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EXHIBIT 10.16
INDUSTRIAL
LEASE AGREEMENT
THIS LEASE is executed this _____ day of October, 2001, by and between DUKE
CONSTRUCTION LIMITED PARTNERSHIP, an Indiana limited partnership ("Landlord"),
and UNITED STATIONERS SUPPLY CO., an Illinois corporation ("Tenant").
WITNESSETH:
ARTICLE 1 - LEASE OF PREMISES
SECTION 1.01. BASIC LEASE PROVISIONS AND DEFINITIONS.
A. Leased Premises (shown outlined on EXHIBIT A attached hereto): 125 Horizon
Drive; Suwanee, Georgia 30024; located in Horizon Park (the "Park");
B. Rentable Area: approximately 600,674 square feet (the "Building")
Landlord shall use commercially reasonable standards, consistently applied,
in determining the Rentable Area and the rentable area of the Building.
Landlord's determination of Rentable Area shall conclusively be deemed
correct for all purposes hereunder.
C. Tenant's Proportionate Share: 100%;
D. Minimum Annual Rent:
<Table>
Year 1 $1,729,941.10
Year 2 $1,729,941.10
Year 3 $1,729,941.10
Year 4 $1,729,941.10
Year 5 $1,729,941.10
Year 6 $1,940,177.00
Year 7 $1,940,177.00
Year 8 $1,940,177.00
Year 9 $1,940,177.00
Year 10 $1,940,177.00
</Table>
E. Monthly Rental Installments:
<Table>
Months 1 - 12 $144,161.75
Months 13 - 24 $144,161.75
Months 25 - 36 $144,161.75
Months 37 - 48 $144,161.75
Months 49 - 60 $144,161.75
Months 61 - 72 $161,681.41
Months 73 - 84 $161,681.41
Months 85 - 96 $161,681.41
Months 97 -108 $161,681.41
Months 109 -120 $161,681.41
</Table>
F. Lease Term: Ten (10) years;
G. Commencement Date: In accordance with the provisions of Section 2.02
herein;
H. Security Deposit: Zero and no/100 Dollars ($0.00);
I. Guarantor(s): None;
J. Broker(s): John Crawford of Grubb & Ellis Company representing Tenant;
K. Permitted Use: Storage and distribution of office and business products,
including janitorial and sanitation supplies, office and administrative
uses and call center services;
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L. Address for notices:
Landlord: Duke Construction Limited Partnership
3950 Shackleford Rd., Suite 300
Duluth, Georgia 30096
Attn: Asset/Property Management
Tenant: United Stationers Supply Co.
125 Horizon Drive
Suwanee, Georgia 30024
With a copy to: United Stationers Supply Co.
2200 East Golf Road
Des Plaines, Illinois 60016-1267
Attn: Legal Department
Address for rental and other payments:
Duke Construction Limited Partnership
P.O. Box 945703
Atlanta, Georgia 30394-5703
Exhibits attached hereto:
EXHIBIT A: Site Plan
EXHIBIT B-1: Project Specifications
EXHIBIT B-2: Project Design Schedule
EXHIBIT C: Tenant's Acceptance of Premises
EXHIBIT D: Subordination, Non-disturbance and
Attornment Agreement
EXHIBIT E: Special Stipulations
SECTION 1.02. LEASED PREMISES. Landlord hereby leases to Tenant and Tenant
leases from Landlord, under the terms and conditions herein, the Leased
Premises, Building and Common Areas as defined herein.
ARTICLE 2 - TERM AND POSSESSION
SECTION 2.01. TERM. The term of this Lease ("Lease Term") shall be for the
period of time and shall commence on the Commencement Date described in the
Basic Lease Provisions. Upon delivery of possession of the Leased Premises to
Tenant, Tenant shall execute Landlord's Tenant's Acceptance of Premises form,
attached hereto as EXHIBIT C, acknowledging (i) the Commencement Date of this
Lease, and (ii) that Tenant has accepted the Leased Premises.
SECTION 2.02. CONSTRUCTION.
A. SCOPE. The scope of the work for the shell and tenant finish
improvements ("Work") to be performed by Landlord is set forth in the project
specifications and written descriptions thereto all of which are listed on the
attached PRELIMINARY EXHIBIT B-1. Landlord will prepare final plans and
specifications and actual working drawings which will be mutually agreed to by
both Tenant and Landlord and upon completion, substituted and attached hereto as
EXHIBIT B-1 ("Plans and Specifications"). Subject to force majeure events (as
defined herein) and other events beyond Landlord's control, Landlord shall
construct in a good workmanlike manner all of the Work and supply all work,
labor, materials and equipment necessary to complete the Work in accordance with
the Plans and Specifications, which shall include, without limitation, the
installation of landscaping, parking lots, driveways and all improvements as
shown on the Plans and Specifications. Landlord shall receive a construction
management fee of ten percent (10%) of the cost incurred by Landlord to complete
the tenant finish improvements, together with general conditions.
B. CHANGE ORDERS. Tenant shall have the right to request in writing that
Landlord make changes from time to time in the Work of a non-structural nature,
and Landlord shall not unreasonably refuse to do so. Notwithstanding the
foregoing, Landlord shall have the right to refuse to perform Tenant requested
changes to the Work which delay the construction of the Work. Any additional
increase in cost associated with said changes shall be paid to Landlord within
ten (10) days of receipt of an invoice for same but not before the Commencement
Date. Change orders that result in a credit may, at the written election of
Tenant, be either applied toward the cost of additional current or future work.
A construction management fee equal to ten percent (10%), together with general
conditions, shall be
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charged to all change order work. Any change order work that shall decrease the
cost associated with the construction of the Leased Premises shall not be
subject to any additional charges or credits.
C. PROJECT DESIGN SCHEDULE AND PERMITS. The Work shall be constructed by
Landlord in a good and workmanlike manner and in accordance with the Project
Design Schedule attached hereto as EXHIBIT B-2. Landlord shall apply for and
obtain as expeditiously as possible all permits, licenses and certificates
necessary for the construction of the Work and for the occupancy thereof by
Tenant. Landlord does not guarantee or warrant that all necessary permits,
licenses or certificates shall be granted by or available from the applicable
governing body.
D. OFFICE SPACE ALLOWANCE. As further consideration for Tenant's
performance of all obligations to be performed by Tenant under this Lease,
Landlord shall contribute the amount of Thirty-Five and 00/100 Dollars ($35.00)
per square feet towards finish improvements in the office portion of the Leased
Premises ("Landlord's Contribution"), which area is estimated to be
approximately 32,000 square feet (the "Office Space"). Landlord's Contribution
shall be used for alterations, improvements, fixtures and equipment which become
part of or are attached or affixed to the Office Space, including walls, wall
coverings and floor coverings, but excluding trade fixtures, furniture and
furnishings or other personal property. In the event the cost of improving the
Office Space exceeds of Landlord's Contribution, the excess shall be paid by
Tenant to Landlord within ten (10) days of receipt of an invoice for same but
not before the Commencement Date.
E. SUBSTANTIAL COMPLETION, POSSESSION AND COMMENCEMENT DATE. The Leased
Premises, shall be deemed to be substantially completed at such time as (i)
Landlord shall certify in writing to Tenant that the Work has been completed in
substantial accordance with the Plans and Specifications described above subject
only to minor punch list items (i.e., such unfinished items as shall not impair
Tenant's ability to use the Leased Premises in the manner intended by the Lease)
to be mutually agreed to and identified by Tenant and Landlord during a joint
inspection of the Leased Premises prior to substantial completion, (ii) Landlord
shall have obtained all necessary governmental approvals and inspections, all
systems are fully operational, and sufficient utilities are available to service
the Leased Premises and are connected to mains and all meters are set and
activated, (iii) the project architect shall certify in writing to Tenant
pursuant to and in accordance with form AIA-G704 as to those same matters in (i)
and (ii) immediately preceding, and (iv) the issuance of a temporary certificate
of occupancy which shall allow Tenant to commence its business operations. At
such time as the last of the foregoing requirements shall have been satisfied,
Landlord shall deliver possession of the Leased Premises to Tenant. Subject to
force majeure events or delays caused by the Tenant, in no event shall
substantial completion occur later than October 15, 2002. The date upon which
Landlord shall deliver possession of the Leased Premises to Tenant in
substantially completed condition is herein called the "Commencement Date". Upon
delivery of possession of the Leased Premises to Tenant, Tenant shall execute
Landlord's Tenant's Acceptance of Premises form, attached hereto as EXHIBIT "C",
acknowledging (i) the Commencement Date of this Lease, and (ii) that Tenant has
accepted the Leased Premises.
Notwithstanding the foregoing, if substantial completion of the Work is
delayed beyond October 15, 2002 as a result of any act or omission of Tenant
(including, without limitation, any delay in approving the Plans and
Specifications, change orders requested by Tenant or the installation of racking
within the warehouse portion of the Leased Premises by Tenant), then, for
purposes of determining the Commencement Date, substantial completion shall be
deemed to occur on the date that substantial completion would have occurred but
for such act or omission of Tenant.
F. FIXTURING AND PUNCHLIST ITEMS. Landlord shall give Tenant written notice
on or before June 12, 2002 permitting access to the Building. From and after
receipt of said notice, or earlier with consent of Landlord, Tenant shall have
the right of going into the Leased Premises to complete interior decoration
work, installation of warehouse equipment, install fixtures, telephone and
communication wiring. Upon Tenant's entry of Leased Premises as set forth above,
Tenant shall arrange his schedule so as not to unreasonably interfere with or
delay the other work of Landlord in unoccupied portion of the Leased Premises or
any permitting or inspecting process being carried on at the same time and
Tenant and its contractor shall comply with Landlord's or its agent's directions
and safety procedures while working in the Leased Premises. Landlord shall have
no liability for loss or damage to Tenant's fixtures, equipment or any other
items or property brought into the Leased Premises by the Tenant or its
contractors, subcontractors, agents or representatives prior to Commencement
Date which Tenant agrees to insure against loss, damage or theft. Tenant and
Landlord shall prepare a punchlist of uncompleted items to the Leased Premises
upon the date the same shall be substantially completed. Landlord agrees that
all punchlist items shall be completed within thirty (30) days of the
preparation of such list unless such list contains long lead-time items or as
otherwise agreed to by both Tenant and Landlord.
G. WARRANTY. Landlord hereby warrants for a period of one (1) year from the
Commencement Date, the Work against defects in materials and workmanship,
routine maintenance
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(except as to Landlord's obligations herein) and ordinary wear and tear
excepted. The foregoing warranties cover all materials, labor and equipment for
repairs but do not cover consequential damages, such as lost profits or
opportunity, incurred by the Tenant. In addition to the foregoing, upon the
Commencement Date, Landlord shall enforce for the benefit of Tenant all
warranties and guarantees relating to the Work and any and all systems contained
therein. Landlord shall provide Tenant with copies of all warranties and
guarantees applicable to the Work and Landlord shall consult with Tenant as to
the application and restrictions applicable to all such warranties and
guarantees. Tenant shall not take any action that shall invalidate any of the
foregoing warranties or guarantees and shall provide Landlord with written
notice of all warranty claims. Tenant will notify Landlord promptly upon
discovery of any potential problems that may be covered under the foregoing
warranties. Without limiting Landlord's duty to perform repairs under any
warranties contained herein, the extent and performance of any repairs required
under the foregoing warranties will be mutually agreed to between Landlord and
Tenant so as to minimize the disruption to Tenant's business operations.
H. CALL CENTER. Landlord agrees to construct the Call Center at Tenant's
sole cost and expense. It is estimated that the cost to construct the Call
Center and additional parking (total parking spaces on the site will be 400
spaces) will be One Million Two Hundred Seventy-Three Thousand Six Hundred
Thirteen and no/100 Dollars ($1,273,613.00) ("Additional Cost"). Tenant shall
pay the Additional Cost to Landlord within ten (10) days of receipt of an
invoice for same but not before substantial completion of said improvements.
Tenant and Landlord shall execute a Memorandum of Agreement which shall specify
the actual cost to design and construct the Call Center before the commencement
of such work. Landlord shall receive a construction management fee of ten
percent (10%), together with general conditions which is included in the
Additional Cost.
I. EASEMENTS. Landlord hereby reserves the right to grant or establish
reasonable easements along the property lines of the land upon which the
Building is constructed and/or under the parking areas and/or other areas of the
Leased Premises which are exterior to the Building provided the installation,
operation, use, maintenance and repair thereof will not materially or adversely
interfere with the Tenant's use and enjoyment of the Leased Premises.
SECTION 2.03. SURRENDER OF THE PREMISES. Upon the expiration or earlier
termination of this Lease, Tenant shall immediately surrender the Leased
Premises to Landlord in broom-clean condition and in good condition and repair.
Tenant shall also remove its personal property, trade fixtures and any of
Tenant's alterations designated by Landlord, promptly repair any damage caused
by such removal, and restore the Leased Premises to the condition existing prior
to the installation of such items. If Tenant fails to do so, Landlord may
restore the Leased Premises to such condition at Tenant's expense, Landlord may
cause all of said property to be removed at Tenant's expense, and Tenant hereby
agrees to pay all the costs and expenses thereby reasonably incurred. All Tenant
property which is not removed within ten (10) days following Landlord's written
demand therefor shall be conclusively deemed to have been abandoned by Tenant,
and Landlord shall be entitled to dispose of such property at Tenant's cost
without thereby incurring any liability to Tenant. The provisions of this
section shall survive the expiration or other termination of this Lease.
SECTION 2.04. HOLDING OVER. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease, Tenant shall
become a tenant from month to month at one hundred fifty percent (150%) the
Monthly Rental Installment in effect at the end of the Lease Term, and otherwise
upon the terms, covenants and conditions herein specified, so far as applicable.
Acceptance by Landlord of rent in such event shall not result in a renewal of
this Lease, and Tenant shall vacate and surrender the Leased Premises to
Landlord upon Tenant being given thirty (30) days' prior written notice from
Landlord to vacate whether or not said notice is given on the rent paying date.
This SECTION 2.04 shall in no way constitute a consent by Landlord to any
holding over by Tenant upon the expiration or earlier termination of this Lease,
nor limit Landlord's remedies in such event.
ARTICLE 3 - RENT
SECTION 3.01. BASE RENT. Tenant shall pay to Landlord the Minimum Annual
Rent in the Monthly Rental Installments, in advance, without deduction or
offset, beginning on the Commencement Date and on or before the first day of
each and every calendar month thereafter during the Lease Term. The Monthly
Rental Installment for partial calendar months shall be prorated.
SECTION 3.02. ADDITIONAL RENT. In addition to the Minimum Annual Rent
Tenant shall pay directly to the applicable party when due as "Additional
Rent,": (a) all Operating Expenses for the Leased Premises, Building and Common
Areas; (b) all Insurance Premiums (as herein defined); and (c) all Real Estate
Taxes (as herein defined).
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"Operating Expenses" shall mean all necessary expenses for operation,
repair, replacement and maintenance to keep the Building and Common Areas in
good order, condition and repair (including all additional direct costs and
expenses of operation and maintenance of the Building) including, but not
limited to, utilities; stormwater discharge fees; license, permit, inspection
and other fees; fees and assessments imposed by any covenants or owners'
association; security services; and maintenance, repair and replacement of the
Building systems, driveways, parking areas (including snow removal), exterior
lighting, landscaped areas, walkways, curbs, drainage strips, sewer and plumbing
lines, exterior walls, foundation, structural frame, roof and gutters.
To the extent that the Landlord shall reasonably determine that any of the
roof, walls, foundation or structural frame of the Building shall require
replacement during the Lease Term, such replacement shall be made by Landlord.
The cost associated with such replacement shall be amortized over the useful
life of the improvement, in accordance with generally accepted accounting
principles, together with interest at twelve percent (12%), and only the
amortized portion thereof (during any given Lease year) shall be paid by Tenant
to Landlord within ten (10) days of receipt of an invoice for same.
"Insurance Premiums" shall include premiums and deductible amounts for
insurance coverage on the Building or Common Areas and 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.
"Real Estate Taxes" shall include any form of real estate tax or assessment
or service payments in lieu thereof, and any license fee, commercial rental tax,
improvement bond or other similar charge or tax (other than inheritance,
personal income or estate taxes) imposed upon the Building or common areas by
any authority having the power to so charge or tax, together with costs and
expenses Tenant may incur of contesting the validity or amount of Real Estate
Taxes. Additionally, Tenant shall pay, prior to delinquency, all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all personal
property of Tenant contained in the Leased Premises. Nothing herein shall limit
Tenant's ability to contest Real Estate Taxes.
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.
SECTION 3.03. LATE CHARGES. Tenant acknowledges that Landlord shall incur
certain additional unanticipated administrative and legal costs and expenses if
Tenant fails to timely pay any payment required hereunder. Therefore, in
addition to the other remedies available to Landlord hereunder, Tenant shall pay
to Landlord an administrative fee equal to five percent (5%) of the past due
amount, together with such past due amounts, upon demand. Notwithstanding the
foregoing sentence, Landlord shall provide Tenant with a written courtesy notice
of such default and Tenant shall have an additional five (5) days to cure such
default before Landlord imposes such late charge; provided, however, that
Landlord shall not be required to give such courtesy notice more than one (1)
time with respect to any particular default, nor more than two (2) times in any
consecutive twelve (12) month period with respect to any payment defaults in the
aggregate.
SECTION 3.04. NET LEASE. It is the purpose and intent of Landlord and
Tenant that (except as otherwise expressly provided in this Lease) the base
rental payable under this Lease be net to Landlord so that this Lease shall
yield, net to Landlord, the Minimum Annual Rent specified in Section 1.01.D. for
each lease year of this Lease. Tenant therefore covenants and agrees with
Landlord to pay and discharge on a timely basis, as Additional Rent hereunder,
in addition to those items set forth above and in Articles 6 and 8 hereof, all
reasonable and customary costs, expenses, and obligations of every kind and
nature whatsoever relating to the Leased Premises which benefit Tenant or are at
Tenant's request, excepting only any costs, expenses and/or obligations which
arise as a result of the negligence, intentional misconduct or unauthorized acts
of Landlord or Landlord's agents or employees, or the Landlord's breach or
default in the performance of any obligation of Landlord under the terms of this
Lease. Notwithstanding the foregoing, nothing contained herein shall be
construed to require Tenant to make any debt service payments under any secured
or unsecured indebtedness of Landlord or to pay any costs and expenses which
this Lease expressly provided for Landlord to pay, if any, or to pay any income
taxes, franchise taxes, estate or gift taxes, inheritance taxes, transfer taxes,
recording taxes or intangible taxes of Landlord.
ARTICLE 4 - SECURITY DEPOSIT
INTENTIONALLY OMITTED
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ARTICLE 5 - USE
SECTION 5.01. USE OF LEASED PREMISES. The Leased Premises are to be used by
Tenant solely for the Permitted Use and for no other purposes without the prior
written consent of Landlord.
SECTION 5.02. COVENANTS OF TENANT REGARDING USE. Tenant shall (i) use and
maintain the Leased Premises and conduct its business thereon in a safe,
careful, reputable and lawful manner, (ii) comply with all laws, rules,
regulations, orders, ordinances, directions and requirements of any governmental
authority or agency, now in force or which may hereafter be in force, including
without limitation those which shall impose upon Landlord or Tenant any duty
with respect to or triggered by a change in the use or occupation of, or any
improvement or alteration to, the Leased Premises, (iii) comply with any
protective covenants applicable to the Park which are in effect and as may
hereafter be adopted and promulgated and (iv) comply with and obey all
reasonable directions of the Landlord, including any rules and regulations that
may be adopted by Landlord from time to time. All damage to the floor structure
or foundation of the Building due to improper positioning or storage of items or
materials shall be repaired by Tenant at the sole expense of Tenant.
SECTION 5.03. LANDLORD'S RIGHTS REGARDING USE. Landlord or Landlord's agent
shall be permitted to inspect or examine the Leased Premises at any reasonable
time upon reasonable notice (except in an emergency when no notice shall be
required), and Landlord shall have the right to make any repairs to the Leased
Premises which are necessary for its preservation; provided, however, that any
repairs made by Landlord shall be at Tenant's expense. Landlord shall incur no
liability to Tenant for such entry, nor shall such entry constitute an eviction
of Tenant or a termination of this Lease, or entitle Tenant to any abatement of
rent therefor.
ARTICLE 6 - UTILITIES AND SERVICES
Tenant shall obtain in its own name and pay directly to the appropriate
supplier the cost of all utilities and services for the Leased Premises,
Building and Common Areas. Landlord shall not be liable in damages or otherwise
for any failure or interruption of any utility or other Building service and no
such failure or interruption shall entitle Tenant to terminate this Lease or
withhold sums due hereunder.
ARTICLE 7 - MAINTENANCE AND REPAIRS
SECTION 7.01. TENANT'S RESPONSIBILITY. During Lease Term and subject to the
provisions of Section 3.02 herein, Tenant shall, at its own cost and expense,
maintain the Leased Premises, Building and Common Areas in good condition,
regularly servicing and promptly making all repairs and replacements thereto,
including but not limited to the electrical systems, heating and air
conditioning systems, plate glass, floors, windows and doors, sprinkler and
plumbing systems, the roof, exterior walls, foundation and structural frame of
the Building and the parking and landscaped areas, and shall obtain a preventive
maintenance contract on the heating, ventilating and air-conditioning systems,
and provide Landlord with a copy thereof. The preventive maintenance contract
shall meet or exceed Landlord's standard maintenance criteria, and shall provide
for the inspection and maintenance of the heating, ventilating and air
conditioning system on not less than a semi-annual basis. 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.
SECTION 7.02. ALTERATIONS. Tenant shall not permit alterations in or to the
Leased Premises unless and until the plans and the contractor have been approved
by Landlord in writing. As a condition of such approval, Landlord may require
Tenant to remove the alterations and restore the Leased Premises upon
termination of this Lease; otherwise, all such alterations shall at Landlord's
option become a part of the realty and the property of Landlord, and shall not
be removed by Tenant. Tenant shall ensure that all alterations shall be made in
accordance with all applicable laws, regulations and building codes, in a good
and workmanlike manner and of quality equal to or better than the original
construction of the Building. Upon completion of the work, Tenant shall provide
lien waivers from the subcontractors or a final affidavit of lien waiver from
the general contractor, and such lien waiver shall be in a form acceptable to
Landlord. No person shall be entitled to any lien derived through or under
Tenant for any labor or material furnished to the Leased Premises, and nothing
in this Lease shall be construed to constitute a consent by Landlord to the
creation of any lien. If any lien is filed against the Leased Premises for work
claimed to have been done for or material claimed to have been furnished to
Tenant, Tenant shall cause such lien to be discharged of record or bonded or
otherwise insured over within thirty (30) days after
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filing. Tenant shall indemnify Landlord from all costs, losses, expenses and
attorneys' fees in connection with any construction or alteration and any
related lien.
ARTICLE 8 - CASUALTY
SECTION 8.01. CASUALTY. In the event of total or partial destruction of the
Building or the Leased Premises by fire or other casualty and upon receipt of
the insurance proceeds with respect to the casualty, Landlord agrees to promptly
restore and repair the Leased Premises; provided, however, Landlord's obligation
hereunder shall be limited to the reconstruction of such of the tenant finish
improvements as were originally required to be made by Landlord, if any. Tenant
agrees to also pay Landlord any deductible amount elected to be maintained by
Tenant. Rent shall proportionately abate during the time that the Leased
Premises or part thereof are unusable because of any such damage.
Notwithstanding the foregoing, if the Leased Premises are (i) so destroyed that
they cannot be repaired or rebuilt within one hundred eighty (180) days from the
casualty date; or (ii) destroyed by a casualty which is not covered by the
insurance required hereunder or, if covered, such insurance proceeds are not
released by any mortgagee entitled thereto or are insufficient to rebuild the
Building and the Leased Premises; then, in case of a clause (i) casualty, either
Landlord or Tenant may, or, in the case of a clause (ii) casualty, then Landlord
may, upon thirty (30) days' written notice to the other party, terminate this
Lease with respect to matters thereafter accruing. 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 one hundred eighty (180) day period, terminate this Lease by written
notice to Tenant. In the event of such termination, Tenant's obligation to pay
Minimum Annual Rent and Additional Rent shall cease as of the date of the
casualty.
SECTION 8.02. ALL RISK COVERAGE INSURANCE. During the Lease Term, Tenant
shall maintain all risk coverage insurance for the full replacement cost of the
Building by an Insurance Carrier acceptable to Landlord, and shall also protect
Tenant's property on the Leased Premises. Landlord shall not be liable for any
damage to Tenant's property, regardless of cause, including the negligence of
Landlord and its employees, agents and invitees. Tenant hereby expressly waives
any right of recovery against Landlord for damage to any property of Tenant
located in or about the Leased Premises, Building or Common Areas, however
caused, including the negligence of Landlord and its employees, agents and
invitees. All insurance policies maintained by Tenant as provided in this Lease
shall contain an agreement by the insurer waiving the insurer's right of
subrogation against the other party to this Lease.
SECTION 8.03. WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant each hereby waive any and all right to
recovery, claim, action or cause of action, against the other, its agents,
directors, officers or employees, for any loss or damage that may occur to the
Leased Premises, or any improvements thereto, or the Building, or any
improvements thereto, or any personal property of such party therein, by reason
of fire, the elements, or any other cause which could be insured against under
the terms of insurance policies referred to in Sections 8.02 and 9.02 hereof,
regardless of cause or origin, including negligence of the other party hereto,
its agents, directors, officers or employees, and covenants that no insurer
shall hold any right of subrogation against such other party.
ARTICLE 9 - LIABILITY INSURANCE
SECTION 9.01. TENANT'S RESPONSIBILITY. Landlord shall not be liable to
Tenant or to any other person for (i) damage to property or injury or death to
persons due to the condition of the Leased Premises, the Building or the Common
Areas, or (ii) the occurrence of any accident in or about the Leased Premises or
the Common Areas, or (iii) any act or neglect of Tenant or any other tenant or
occupant of the Building or of any other person, unless such damage, injury or
death is directly and solely the result of Landlord's negligence; and Tenant
hereby releases Landlord from any and all liability for the same. Tenant will
indemnify Landlord and save it harmless from and against any and all claims,
actions, damages, liability and expense in connection with the loss of life,
personal injury, and/or damage to property arising from or out of (i) any
occurrence in, upon or at the Leased Premises, however caused, including
occurrences caused by the sole or contributory negligence of Tenant or its
respective agents, customers, invitees, concessionaires, contractors, servants,
vendors, materialmen or suppliers, or (ii) any occurrence elsewhere on the
Leased Premises occasioned wholly or in part by any act or omission caused by
the Tenant or its agents, customers, invitees, concessionaire, contractors,
servants, vendors, materialmen or suppliers. In case Landlord shall be made a
party to any litigation commenced by or against the Tenant for any of the above
reasons, then Tenant shall protect and hold Landlord harmless and pay all
reasonably required costs, penalties, charges, damages, expenses and reasonable
attorneys' fees paid by Landlord. It is understood that the provisions of this
Section 9.01 shall apply except to the
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extent any such liability is caused directly by Landlord's negligence or that of
its agents, materialmen, vendors or suppliers. This provision shall survive the
expiration or earlier termination of this Lease.
SECTION 9.02. TENANT'S INSURANCE. Tenant shall carry general public
liability and property damage insurance, issued by one or more insurance
companies acceptable to Landlord, with the following minimum coverages:
A. All Risk Coverage, Vandalism and Malicious Mischief, and Sprinkler Leakage
insurance, if applicable, for the full cost of replacement of the Leased
Premises, Building, Common Areas and Tenant's property.
B. Commercial General Liability Insurance, including blanket, contractual
liability, broad form property damage, personal injury, completed
operations, products liability, and fire damage: Not less than $3,000,000
Combined Single Limit for both bodily injury and property damage.
C. Worker's Compensation: minimum statutory amount.
D. Business interruption insurance.
The insurance policies under Article 8 and Article 9 shall protect Tenant and
Landlord as their interests may appear, naming Landlord and Landlord's managing
agent and mortgagee as additional insureds, and shall provide that they may not
be canceled on less than thirty (30) days' prior written notice to Landlord.
Tenant shall furnish Landlord with Certificates of Insurance evidencing all
required coverages on or before the Commencement Date. If Tenant fails to carry
such insurance and furnish Landlord with such Certificates of Insurance after a
request to do so, Landlord may obtain such insurance and collect the cost
thereof from Tenant.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or Common Areas shall be
acquired by the exercise of eminent domain, Landlord may terminate this Lease by
giving thirty (30) days' written notice to Tenant on or before the date that
actual possession thereof is so taken. If all or any part of the Leased Premises
shall be acquired by the exercise of eminent domain so that the Leased Premises
shall become impractical for Tenant to use for the Permitted Use, Tenant may
terminate this Lease as of the date that actual possession thereof is so taken
by giving written notice to Landlord. All damages awarded shall belong to
Landlord; provided, however, that Tenant may claim dislocation damages if such
amount is not subtracted from Landlord's award, unless any amount paid to
Landlord expressly includes an amount given to compensate Tenant for any loss or
damage it sustains.
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
Tenant shall not assign this Lease or sublet the Leased Premises in whole
or in part without Landlord's prior written consent, which consent shall not be
unreasonably withheld, delayed or denied. In the event of any assignment or
subletting, Tenant shall remain primarily liable hereunder, and any extension,
expansion, rights of first offer, rights of first refusal or other options
granted to Tenant under this Lease shall be rendered void and of no further
force or effect. The acceptance of rent from any other person shall not be
deemed to be a waiver of any of the provisions of this Lease or to be a consent
to the assignment of this Lease or the subletting of the Leased Premises.
Without in any way limiting Landlord's right to refuse to consent to any
assignment or subletting of this Lease, Landlord reserves the right to refuse to
give such consent if in Landlord's opinion (i) the Leased Premises are or may be
in any way adversely affected; (ii) the business reputation of the proposed
assignee or subtenant is unacceptable; or (iii) the financial worth of the
proposed assignee or subtenant is insufficient to meet the obligations
hereunder. Tenant agrees to reimburse Landlord for reasonable accounting and
attorneys' fees incurred in conjunction with the processing and documentation of
any such requested assignment, subletting or any other hypothecation of this
Lease or Tenant's interest in and to the Leased Premises.
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. Tenant agrees to reimburse Landlord in an amount
equal to the lesser of Five Hundred Dollars ($500.00) in conjunction with the
processing and documentation of any requested assignment, subletting or any
other hypothecation of this Lease or Tenant's interest in and to the Leased
Premises.
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ARTICLE 12 - TRANSFERS BY LANDLORD
SECTION 12.01. TRANSFERS. Landlord shall have the right to subordinate this
Lease to any mortgage presently existing or hereafter placed upon the Building
by so declaring in such mortgage. In the event of a sale or transfer of such
interest (except a mortgage or other transfer as security for a debt), the
"Landlord" named herein, or in the case of a subsequent transfer, the transferor
shall, after the date of such transfer, be automatically released from all
personal liability for the performance or observance of any term, condition,
covenant or obligation required to be performed or observed by Landlord
hereunder, and the transferee shall be deemed to have assumed all of such terms,
conditions, covenants and obligations. Within ten (10) days following receipt of
a written request from Landlord, Tenant shall execute and deliver to Landlord,
without cost, any instrument which Landlord deems necessary or desirable to
confirm the subordination of this Lease and an estoppel certificate in such form
as Landlord may reasonably request certifying (i) that this Lease is in full
force and effect and unmodified or stating the nature of any modification, (ii)
the date to which rent has been paid, (iii) that there are not, to Tenant's
knowledge, any uncured defaults or specifying such defaults if any are claimed,
and (iv) any other matters or state of facts reasonably required respecting the
Lease. Such estoppel may be relied upon by Landlord and by any purchaser or
mortgagee of the Building. Notwithstanding the foregoing, if the mortgagee shall
take title to the Leased Premises through foreclosure or deed in lieu of
foreclosure, Tenant shall be allowed to continue in possession of the Leased
Premises as provided for in this Lease so long as Tenant shall not be in
default.
SECTION 12.02. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT.
Landlord shall use commercially reasonable efforts, upon written request by
Tenant and at Tenant's sole expense, to obtain a Subordination, Non-Disturbance
and Attornment Agreement executed by holders of any mortgages on the Leased
Premises providing that (i) in the event the mortgagee files suit to foreclose
the mortgage, the mortgagee will not join Tenant in the foreclosure proceedings
so long as Tenant is not in default under any of the terms, covenants and
conditions of the Lease, (ii) in the event mortgagee succeeds to the interest of
mortgagor, as Landlord, and Tenant is not in default under the terms, covenants
or conditions of the Lease, the mortgagee shall be bound to Tenant under all of
the terms, covenants and conditions of the Lease, (iii) Tenant agrees to attorn
to mortgagee, and (iv) Tenant agrees to give mortgagee notice of Landlord's
default and opportunity to cure.
ARTICLE 13 - DEFAULT AND REMEDY
SECTION 13.01. DEFAULT. The occurrence of any of the following shall be a
"Default":
(a) Tenant fails to pay any Monthly Rental Installment or Additional Rent
within five (5) days after the same is due, or Tenant fails to pay any other
amounts due Landlord from Tenant within thirty (30) days after the same is due.
Notwithstanding the foregoing sentence, Landlord shall provide Tenant with a
written courtesy notice of such default and Tenant shall have an additional five
(5) days after receipt of notice to cure such default before Landlord exercises
any of its remedies hereunder provided, however, that Landlord shall not be
required to give such courtesy notice more than one (1) time with respect to any
particular default, nor more than two (2) times in any consecutive twelve (12)
month period with respect to any payment defaults in the aggregate.
(b) Tenant fails to perform or observe any other term, condition, covenant
or obligation required under this Lease for a period of thirty (30) days after
notice thereof from Landlord; provided, however, that if the nature of Tenant's
default is such that more than thirty days are reasonably required to cure, then
such default shall be deemed to have been cured if Tenant commences such
performance within said thirty-day period and thereafter diligently completes
the required action within a reasonable time.
(c) Tenant shall assign or sublet all or a portion of the Leased Premises
in contravention of the provisions of Article 11 of this Lease.
(d) All or substantially all of Tenant's assets in the Leased Premises or
Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Tenant (and Tenant fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Tenant is insolvent and unable to pay its
debts as they become due; Tenant makes a general assignment for the benefit of
creditors; Tenant takes the benefit of any insolvency action or law; the
appointment of a receiver or trustee in bankruptcy for Tenant or its assets if
such receivership has not been vacated or set aside within thirty (30) days
thereafter; or, dissolution or other termination of Tenant's corporate charter
if Tenant is a corporation.
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SECTION 13.02. REMEDIES. Upon the occurrence of any Default, Landlord shall
have the following rights and remedies, in addition to those allowed by law or
in equity, any one or more of which may be exercised without further notice to
Tenant:
(a) Landlord may apply the Security Deposit or re-enter the Leased Premises
and cure any default of Tenant, and Tenant shall reimburse Landlord as
additional rent for any costs and expenses which Landlord thereby incurs; and
Landlord shall not be liable to Tenant for any loss or damage which Tenant may
sustain by reason of Landlord's action.
(b) Landlord may terminate this Lease or, without terminating this Lease,
terminate Tenant's right to possession of the Leased Premises as of the date of
such Default, and thereafter (i) neither Tenant nor any person claiming under or
through Tenant shall be entitled to possession of the Leased Premises, and
Tenant shall immediately surrender the Leased Premises to Landlord; and (ii)
Landlord may re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Landlord may have. Upon the
termination of this Lease, Landlord may declare the present value (discounted at
the Prime Rate of interest) of all rent which would have been due under this
Lease for the balance of the Lease Term to be immediately due and payable,
whereupon Tenant shall be obligated to pay the same to Landlord, together with
all loss or damage which Landlord may sustain by reason of Tenant's default
("Default Damages"), which shall include without limitation expenses of
preparing the Leased Premises for re-letting, demolition, repairs, tenant finish
improvements, brokers' commissions and attorneys' fees, 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 it being expressly understood and agreed that the
liabilities and remedies specified in this subsection (b) shall survive the
termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, whereupon Tenant
shall be immediately obligated to pay to Landlord as liquidated damages the
difference between the rent provided for herein and that provided for in any
lease covering a subsequent re-letting of the Leased Premises, for the period
which would otherwise have constituted the balance of the Lease Term, together
with all of Landlord's Default Damages.
(d) Landlord may sue for injunctive relief or to recover damages for any
loss resulting from the Default.
SECTION 13.03. LANDLORD'S DEFAULT AND TENANT'S REMEDIES. Landlord shall be
in default if it fails to perform any term, condition, covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is such that it cannot
reasonably be performed within thirty (30) days, such default shall be deemed to
have been cured if Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to complete the same. Upon the
occurrence of any such default, Tenant may sue for injunctive relief or to
recover damages for any loss directly resulting from the breach, but Tenant
shall not be entitled to terminate this Lease or withhold, offset or abate any
sums due hereunder.
SECTION 13.04. LIMITATION OF LANDLORD'S LIABILITY. If Landlord shall fail
to perform any term, condition, covenant or obligation required to be performed
by it under this Lease and if Tenant shall, as a consequence thereof, recover a
money judgment against Landlord, Tenant agrees that it shall look solely to
Landlord's right, title and interest in and to the Building for the collection
of such judgment; and Tenant further agrees that no other assets of Landlord
shall be subject to levy, execution or other process for the satisfaction of
Tenant's judgment.
SECTION 13.05. NONWAIVER OF DEFAULTS. Neither party's failure or delay in
exercising any of its rights or remedies or other provisions of this Lease shall
constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or agents during the Lease Term shall be
deemed an acceptance
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of a surrender of the Leased Premises, and no agreement to accept such a
surrender shall be valid unless in writing and signed by Landlord.
SECTION 13.06. ATTORNEYS' FEES. If either party defaults in the performance
or observance of any of the terms, conditions, covenants or obligations
contained in this Lease and the non-defaulting party obtains a judgment against
the defaulting party, then the defaulting party agrees to reimburse the
non-defaulting party for reasonable attorneys' fees incurred in connection
therewith.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
INTENTIONALLY DELETED
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.
SECTION 15.01. DEFINITIONS.
(a) "Environmental Laws" - All present or future federal, state and
municipal laws, ordinances, rules and regulations applicable to the
environmental and ecological condition of the Leased Premises, the rules and
regulations of the Federal Environmental Protection Agency or any other federal,
state or municipal agency or governmental board or entity having jurisdiction
over the Leased Premises.
(b) "Hazardous Substances" - Those substances included within the
definitions of "hazardous substances," "hazardous materials," "toxic substances"
"solid waste" or "infectious waste" under Environmental Laws and petroleum
products.
SECTION 15.02. COMPLIANCE. Tenant, at its sole cost and expense, shall
promptly comply with the Environmental Laws including any notice from any source
issued pursuant to the Environmental Laws or issued by any insurance company
which shall impose any duty upon Tenant with respect to the use, occupancy,
maintenance or alteration of the Leased Premises whether such notice shall be
served upon Landlord or Tenant.
SECTION 15.03. RESTRICTIONS ON TENANT. Tenant shall operate its business
and maintain the Leased Premises in compliance with all Environmental Laws.
Tenant shall not cause or permit the use, generation, release, manufacture,
refining, production, processing, storage or disposal of any Hazardous
Substances on, under or about the Leased Premises, Building or Common Areas, or
the transportation to or from the Leased Premises, Building or Common Areas of
any Hazardous Substances, except as necessary and appropriate for its Permitted
Use in which case the use, storage or disposal of such Hazardous Substances
shall be performed in compliance with the Environmental Laws and the highest
standards prevailing in the industry.
SECTION 15.04. NOTICES, AFFIDAVITS, ETC. Tenant shall immediately notify
Landlord of (i) any violation by Tenant, its employees, agents, representatives,
customers, invitees or contractors of the Environmental Laws on, under or about
the Leased Premises, Building or Common Areas, or (ii) the presence or suspected
presence of any Hazardous Substances on, under or about the Leased Premises,
Building or Common Areas and shall immediately deliver to Landlord any notice
received by Tenant relating to (i) and (ii) above from any source. Tenant shall
execute affidavits, representations and the like within five (5) days of
Landlord's request therefor concerning Tenant's best knowledge and belief
regarding the presence of any Hazardous Substances on, under or about the Leased
Premises, Building or Common Areas.
SECTION 15.05. LANDLORD'S RIGHTS. Landlord and its agents shall have the
right, but not the duty, upon advance notice (except in the case of emergency
when no notice shall be required) to inspect the Leased Premises, Building or
Common Areas and conduct tests thereon to determine whether or the extent to
which there has been a violation of Environmental Laws by Tenant or whether
there are Hazardous Substances on, under or about the Leased Premises, Building
or Common Areas. In exercising its rights herein, Landlord shall use reasonable
efforts to minimize interference with Tenant's business but such entry shall not
constitute an eviction of Tenant, in whole or in part, and Landlord shall not be
liable for any interference, loss, or damage to Tenant's property or business
caused thereby.
SECTION 15.06. TENANT'S INDEMNIFICATION. Tenant shall indemnify Landlord
and Landlord's managing agent from any and all claims, losses, liabilities,
costs, expenses and damages, including attorneys' fees, costs of testing and
remediation costs, incurred by Landlord in connection with any breach by Tenant
of its obligations under this Article 15. The covenants and obligations under
this Article 15 shall survive the expiration or earlier termination of this
Lease.
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ARTICLE 16 - MISCELLANEOUS
SECTION 16.01. BENEFIT OF LANDLORD AND TENANT. This Lease shall inure to
the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
SECTION 16.02. GOVERNING LAW. This Lease shall be governed in accordance
with the laws of the State where the Building is located.
SECTION 16.03. GUARANTY. Not applicable.
SECTION 16.04. FORCE MAJEURE. Landlord and Tenant (except with respect to
the payment of any monetary obligation) shall be excused for the period of any
delay in the performance of any obligation hereunder when such delay is
occasioned by a force majeure event, including but not limited to work
stoppages, boycotts, slowdowns or strikes; shortages of materials, equipment,
labor or energy; unusual weather conditions; or acts or omissions of
governmental or political bodies including but not limited to the issuance of
all necessary permits for the construction and occupancy of the Building.
SECTION 16.05. EXAMINATION OF LEASE. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
SECTION 16.06. INDEMNIFICATION FOR LEASING COMMISSIONS. Tenant's Broker and
Landlord's Broker (collectively, "Broker") shall each be entitled to receive a
commission in the amounts, and upon the terms and conditions, contained in a
separate commission agreement between Landlord and such parties. Tenant warrants
and represents to Landlord that, other than Broker, 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 Broker 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 Broker) 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.
Tenant's Broker is representing Tenant in connection with this Lease, and is not
representing Landlord. Landlord's Broker, or employees of Landlord or its
affiliates, are representing Landlord and are not representing Tenant. 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.
SECTION 16.07. NOTICES. Any notice required or permitted to be given under
this Lease or by law shall be deemed to have been given if it is written and
delivered in person or by overnight courier or mailed by certified mail, postage
prepaid, to the party who is to receive such notice at the address specified in
Article 1. If delivered in person, notice shall be deemed given as of the
delivery date. If sent by overnight courier, notice shall be deemed given as of
the first business day after sending. If mailed, the notice shall be deemed to
have been given on the date which is three business days after mailing. Either
party may change its address by giving written notice thereof to the other
party.
SECTION 16.08. PARTIAL INVALIDITY; COMPLETE AGREEMENT. If any provision of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed upon or
understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change or addition shall be made to this Lease except by a written
agreement executed by Landlord and Tenant.
SECTION 16.09. FINANCIAL STATEMENTS. In the event that Tenant is no longer
a publicly traded company, during the Lease Term and any extensions thereof, but
not more than annually, Tenant shall provide to Landlord within thirty (30) days
of Landlord's written request therefor, a copy of Tenant's most recent audited
and certified financial statements prepared as of the end of Tenant's fiscal
year. Such financial statements shall be signed by Tenant who shall attest to
the truth and accuracy of the information set forth in such statements. All
financial statements provided by Tenant to Landlord hereunder shall be prepared
in conformity with generally accepted accounting principles, consistently
applied. Landlord shall keep all such statements confidential.
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SECTION 16.10. CONSENT. Where the consent of a party is required, such
consent will not be unreasonably withheld.
SECTION 16.11. TIME. Time is of the essence of each term and provision of
this Lease.
SECTION 16.12. REPRESENTATIONS AND WARRANTIES. The undersigned represent
and warrant that (i) such party is duly organized, validly existing and in good
standing (if applicable) in accordance with the laws of the state under which it
was organized; (ii) the Tenant is authorized to do business in the State where
the Building is located; and (iii) the individual executing and delivering this
Lease has been properly authorized to do so, and such execution and delivery
shall bind such party.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
Signed, sealed and delivered LANDLORD:
as to Landlord, in the
presence of:
DUKE CONSTRUCTION LIMITED
PARTNERSHIP, a Delaware limited partnership
- ---------------------------
Unofficial Witness By: Duke Business Centers Corporation,
its sole general partner
By:
- --------------------------- -------------------------------
Notary Public W. Gregory Thurman
Senior Vice President
Signed, sealed and delivered TENANT:
as to Tenant, in the
presence of: UNITED STATIONERS SUPPLY CO., an
Illinois corporation
- ---------------------------
Unofficial Witness By:
-------------------------
Name:
-----------------------
Title:
----------------------
- ---------------------------
Notary Public Attest:
--------------------
Name:
-----------------------
Title:
----------------------
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PRELIMINARY
EXHIBIT B-1
PROJECT SPECIFICATIONS
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EXHIBIT B-2
PROJECT DESIGN SCHEDULE
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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)
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EXHIBIT D
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ___ day of _____________ , 2001, 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 ____________ , 2001
and duly recorded on _________ , 2001 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 _____ , 2001 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 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 which has not been cured after delivery of
notice and expiration of any applicable cure period; 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:
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(a) subject to any offsets, claims or defenses which Tenant might have
against any prior landlord except as expressly allowed for in the Lease; or
(b) bound by any rent or additional rent which Tenant might have paid for
more than one month in advance to any prior landlord; or
(c) bound by any amendment or modification of the Lease made without the
prior written consent of the Mortgagee.
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 an uncured 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 as provided in the Lease.
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.
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.
(SIGNATURES CONTAINED ON FOLLOWING PAGE)
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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:
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EXHIBIT E
SPECIAL STIPULATIONS
The Special Stipulations set forth herein are hereby incorporated into the
body of the Lease and to the extent of any conflict between these Special
Stipulations and the Lease, these Special Stipulations shall govern and control.
1. OPTION TO EXTEND.
A. GRANT AND EXERCISE OF OPTION. Provided (i) Tenant has not been in
default hereunder at any time during the Lease Term (the "Original Term"), (ii)
the creditworthiness of Tenant is then acceptable to Landlord, (iii) Tenant
originally named herein remains in possession of and has been continuously
operating in the entire Leased Premises for the term immediately preceding the
Extension Term (defined below), and (iv) the current use of the Leased Premises
is acceptable to Landlord, Tenant shall have the option to extend the Original
Term for two (2) successive periods of five (5) years each (the "Extension
Term(s)"). The Extension Term shall be upon the same terms and conditions
contained in the Lease for the Original Term except (i) this provision giving
two (2) extension options shall be amended to reflect the remaining options to
extend, if any and (ii) the Minimum Annual Rent shall be adjusted as set forth
below (the "Rent Adjustment"). Tenant shall exercise such option by (i)
delivering to Landlord, no later than six (6) months prior to the expiration of
the Original Term or, if applicable, the Extension Term, written notice of
Tenant's desire to extend the Original Term or, if applicable, the Extension
Term, and (ii) delivering to Landlord within ten (10) business days of receipt
of the Rent Adjustment, written notice of its acceptance thereof. Unless
Landlord otherwise agrees in writing, Tenant's failure to timely exercise such
option shall waive it and any succeeding option. Landlord shall notify Tenant of
the amount of the Rent Adjustment no later than ninety (90) days prior to the
commencement of the applicable Extension Term. If Tenant properly exercises its
option to extend, Landlord and Tenant shall execute an amendment to the Lease
(or, at Landlord's option, a new lease on the form then in use by Landlord)
reflecting the terms and conditions of the Extension Term.
B. MARKET RENT ADJUSTMENT. The Minimum Annual Rent for the applicable
Extension Term shall be an amount equal to the Minimum Annual Rent then being
quoted by Landlord to prospective tenants of Landlord for space of comparable
size and quality and with similar or equivalent improvements in similar
buildings in the vicinity, excluding free rent and other concessions; provided,
however, that in no event shall the Minimum Annual Rent per square foot during
any Extension Term be less than the highest Minimum Annual Rent per square foot
payable during the immediately preceding term. The Minimum Monthly Rent shall be
an amount equal to one-twelfth (1/12) of the Minimum Annual Rent for the
Extension Term and shall be paid at the same time and in the same manner as
provided in the Lease.
2. COMPLIANCE WITH ADA. Landlord, at Landlord's sole cost and expense, shall
ensure that upon the Commencement Date, the Building, Common Areas and the
Leased Premises are in compliance with the requirements of the Americans With
Disabilities Act and/or laws governing the Leased Premises, excepting only that
Tenant shall be responsible during the Lease Term for such costs and expenses as
may be required as a direct result of Tenant's use of the Leased Premises or
Tenant's alterations to the Leased Premises.
3. SIGNAGE Provided that Tenant complies with all zoning and other municipal and
county regulations, Tenant may, at its own expense, erect an exterior building
sign on the upper level of the Building, and a monument sign at the entrance to
the Building and interior signage within the Leased Premises (collectively,
"Signs") concerning its business. Tenant agrees to maintain such signs in a
first-class manner and in compliance with all zoning and building codes
throughout the Lease Term. Upon the expiration or early termination of this
Lease, Tenant shall remove the signs and repair any damage to the Building or
Leased Premises caused thereby. Landlord does not warrant the availability of
such Signs to Tenant. Except for the gross negligence or willful misconduct of
Landlord, Tenant shall indemnify and hold harmless Landlord from any and all
liability concerning loss or damage or injury to any person (including death
resulting therefrom) or property connected with or arising from the Signs or the
rights granted to the Tenant herein. Landlord shall contribute an allowance up
to the amount of Ten Thousand and no/100 Dollars ($10,000) (the "Signage
Allowance"), which will be used solely for the design and installation of the
Signs. Any Signs not in conformity with this provision may be removed by the
Landlord. Any costs in excess of the Signage Allowance shall be borne solely by
Tenant.
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4. ADDITIONAL ALLOWANCES
A. LANDSCAPING ALLOWANCE. Landlord shall contribute an allowance up to the
amount of One Hundred Seventy-Five Thousand Two Hundred Fifty and No/100 Dollars
($175,000.00) (the "Landscaping Allowance"), which Tenant may use solely for the
design and installation of landscaping around the Leased Premises. In the event
Tenant's landscaping costs exceed the Landscaping Allowance, the excess shall be
paid by Tenant to Landlord fifty percent (50%) before the commencement of the
change order work and fifty percent (50%) within ten (10) days of receipt of an
invoice for same.
B. ELECTRICAL ALLOWANCE. Landlord shall contribute an allowance up to the
amount of One Hundred Twenty-Five Thousand and No/100 Dollars ($125,000.00) (the
"Electrical Allowance"), to be used solely for Tenant specified electrical
distribution, excluding overhead lighting panels, main transformer, switch gear
and building feed. In the event Tenant's electrical costs exceed the Electrical
Allowance, the excess shall be paid by Tenant to Landlord fifty percent (50%)
before the commencement of the change order work and fifty percent (50%) within
ten (10) days of receipt of an invoice for same.
5. PARKING Tenant shall be entitled to four hundred (400) unreserved parking
spaces. 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. There shall be no parking permitted
on any of the streets or roadways located within the Park.
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