed by the contracting parties shall be deemed a part of this Lease to
the same full extent as if incorporated herein.
Gender
42. Throughout this Lease the masculine gender shall be deemed to include
the feminine and the neuter and the singular, the plural and vice versa.
Accord and Satisfaction
43. No payment by Tenant or receipt by Landlord of a lesser amount than that
stipulated herein for Basic Rental, Operating Expenses, Taxes or any other
charge shall be deemed to be other than on account of the earliest stipulated
Basic Rental, Operating Expenses, Taxes or other charge then due, nor shall
any endorsement or statement on a check or letter accompanying any check or
payment be deemed an accord and satisfaction and Landlord may accept such
check or payment without prejudice to Landlord's rights to
recover the balance of such Basic Rental, Operating Expenses, Taxes or other
charges or pursue any other remedy in this Lease, at law or in equity.
Time of Essence
44. Time is of the essence with respect to the performance of every
provision of this Lease in which time of performance is a factor.
Brokers
45. Tenant warrants that it has had no dealings with any real estate broker
or agent in connection with the negotiation of this Lease, excepting only the
Miller-Richmond Company ("Broker") and that Tenant knows of no other real
estate broker or agent who is or might be entitled to a commission in
connection with this Lease. Tenant agrees to indemnify, defend and hold
Landlord harmless from and against all claims made by any broker or finder
other than the above-named broker for a commission in connection with this
Lease, provided that Landlord has not retained such broker.
Lease Effective Upon Execution
46. Delivery of this Lease, duly executed by Tenant, constitutes an offer to
lease the Demised Premises as herein set forth, and under no circumstances
shall such delivery be deemed to create an option or reservation to lease the
Demised Premises for the benefit of Tenant. This Lease shall only become
effective and binding upon execution hereof by Landlord and delivery of a
signed copy to Tenant.
Notices
47. Any notice required or permitted to be given hereunder by one party to
the other shall be deemed to be given when deposited in the United States
Mail, with sufficient postage prepaid, or overnight courier addressed to the
respective party to whom notice is intended to be given at the following
address of such party:
If to Landlord: If to Tenant:
Perimeter 400 Partners CIS Technologies, Inc.
1100 Johnson Ferry Road, N.E., Suite 200 1100 Johnson Ferry Road, N.E.,
Suite 800
Atlanta, GA 30342 Atlanta, GA 30342
with copies with copies
in the case of Landlord to: in the case of Tenant to:
Balcor Property Management, Inc. Kellie Watts
4849 Golf Road 6100 S. Yale Drive
Skokie, IL 60077 Suite 1900
Attn: Legal Department Tulsa, OK 74136
Surrender of Possession
48. Upon the expiration of the Lease Term or upon the termination of
Tenant's right of possession, whether by lapse of time or at the option of
Landlord as herein provided, Tenant shall forthwith surrender the Demised
Premises to Landlord in good order, repair and condition, ordinary wear
excepted. Prior to the expiration or termination of the Lease Term or of
Tenant's right of possession of the Demised Premises, Tenant shall remove its
office furniture, trade fixtures, office equipment, telephone and computer
systems (and all wiring related thereto) and all other items of Tenant's
property (including, without limitation, any alterations made or installed
after the commencement of the Lease Term other than the alterations approved
pursuant to Section 4 hereof) from the Demised Premises and shall surrender
the Demised Premises to Landlord in broom-clean condition. In addition,
Landlord may require removal of extraordinary improvements that were installed
by landlord or Tenant prior to the commencement of the Lease Term.
Extraordinary improvements include, but shall not be limited to, raised floors
or safes. Tenant shall pay to Landlord upon demand the cost of repairing any
damage to the Demised Premises and to the Building caused by any such removal.
Prohibition Against Recording
49. Neither this Lease, nor any memorandum, affidavit or other writing with
respect thereto, shall be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant, and the recording thereof in violation of this
provision shall make this Lease null and void at Landlord's election.
Only Landlord/Tenant Relationship
50. Nothing contained in this Lease shall be deemed or construed by the
parties hereto or by an third party to create the relationship of principal
and agent, partnership, joint venturer or any association between Landlord and
Tenant, it being expressly understood and agreed that neither the method of
computation of Basic Rental nor any act of the parties hereto shall be deemed
to create any relationship between Landlord and Tenant other than the
relationship of landlord and tenant. This Lease shall create a usufruct only
which cannot be attached by Tenant's creditors and is not assignable except as
set forth in paragraph 3 above.
Governing
51. Interpretation of this Lease shall be governed by the internal laws of
the state where the Building is located.
Authorized Signatory
52. If Tenant is a corporation or partnership, each signatory of Tenant
personally represents and warrants that he is a duly authorized signatory for
and on behalf of the Tenant, and agrees that if the representation and
warranty contained in this paragraph is false, each signatory shall be
personally liable under this Lease.
Financial Information
53. Tenant represents and warrants that all financial information heretofore
and hereafter delivered to Landlord is true and correct and that no material
misstatements, misrepresentations or omissions exist therein.
Limitation on Landlord's Liability
54. It is expressly understood and agreed by Tenant that none of Landlord's
covenants, or undertakings or agreements are made or intended as personal
covenants, undertakings or agreements by Landlord or the partners in Landlord,
and any liability of Landlord or the partners in Landlord for damages or
breach or nonperformance by Landlord or otherwise arising under or in
connection with this Lease or the relationship of Landlord and Tenant
hereunder, shall be collectible only out of Landlord's interest in the
Building and the land upon which the Building is located (or if Landlord is
the beneficiary of a land trust, Landlord's right, title and interest in such
land trust), in each case as the same may then be encumbered, and no personal
liability is assumed by, nor at any time may be asserted against, Landlord or
the partners in Landlord or any of its or their officers, agents, employees,
legal representatives, successors or assigns, all such liability, if any,
being expressly waived and released by Tenant.
IN WITNESS WHEREOF this lease is entered into by the parties hereto on the
date and year first set forth above.
LANDLORD: TENANT:
Perimeter 400 Partners CIS Technologies, Inc. (SEAL)
an Illinois General Partnership
By: Balcor Pension Investors VI
an Illinois Limited Partnership
By: Balcor Mortgage Advisors VI By: /s/ Jim Hersma
an Illinois General Partnership Title: President
By: The Balcor Company a Delaware Corp.
By: /s/ Tom Molina V.P. Attest: /s/ Kellie J.
Watts
Attest: /s/ Jerry M. Ogle Title: Secretary
Title: Vice President and Secretary
ACKNOWLEDGEMENT - LANDLORD
STATE OF ILLINOIS )
) SS
COUNTY OF LAKE )
I, Janice A. Berger, a Notary Public in and for said County, in the State
aforesaid, do hereby certify that Tom Molina, personally known to me to be the
V.P. (Title), of Balcor Property Management Services, Inc., an Illinois
corporation, and _______ personally known to me to be the ________ Secretary
of said corporation and personally known to me to be the same persons whose
names are subscribed to the foregoing instrument, appeared before me this day
in person and severally acknowledged that they signed and delivered the said
instrument as their free and voluntary act and as the free and voluntary act
and deed of said corporation, for the uses and purposes therein set forth.
Given under my hand and Notarial Seal this 20th day of September, 1995.
/s/ Janice A. Berger
Notary Public
My Commission Expires: 6/29/97 OFFICIAL SEAL
JANICE A. BERGER
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 6-29-97
ACKNOWLEDGEMENT - TENANT (CORPORATION)
STATE OF OKLAHOMA )
) SS
COUNTY OF TULSA )
I, Jeanne L. Day, a Notary Public in and for said County, in the State
aforesaid, do hereby certify that James L. Hersma, personally known to me to
be the President of CIS Technologies, Inc. a(n) Delaware corporation, and
Kellie J. Watts, personally known to me to be the Secretary of said
corporation and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, appeared before me this day in person
and severally acknowledged that they signed and delivered the said instrument
as their free and voluntary act and as the free and voluntary act and deed of
said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal this 15th day of September, 1995.
/s/ Jeanne L. Day
Notary Public
My Commission Expires:
September 19, 1998
ACKNOWLEDGEMENT - TENANT (INDIVIDUAL)
STATE OF )
) SS
COUNTY OF )
I, __________, a Notary Public in and for said County, in the State aforesaid,
do hereby certify that ________, appeared before me this day in person and
acknowledged that (he)(they) signed and delivered the said instrument as
(his/her)(their) free and voluntary act for the uses and purposes therein set
forth.
GIVEN under my hand and Notarial Seal this ______ day of ________, 19__.
__________________________
Notary Public
My Commission Expires:
EXHIBIT "A"
OFFICE PLAN
TO BE ATTACHED
Floor plan of entire floor on which Demised Premises is located
and
Detailed interior floor plan of Demised Premises
EXHIBIT "B"
BUILDING RULES AND AGREED REGULATIONS
1. Tenant agrees to make a deposit, in an amount fixed by Landlord from
time to time, for each key or security access card issued by landlord to
Tenant for its offices, and upon termination of this Lease, to return all keys
to Landlord. Tenant shall not make duplicate copies of such keys and in the
event of the Tenant's loss of a key, Tenant shall pay to Landlord the cost of
replacing same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such a change.
2. Directories will be placed by Landlord in inconspicuous places in the
Building at the sole discretion of Landlord. No other directories shall be
permitted, unless previously consented to by Landlord in writing.
3. Tenants will refer all contractors, contractor's representatives and
installation technicians, rendering any service to Tenant, to Landlord for
Landlord's supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed in the
Building including installations of telephones, telegraph equipment,
electrical devices and attachments, and installations of any nature affecting
floors, walls, woodwork, trim, windows, ceilings, equipment or any other
physical portion of the Building.
4. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which require
use of elevators or stairways, or movement through Building entrances or lobby
shall be restricted to hours designated by Landlord. All such movement shall
be under supervision of Landlord and in the manner agreed between Tenant and
Landlord by prearrangement before performance. Such prearrangement initiated
by Tenant will include determination by Landlord and subject to its decision
and control, as to the time, method, and routing of movement and as to
limitations imposed for safety or other concerns which may prohibit any
article, equipment or any other item from being brought into the Building.
Tenant is to assume all risk as to damage to articles moved and injury to
persons or the public engaged or not engaged in such movement, including
equipment, property, and personnel of Landlord if damaged or injured as a
result of acts in connection with carrying out this service for Tenant, from
time of entering property to completion of work, and Landlord shall not be
liable for acts of any person engaged in, or any damage or loss to any of said
property or persons resulting from any act in connection with such service
performed for Tenant.
5. No signs, advertisements or notices shall be painted or affixed on or to
any windows or doors, or other parts of the Building, except of color, size
and style and in such places, as shall be first approved in writing by
Landlord. No nails, hooks, or screws shall be driven or inserted in any part
of the building, except by the Building maintenance personnel nor shall any
part be defaced by Tenant. All signs will be contracted for by Landlord at
the rate fixed by Landlord from time to time, and Tenant will be billed and
pay for such service accordingly.
6. Canvassing, soliciting, peddling or begging in or around the Building
are prohibited and Tenant shall report such activities to Landlord and
cooperate to prevent such conduct.
7. Tenant shall not place, install or operate in the Demised Premises or in
any part of the Building, any engine or machinery, or maintain, use or keep
any inflammable, explosive, or hazardous material without the express written
consent of Landlord.
8. Landlord will not be responsible for lost or stolen personal property,
equipment, money, or jewelry from Tenant's area or public rooms regardless of
whether such loss occurs when the area is locked against entry or not.
9. No birds or animals shall be brought into or kept in or about Building.
10. Employees of Landlord shall not receive or carry messages for or to
Tenant or any other person, nor contract with or render free or paid services
to Tenant's agents, employees, or invitees.
11. Landlord shall have the right, from time to time, to designate smoking
and non-smoking areas in, around or throughout the Building and shall further
be permitted to prohibit or limit such activity in order to fully comply with
any applicable governmental ordinance, law or regulation.
12. The entries, passages, doors, elevators, elevator doors, hallways or
stairways shall not be blocked or obstructed; no rubbish, litter, trash, or
material of any nature shall be placed, emptied or thrown into these areas;
and such areas shall not be used at any time except for ingress or egress by
Tenant, Tenant's agents, employees, invitees or visitors to or from the
Demised Premises.
13. Plumbing fixtures and appliances shall be used only for purposes for
which constructed, and no sweepings, rubbish, rages or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from misuse by Tenant shall be repaired and replaced at
Tenant's sole cost and expense, and Landlord shall not in any case be
responsible therefor.
14. Tenant shall not do, or permit anything to be done in or about the
Building, or bring or keep anything therein, that will in any way increase the
rate of fire or other insurance on the Building, or on property kept therein,
or obstruct or interfere with the rights of, or otherwise injure or annoy,
other tenants, or do anything in conflict with the valid pertinent laws, rules
or regulations of any governmental authority.
15. The Landlord desires to maintain the highest standards of environmental
comfort and convenience of the tenantry. It will be appreciated if any
undesirable conditions or lacks of courtesy or attention are reported directly
to the management.
16. The work of the janitor or cleaning personnel shall not be hindered by
Tenant after 5:30 p.m. and such work may be done at any time when the offices
are vacant; the windows, doors, and fixtures may be cleaned at any time.
Tenant shall provide adequate waste and rubbish receptacles, cabinets, book
cases, map cases, etc., necessary to prevent unreasonable hardship to Landlord
in discharging its obligation regarding cleaning service.
17. Landlord shall have the right to determine and prescribe the weight and
proper position of any unusually heavy equipment including safes, file
systems, etc., that are to be placed in the Building, and only those which in
the opinion of Landlord might not with reasonable probability do damage to the
floors, structure and/or freight elevator, may be moved into said Building.
Any damage occasioned in connection with the moving or installing of such
aforementioned articles in said Building or the existence of same in said
Building shall be paid for by Tenant, unless otherwise covered by insurance.
18. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant, which, in Landlord's opinion, tends
to impair the reputation of the Building or its desirability for the executive
offices of Landlord or of other tenants, and, upon written notice from
Landlord, Tenant will refrain from or discontinue such publicity.
19. The Demised Premises shall not be used for lodging, sleeping, or cooking
or for any immoral or illegal purpose or for any purpose that will damage the
Demised Premises or the Building or the reputation thereof, or for any purpose
other than that specified in the lease covering the premises.
LEASE RIDER
RIDER ATTACHED TO AND MADE A PART OF THE LEASE AGREEMENT dated August 8,
1995, (hereinafter referred to as the "Lease") by and between Perimeter 400
Partners, an Illinois general partnership (hereinafter referred to as
"Landlord") and CIS Technologies, Inc., hereinafter referred to as "Tenant")
concerning the premises known as Suite 800 in the office building commonly
known as Perimeter 400 Center in Atlanta, Georgia. In the event of any
conflict between the terms and conditions of the Lease and the terms and
conditions of this Rider, the terms and conditions contained in this Rider
shall control.
55. Tenant Improvements.
A. Landlord agrees to contribute up to the product of ten dollars
($10.00) multiplied by the number of rentable square feet in the Demised
Premises (the "Improvement Allowance") towards the cost of preparation of
design, mechanical and electrical drawing and other construction drawings and
specifications for, and the construction of, certain tenant improvements (the
"Tenant Improvements") for the Demised Premises in accordance with the above
plans (the "Plans"). The Plans shall be approved by both Landlord and Tenant.
Tenant agrees it shall not make any changes to the Plans without obtaining the
prior written consent of Landlord, which consent shall not be unreasonably
withheld. It is understood and agreed that Landlord's contractors shall
perform the work in connection with the Tenant Improvements.
B. The Tenant Improvements shall also include the installation of
sub-metering for electrical usage (i) in the computer/equipment room, (ii)
wherever else the Plans indicate that other than 110 volt service will be
installed and (iii) wherever Tenant's usage of equipment will be in excess of,
or the type of equipment does not constitute, normal and customary usage for
an office tenant.
C. If, for whatever reason, the cost to construct the Tenant
Improvements pursuant to the Plans exceeds the Improvement Allowance, then
within twenty (20) days of Tenant's receipt of an invoice from Landlord,
Tenant shall pay Landlord, as additional rent, by certified or cashier's
check, an amount equal to the amounts due in excess of the Improvement
Allowance. In the event Tenant shall make changes to the Plans that are
approved by Landlord and which result in an additional cost to Landlord to
complete the Tenant Improvements in excess of the Improvement Allowance,
Tenant shall pay to Landlord prior to construction of such changes, as
additional rent, any increase in the cost of completing the Tenant
Improvements in excess of the Improvement Allowance resulting from such
changes in the Plans. Tenant's failure to pay timely any amounts to be paid
by Tenant as set forth in this Paragraph shall be an event of default under
the Lease.
D. If the actual costs to complete the Tenant Improvements is less
than the Improvement Allowance (the "Excess Allowance"), then Tenant may seek
reimbursement from Landlord for costs incurred in connection with data and
telecommunications equipment installed in the Demised Premises or actual
moving expenses provided that the maximum amount of the Excess Allowance which
may be used for such purpose is up to the product of three dollars $3.00)
multiplied by the number of rentable square feet in the Demised Premises.
Landlord shall disburse any such amounts within thirty (30) days after Tenant
submits paid invoices provided such disbursement is made within six months
following the Commencement Date. Any remaining balance of the Excess
Allowance shall remain the property of the Landlord and Tenant shall have no
right thereto.
E. If for any reason (i) the Demised Premises shall not be ready for
occupancy by Tenant on or before the Commencement Date, or (ii) the Tenant
Improvements are not completed on or before the Commencement Date, this Lease
shall not be affected thereby, nor shall Tenant have any claim against
Landlord by reason thereof except as provided in Paragraph 25 of the Lease.
All claims for damages arising out of any such delay are waived and released
by Tenant.
56. Parking. Landlord agrees that Tenant shall have the right to use no
more than 4.58 spaces in the parking area per 1,000 square feet of rentable
space in the Demised Premises. These spaces shall not be reserved or
identified for Tenant's exclusive use, but shall be available on a first-come,
first served basis. This calculation is made with respect to the initial area
of the Demised Premises and the number of parking spaces shall not be adjusted
if the area of the Demised Premises increases, but shall be adjusted if the
area of the Demised Premises decreases or if Tenant subleases the Demised
Premises. Any recalculation of the number of parking spaces shall be based on
a ratio of 3.8 parking spaces per 1,000 square feet of rentable area.
57. Security Deposit. Notwithstanding anything in this Lease to the
contrary, provided this Lease is in full force and effect and Tenant:
(i) is occupying and doing business from the Demised Premises; and
(ii) is not in default under the Lease; and
(iii) has maintained a history of payments within the applicable grace
period, if any, provided under the Lease; then
At any time after the 15th month of the Lease Term, Landlord shall
refund one-half (1/2) of Tenant's Security Deposit in the amount of $15,709.60
within thirty (30) days after Landlord's receipt of Tenant's written request
therefor.
58. Attorneys' Fees. Notwithstanding anything to the contrary in the Lease,
if there is any litigation between the parties relating to the Lease, the
prevailing party shall recover all costs, and expenses, including without
limitation reasonable attorney fees and reasonable costs incurred by such
party in connection with the litigation.
LANDLORD: TENANT:
PERIMETER 400 PARTNERS, CIS TECHNOLOGIES, INC.
an Illinois general partnership,
By: Balcor Pension Investors-VI, By: /s/ Jim Hersma
an Illinois limited partnership,
general partner Its: President
By: Balcor Mortgage Advisors-VI, Witness: /s/ Kellie J. Watts
an Illinois general partnership,
its general partner Date:
By: The Balcor Company, a Delaware
corporation, its general partner
By: /s/ Tom Molina
Tom Molina, an Authorized Agent
Witness: /s/ Cindy Asensky
Date: 9-20-95