EXHIBIT 10.1
SECOND SUBLEASE AGREEMENT
1. PARTIES
THIS SECOND SUBLEASE AGREEMENT (the "Sublease") is entered into as of the
2nd day of May, 2005, by and between INTERNET COMMERCE CORPORATION
("SUBLESSEE"), and BIANCO HOPKINS & ASSOCIATES, INC. ("SUBLESSOR"), as a
Sublease under the Master Lease dated March 27, 2003, entered into by
CORNERS REALTY CORPORATION, INC. ("CORNERS REALTY"), as Lessor, and
HITACHI ELECTRONIC DEVICES (USA), INC ("HITACHI"), under the Master Lease,
as Lessee, and the related Sublease Agreement dated March 17, 2004,
between Hitachi and Sublessor (the "First Sublease"). A copy of said
Master Lease and the First Sublease are attached hereto, marked Sublease
Exhibit "B," and incorporated herein by reference.
This agreement will hereafter be a sublease under the First Sublease and
the Master Lease.
2. PROVISIONS CONSTITUTING SUB-SUBLEASE
This Sublease is subject to all of the terms and conditions of this Second
Sublease Agreement including those contained in the Special Stipulations
attached hereto marked as Sublease Exhibit "A." This Sublease also adopts
by reference all those provisions of the Lease Agreement and the First
Sublease attached hereto as Sublease Exhibit "B" except where such
provisions are directly in conflict with the provisions of this Second
Sublease Agreement. Accordingly, Sublessee shall be obligated hereunder
the same as Hitachi under the Lease Agreement.
3. PREMISES
Sublessor leases to Sublessee and Sublessee hires from said Sublessor the
premises situated at 6025 Corners Parkway, Suite 100, in the City of
Norcross, County of Gwinnett, State of Georgia, 30092 (the "Premises") and
consisting of approximately 12,949 rentable square feet. Sublessee leases
the Premises in its "as-is" condition.
4. TERM
4.1 Term. The term of this Sublease shall be for a period commencing on
July 1, 2005 (Commencement Date) and ending on May 31, 2010, subject
to any required approval by Lessor per the Master Lease.
4.2 Delay in Commencement. Notwithstanding said Commencement Date, if,
due to delays in the lessor approval process, Sublessor cannot
deliver possession of the Premises to Sublessee on said date,
Sublessor shall not be subject to any liability therefore, nor shall
such failure affect the validity of this Lease or the
1
obligations of Sublessee hereunder or extend the term hereof, but in
such case Sublessee shall not be obligated to pay rent until
possession of the Premises is tendered to Sublessee; provided,
however, that if Sublessor shall not have delivered possession of
the Premises within ten (10) days from said Commencement Date,
Sublessee may, at Sublessee's option, by notice in writing to
Sublessor within ten (10) days thereafter, cancel this Sublease. If
this Sublease is canceled as herein provided, Sublessor shall return
any monies previously deposited by Sublessee, and the parties shall
be discharged from all obligations hereunder. Once Sublessor's
broker is in receipt of Sublease document, Lessor Consent form and
Commission Agreement executed by Sublessee and Sublessee's Broker,
these documents shall be sent to Sublessor via next day delivery for
execution by Sublessor. Sublessor shall return fully executed
documents via next day delivery to Sublessor's Broker within five
business days of receipt thereof. These documents will be presented
to Corners Realty for approval.
4.3 Early Possession. Once Corners Realty has approved this transaction,
Sublessor shall permit Sublessee to occupy the Premises prior to the
Commencement Date of the term for the purpose of installing
additional furniture, recabling space for data and phone system,
reconfiguring existing furniture, connecting T1, and activating
security system. Occupancy shall be subject to all of the provisions
of this Sublease, excluding the payment of rent. Said early
possession shall not advance the termination or the Commencement
Date of this Sublease.
5. RENT
Sublessee shall pay to Hitachi for the account of Sublessor as rent for
the Premises equal monthly installments as shown on Sublease Exhibit "A",
in advance, on the first day of each month of the term hereof. Sublessee
shall pay Sublessor to be held in escrow for the benefit of Hitachi, upon
the execution of this Second Sublease Agreement, the sum of ELEVEN
THOUSAND ONE HUNDRED FOURTEEN AND 56/100 Dollars ($11,114.56) as rent for
the month beginning July 1, 2005. Rent for any period during the term
hereof which is for less than one (1) month shall be a pro rata portion of
the monthly installment. Rent shall be payable without notice or demand
and without any deduction, offset, or abatement in lawful money of the
United States of America to Hitachi at the address stated herein or in the
Master Lease or the First Sublease. Sublessor shall receive monthly
notification of rental payments by Sublessee.
6. SECURITY DEPOSIT
Sublessor shall surrender all rights to the deposit held by Hitachi
Corporation as of July 1, 2005 to Sublessee, and Sublessee shall assume
the right to recover said deposit at the end of the Sublease term. As a
result of such surrender, Sublessee has established a deposit with
Hitachi, of Thirty Two Thousand Three Hundred Seventy-Three and 33/100
Dollars ($32,373.33) as security for Sublessee's faithful performance of
Sublessee's obligations hereunder. Said Security Deposit (including
interim returns of the deposit as
2
cited in Item 2 of Exhibit "A") shall be returned to Sublessee according
to the schedule in Exhibit "A." If Sublessee fails to pay rent or other
charges due hereunder, or otherwise defaults with respect to any provision
of this Sublease, Hitachi, may use, apply, or retain all or any portion of
said deposit for the payment of any rent or other charge in default or for
the payment of any other sum to which Hitachi may become obligated by
reason of Sublessee's default, or to compensate Hitachi for any loss or
damage which Hitachi may suffer thereby. If Hitachi so uses or applies all
or any portion of said deposit, Sublessee shall within ten (10) days after
written demand therefore deposit cash with Hitachi in an amount sufficient
to restore said deposit to the full amount hereinabove stated, and
Sublessee's failure to do so shall be a breach of this Sublease, and
Sublessor may at its option terminate this Sublease. Hitachi shall not be
required to keep said deposit separate from its general accounts. If
Sublessee performs all of Sublessee's obligations hereunder, said deposit,
or so much thereof as had not theretofore been applied by Hitachi, shall
be returned, without payment of interest for its use, to Sublessee within
ten (10) days after the expiration of the Sublease term.
Sublessor will receive THIRTY TWO THOUSAND THREE HUNDRED SEVENTY THREE AND
33/100 Dollars ($32,373.33) from Sublessee on July 1, 2005 provided that
possession of the Premises shall have passed to Sublessee on or before
that date and be continuing. This will be the equivalent of the security
deposit being held by Hitachi as of July 1, 2005.
7. USE AND EARLY POSSESSION
A) The Premises shall be used and occupied only for general office and
administrative purposes. The Premises shall not be used for any illegal
purposes nor in any manner in which violates any regulation of any
governmental body.
B) Sublessee shall have access to space 30 days prior to Sublease
Commencement Date for the purpose of cabling, moving furniture and
configuring space.
8. BROKER
In this transaction, Sublessor and Sublessee have been represented by
Benchmark Resources International LLC ("Broker") in a Dual Agency
relationship. No other broker may lay claim to any compensation regarding
this transaction.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
3
IN WITNESS WHEREOF, the parties have caused this Second Sublease Agreement
to be executed and delivered by their duly authorized officers as of the date
first written above.
WITNESS: SUBLESSOR:
BIANCO HOPKINS & ASSOCIATES,
By: /s/ Rosalie Hopkins
------------------------------------
Title: President
Mailing Address:
6025 Corners Parkway
Suite 100
Norcross, Georgia 30071
WITNESS: SUBLESSEE:
INTERNET COMMERCE CORPORATION
By: /s/ Glen Shipley
----------------------------------
Glen Shipley
Chief Financial Officer
Mailing Address:
6801 Governors Lakes Pkwy., Suite 100
Norcross, Georgia 30071
4
SUBLEASE EXHIBIT "A"
Special Stipulations
1. BASE RENT SCHEDULE
Term Months Rent PSF Annualized Monthly Rent Total Rent
---- ------ -------- ---------- ------------ ------------
7/1/05 - 5/31/06 12 $ 10.30 $ 133,374.70 $ 11,114.56 $ 133,374.70
6/1/06 - 5/31/07 12 $ 10.61 $ 137,388.89 $ 11,449.07 $ 137,388.89
6/1/07 - 5/31/08 12 $ 10.93 $ 141,532.57 $ 11,794.38 $ 141,532.57
6/1/08 - 5/31/09 12 $ 11.26 $ 145,805.74 $ 12,150.48 $ 145,805.74
6/1/09 - 5/31/10 11 $ 11.60 $ 137,691.07 $ 12,517.37 $ 137,691.07
AGGREGATE RENT: $ 695,792.97
2. SECURITY DEPOSIT
Providing Sublessee is not in default as outlined herein under Paragraph
6, security deposit shall be returned to Sublessee as outlined below:
Date Deposit Returned Remaining Deposit
---- ---------------- -----------------
July 1, 2006 1 Month's Deposit 2 Months
February 1, 2007 1 Month's Deposit 1 Month
The last month's security deposit shall be held by Sublessor through the
duration of the Sublease term according to the provisions herein defined.
3. FURNITURE, FIXTURES & EQUIPMENT ("FF&E")
Providing Sublessee is not otherwise in default of this Sublease or the
Master Lease or the First Sublease, Sublessee shall have the right to use
the FF&E as described on Exhibit "D". Sublessee agrees to return said FF&E
to Sublessor in good working order and condition, reasonable wear and tear
excepted, at the expiration of the Sublease term.
4. INSURANCE
Sublessee shall have same indemnity and insurance obligation as outlined
in Paragraph 12 of the Master Lease. Sublessee shall also be required to
submit a "Form of Insurance Certificate" as provided in Exhibit "H" of the
Master Lease.
5. OPTION TO RENEW
Sublessee hereby forgoes this right as defined in Paragraph 31 of the
Master Lease.
A-1
6. FIRST REFUSAL OPTION
Sublessee hereby forgoes this right as defined in Paragraph 32 of the
Master Lease.
7. OPERATING EXPENSES
Sublessee shall not be responsible for any increases in Operating Expenses
during the term of this Sublease.
8. DEFAULTS
Sublessee shall be obligated to Sublessor according to the same provisions
defined in Paragraph 15 of the Master Lease relating to an "Event of
Default."
9. ASSIGNMENT AND SUBLETTING
Sublessee must first obtain prior written approval to sublease or assign
this Sublease from both Sublessor and Corners Realty, which may be not be
unreasonably withheld at Sublessor's sole discretion, but shall not be
unreasonably withheld. Should Sublease result in "Sublease Additional
Rent" as defined in Paragraph 10(g) of the Master Lease, Sublessee shall
pay to Hitachi a sum of one hundred (100%) percent of this amount. All
other provisions of Paragraph 10 of the Master Lease shall be applied to
Sublessee's requirements in such an event.
10. SIGNAGE
Sublessee shall be responsible for all expenses incurred with establishing
signage on the building directory and at Sublessee's suite and shall deal
with Corners Realty directly on such matters.
A-2
SUBLEASE EXHIBIT "B"
Lease Agreement
LEASE AGREEMENT
BETWEEN
CORNERS REALTY CORPORATION, INC.
(Landlord)
AND
HITACHI ELECTRONIC DEVICES (USA), INC.
(Tenant)
DATED: As of March 27, 2003
B-1
TABLE OF CONTENTS
1. BASIC LEASE INFORMATION 1
2. TERM AND POSSESSION 2
3. BASE RENT; ADDITIONAL RENT 4
4. USE 7
5. LANDLORD'S SERVICES 9
6. REPAIRS 11
7. ALTERATIONS 12
8. RULES AND REGULATIONS 13
9. ACCESS BY LANDLORD 13
10. ASSIGNMENT AND SUBLETTING 14
11. CONDEMNATION 17
12. INSURANCE AND INDEMNITY 18
13. DAMAGE AND DESTRUCTION 21
14. SECURITY DEPOSIT 22
15. DEFAULTS 22
16. REMEDIES 23
17. SURRENDER OF PREMISES 25
18. HOLDING OVER 26
19. BANKRUPTCY 26
20. INTENTIONALLY DELETED 26
21. SUBORDINATION; ESTOPPEL CERTIFICATES 27
22. MECHANIC'S LIENS AND OTHER TAXES 27
23. QUIET ENJOYMENT 28
24. CERTAIN RIGHTS RESERVED TO LANDLORD 28
25. NOTICES 28
26. BROKERS AND AGENTS 29
27. PARKING 30
28. LANDLORD'S LIEN 30
29. MISCELLANEOUS 31
32. FIRST REFUSAL OPTION 36
33. SATELLITE DISH 37
EXHIBIT A - INTENTIONALLY DELETED 00
EXHIBIT B - FLOOR PLAN B-1
EXHIBIT C - PLANS AND SPECIFICATIONS C-1
EXHIBIT D - WORK AGREEMENT D-1
EXHIBIT E - COMMENCEMENT DATE AGREEMENT E-1
EXHIBIT F - JANITORIAL SPECIFICATIONS F-1
EXHIBIT G - RULES AND REGULATIONS G-1
EXHIBIT H - FORM OF INSURANCE CERTIFICATE H-1
This Lease Agreement ("Lease") is made as of the date last executed by the
parties below, by and between CORNERS REALTY CORPORATION, INC., a Delaware
corporation ("Landlord"), and HITACHI ELECTRONIC DEVICES (USA), INC., a Delaware
corporation, having an address at Suite 100, 6025 The Corners Parkway, Norcross,
GA 30092 ("Tenant").
W I T N E S S E T H :
The parties hereto, for themselves, their legal representatives,
successors and assigns, agree as follows:
1. BASIC LEASE INFORMATION. The terms used in this Lease shall have the
meanings set forth in this Paragraph 1.
(a) Building. The office building located at 6025 The Corners
Parkway, Norcross, GA 30092 and commonly known as "The Corners" and "Peachtree
Corners."
(b) Land. Those certain parcels of land upon which 6025 The Corners
Parkway is built.
(c) Park. The Land and all improvements thereon, including, without
limitation, the Building and the Common Areas.
(d) Premises. Suite Number 100 substantially as shown on Floor
Plan(s) attached hereto as Exhibit B and made a part hereof, which the parties
agree contains 12,949 rentable square feet as of the date of this Lease.
(e) Common Areas. Those certain areas and facilities of the Building
and the Park which are from time to time provided by Landlord, in its
discretion, for the use of tenants and their employees, clients, customers,
guests, licensees and invitees or for use by the public.
(f) Permitted Uses. Executive and administrative offices reasonable
and customary for Tenant's business as an electronic manufacturer and related
uses thereto.
(g) Commencement Date. June 1, 2003.
(h) Expiration Date. May 31, 2010.
(i) Term. Beginning on the Commencement Date and ending at 11:59
p.m. on the Expiration Date, unless this Lease is sooner terminated as provided
herein.
(j) Tenant's Share. 27.5%
(k) Rent. The Base Rent, the Additional Rent, as defined in
Paragraph 3, and all other sums due from Tenant to Landlord hereunder.
1
(1) Base Rent:
PER RENTABLE
LEASE PERIOD SQUARE FOOT ANNUALLY MONTHLY
- -------------- ----------- ------------ -----------
6/1/03-5/31/04 $ 18.00 $ 233,082.00 $ 19,423.50
6/1/04-5/31/05 $ 18.54 $ 240,074.46 $ 20,006.21
6/1/05-5/31/06 $ 19.10 $ 247,325.90 $ 20,610.49
6/1/06-5/31/07 $ 19.67 $ 254,706.83 $ 21,225.57
6/1/07-5/31/08 $ 20.26 $ 262,346.74 $ 21,862.23
6/1/08-5/31/09 $ 20.87 $ 270,245.63 $ 22,520.47
6/1/09-5/31/10 $ 21.49 $ 278,274.01 $ 23,189.50
(m) Operating Expense Base. The Operating Expenses paid or incurred
with respect to the year beginning January 1, 2003.
(n) Security Deposit. None.
(o) Tenant's Broker(s). NONE.
(p) Landlord's Broker/Manager. Trammell Crow Company.
(q) Option to Renew. One (1) five (5) year option pursuant to
Paragraph 31.
(r) Right of First Refusal. NOT APPLICABLE.
(s) Tenant Improvement Allowance. $18.00 per rentable square foot.
2. TERM AND POSSESSION.
(a) Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the Premises for the Term. During the Term, Tenant shall have the right
to use the Common Areas in common with others and in accordance with the Lease
and the Rules and Regulations.
(b) INTENTIONALLY DELETED.
(c) In the event this Lease pertains to Premises in which building
interior finish is to be constructed by Landlord (the "Leasehold Improvements"),
the Commencement Date shall be the date set forth in Subparagraph 1(g). If a
Leasehold Improvement Allowance is set forth in Paragraph 1 above, then Tenant
shall be responsible for all hard and soft costs incurred in connection with the
design and construction of the Leasehold Improvements which are in excess of the
Tenant Improvement Allowance. "The Substantial Completion Date," if
2
relevant, shall be the date upon which the Leasehold Improvements have been
substantially completed as defined in Exhibit D, Article IX as evidenced by the
issuance of a certificate of occupancy by applicable governmental authorities,
except for punch list items, in accordance with the plans and specifications
("Plans and Specifications") attached hereto as Exhibit C and made a part
hereof, and the Work Agreement ("Work Agreement") attached hereto as Exhibit D
and made a part hereof, provided however, that if Landlord shall be delayed in
such substantial completion as a result of: (i) Tenant's failure to agree to
Plans and Specifications, and cost estimates within ten (10) Business Days after
receipt thereof; (ii) Tenant's request for materials, finishes or installations
other than Landlord's standard; (iii) Tenant's changes in Plans and
specifications; (iv) the performance or completion by a party employed by
Tenant, or (v) the failure by Tenant to make payment for the cost of the
Leasehold Improvements in excess of the Tenant Improvement Allowance as set
forth above, the Commencement Date and the payment of Rent hereunder shall be
accelerated by the number of days of such delay, and provided further that if
Landlord cannot substantially complete the Premises as a result of any of events
(i) through (v) above, Landlord may at its election complete so much of the
Leasehold Improvements as may be practical under the circumstances and, by
written notice to Tenant, establish the Commencement Date as the date of such
partial completion, subject to any applicable accelerations due to delays
resulting from events (i) through (v) above. Tenant shall provide Landlord with
a punch list within ten (10) days of the Substantial Completion Date, and
Landlord shall proceed to complete these items promptly, and Landlord shall use
all reasonable efforts to complete such work in not more than thirty (30) days
after receipt of such list. The taking of possession by Tenant shall be deemed
conclusively to establish that the Leasehold Improvements have been completed in
accordance with the plans and specifications (except for punch list items) and
that the Premises are in good and satisfactory condition.
(d) Intentionally deleted.
(e) Landlord may submit to Tenant a written agreement, substantially
in the form annexed as Exhibit E, confirming the date fixed by Landlord, in
accordance with the provisions of this Lease, as the Commencement Date and the
Expiration Date, and Tenant shall execute such agreement and return it to
Landlord within fifteen (15) calendar days thereafter after a showing of
compliance with Exhibit D, Article IX attached hereto. Any failure of the
parties to execute such written agreement shall not affect the validity of the
Commencement Date or the Expiration Date as fixed and determined by Landlord. In
the event of any dispute as to the substantial completion of work required to be
performed by Landlord, the certificate of Landlord's architect or general
contractor shall be conclusive.
(f) Notwithstanding anything to the contrary in this Lease, Tenant
may occupy the Premises prior to the Commencement Date for the installation of
modular furniture, telephones, personal property, office systems, computers and
the like, without any rent charge. If, however, Tenant commences the conduct of
business in the Premises before the Commencement Date set forth in Subparagraph
1(g) of this Lease, the Commencement Date shall be modified to be the date
Tenant commences the conduct of business in the Premises. Landlord will use all
reasonable efforts to have the Premises available by June 1, 2003.
3
(g) To the extent that the Commencement Date shall be delayed beyond
the Finish Date by reason of the circumstances contemplated by Article VII of
the Work Agreement annexed to this Lease as Exhibit D or by Subparagraph 29 (v),
the date that shall constitute the Finish Date shall be delayed by the period of
time equal to the duration of all such delays. In the event that the Finish Date
is extended for reasons wholly unrelated to acts attributable to Tenant, the
provisions set forth in Subparagraph 29(v) regarding force majeure shall apply.
3. BASE RENT; ADDITIONAL RENT.
(a) Tenant shall pay in advance to CORNERS REALTY CORPORATION, INC.,
P. O. Box 531258, Atlanta, Georgia 303533-1258, or at such other place as
Landlord shall designate in writing, promptly, without notice, demand, offset or
deduction, in lawful money of the United States of America on the first day of
each calendar month during the Term: (i) the Base Rent as set forth in Paragraph
1(1) in equal installments in advance of the first day of each calendar month of
the Term; and (ii) the additional rent ("Additional Rent") consisting of all
other sums of money as shall become due from and be payable by Tenant under this
Lease including, but not limited to, those described in Subparagraph 3(b) below
(for default in the payment of which Landlord shall have the same remedies as
for a default in the payment of Base Rent). If the Term commences on a day other
than the first day of a month, or terminates on a day other than the last day of
a month, the Base Rent for the first and last partial month shall be prorated
based upon the actual number of days leased in such month.
(b) Beginning June 1, 2003, Tenant shall pay to Landlord, as
Additional Rent, at the same time as the monthly installment of Base Rent is
paid, an amount equal to one-twelfth (1/12th) of Landlord's estimate (as
determined by Landlord in its sole discretion) of Tenant's Share of ay projected
increase in Operating Expenses for the particular calendar year in excess of the
operating Expense Base (the "Estimated Escalation Increase"). If, for any
reason, Landlord has not provided Tenant with an Estimated Escalation Increase
Statement ("Estimated Escalation Increase Statement") on or before the first day
of any year during the Term, then, (i) until the first day of the calendar month
following the month in which Tenant is given the Estimated Escalation Increase
Statement, Tenant shall continue to pay to Landlord on the first day of each
calendar month the sum, if any, payable by Tenant under this Paragraph for the
month of December of the preceding year. Within nine (9) months after January 1
of each year during the Term, or as soon thereafter as is practicable, Landlord
shall furnish Tenant with a statement of the actual Operating Expenses for the
preceding year and the actual amount of Tenant's Share of any increase in
Operating Expenses in excess of the operating Expense Base ("Revised Escalation
Statement"). Thereafter, Landlord shall be entitled, if circumstances warrant,
to issue revised, corrected or supplemental statements at any time and from time
to time following the issuance of the initial statement. Within ten (10) days
after Landlord's delivery of such Revised Escalation Statement, Tenant shall
make a lump sum payment to Landlord in the amount, if any, by which Tenant's
Share of the increase in the Operating Expenses for the preceding calendar year
in excess of the Operating Expense Base, as shown on such Revised Escalation
Statement, exceeds the aggregate of the monthly installments of Tenant's
payments of the Estimated Escalation Increase paid during such preceding year.
If Tenant's Share of the actual increase in operating Expenses, as shown on such
Revised Escalation Statement, is less than the aggregate of the monthly
installments of the Estimated Escalation Increase actually paid by Tenant during
such preceding year, then Landlord shall apply such amount to the next accruing
installments of
4
Additional Rent due from Tenant under this Paragraph 3 until fully credited to
Tenant. Landlord's rendering or failure to render any Revised Escalation
Statement with respect to any calendar year shall not prejudice Landlord's right
thereafter to render a Revised Escalation Statement. Any Revised Escalation
Statement shall be conclusively binding upon Tenant unless Tenant shall send
written notice to Landlord objecting to and specifying, to the extent reasonably
practicable, the respects in which the Revised Escalation Statement is disputed,
within thirty (30) days after such Revised Escalation Statement is sent. Pending
the resolution of any dispute concerning a Revised Escalation Statement, Tenant
shall pay to Landlord the amounts shown on the Revised Escalation Statement when
due.
(c) For the purposes of this Lease, the term "Operating Expenses"
shall mean all expenses and disbursements of every kind (subject to the
limitations set forth below) which Landlord incurs, pays or becomes obligated to
pay in connection with the ownership, operation and maintenance of the Building
and the Park, determined in accordance with generally accepted accounting
principles consistently applied, including but not limited to the following: (i)
wages and salaries of all employees engaged in the operation, repair,
replacement, maintenance and security of the Building, including taxes,
insurance, bonuses, pension and benefits relating thereto; (ii) Social Security,
unemployment and other payroll taxes, the cost of providing disability and
worker's compensation coverage imposed by any requirement, union contract or
otherwise of such employees; (iii) all supplies and materials whether purchased
or rented, used in the operation, maintenance, repair, replacement and security
of the Building, excluding supplies and materials used in the upfit allowance
granted to Tenant in Subparagraph 1(s) above; (iv) all expenditures, whether by
purchase or lease, made for the Building or Park for the intended purpose of (A)
making the building or Park more energy efficient, (B) reducing Operating
Expenses, (C) enhancing the health, safety or welfare of the tenants, (D)
improving telecommunications, (E) ensuring that no Building System is
interrupted by the year 2000 data processing issue, or (F) complying with all
applicable laws, rules, ordinances and codes as may be promulgated by any
governmental authority enacted after the date of this Lease, the total cost of
which is not generally includable in Operating Expenses for the operating year
in which they were made shall nevertheless be included in such Operating
Expenses for the operating year in which it was made and in Operating Expenses
for each succeeding operating year, and such annual expense shall be determined
by dividing the original capital expenditure, plus an interest factor computed
at the Applicable Rate (as defined below) in effect as the time Landlord made
the expenditure, by the number of years of useful life of the expenditure (the
useful life being determined by Landlord in accordance with generally accepted
accounting principles and practices in effect at the time of such expenditure);
(v) all gas, oil, steam, electricity, water, sewer rental, HVAC and other
utilities, other than the cost of utilities directly reimbursed to Landlord
(i.e., through submeters or comparable devices) by the Building's tenants; (vi)
all insurance costs (including deductibles) applicable to the Park and
Landlord's personal property used in connection therewith, including but not
limited to casualty, liability, workers' compensation and rent insurance; (vii)
all taxes and assessments and governmental charges whether federal, state,
county or municipal, and whether they be by taxing or management districts or
authorities presently taxing or by others, subsequently created or otherwise,
and any other taxes and assessments attributable to the Building, equipment and
facilities, Land and Common Areas of the Park (or their operation), excluding,
however, federal and state taxes on income (collectively, "Taxes"), and all
expenses, including fees and disbursements incurred by Landlord in contesting
the validity or amount of Taxes or in obtaining a refund of Taxes shall be
5
considered as part of the Taxes for the calendar year (and if the present method
of taxation changes so that in lieu of the whole or any part of any Taxes levied
on the Park or Building, there is levied on Landlord a capital tax directly on
the rents received or a franchise tax, assessment, or charge based, in whole or
in part, upon such rents for the Building, then all such taxes, assessments or
charges or the part thereof so based, shall be deemed to be included within the
term "Taxes" for the purposes hereof); (viii) the cost of security, repairs,
replacements and general maintenance (including service or maintenance contracts
with independent contractors) of the interior and exterior of the building and
the Park (including, but not limited to, the roof, the foundation and the
exterior walls, light bulbs and glass breakage, redecorating, repainting,
recarpeting and other such work of any Common Areas, heating, ventilation and
air conditioning, plumbing and electrical equipment and maintenance, trash and
rubbish removal, security services, concierge service, janitorial service,
grounds maintenance, alarm services, window cleaning, promotional and seasonal
expenses, telephones and stationery, parking areas and landscaping), whether
performed by Landlord or pursuant to service or maintenance contracts with
independent contractors; (ix) rent and escalations payable under any ground
lease pertaining to the Land; (x) depreciation of hand tools and other movable
equipment; (xi) management fees; (xii) sales, use and other similar taxes; (xii)
legal, accounting and other professional fees and expenses; and (xiv) anything
which could be classified as an Operating Expense under generally accepted
accounting principles, consistently applied, but not specified or expressly set
forth hereunder. The "Applicable Rate" shall mean the lesser of (a) three
percentage points over the then current Base Rate (or any other term used by
Citibank, N.A., from time to time, for the rate presently known as the Base
Rate) announced by Citibank, N.A., or its successor, and (b) the maximum rate
permitted by law.
(d) There shall be specifically excluded from the definition of the
term Operating Expenses the following expenses: (1) repairs or replacements
incurred by reason of fire or other casualty or condemnation to the extent
Landlord is compensated by the proceeds of insurance or by Tenant or other third
parties; (2) capital improvements made to the Building, other than improvements
described in Subparagraph 3(c)(iv) above and except for items which, though
capital for accounting purposes, are considered maintenance and repair items
under generally accepted accounting principles, such as painting of Common
Areas, replacement of carpet in lobbies, parking lot paving, light poles and
fixtures, and the like; (3) costs incurred in performing work or furnishing
services or utilities for any tenant, whether at such tenant's or Landlord's
expense, to the extent that such work or service is in excess of any work or
service or utilities that Landlord is obligated to furnish to Tenant at
Landlord's expense; (4) refinancing costs, mortgage interest and amortization
payments; (5) leasing commissions, rental concessions and lease buy-outs; (6)
any expense for which Landlord is entitled to be reimbursed by any tenant as an
additional charge in excess of Base Rent and Additional Rent; (7) amortization
and depreciation generally recognized by sound accounting principles, except as
otherwise specifically provided in Subparagraph 3(c) (iv) above and in this
Subparagraph; (8) overhead and profit increments paid to affiliates of Landlord
for services to the extent that such costs exceed the costs of such services
were they not rendered by an affiliate; (9) professional fees not allocated to
the operation or management of the Land or Building and professional fees
allocable to disputes with, or preparation of leases for, tenants and
prospective tenants; (10) advertising and promotional expenses with respect to
the Property; and (11) Landlord's income, franchise, estate or inheritance
taxes.
6
(e) Only Landlord shall be eligible to institute any proceedings to
reduce Taxes. If a refund of Taxes is actually received by Landlord, Landlord
shall send Tenant a Revised Escalation Statement adjusting the Taxes for such
calendar year, taking into account Landlord's expenses and setting forth
Tenant's Share of such refund, and Tenant shall be entitled to receive such
amount by way of a credit against the Additional Rent; provided, however, that
Tenant's Share of such refund shall be limited to the amount of Tenant's Share
of the tax payment previously paid to Landlord and attributable to the tax year
to which the refund applies.
(f) Simultaneously with the execution of this Lease, Tenant shall
pay to Landlord the first installment of the Base Rent. Such sum shall be
applied by Landlord to the first installment of Base Rent. In the event Tenant
fails to take possession of the Premises in accordance with all of the terms
hereof, the first installment of the Base Rent shall be retained by Landlord for
application in reduction, but not in satisfaction, of damages suffered by
Landlord as a result of such breach by Tenant.
(g) In the event Tenant shall fail to pay by the first (1st) day of
the month when due any Rent or any other charges, fees, costs or expenses which
Tenant is obligated or liable to pay to, refund to or reimburse Landlord, Tenant
shall be obligated to pay interest at the rate of one and one-half percent
(1-1/2 %) per month (or any portion of a month) during which such Rent or other
obligation remains outstanding together with a late charge, which shall
constitute liquidated damages, equal to five percent (5%) of the then
outstanding Rent or other obligation. Such interest and late charges shall be
deemed Additional Rent and shall become immediately due and payable along with
the Base Rent and Additional Rent.
(h) The obligations contained in this Paragraph 3 shall survive the
Expiration Date or earlier termination of this Lease.
4. USE.
(a) Tenant shall continuously occupy, operate and use the Premises
only for the Permitted Uses during the normal business hours of the Building.
Tenant shall comply with all governmental laws, ordinances and regulations
(including, but not limited to, the Americans with Disabilities Act of 1990),
now or hereinafter enacted ("Laws") applicable to the Premises, Tenant's
occupancy, use or manner of use of the Premises and shall promptly comply with
all governmental orders and directives at Tenant's sole expense. Tenant shall
not permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises or take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of the
Building or unreasonably interfere with their use of their respective premises
or the Common Areas. Tenant shall not receive, store or otherwise handle any
product, material or merchandise which is explosive or highly flammable.
(b) Except for office supplies specifically mentioned below, Tenant
shall not use, handle, store, discharge or fabricate any Hazardous Substances
(as hereinafter defined) in the Premises. The term "Hazardous Substances," as
used in this Lease shall mean pollutants, contaminants, toxic or hazardous
wastes or pollutants or contaminants, or any other substances, the removal of
which is required or the use of which is restricted, prohibited or penalized by
any "Environmental Law," which term shall mean any federal, state or local law,
ordinance, statute,
7
rule, regulation or directive promulgated by any governmental authority relating
to pollution or protection of the environment. Tenant hereby agrees that: (i) no
activity will be conducted on the Premises that will produce any Hazardous
Substance; (ii) the Premises will not be used in any manner for the storage of
any Hazardous Substances except for the temporary storage of such materials as
are customarily used in general business offices in office buildings of this
type (the "Permitted Materials") provided such Permitted Materials are properly
stored in a manner and location meeting all Environmental Laws and approved in
advance in writing by Landlord; (iii) Tenant will not permit any Hazardous
Substances to be brought onto the Premises, except for the Permitted Materials,
and if so brought or found located thereon, the same shall be immediately
removed, with proper disposal, and all required cleanup procedures shall be
diligently undertaken pursuant to all Environmental Laws. If, an any time during
or after the Term, the Premises are found to be so contaminated or subject to
said conditions, Tenant agrees to indemnify and hold Landlord, its trustees,
partners, affiliates, shareholders, officers, directors, employees, agents,
contractors and the Manager ("Indemnitees"), harmless from all claims, demands,
actions, liabilities, costs, expenses, damages and obligations of any nature
arising from or as a result of the presence or the use of Hazardous Substances
in the Premises by Tenant.
(c) Tenant will not permit the Premises to be used for any purpose
or in any manner (including without limitation any method of storage) which
would render the insurance thereon void or the insurance risk more hazardous or
cause the Insurance Commissioner or other insurance authority to disallow any
sprinkler credits. If any increase in the fire and extended coverage insurance
premiums paid by Landlord or other tenants for the Building is caused by
Tenant's use and occupancy of the Premises, or if Tenant vacates the Premises
and causes an increase in such premiums, then Tenant shall pay the amount of
such increase to Landlord as Additional Rent.
(d) If Tenant shall receive notice of any violation of, or defaults
under, any Laws or Environmental Laws, liens or other encumbrances applicable to
the Premises, Tenant shall give prompt notice thereof to Landlord.
(e) Tenant agrees that the floor load resulting from Tenant's
furniture, inventory and equipment pertaining to Tenant's use of the Premises
shall not exceed allowable design floor loading for the Building. Tenant shall
hold harmless Landlord from any loss, liability and expenses, both real and
alleged, arising out of or caused by Tenant's negligence or failure to comply
with this Subparagraph (e).
(f) The Premises shall not be used for any purpose that would, in
Landlord's reasonable judgment, tend to lower the first-class character of the
Building, create unreasonable or excessive elevator or floor loads, violate the
certificate of occupancy of the Building, impair or interfere with any of the
Building operations or the proper and economic heating, air-conditioning,
cleaning or any other services of the Building or impair the appearance of the
Building.
(g) The provisions of Paragraph 4 shall survive the termination or
earlier expiration of this Lease.
8
5. LANDLORD'S SERVICES.
(a) Landlord shall furnish seasonal air conditioning and heating
from 7:00 A.M. to 6:00 P.M. on Mondays through Fridays and from 7:00 A.M. until
1:00 P.M. on Saturdays ("Business Hours") except holidays observed by the City
of Atlanta, State of Georgia, the federal government or labor unions servicing
the Building ("Business Days"). As of the date of this Lease, New Year's Day,
Martin Luther King Day, Memorial Day, Independence Day, Labor Day, Thanksgiving,
the Friday after Thanksgiving and Christmas Day are holidays observed by the
Building ("Holidays"). The Holidays are subject to change from time to time by
Landlord. Should Tenant desire either heating or air conditioning at other
times, Landlord agrees to provide same upon reasonable advance written request
by Tenant, but at Tenant's expense and at such hourly rates as may be determined
from time to time by Landlord, which charge Tenant shall pay promptly upon
demand by Landlord. Tenant agrees to keep and cause to be kept closed all window
coverings, if any, when necessary because of the sun's position, and Tenant also
agrees at all times to cooperate fully with Landlord and to abide by all the
regulations and requirements which Landlord may prescribe for the proper
functioning and protection of the heating, ventilating, and air conditioning
system and to comply with all laws, ordinances and regulations respecting the
conservation of energy. Landlord will not be responsible for failure of the HVAC
System to provide sufficient cooling if such failure results from occupancy of
the Premises by more than one (1) person per two hundred (200) square feet of
usable area or if Tenant shall use in excess of five (5) watts of electricity
per usable square foot for lighting and power. If the occupancy rate is greater
than as described in the previous sentence or if Tenant's partitions are
arranged in a way which interferes with the normal operation of the HVAC System,
Landlord may elect to make changes to the HVAC System or the ducts, and the cost
shall be reimbursed by Tenant to Landlord as Additional Rent within ten (10)
days after demand. Tenant shall not construct partitions or other obstructions
that may interfere with Landlord's free access to mechanical installations in
the Premises or interfere with the moving of Landlord's equipment to and from
such installations. Neither Tenant nor its agents, employees or contractors
shall at any time enter such enclosures or tamper with, adjust, touch or
otherwise affect the mechanical installations. Provided that Tenant's Plans set
forth in Exhibit D and Tenant's occupancy ratio do not exceed the formulas set
forth in this Subparagraph (a), no Additional Rent or other expense shall be
charged by Landlord for HVAC services. If Tenant installs equipment which in
Landlord's opinion produces enough heat to cause comfort problems in the
Building or any part thereof, or if Tenant desires a supplemental air
conditioning system and Landlord has approved same, then Landlord may, at its
option, either cause to be designed or permit Tenant to design a supplemental
air conditioning system, subject to Landlord's approval, and Landlord shall
install such system substantially in accordance with such design. If Tenant has
requested such supplemental system, Tenant shall be responsible for determining
that the design of such system is adequate for its needs. Tenant agrees to pay
Landlord for such equipment, design, review by Landlord's architect and
engineer, installation, metering and consumption of electricity for supplemental
air conditioning. Any such system shall be maintained, at Tenant's sole cost and
expense, by a contractor approved by Landlord. Landlord shall be named as an
additional beneficiary under any warranty on the supplemental air conditioning
system. Landlord shall provide after hours HVAC upon request given twenty-four
(24) hours in advance, at Landlord's then current charge. Landlord's current
charge is $35.00 per hour.
9
(b) Landlord shall cause the Premises (excluding any areas used for
security or for the storage, preparation, service or consumption of food or
beverage) to be cleaned five (5) days per week, excluding Holidays, in the
manner described in Exhibit F attached hereto and made a part hereof, provided
that Tenant shall keep the Premises in order. Tenant shall not provide any
janitorial services without Landlord's prior written consent and then subject
only to supervision by Landlord and by a janitorial contractor or employees at
all times satisfactory to Landlord. Any such services provided by Tenant shall
be at Tenant's sole risk, cost and responsibility. Tenant shall pay the cost of
removing any of Tenant's refuse and rubbish from the Premises and the Building
to the extent that the same, in any one day, exceeds the average daily amount of
refuse and rubbish accumulated in the use of such Premises as offices, as
described in Landlord's cleaning contract or recommended by Landlord's cleaning
contractor. Bills rendered by Landlord shall be paid as Additional Rent within
ten (10) days after demand. Tenant shall cause all portions of the Premises used
for the storage, preparation, service or consumption of food or beverages to be
cleaned daily in a manner reasonably satisfactory to Landlord and to be treated
whenever there is evidence of any infestation. Landlord shall have no obligation
to clean, repair, replace or maintain any "private" plumbing fixtures or
facilities.
(c) Landlord shall furnish electric current for Building standard
tenant lighting and small business machinery only from electric circuits
designated by Landlord for Tenant's use. Such circuits shall be fed into one or
more of the existing electrical panel(s) in the electrical closets located on
the same Building floor as the Premises. Tenant's usage of the panels on any
given floor shall not exceed Tenant's pro rata share (based on rentable square
footage) of the panels' capacity. Tenant agrees that at no time will the
connected electrical load in the Premises exceed in the aggregate five (5) watts
per usable square foot of the Premises. Tenant will not use any electrical
equipment which, in Landlord's opinion, will overload the wiring installations
or interfere with the reasonable use thereof by other users in the Building.
Tenant will not, without Landlord's prior written consent in each instance,
connect any items such as non-Building standard tenant lighting, vending
equipment, printing or duplicating machines, computers (other than desktop word
processors and personal computers), auxiliary air conditioners, and other
computer-related equipment to the Building's electrical system or make any
alteration or addition to the system.
(d) Landlord shall maintain the Common Areas including, but not
limited to, the corridors, the windows in the Building, the mechanical, plumbing
and electrical equipment serving the Building and the structure itself, in good
order and condition, except for damage occasioned by the act of Tenant, its
agents, servants, employees, guests of invitees, which damage shall be repaired
by Landlord at Tenant's expense.
(e) Landlord shall furnish hot and cold water for ordinary drinking,
cleaning and lavatory purposes. If Tenant requires, uses or consumes water for
other purposes, Tenant agrees to install and pay for the cost and maintenance of
a meter or other means to measure Tenant's water consumption. Tenant shall
reimburse Landlord for the cost of all water consumed (including costs of
generating hot water) as Additional Rent, within ten (10) days after demand.
10
(f) Landlord shall not be in default hereunder or be liable for any
damages directly or indirectly resulting from, nor shall the Rent herein
reserved be abated by reason of: (i) the installation, use or interruption of
use of any equipment in connection with the furnishing of any of the foregoing
utilities and services; (ii) failure to furnish or delay in furnishing any such
utilities or services when such failure or delay is caused by Acts of God or the
elements, labor disturbances of any character, any other accidents or other
conditions beyond the reasonable control of Landlord, or by the making of
repairs or improvements to the Premises or to the Building provided that such
repairs and improvements are made in a diligent manner, or (iii) the limitation,
curtailment, rationing or restriction on use of water or electricity, gas or any
other form of energy or any other service or utility whatsoever serving the
Premises or the Building. No diminution or abatement of Rent or other
compensation will be claimed by Tenant as a result therefrom, and no obligations
of Tenant shall be affected or reduced by reason of such interruption,
curtailment or suspension, and the same shall not constitute an actual or
constructive eviction.
(g) Landlord shall provide elevator service to the Premises during
Business Days, and subject to Subparagraph (f) above, on call at all other
times.
(h) Except as specifically provided in this Lease, Tenant shall have
access to the Premises twenty-four (24) hours per day, seven (7) days per week,
fifty-two (52) weeks per year.
(i) Any sums payable under this Paragraph 5 shall be considered
Additional Rent and may be added to any installment of Rent thereafter becoming
due and shall accrue late charges as Rent as set forth in Paragraph 16 of this
Lease, and Landlord shall have the same remedies for a default in payment of
such sums as for a default in the payment of Rent.
6. REPAIRS.
(a) Tenant shall, at its own cost and expense, keep in good repair
all portions of the Premises, including but not limited to glass and plate glass
doors, any special store front, interior walls and finish work, floors and floor
coverings, and supplemental or special heating and air conditioning systems
owned by Tenant, and shall take good care of the Premises and its fixtures and
permit no waste, except for normal wear and tear. Except as otherwise provided
in this Paragraph 6, Tenant shall not be obligated to repair any Building
Systems (as defined in Subparagraph 7(a)). Notwithstanding any provision to the
contrary, all damage or injury to the Building, or to its fixtures and
appurtenances (including Building Systems), resulting from any act or omission
of, or Alterations made by Tenant or persons within Tenant's control shall be
repaired by Tenant at Tenant's sole cost and expense to the reasonable
satisfaction of Landlord if the required repairs are non-structural in nature
and do not affect any Building Systems or by Landlord at Tenant's sole cost and
expense if the required repairs are structural in nature or affect any Building
Systems. If Tenant shall fail, after ten (10) days notice (or such shorter
period as may be required because of an emergency) to proceed with due diligence
to make required repairs, the same may be made by Landlord, and the expenses
incurred with interest at the Applicable Rate (as defined below), shall be paid
as Additional Rent within ten (10) days after demand. Except as otherwise
provided in this Subparagraph 6(a), Landlord shall not be required to make any
repairs or improvements to the Premises, other than structural, mechanical or
11
electrical repairs necessary for safety and tenantability, and such repairs
shall be made during Business Hours.
(b) Landlord shall operate, maintain and make all necessary repairs
to the Building Systems and the public portions of the Building in conformance
with standards applicable to non-institutional, office buildings in Atlanta,
except for those repairs for which Tenant is responsible pursuant to this Lease.
Landlord shall use reasonable efforts to minimize interference with Tenant's use
and occupancy of the Premises in making any repairs, alterations, additions or
improvements; provided, however, that Landlord shall perform such work during
Business Hours. Except as expressly provided in this Lease, there shall be no
allowance to Tenant for a diminution of rental value and no liability on the
part of Landlord for inconvenience, annoyance or injury to business arising from
Landlord, Tenant or others making, or failing to make, any repairs, alterations,
additions or improvements in or to any portion of the Building or the Premises,
or its fixtures, appurtenances or equipment.
7. ALTERATIONS.
(a) Tenant shall not make any alterations, additions or improvements
("Alterations") to the Premises, the Building or the Building's systems
(including but not limited to the roof, floor and wall penetrations, the HVAC
system, the electrical system and the plumbing ("Building Systems")) without the
prior written consent of Landlord, which Landlord may grant in its sole
reasonable discretion. In the event Landlord consents to the making of any
Alterations, by Tenant, the same shall be made at Tenant's sole cost and
expense, in accordance with all applicable laws, ordinances and regulations, and
all requirements of Landlord's and Tenant's insurance policies and only in
accordance with plans and specifications approved by Landlord (except that any
such requested alterations, additions or improvements to the Building or
Building Systems shall be done by Landlord, and Tenant shall reimburse Landlord
for the entire cost thereof). Any contractor or person selected by Tenant to
make the same and all subcontractors must first be approved in writing by
Landlord, or the Alterations shall be made by Landlord for Tenant's account and
Tenant shall fully reimburse Landlord for the entire cost thereof within twenty
(20) days after written notification of Tenant by Landlord providing Tenant with
an invoice or other request (or statement). Promptly after completion of any
Alterations to the Premises made by Tenant, Tenant shall supply Landlord with a
set of scaled and dimensioned, reproducible mylars of "as-built" plans for such
Alterations certified by Tenant's architect or space planner. Notwithstanding
the foregoing, with respect to any Alterations affecting any Building Systems,
Tenant shall employ Landlord's designated contractor, and such Alterations shall
be designed by the Landlord's engineer at Tenant's expense.
(b) All Alterations erected by Tenant shall be the property of
Tenant during the Term. Landlord reserves the right to require Tenant to remove
Tenant's Alterations erected and restore the Premises to their condition as of
the Commencement Date, reasonable wear and tear excepted, on or before the
Expiration Date or any sooner date of termination of this Lease; provided,
however, that if Landlord so elects prior to termination or expiration of this
Lease, such Alterations shall become the property of Landlord as of the
Expiration Date or any sooner date of termination of this Lease and shall be
delivered up to the Landlord with the Premises. The provisions of this Paragraph
7 shall survive the Expiration Date or earlier termination of this
12
Lease. Notwithstanding the foregoing, if, on or before the date Landlord
approves Tenant's Plans and Specifications for such initial or subsequent
Alterations, Landlord notifies Tenant that Landlord is reserving the right to
require Tenant to remove those Alterations that exceed or are different than the
customary standard types of Alterations for general, executive and
administrative business offices in the City of Atlanta and State of Georgia,
then Landlord prior to the Expiration Date, may require Tenant to remove such
specified initial or subsequent Alterations and to repair and restore in a good
and workmanlike manner to Building standard condition (reasonable wear and tear
excepted) any damage to the Premises or the Building caused by such removal.
(c) Tenant shall pay Manager a supervisory fee equal to five percent
(5%) of the cost of Alterations over $10,000.00 which require permits. Such fee
shall be paid within ten (10) days after demand by Landlord.
8. RULES AND REGULATIONS. Tenant, its employees and agents shall comply
with the Rules and Regulations attached to this Lease as Exhibit G and made a
part hereof, and any amendments or additions as may be made from time to time by
Landlord. Landlord shall not be responsible for the nonperformance by any other
tenant or occupant of the Building of any of the Rules and Regulations. In case
of any conflict or inconsistency between the provisions of this Lease and of any
of the Rules and Regulations as originally or as hereinafter adopted, the
provisions of this Lease shall control.
9. ACCESS BY LANDLORD.
(a) Landlord or its agents may enter the Premises at reasonable
hours to exhibit same to prospective purchasers or tenants or mortgagees, to
inspect the Premises to see that Tenant is complying with all of its obligations
hereunder, to supply janitorial and other services, and to make repairs,
maintenance, improvements, alterations or additions which Landlord shall deem
necessary for the safety, preservation or improvement of the Building or to make
repairs or modifications to any adjoining space. Landlord shall be allowed to
take all material into and upon the Premises that may be required to make such
repairs, improvements, alterations or additions for the benefit of Tenant
without in any way being deemed or held guilty of an eviction of Tenant, and the
Base Rent and other charges hereunder shall not abate while such repairs,
maintenance, improvements, alterations or additions are being made. All such
repairs, maintenance, improvements, alterations and additions shall be done
during regular business hours, or, if any such work is at the request of Tenant
to be done during any other hours, Tenant shall pay for all overtime costs.
Notwithstanding anything to the contrary, Landlord shall have the right to enter
the Premises at any time and without prior notice in the event of emergency
without the same constituting an eviction, nuisance or disturbance; however,
Landlord will provide subsequent notice of entry to Tenant.
(b) Landlord shall at all times retain a key with which to unlock
all the doors in the Premises, excluding Tenant's vaults, safes or special
security areas (designated in advance by Tenant in writing and made known to
Landlord), and Landlord shall have the right to use any and all means which
Landlord may deem necessary or proper to open said doors in an emergency, in
order to obtain entry to and any portion of the Premises, any entry to the
Premises,
13
or portions thereof obtained by Landlord by any of said means, or otherwise,
shall be deemed to be a forcible or unlawful entry into the Premises, or an
eviction, actual or constructive, of Tenant from the Premises or any portions
thereof. Landlord shall also have the right at any time, without the same
constituting an actual or constructive eviction and without incurring any
liability to Tenant therefor, to erect, use and maintain scaffolding, conduits
and other necessary structures in the Premises. Landlord shall use commercially
reasonable efforts not to interfere with Tenant's business operations while
Landlord is in the Premises.
10. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not voluntarily or involuntarily, whether by
operation of law or otherwise, assign, transfer, mortgage, hypothecate or
otherwise encumber this Lease or any interest herein and shall not sublet or
permit the use by others of the Premises or any portion thereof without
obtaining Landlord's prior written consent, which consent Landlord may grant in
its sole discretion based on the factors set forth in Subparagraph (e) below.
Landlord shall not unreasonably withhold its consent. Landlord's consent to one
assignment, sublease, transfer or hypothecation shall not be deemed as a consent
to any other or further assignment, sublease, transfer or hypothecation. Any
such assignment, sublease, transfer or hypothecation without Landlord's prior
written consent shall be void and shall, at Landlord's option, constitute a
default under this Lease. No acceptance by Landlord of any rent or any other sum
of money from any assignee, sublessee or other category of transferee shall
release Tenant from any of its obligations hereunder or be deemed to constitute
Landlord's consent to any assignment, sublease, transfer or hypothecation. All
cash or other proceeds that exceed the Rent in the case of a subletting or all
cash or other proceeds of any other transfer of Tenant's interest in this Lease
shall be paid to Landlord. Tenant shall not advertise or authorize a broker to
advertise for a subtenant or assignee without providing prior written notice to
Landlord.
(b) Should Tenant desire to assign this Lease or sublet the Premises
or any part thereof, Tenant shall give Landlord prior written notice, which
notice ("Sublease or Assignment Statement") shall specify (i) the name and
business of the proposed assignee or sublessee, (ii) the amount and location of
the space affected, (iii) the proposed effective date and duration of the
subletting or assignment (which shall not be less than forty (40) or more than
ninety (90) days after the date of Tenant's Sublease or Assignment Statement),
and (iv) the proposed rent or other consideration to be paid to Tenant by such
sublessee or assignee. Landlord shall then have a period of fifteen (15)
business days following receipt of such notice within which to notify Tenant in
writing that Landlord elects either (1) to terminate this Lease as to the space
so affected as of the date so specified by Tenant, in which event Tenant will on
that date be relieved of all further obligations to pay Rent hereunder as to
such space, or (2) to permit Tenant to assign or sublet such space, or (3) to
withhold consent to Tenant's assigning or subleasing such space and to continue
this Lease in full force and effect as to the entire Premises. If Landlord
should fail to notify Tenant in writing of such election within said thirty (30)
business day period, Landlord shall be deemed to have withheld its consent. Any
person to whom this Lease is assigned with Landlord's consent shall be deemed
without more to have assumed all of the obligations arising under this Lease
from and after the date of such assignment and shall execute and deliver to
Landlord, upon demand, an instrument confirming such assumption. If Tenant shall
not enter into a sublease or assignment pursuant to the notice set
14
forth in this Subparagraph 10(b) within one hundred eighty (180) days after the
delivery of the said notice, then the provisions of this Subparagraph 10(b)
shall again be applicable.
(c) Tenant agrees to reimburse Landlord for Landlord's actual
attorneys' fees and costs incurred in connection with the processing and
documentation of any request made pursuant to this Paragraph 10. Tenant shall
deliver to Landlord, within five (5) days after execution by Tenant, an original
counterpart of any executed sublease or instrument of assignment, together with
Tenant's and the subtenant's (or assignee's) affidavit that such sublease or
assignment instrument is the true and complete statement of the subletting or
assignment and reflects all sums and other consideration passing between the
parties. Tenant shall pay, indemnify and hold Landlord harmless from and
against, any and all cost or expense (including reasonable attorneys' fees and
disbursements) and liability in connection with any compensation, commissions or
charges claimed by any broker or agent with respect to any assignment or
subletting.
(d) No assignment, subletting or other transfer, whether or not
consented to by Landlord, shall relieve Tenant of its liability under this
Lease. Upon the occurrence of a default under this Lease, if the Premises or any
part thereof are then assigned or sublet, Landlord, in addition to any other
remedies herein provided or provided by law, may at its option collect directly
from such assignee or subtenant all Rent becoming due to Tenant under such
assignment or sublease and apply such Rent against any sums due to Landlord from
Tenant hereunder, and such collection shall not be construed to constitute a
novation or release of Tenant from the further performance of Tenant's
obligations hereunder.
(e) In the granting of Landlord's consent, Landlord shall take into
consideration any meaningful factors, including, but not limited to: (i) the
financial strength of the proposed subtenant or assignee; (ii) the business
reputation and character of the proposed subtenant or assignee; (iii) the type
of business of the proposed subtenant or assignee; (iv) the burden on services
(parking, electricity, etc.) and the Common Areas that would be imposed by the
proposed subtenant or assignee; (v) whether the proposed subtenant or assignee
is an existing tenant or is currently in negotiations with Landlord for space
within the Building; (vi) the amount of square footage in the Premises to be
sublet or assigned; (vii) the number of subtenants or assignees already in the
Premises; (viii) whether the proposed subtenant or assignee shall place any
additional responsibilities on the Landlord in connection with the Americans
With Disabilities Act that will not be paid for by Tenant or subtenant; (ix)
whether the Tenant has an existing default under its Lease; (x) whether the
Landlord has comparable space available in the Building or expects to have
comparable space within the next three months; (xi) whether the proposed
subtenancy or assignment would reflect the current rent rate in the Building;
(xii) how Tenant plans to market the Premises for sublease or assignment; or
(xiii) the marketability of the Premises.
(f) For purposes of this Paragraph 10, (i) the transfer of a
majority of the issued and outstanding capital stock of any corporate tenant or
subtenant, or the transfer of a majority of the total interest in any
partnership tenant or subtenant, or the transfer of control in any general or
limited liability partnership tenant or subtenant, or the transfer of a majority
of the issued and outstanding membership interests in a limited liability
company tenant or subtenant, however accomplished, shall be deemed an assignment
of this Lease or sublease, except that the
15
transfer of the outstanding capital stock of any corporate tenant, or subtenant,
shall be deemed not to exclude the sale of such stock by persons or parties,
other than those deemed "affiliates" of Tenant within the meaning of Rule 144
promulgated under the Securities Act of 1933, as amended, through the
"over-the-counter market" or through any recognized stock exchange, (ii) any
increase in the amount of issued and/or outstanding capital stock of any
corporate tenant or subtenant, or of the issued and outstanding membership
interests in a limited liability company tenant or subtenant, and/or the
creation of one or more additional classes of capital stock of any corporate
tenant or subtenant, in a single or series of related or unrelated transactions,
resulting in a change in the legal or beneficial ownership of such tenant or
subtenant so that the shareholders or members of such tenant or subtenant
existing immediately prior to such transaction or series of transactions shall
no longer own a majority of the issued and outstanding capital stock or
membership interests of such tenant or subtenant, shall be deemed an assignment
of this Lease, (iii) an agreement by any other person or entity, directly or
indirectly, to assume Tenant's obligations under this Lease shall be deemed an
assignment, (iv) any person or legal representative of Tenant to whom Tenant's
interest under this Lease passes by operation of law or otherwise shall be bound
by the provisions of this Paragraph 10, (v) a modification, amendment or
extension of a sublease shall be deemed a sublease, and (vi) the change or
conversion of Tenant to a limited liability company, a limited liability
partnership or any other entity which possesses the characteristics of limited
liability shall be deemed an assignment. Tenant agrees to furnish to Landlord on
request at any time such information and assurances as Landlord may reasonably
request that neither Tenant nor any previously permitted subtenant has violated
the provisions of this Paragraph 10. The provisions of Subparagraph 10(a) shall
not apply to transactions with a corporation or limited liability company into
or with which Tenant is merged or consolidated or with a Person to which
substantially all of Tenant's assets are transferred, provided such merger or
transfer of assets is for a good business purpose and not principally for the
purpose of transferring this leasehold estate and that the assignee has a net
worth at least equal to ten (10) times the Base Rent remaining due on this Lease
at the time of the proposed assignment or sublease, or, if Tenant is a general,
limited or limited liability partnership, with a successor partnership, nor
shall the provisions of Subparagraph 10(a) apply to transactions with an entity
that controls or is controlled by Tenant or is under common control with Tenant.
Tenant shall notify Landlord before any such transaction is consummated and
shall send Landlord an original written instrument in which the assignee assumes
all of Tenant's liabilities under this Lease. The term "control" as used in this
Lease shall mean (i) ownership of more than 50% of the outstanding capital stock
in the case of a corporation, (ii) more than 50% of the general partnership or
membership interest of the partnership in the case of a general or limited
liability partnership, (iii) more than 50% of the general partnership interests
of limited partnership in the case of a limited partnership, and (iv) more than
50% of the membership interests of a limited liability company.
(g) If Tenant sublets any portion of the Premises pursuant to
Subparagraph 10(b), Tenant shall pay to Landlord, as Additional Rent (the
"Sublease Additional Rent"), a sum equal to fifty percent (50%) of any rents,
additional charges and other consideration payable under the sublease to Tenant
in excess of the Base Rent and Additional Rent accruing during the term of the
sublease in respect of the subleased space pursuant to this Lease (including,
but not limited to, sums paid for the sale or rental of Tenant's property and
Alterations less the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's federal income tax or federal information
returns). Such Sublease Additional Rent shall be payable as and when
16
received by Tenant. If Tenant shall assign this Lease pursuant to Subparagraph
10(b), and Landlord's consent is required, Tenant shall pay to Landlord, as
Additional Rent, an amount equal to fifty percent (50%) of all sums and other
consideration paid to Tenant by the assignee for or by reason of such assignment
(including, but not limited to, sums paid for the sale or rental of Tenant's
property and Alterations less the then net unamortized or undepreciated cost
thereof determined on the basis of Tenant's federal income tax or federal
information returns). Such Additional Rent shall be payable as and when received
by Tenant.
(h) Any sublease shall provide that, if the Lease shall expire or
terminate during the term of the sublease for any reason other than condemnation
or destruction by fire or other cause, or if Tenant shall surrender the Lease to
Landlord during the term of the sublease, Landlord, in its sole discretion, upon
written notice given to Tenant and subtenant, may elect to continue the sublease
as a direct lease between Landlord and subtenant. In that event, subtenant shall
attorn to Landlord, and Landlord and subtenant shall enter into a new lease on
the Landlord's then current form of lease.
11. CONDEMNATION.
(a) If any part of the Premises shall be taken or appropriated by
any public or quasi-public authority under the power of eminent domain, Landlord
shall have the right, at its option, to terminate this Lease effective as of the
date possession is taken by said authority (unless all of the Premises are so
taken in which case this Lease shall terminate), and shall be entitled to any
and all income, rent or award and any interest thereon whatsoever which may be
paid or made in connection with such public or quasi-public use or purpose.
Tenant hereby assigns to Landlord its entire interest in any and all such
awards, and shall have no claim against Landlord for the value of any portion of
the unexpired Term. If a part of the Premises shall be so taken or appropriated,
and Landlord does not elect to terminate this Lease, the Base Rent thereafter to
be paid shall be reduced by an amount bearing the same ratio to the total amount
of Base Rent as the rentable square feet of the Premises so taken bears to the
entire Premises.
(b) If any part of the Building other than the Premises shall be so
taken or appropriated, Landlord shall have the sole right, at its option, to
terminate this Lease and shall be entitled to the entire award as above
provided, and in such case Tenant shall likewise have no claim against Landlord
for the value of any unexpired Term of this Lease.
(c) Nothing contained herein shall be deemed to deny to Tenant its
right to claim from the condemning authority compensation or damages for its
trade fixtures and personal property and moving expenses, provided the
condemning authority makes a separate award therefor.
12. INSURANCE AND INDEMNITY.
(a) At Landlord's expense, Landlord shall carry and maintain, or
cause to be carried and maintained, at all times during the term of this Lease,
All Risk Property insurance covering the full replacement value of the Building
subject to deductibles. To the extent the premium paid by Landlord for this
insurance shall be increased because of Tenant's operations or contents or
improvements in the Premises, Tenant agrees to pay the excess amount of the
17
premium upon demand by Landlord. Tenant shall not do or permit to be done any
act or thing in the Premises which would invalidate or conflict with the
Building's insurance policies.
(b) At Tenant's expense, Tenant shall carry and maintain, or cause
to be carried and maintained, at all times during the term of this Lease, All
Risk Property insurance covering the full replacement value of Tenant's
improvements, betterments and contents including those made by Landlord to
prepare the Premises for Tenant, with deductibles reasonably satisfactory to
Landlord. Neither Landlord nor its agents shall be liable for any damage to
property of Tenant or of others that has been entrusted to employees of the
Building or for the loss of or damage to any property of Tenant by theft or
otherwise.
(c) At Tenant's expense, Tenant shall carry and maintain, or cause
to be carried and maintained, at all times during the term of this Lease,
commercial general liability insurance described herein ("Liability Policy").
Such Liability Policy shall include Landlord (and any other party reasonably
required by Landlord) as an Additional Insured and be written on an "occurrence
basis" and include, without limitation, blanket contractual liability coverage,
broad form property damage, business interruption coverage, independent
contractors coverage and personal injury coverage protecting Landlord against
liability (except for liability resulting from the gross negligence or willful
misconduct of Landlord) occasioned by any occurrence on or about the Premises
including portions of the Building affected by Tenant's use. Such primary
Liability Policy shall be maintained in an amount not less than $1,000,000 for a
single occurrence limit and $2,000,000 for an aggregate limit. In addition,
Tenant shall maintain excess or umbrella liability insurance providing equally
broad coverage in an amount of not less than $10,000,000.00.
(d) At Tenant's expense, Tenant shall carry and maintain, or cause
to be carried and maintained, at all times during the term of this Lease,
Workers' Compensation and Employers' Liability insurance with respect to all of
Tenant's employees working at the Premises and such other insurance or such
additional amounts of insurance with respect to the Premises as is generally
maintained by persons having similar exposures or properties similarly situated
and as the Landlord shall from time to time reasonably require.
(e) The insurance required under this Paragraph 12 shall be written
by insurers authorized to conduct business in Georgia who are acceptable to
Landlord and have an A.M. Best Company rating of at least "A-"/VIII.
(f) Not later than ten (10) Business Days prior to the Commencement
Date of the Lease, Tenant shall deliver to Landlord the policies of insurance or
an insurance certificate for the policies specified above in the form attached
hereto as Exhibit H (for liability and an ACORD 27 (for property)) and made a
part hereof and shall thereafter furnish to Landlord, at least thirty (30) days
prior to the expiration of any such policies and any renewal thereof, a new
policy or certificate in lieu thereof. Each of the policies or Certificate shall
contain a provision whereby the insurer agrees not to cancel, fail to renew,
diminish or materially modify said insurance policy(ies) without having given
Landlord, the Manager and any lessors and mortgagees specified by Landlord at
least thirty (30) days prior written notice thereof. Tenant shall promptly send
to Landlord a copy of all notices sent to Tenant by Tenant's insurer.
18
(g) Tenant shall pay all premiums and charges for all of said
Tenant's policies, and, if Tenant shall fail to make any payment when due or
carry any such policy, Landlord may, but shall not be obligated to, make such
payment or carry such policy, and the amount paid by Landlord, with interest
thereon (at the Applicable Rate), shall be repaid to Landlord by Tenant on
demand, and all such amounts so repayable, together with such interest, shall be
deemed to constitute Additional Rent hereunder. Payment by Landlord of any such
premium, or the carrying by Landlord of any such policy, shall not be deemed to
waive or release the default of Tenant with respect thereto.
(h) Tenant may effect the coverage required under this Paragraph 12
under blanket insurance policies covering other properties of Tenant, provided
that (1) any such blanket insurance policy shall specify therein, or the insurer
under such policy shall certify to Landlord, any material sublimits in such
blanket policy applicable to the Premises, which sublimits shall not be less
than the amounts required pursuant to this Paragraph 12; and (2) any such
blanket insurance policy shall comply in all respects with the other provisions
of this Paragraph 12.
(i) Subject to Subparagraph (j) of this Paragraph 12, Landlord and
Tenant hereby waive any and all rights of recovery, claim, action, or cause of
action, against the other, their affiliates, agents, officers or employees, for
any loss or damage that may occur to the Premises, or any improvements thereto,
or the Park of which the Premises are a part, or any reason of fire, the
elements, or any other cause which is insured against under the terms of an All
Risk Property insurance policy referred to in this Paragraph 12 or is otherwise
insured against under an insurance policy maintained by the party suffering such
loss or damage, regardless of cause or origin, except for the gross negligence
or willful misconduct of the other party hereto and/or its agents, officers, or
employees, and each party covenants that no insurer shall hold any right of
subrogation against such other party.
(j) Landlord shall cause each policy carried by Landlord insuring
the Building against loss, damage or destruction by fire or other casualty, and
Tenant shall cause each insurance policy carried by Tenant and insuring the
Premises and Tenant's Alterations, Leasehold Improvements and Tenant's property
against loss, damage or destruction by fire or other casualty, to be written in
a manner so as to provide that the insurance company waives all rights of
recovery by way of subrogation against Landlord, Tenant and any tenant of space
in the Building in connection with any loss or damage covered by any such
policy. Neither party shall be liable to the other for the amount of such loss
or damage in excess of the applicable deductible, if any, caused by fire or any
of the risks enumerated in its policies, provided that such waiver was
obtainable at the time of such loss or damage. However, if such waiver cannot be
obtained or can be obtained only by payment of an additional premium above that
which is charged by companies carrying such insurance without a waiver of
subrogation, then the party undertaking to obtain such waiver shall notify the
other party and such other party shall have ten (10) days after such notice to
agree in writing to pay the additional premium if such policy is obtainable at
additional cost (in the case of Tenant, pro rata in proportion of Tenant's
rentable area to the total rentable area covered by the insurance); and if the
other party does not agree or the wavier shall not be obtainable, then the
provisions of this Subparagraph 12(j) shall be null and void as to the risks
covered by the policy for so long as either the waiver cannot be obtained or the
party in whose favor a wavier of subrogation is desired shall refuse to pay the
additional premium. If the release of either Landlord or Tenant as set forth in
this Subparagraph (j) shall
19
contravene any law with respect to exculpatory agreements, the liability of the
part in question shall be deemed not released, but no action no rights shall be
sought or enforced against such party unless and until all right and remedies
against the other's insurer are exhausted and the other party shall be unable to
collect such insurance proceeds. The waiver of subrogation referred to in
Subparagraph (i) above shall extend to the affiliates, agents and employees of
each party (including, without limitation, the Manager).
(k) To the fullest extent permitted by law, Tenant shall indemnify,
defend and hold harmless Indemnitees from and against all claims, damages,
losses, fines, suits, costs and expenses of whatever kind incurred in connection
with any such claim or proceeding brought thereon, and defense thereof
(including, but not limited to attorney's fees and expenses) arising out of or
resulting from Tenant's use of the Premises and the Common Areas, including, but
not limited to, any such claims, damages, losses and expenses attributable to
(1) the filing of any lien or claim for payment, or (2) any accident, injury or
damage in or about the Premises during the term or during Tenant's occupancy of
the Premises, or outside of the Premises but anywhere within or about the Park,
where such accident, injury or damage results or is claimed to have resulted
from an act, omission or negligence of Tenant or persons within tenant's
control, or (3) any breach, violation or nonperformance of any covenants,
condition or agreement contained in this Lease to be fulfilled by tenant, or (4)
all claims of whatever nature against the Indemnitees arising from any act,
omission or negligence of Tenant or persons within Tenant's control. Such
obligation shall not be construed to negate, abridge or otherwise reduce any
other right or obligation of indemnity that would otherwise exist as to any
party or person described in this Paragraph 12. In any and all claims against
Indemnitees by an employee of the Tenant or anyone directly or indirectly
employed by Tenant or anyone for whose acts Tenant may be liable, the
indemnification obligation under this Paragraph 12 shall not be limited in any
way by any limitation on the amount or type of damages, compensation or benefits
payable by or for the Tenant under Workers' Compensation acts, disability
benefits acts or other employee benefit acts. Except for claims against Landlord
or Landlord's agents which are subject to the exclusions set forth in this
Paragraph 12, if any claim, action or proceeding is made pursuant to this
Paragraph, Tenant, at its sole cost and expense, shall resist or defend such
claim action or proceeding in the Indemnitee's name, by attorneys Indemnitee may
select.
(l) Tenant shall give notice to landlord promptly after learning of
an accident, emergency or other occurrence for which Landlord might be liable,
any fire or other casualty and all damages to or defects in the Premises or the
Building for the repair of which Landlord might be responsible or which
constitutes Landlord's property.
13. DAMAGE AND DESTRUCTION.
(a) If the Building should be totally destroyed by fire, tornado or
other casualty or if it should be damaged, to the extent that: (i) in Landlord's
reasonable judgment, repair would not be economically feasible; or (ii) that
rebuilding or repairs cannot, in Landlord's estimation, be completed within one
hundred eighty (180) days after the date of such damage; or (iii) if the
insurance proceeds remaining after any required payments to mortgagees are
insufficient to repair such damage or destruction, Landlord shall have the
right, at Landlord's option, to terminate this Lease by giving Tenant written
notice of such termination within seventy-five (75) days after the date of such
casualty, and the Rent shall be
20
apportioned and paid to the date on which possession is relinquished or the date
of such damage, whichever first occurs, and Tenant shall immediately vacate the
Premises according to such notice of termination. Tenant covenants and agrees to
cooperate with Landlord and any lessor or mortgagee in their efforts to collect
insurance proceeds (including rent insurance proceeds) payable to such parties.
Landlord shall not be liable for any delay which may arise by reason of
adjustment of insurance on the part of Landlord or Tenant, or any cause beyond
the reasonable control of Landlord and its contractors.
(b) If the Building should be damaged by any peril covered by the
insurance to be provided by Landlord under Paragraph 12 (a) above, but only to
such extent that rebuilding or repairs are, in Landlord's estimation,
economically feasible and can be completed within one hundred eighty (180) days
after the date of such damage and the proceeds of such insurance, after
deducting any required payments to mortgagee or lessor, are sufficient for such
rebuilding or repairs, this Lease shall not terminate, and Landlord shall at its
sole cost and expense thereupon proceed with reasonable diligence to rebuild and
repair the Building to substantially the condition in which it existed prior to
such damage, except that: (i) Landlord shall not be required to rebuild, repair
or replace any part of the partitions, fixtures, additions and other
improvements which may have been placed in, on or about the Premises by Tenant;
and (ii) Landlord may elect not to rebuild if such damage occurs during the last
year of the Term, exclusive of any option to extend the Term which is
unexercised at the time of such damage. If the Premises are untenantable in
whole or in part following such damage, the Rent payable hereunder during the
period in which the Premises are untenantable and unused shall be abated based
on the total square footage of the Premises less the untenantable and unused
square footage from the date the Premises are untenantable and unused until the
Premises are restored or the Lease is terminated. In the event that Landlord
should fail to complete such repairs and rebuilding within one hundred eighty
(180) days after the date of such damage, Tenant may, at its option, terminate
this Lease by delivering written notice of termination to Landlord within thirty
(30) days after the expiration of such one hundred eighty (180) day period. Such
termination shall be Tenant's exclusive remedy. If Tenant fails to terminate
this Lease within such 30-day period, Tenant shall be deemed to have waived its
rights to terminate by reason of the failure of Landlord to complete such
repairs and rebuilding within two hundred (200) days after the date of such
damage.
(c) Notwithstanding anything herein to the contrary, in the event
any mortgagee requires that the insurance proceeds be applied to the
indebtedness due such mortgagee, then Landlord shall have the right to terminate
this Lease by delivering written notice of termination to Tenant within fifteen
(15) days after such requirement is made by any such mortgagee, whereupon all
rights and obligations hereunder shall cease and terminate, except for any torts
claims arising from the casualty upon which such termination is based.
14. SECURITY DEPOSIT.
(a) Tenant agrees to deposit the Security Deposit with Landlord upon
execution of this Lease by Tenant, which sum shall be held by Landlord, without
obligation for interest, as security for the performance of Tenant's covenants
and obligations under this Lease, it being expressly understood and agreed that
such Security Deposit is not an advance rental deposit or a measure of
Landlord's damages in case of Tenant's default.
21
Upon the occurrence of any Event of Default (as defined in the Lease) by Tenant,
Landlord may, from time to time, without prejudice to any other remedy provided
herein or provided by law, use such Security Deposit to the extent necessary to
make good any arrears of Rent or other payments due Landlord hereunder, and any
other damages, injury, expense or liability caused by such Event of Default; and
Tenant shall pay to Landlord on demand the amount so applied in order to restore
the Security Deposit to its original amount. Tenant's failure to so restore the
Security Deposit upon demand shall be deemed an Event of Default under this
Lease. Although the Security Deposit shall be deemed the property of Landlord,
any remaining balance of such Security Deposit shall be returned to Tenant at
such time after termination of this Lease as all of Tenant's obligations under
this Lease have been fulfilled. Tenant shall not apply the Security Deposit to
the last month's installment of Rent.
(b) In the event of the sale or lease of the Building or the Park,
Landlord shall have the right to transfer the Security Deposit to the purchaser
or lessee, and Landlord shall be released by Tenant from all liability for the
return of such Security Deposit.
(c) Tenant covenants that it will not assign or encumber the
Security Deposit. In the event that any bankruptcy, insolvency, reorganization
or other debtor-creditor proceedings shall be instituted by or against Tenant,
its successors or assigns, or any guarantor of Tenant hereunder, the Security
Deposit shall be deemed to be applied to the payment of the Base Rent and
Additional Rent owed Landlord for periods prior to the institution of such
proceedings, and the balance, if any, may be retained by Landlord in partial
satisfaction of Landlord's damages.
(d) The Tenant named in this lease shall not be required to deposit
a Security Deposit with Landlord. Landlord reserves the right to require a
Security Deposit if the Premises are assigned or sublet.
15. DEFAULTS. Each of the following events shall be deemed an "Event of
Default" by Tenant under this Lease:
(a) Tenant's failure to pay the Base Rent or any other sum due
hereunder if such nonpayment continues for five (5) or more days after the same
is due and payable, or Tenant's default in the prompt and full performance of
any other provision of this Lease and Tenant does not cure the default within
thirty (30) days after written demand by Landlord that the default be cured
(unless the default involves a hazardous condition, which shall be cured
forthwith upon Landlord's demand);
(b) Tenant shall fail more than two (2) times in any twelve (12)
month period to make a payment when due of Rent, and Landlord shall have given
Tenant notice of default after the second occurrence; or
(c) Tenant's desertion or abandonment or failure to take possession
of the Premises (or any substantial portion thereof); or
22
(d) Tenant's failure to discharge a lien arising out of a claim
against Tenant placed against the Premises or the Building within thirty (30)
days after such lien or encumbrance shall have been filed.
(e) If Tenant shall not, or shall be unable to, or shall admit in
writing Tenant's inability to, as to any obligation, pay Tenant's debts as they
become due; or if Tenant shall commence or institute any case, proceeding or
other action (i) seeking relief on Tenant's behalf as debtor, or to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to Tenant or Tenant's debts under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, or (ii) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property; or if Tenant shall make a general assignment
for the benefit of creditors; or if any case, proceeding or other action shall
be commenced or instituted against Tenant (1) seeking to have an order for
relief entered against Tenant as debtor or to adjudicate Tenant a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to Tenant or
Tenant's debts under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, or (2) seeking appointment of a receiver, trustee, custodian or other
similar official for Tenant or for all or any substantial part of Tenant's
property, which either (i) results in any such entry of an order for relief,
adjudication of bankruptcy or insolvency or such an appointment or the issuance
or entry of any other order having a similar effect or (ii) remains undismissed
for a period of sixty (60) days; or if a trustee, receiver or other custodian
shall be appointed for any substantial part of the assets of Tenant which
appointment is not vacated or effectively stayed within sixty (60) days.
16. REMEDIES. Landlord, in addition to any and all other rights or
remedies it may have at law or in equity, shall have the option of pursuing any
one or more of the following remedies upon the occurrence of any Event of
Default by Tenant.
(a) Landlord shall have the immediate right of reentry. Whenever
Landlord terminates this Lease, it shall do so by giving Tenant written notice
of termination, in which event this Lease shall expire and terminate on the date
specified in such notice with the same force and effect as though the date
specified were the date herein originally fixed as the Expiration Date, and all
rights of Tenant under this Lease and in and to the Premises shall expire and
terminate and Tenant shall surrender the Premises to Landlord on the date
specified in such notice, and if Tenant fails to so surrender, Landlord shall
have the right, without notice, and with or without resort to summary
dispossessory proceedings, to enter upon and take possession of the Premises and
to expel or remove Tenant and its effects without being liable for prosecution
or any claim for damages therefor.
(b) Landlord may terminate this Lease or terminate Tenant's right to
possession of the Premises at any time by giving written notice to that effect,
and relet the Premises or any part thereof. On the giving of the notice, all of
Tenant's rights in the Premises shall terminate. Upon such termination, Tenant
shall surrender and vacate the Premises in accordance with the terms of
Paragraph 17, and Landlord may re-enter and take
23
possession of the Premises and all the remaining improvements or property and
eject Tenant or any of Tenant's subtenants, assignees or other person or persons
claiming any right under or through Tenant or eject some and not others or eject
none. No termination under this Paragraph 16 shall release Tenant from the
payment of any sum then due Landlord or from any claim for damages or Base Rent
or Additional Rent or other sum previously accrued or then accruing against
Tenant. Upon such termination, Tenant shall be liable immediately to Landlord
for all costs Landlord incurs in reletting the Premises or any part thereof,
including, without limitation, broker's commissions, expenses of cleaning and
redecorating the Premises required by the reletting, reasonable attorneys' fees
actually incurred and like costs. Tenant shall also be liable immediately to
Landlord for all unamortized leasing commissions and improvement allowances, if
any. Reletting may be for a period shorter or longer then the remaining term of
this Lease. No act by Landlord other than giving express written notice of
termination to Tenant shall terminate this Lease. Landlord and Tenant hereby
acknowledge that in the event of such termination, actual damages to Landlord
may be difficult to ascertain and, accordingly, hereby agree that in such event,
the net present value of the Base Rent due from the date of such termination to
the expiration of the Term, less the fair rent value of the Premises as
determined by Landlord, which determination shall be deemed conclusive, from the
date of such termination until the expiration of the Term, shall thereupon be
immediately due and payable to Landlord as compensation and liquidated damages
for Tenant's default and such termination and not as a penalty. Landlord's
rights pursuant to this Paragraph 16, including without limitation, Landlord's
rights to collect Base Rent and additional rent and other charges due under this
Lease, shall survive any termination of the Lease, whether such termination is
effected pursuant to this Paragraph 16 or otherwise. Notwithstanding anything to
the contrary contained herein, Landlord and Tenant hereby expressly agree that
Landlord shall have no obligation or duty to mitigate or attempt to offset any
damages which are or may be suffered by Landlord as a result of any default of
Tenant under the Lease. Any payment by Tenant of a sum of money less than the
entire amount due Landlord at the time of such payment shall be applied to the
obligations of Tenant then furthest in arrears. No endorsement or statement on
any check or accompanying any payment shall be deemed an accord and
satisfaction, and any payment accepted by Landlord shall be without prejudice to
Landlord's right to obtain the balance due or pursue any other remedy available
to Landlord both in law and in equity.
(c) Landlord may, with or without terminating this Lease, re-enter
the Premises and remove all persons and property from the Premises; such
property shall be deemed to have been abandoned by Tenant and may either be
removed and stored in a public warehouse or elsewhere or otherwise disposed of
in Landlord's sole and absolute discretion, all at the cost of Tenant. The
parties hereby agree that Landlord shall not be liable for the loss of such
property or any damages thereto. No re-entry or taking possession of the
Premises by Landlord pursuant to this Paragraph 16 shall be construed as an
election to terminate this Lease unless an express written notice of such
intention is given to Tenant.
(d) Except as expressly provided in this Lease, Tenant hereby waives
any and every form of demand and notice prescribed by statute or other law,
including without limitation the notice of any election of remedies made by
Landlord under this Paragraph 16, demand for payment of any rent, or demand for
possession.
24
(e) Tenant shall and hereby agrees to pay all costs and expenses
incurred by Landlord in enforcing any of the covenants and agreements of this
Lease, or as a result of an action brought by Landlord against Tenant for an
unlawful detainer of the Premises, and all such costs, expenses and attorneys'
fees shall, if paid by Landlord, be paid by Tenant to Landlord within fifteen
(15) days of Landlord's written demand therefor, together with interest at
eighteen percent (18%) per annum, but in no event in excess of the maximum
lawful rate, from the date of Landlord's payment thereof.
(f) If, at any time (i) Tenant shall consist of two (2) or more
persons or (ii) Tenant's obligations under this Lease shall have been guaranteed
by any person other than Tenant or (iii) Tenant's interest in this Lease has
been assigned, the word "Tenant" as used in subparagraph 15(c) shall be deemed
to mean any one or more persons primarily or secondarily liable for Tenant's
obligations under this Lease. Any monies received by Landlord from or on behalf
of Tenant during the pendency of any proceeding referred to in Subparagraph 15
(c) shall be deemed paid as compensation for the use and occupancy of the
Premises, but acceptance of any compensation by Landlord shall not be deemed an
acceptance of Rent or a waiver on the part of Landlord of any rights under
Paragraph 16.
(g) The foregoing provisions of this Paragraph 16 shall, as
applicable, survive the Expiration Date or earlier termination of this Lease and
shall apply to any renewal or extension of this Lease.
17. SURRENDER OF PREMISES. Unless otherwise specifically provided in
this Lease, Tenant will peaceably deliver to the Landlord possession of the
Premises in broom clean condition, together with all improvements, Alterations
upon or belonging to the same, by whomsoever made, except as provided in
Paragraph 7(b) of this Lease, in the same condition as received, or first
installed, ordinary wear and tear, damage by fire, earthquake, act of God, or
the elements alone excepted at the expiration or sooner termination of this
Lease. Tenant shall remove all Alterations, furniture, equipment and computer
and telephone cables belonging to Tenant, at Tenant's sole cost, and Tenant
shall promptly repair any damage to the Premises caused by such removal.
Property not so removed shall be deemed abandoned by the Tenant, and title to
the same shall thereupon pass to Landlord, and Landlord may either retain or
remove same in its sole discretion. Any expense incurred by Landlord in removing
or disposing of Tenant's property or Alterations required under this Lease to be
removed, as well as the cost of repairing all damage to the Building or the
Premises caused by such removal, shall be reimbursed to Landlord, by Tenant, as
Additional Rent, upon demand. Tenant's obligations pursuant to this Paragraph 17
shall survive the expiration or sooner termination of this Lease.
18. HOLDING OVER. Tenant shall, at the termination of this Lease by
lapse of time or otherwise, yield up immediate possession to Landlord with all
repairs and maintenance required herein to be performed by Tenant completed.
Should Tenant continue to hold the Premises after the expiration or earlier
termination of this Lease, or after reentry by Landlord without terminating this
Lease, such holding over, unless otherwise agreed to by Landlord in writing,
shall constitute and be construed as a tenancy at sufferance and not a tenancy
at will. Tenant shall have no right to notice under Official Code of Georgia
Annotated Section 44-7-7 of the termination of its tenancy. Tenant shall pay
monthly installments of
25
Rent equal to two hundred percent (200%) of the monthly portion of Rent in
effect as of the date of expiration or earlier termination, and subject to all
of the other terms, charges and expenses set forth herein except any right to
renew this Lease or to expand the Premises or any right to additional services.
Tenant shall also be liable to Landlord for all damage which Landlord suffers
because of any holding over by Tenant, and Tenant shall indemnify Landlord
against all claims made by any other tenant or prospective tenant against
Landlord resulting from delay by Landlord in delivering possession of the
Premises to such other tenant or prospective tenant. No holding over by Tenant,
whether with or without consent of Landlord, shall operate to extend the Term
except as otherwise expressly provided in a written agreement executed by both
Landlord and Tenant. The provisions of this Paragraph 18 shall survive the
expiration or earlier termination of this Lease.
19. BANKRUPTCY.
(a) For the purposes of the Bankruptcy Code, 11 U.S.C. Section
502(b)(7) all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated as Rent, shall constitute Rent.
(b) If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, any and all monies or other consideration
payable or otherwise to be delivered in connection with such assignment shall be
paid or delivered to Landlord, shall be and remain the exclusive property of
Landlord and shall not constitute property of Tenant or the estate of Tenant
within the meaning of the Bankruptcy Code. Any and all monies or other
considerations constituting Landlord's property under the preceding sentence not
paid or delivered to Landlord shall be held in trust for the benefit of Landlord
and be promptly paid or delivered to Landlord.
(c) Any person or entity to which this Lease is assigned pursuant to
the provisions of the Bankruptcy Code, shall be deemed, without further act or
deed, to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall upon demand execute
and deliver to Landlord an instrument confirming such assumption.
20. INTENTIONALLY DELETED.
21. SUBORDINATION; ESTOPPEL CERTIFICATES.
(a) At the option of Landlord, Tenant agrees that this Lease shall
remain subject and subordinate to all present and future mortgages, deeds to
secure debt or other security instruments (the "Security Deeds") affecting the
Building or the Premises, and Tenant shall promptly execute and deliver to
Landlord such certificate or certificates in writing as Landlord may request,
showing the subordination of the Lease to such Security Deeds, and in default of
Tenant so doing, Landlord shall be and is hereby authorized and empowered to
execute such certificate in the name of and as the act and deed of Tenant, this
authority being hereby declared to be coupled with an interest and to be
irrevocable. Tenant shall upon request from Landlord at any time and from time
to time execute, acknowledge and deliver to
26
Landlord a written statement certifying as follows: (i) that this Lease is
unmodified and in full force and effect (or if there has been modification
thereof, that the same is in full force and effect as modified and stating the
nature thereof); (ii) that to the best of its knowledge there are no uncured
defaults on the part of Landlord (or if any such default exists, the specific
nature and extent thereof); (iii) the date to which any rents and other charges
have been paid in advance, if any; and (iv) such other matters as Landlord may
reasonably request. In the event that Tenant fails to comply with the provisions
above, Tenant irrevocably appoints Landlord as its attorney-in-fact, coupled
with an interest, to execute and deliver, for and in the name of Tenant, any
document or instrument provided for in this Paragraph.
(b) If a mortgage is placed on the Building or the Park, Landlord
shall obtain from the holders of any Mortgage or the Lessor under a superior
lease an agreement (a "Subordination, Non-Disturbance and Attornment Agreement")
in recordable form that provides in substance that, so long as Tenant shall not
then be in default-in the performance of any of its obligations under this Lease
beyond any period provided for herein for the cure of such default, Tenant's
possession of the Premises in accordance with this Lease shall not be disturbed
and attornment to the Lease with the same material economic terms shall be
provided by such person giving the Subordination, Non-Disturbance and Attornment
Agreement or any successor which shall succeed to the rights of Landlord under
this Lease.
22. MECHANICS' LIENS AND OTHER TAXES
(a) Tenant shall have no authority, express or implied to create or
place any lien or encumbrance of any kind or nature whatsoever upon, or in any
manner to bind the interests of Landlord in the Premises or to charge the Rents
payable hereunder for any claim in favor of any person dealing with Tenant,
including those who may furnish materials or perform labor for any construction
or repairs, and each such claim shall affect and each such lien shall attach to,
if at all, only the Leasehold interest granted to Tenant by this instrument.
Tenant covenants and agrees that it will pay or cause to be paid all sums
legally due and payable by it on account of any labor performed or materials
furnished in connection with any work performed on the Premises on which any
lien is or can be validly and legally asserted against its Leasehold interest in
the Premises or the improvements thereon and that it will save and hold Landlord
harmless from any and all loss, cost or expense based on or arising out of
asserted claims or liens against the Leasehold estate or against the right,
title and interest of the Landlord in the Premises or under the terms of this
Lease. Tenant agrees to give Landlord immediate written notice if any lien or
encumbrance is placed on the Premises.
(b) Tenant shall be liable for all taxes levied or assessed against
personal property, furniture or fixtures placed by Tenant in the Premises. If
any such taxes for which Tenant is liable are levied or assessed against
Landlord or Landlord's property and if Landlord elects to pay the same or if the
assessed value of Landlord's property is increased by inclusion of personal
property, furniture or fixtures placed by Tenant in the Premises, and Landlord
elects to pay the taxes based on such increase, Tenant shall pay to Landlord
upon demand that part of such taxes.
27
23. QUIET ENJOYMENT. Landlord represents and warrants that it has full
right and authority to enter into this Lease and that Tenant, upon paying the
Rent herein set forth and performing its other covenants and agreements herein
set forth, shall peaceably and quietly have, hold and enjoy the Premises for the
Term without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease.
24. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves and may
exercise the following rights without affecting Tenant's obligations hereunder:
(a) to change the name, street address, or suite numbers of the Building; (b) to
install or maintain a sign or signs on the exterior of the Building; (c) to
designate all sources furnishing sign painting and lettering, ice, drinking
water, towels, coffee cart service and toilet supplies, lamps and bulbs used on
the Premises; (d) to retain at all times pass keys to the Premises and to enter
the Premises to cure any default by Tenant hereunder at Tenant's expense; (e) to
close the Building after Business Hours and on Holidays subject, however, to
Tenant's right to admittance, under such reasonable regulations as Landlord may
prescribe from time to time, which may include by way of example but not of
limitation, that persons entering or leaving the Building identify themselves to
a watchman by registration or otherwise and that said persons establish their
right to enter or leave the Building; and (f) to take any and all measures,
including inspections, repairs, alterations, decorations, additions and
improvements to the Premises or the Building, and identifications and admittance
procedures for access to the Building as may be necessary or desirable for the
safety, protection, preservation or security of the Premises or the Building or
the Landlord's interests or as may be necessary or desirable in the operation of
the Building. The Landlord may enter upon the Premises and may exercise any or
all of the foregoing rights reserved pursuant to this Paragraph 24 without the
same being construed as an unlawful entry into the Premises and without being
deemed guilty of an eviction, actual or constructive, or without being deemed
guilty of trespass or disturbance of the Tenant's use or possession and without
being liable in any manner to Tenant and without abatement of Rent or affecting
any of Tenant's obligations hereunder.
25. NOTICES.
(a) Except as otherwise expressly provided in this Lease, any bills,
statements, consents, notices, demands or other communications required to be
given under this Lease ("Notice(s)") shall be in writing and shall be deemed to
have been properly given if delivered personally or by a recognized courier,
with a signed receipt, or if deposited with the United States Postal Service (or
any official successor thereto) designated certified or registered mail, return
receipt requested, bearing adequate postage and addressed as follows, or at such
other address as has been specified by written notice delivered in accordance
herewith:
If to Tenant: (i) at Tenant's address set forth in this Lease if given
prior to Tenant's taking possession of the Premises, or
(ii) at the Premises if given subsequent to Tenant's
taking possession of the Premises, or (iii) at any place
where Tenant or any agent or employee of Tenant may be
found if given subsequent to Tenant's vacating,
deserting, abandoning or surrendering the Premises; and
(iv) with a copy to Tenant as follows:
28
HITACHI ELECTRONIC DEVICES (USA), INC., P.O. Box 2203,
Greenville, South Carolina 29602, Attn.: Mr. Bill Davis.
If to Landlord: CORNERS REALTY CORPORATION, INC., 522 Fifth Avenue,
Ninth Floor, New York, NY 10036, Attn: Mr. Stephen S.
Schubert, Vice President, and copies to: (i) TRAMMELL
CROW COMPANY, 6525 The Comers Parkway, Suite 112,
Norcross, GA 30092, Attn: Property Manager; and (ii)
Arnall Golden Gregory LLP, 2800 One Atlantic Center,
1201 West Peachtree Street, Atlanta, GA 30309-3450,
Attn: Philip G. Skinner, Esq.
(b) Notices shall be deemed to have been rendered or given (i) on
the date delivered, if delivered by hand or bay a recognized courier, or (ii) on
the date mailed, if mailed as provided in Subparagraph 25(a). Notice given by
counsel for either party on behalf of such party or by the Property Manager on
behalf of Landlord shall be deemed valid notices if addressed and sent in
accordance with the provisions of this Paragraph 25.
(c) Notwithstanding the provisions of Subparagraph 25(a), Notices
requesting services for overtime periods pursuant to Paragraph 5 may be given by
delivery to the Building superintendent or any other person in the Building
designated by Landlord to receive such Notices, and bills may be rendered by
delivering them to the Premises without the necessity of a receipt.
(d) Tenant hereby appoints as his agent to receive the service of
all dispossessory or distraint proceedings and notices thereunder, and all
notices required under this Lease, the person in charge of or occupying the
Premises at the time; and if no person is in charge or occupying same, then such
service or notice may be made by attaching the same on the main entrance to the
Premises. A copy of all notices under this Lease shall also be sent to Tenant's
last address of which notice was given to Landlord in accordance with this
Paragraph, if different from the Premises.
26. BROKERS AND AGENTS. Tenant represents and warrants to Landlord that
it has not entered into any agreement with, or otherwise had any dealings with,
any broker or agent other than Tenant's Broker in connection with the
negotiation, procurement or execution of this Lease which could form the basis
of any claim by any such broker or agent for a brokerage fee or commission,
finder's fee, or any other compensation of any kind or nature in connection
herewith, and Tenant shall, and hereby agrees to, indemnify, defend and hold
Landlord harmless from all costs (including, but not limited to, court costs,
investigation costs, and attorneys' fees), expenses, or liability for
commissions or other compensation claimed by any broker or agent with respect to
this Lease which arise out of any agreement or dealings, or alleged agreement or
dealings, between Tenant and any such agent or broker other than Tenant's
Broker. This provision shall survive the expiration or earlier termination of
this Lease.
29
27. PARKING.
(a) Tenant shall have the non-exclusive use, in common with other
occupants of the Building, of spaces within which to park vehicles at a ratio of
four (4) cars per one thousand (1,000) usable square feet of Premises leased, in
the exterior surface parking facility provided by Landlord for use by Tenant,
its employees, agents, invitees and licensees, all subject, however, to the
rights given to other tenants of the Buildings, and subject to the Rules and
Regulations propounded by Landlord from time to time.
(b) Landlord reserves the right, at any time and from time to time,
to close temporarily all or any portions of the parking area when in Landlord's
reasonable judgment any such closing is necessary or desirable (i) to make
repairs or changes or to effect construction, (ii) to prevent the acquisition of
public rights in such area, (iii) to discourage unauthorized parking, or (iv) to
protect or preserve persons or property. Landlord may do such other acts in and
to the parking area as in its judgment may be desirable to improve or maintain
same.
(c) Tenant agrees that it, any subtenant or licensee and their
respective officers, employees, contractors and agents will park their
automobiles and other vehicles only where and as permitted by Landlord. Tenant
will, if and when so requested by Landlord, furnish Landlord with the license
numbers of any vehicles of Tenant, any subtenant or licensee and their
respective officers, employees, contractors and agents. Landlord may remove, at
Tenant's expense, any vehicles which are parked or abandoned in violation of the
Rules and Regulations propounded by Landlord from time to time.
28. LANDLORD'S LIEN. In addition to any statutory lien for Rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest for all Rent and other sums of money becoming due
hereunder from Tenant, upon all goods, wares, equipment, fixtures, furniture,
inventory, accounts, contract rights, chattel paper and other personal property
of Tenant situated on the Premises which has been purchased by Tenant by use of
a tenant improvement allowance, if any, and such property shall not be removed
therefrom without the consent of Landlord until all arrearages in rent as well
as any and all other sums of money then due to Landlord hereunder shall first
have been paid and discharged. In the event of a default under this Lease,
Landlord shall have, in addition to any other remedies provided herein or by
law, all rights and remedies under the Uniform Commercial Code, including
without limitation the right to sell the property described in this Paragraph at
public or private sale upon providing the notice called for by the Uniform
Commercial Code, or if none is so supplied by providing five (5) Business Days
written notice to Tenant. Tenant hereby agrees that Landlord may record this
Lease or a memorandum thereof at Landlord's discretion. Tenant further agrees
that this Lease shall constitute a security agreement and further agrees to
execute for recordation, simultaneously with execution of this Lease or at such
other time designated by Landlord at its sole discretion, such financing
statements and other instruments deemed necessary or desirable in the sole
discretion of Landlord to perfect the security interest hereby created. Any
statutory lien for Rent is not hereby waived, the express contractual lien
herein granted being in addition and supplementary thereto.
30
29. MISCELLANEOUS.
(a) For the purposes of this Lease and all agreements supplemental
to this Lease, unless the context otherwise requires:
(1) The words "hereunder" and "hereby" and words of similar import
shall be construed to refer to this Lease as a whole and not to any
particular Paragraph.
(2) Tenant's obligations shall be construed as conditions as well as
covenants, each separate and independent of any other terms of this
Lease.
(3) Reference to Landlord as having "no liability" or being "without
liability" shall mean that Tenant shall not be entitled to terminate
this Lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of rent, or to be
relieved in any manner of any of its other obligations hereunder, or
to be compensated for loss or injury suffered or to enforce any
other right or liability against Landlord under this Lease or to
Tenant's use or occupancy of the Premises.
(4) Reference to "termination of this Lease" or "expiration of this
Lease" and words of like import include expiration or sooner
termination of this Lease and the Term and the estate granted or
cancellation of this Lease pursuant to any of the provisions of this
Lease or to law. Upon the termination of this Lease, the Term and
estate granted by this Lease shall end at noon on the date of
termination as if such date were the Expiration Date, and neither
party shall have any further obligation or liability to the other
after such termination except (i) as shall be expressly provided for
in this Lease, and (ii) for such obligations as by their nature
under the circumstances can only be, or by the provisions of this
Lease, may be performed after such termination, and, in any event,
unless expressly otherwise provided in this Lease, any liability for
a payment (which shall be apportioned as of such termination) which
shall have accrued to or with respect to any period ending at the
time of termination shall survive the termination of this Lease.
(5) Words and phrases used in the singular shall be deemed to
include the plural and vice versa.
(6) The rule of "ejusdem generis" shall not be applicable to limit a
general statement following or referable to an enumeration of
specific matters to matters similar to the matters specifically
mentioned.
(b) The terms, provisions, covenants and conditions contained in
this Lease shall apply to, inure to the benefit of, and be binding upon the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly provided.
Landlord shall have the right to assign any of its rights and obligations under
this Lease. The duties and obligations of Tenant herein shall be binding upon
all or any of them. The duties and obligations of Tenant shall run and extend
not only to the benefit of the Landlord, as named herein, but to the following,
at the option of the following
31
or any of them: (i) any person, by, through or under which Landlord derives the
right to lease the Premises; (ii) the owner of the Land; and (iii) holders of
mortgage, deed to secure debt or rent assignment interests in the Premises, as
their respective interests may appear; provided, however, nothing contained
herein shall be construed to obligate Tenant to pay Rent to any person other
than Landlord until such time as Tenant has been given written notice of either
an exercise of a rent assignment or the succession of some other party to the
interests of Landlord.
(c) The captions inserted in this Lease are for convenience only and
in no way define, limit or otherwise describe the scope or intent of this Lease,
or any provision hereof, or in any way affect the interpretation of this Lease.
(d) This Lease sets forth the entire agreement between the parties
and cancel all prior negotiations, arrangements, brochures, agreements, and
understandings, if any, between Landlord and Tenant regarding the subject matter
of this Lease. This Lease may not be altered, changed or amended (other than the
Rules and Regulations) except by an instrument in writing signed by both parties
hereto. Except as specifically provided in this Lease, Landlord makes no
representations or warranties concerning the Building on the Park.
(e) All obligations of Tenant hereunder not fully performed as of
the expiration or earlier termination of the Term shall survive the expiration
or earlier termination of the Term, including without limitation all payment
obligations with respect to Rent and all obligations concerning the condition of
the Premises.
(f) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term, 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 of this Lease
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.
(g) This Lease shall not be valid or binding unless and until
accepted by Landlord in writing and a fully executed copy is delivered to both
parties hereto.
(h) Time is of the essence of this Lease and all of its provisions;
provided, however, the failure of Landlord to provide Tenant with any
notification regarding adjustments in Rent within the time periods prescribed in
this Lease shall not relieve Tenant of its obligation to make such payments,
which payments shall be made at such time as notice is subsequently given.
(i) Landlord shall have the right at any time, and from time to
time, to amend unilaterally the provisions of this Lease if Landlord is advised
by its counsel that all or any portion of the Rent paid by Tenant to Landlord
hereunder is, or may be deemed to be, unrelated business taxable income within
the meaning of the United States Internal Revenue Code or regulations issued
thereunder, and Tenant agrees that it will execute all documents necessary to
effect any such amendment, provided that no such amendment shall increase
Tenant's payment
obligations or other liability under this Lease or reduce Landlord's obligations
hereunder. This provision shall be uniformly applied by Landlord to all tenants
in the Park.
(j) The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any other term,
covenant or any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of Rent or other sums due
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular payment so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
payment. No covenant, term or condition of this Lease shall be deemed to have
been waived by Landlord unless such waiver is in writing signed by Landlord.
(k) Tenant agrees to comply with subdivision regulations, protective
covenants, or other restrictions of record that are applicable to the Building
or Park.
(1) Landlord and Tenant represent and warrant that each has the full
right and authority to enter into this Lease. Each party agrees to furnish to
the other, promptly upon demand, a corporate resolution, proof of due
authorization by partners, or other appropriate documentation evidencing the due
authorization of such party to enter into this Lease.
(m) This Lease shall create the relationship of Landlord and Tenant
between the parties hereto; no estate shall pass out of Landlord. Tenant has
only a usufruct, not subject to levy and sale, and not assignable by Tenant
except by Landlord's consent as specifically provided in Paragraph 10 of this
Lease.
(n) Intentionally deleted.
(o) Anything contained in this Lease to the contrary
notwithstanding, Tenant shall look solely to Landlord's interest in the Building
for the collection of any judgment or other judicial process requiring the
payment of money by Landlord for any default or breach by Landlord under this
Lease, subject, however, to the prior rights of any mortgagee, the holder of any
deed to secure debt or lessor of the Park. No other assets of Landlord or any
partners, shareholders, or other principals of Landlord shall be subject to
levy, execution or other judicial process for the satisfaction of Tenant's
claim.
(p) This Lease shall be governed by and construed under the laws of
the State of Georgia, without regard to the conflicts of laws rules of such
state. Any action brought to enforce or interpret this Lease shall be brought in
the court of appropriate jurisdiction in Gwinnett County, Georgia. Should any
provision of this Lease require judicial interpretation, Landlord and Tenant
hereby consent to the service of process and jurisdiction of the courts of the
State of Georgia. The parties stipulate that the court interpreting or
considering same shall not apply the presumption that the terms hereof shall be
more strictly construed against a party by reason of any rule or conclusion that
a document should be construed more strictly against the party who itself or
through its agent prepared the same, it being agreed that all parties hereto
have participated in the preparation of this Lease and that each party had full
opportunity to .consult legal counsel of its choice before the execution of this
Lease. If any words or phrases in this Lease are stricken out or otherwise
added, this Lease shall be construed as if the words or phrases so stricken out
or otherwise eliminated were never included in this Lease and no
33
implication or inference shall be drawn from the fact that such words or phrases
were stricken out or otherwise eliminated. The Tenant hereby represents that it
is not entitled, directly or indirectly, to diplomatic or sovereign immunity.
The provisions of this Subparagraph 29(p) shall survive the expiration or sooner
termination of the Lease.
(q) Tenant agrees to pay all attorneys' fees and expenses the
Landlord incurs in enforcing any of the obligations of Tenant under this Lease
or in any litigation or negotiation in which Landlord shall, without its fault,
shall become involved through or on account of this Lease.
(r) Any elimination or shutting off of light, air, or view by any
structure which may be erected on lands adjacent to the Building shall in no way
affect this Lease and Landlord shall have no liability to Tenant with respect
thereto.
(s) Neither this Lease nor any memorandum of this Lease shall be
recorded.
(t) Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of them against the other on any
matters whatsoever arising out of or in any way connected with this Lease,
whether during or after the Term, or for the enforcement of any remedy under any
statute emergency or otherwise. If Landlords shall commence any summary
proceeding against Tenant, Tenant will not interpose any counterclaim of
whatever nature in any such proceeding (unless failure to impose such
counterclaim would preclude Tenant from asserting in a separate action the claim
which is subject of such counterclaim), and will not seek to consolidate such
proceeding with any other action which may have been or will be brought in any
other court by Tenant or Landlord.
(u) Should Landlord assign this Lease as provided for above, or
should Landlord enter into a security deed or other mortgage affecting the
Premises and should the holder of such deed or mortgage succeed to the interest
of Landlord, Tenant shall be bound to said assignee or any such holder under all
the terms, covenants and conditions of this Lease for the balance of the Term
hereof remaining after such succession, and Tenant shall attorn to such
succeeding party as its Landlord under this Lease promptly under any such
succession. Upon any assignment or transfer of Landlord's interest in this
Lease, Landlord shall automatically be released from any liability arising under
this Lease from and after the date of such assignment or transfer. Tenant agrees
that should any party so succeeding to the interest of Landlord require a
separate agreement of attornment regarding the matters covered by this Lease,
then Tenant shall enter into such agreement, provided that the same does not
materially modify any of the economic provisions of this Lease.
(v) Except as otherwise provided in this Lease, the obligations of
Tenant to pay Rent hereunder and to perform all of the other covenants and
agreement hereunder on the part of Tenant to be performed shall in no way be
affected, impaired or excused because Landlord is unable to fulfill any of
Landlord's obligations under this Lease, expressly or implicitly to be performed
by Landlord, or because Landlord is unable to make or is delayed in making any
repairs, additions, alterations, improvements of decorations, or is unable to
supply or is delayed in supplying any services, equipment or fixtures, if
Landlord is prevented from or delayed in so doing by reason of acts of God,
casualty, strikes or labor trouble, accident,
34
governmental preemption in connection with an emergency, requirements,
conditions of supply and demand which have been or are affected by war or other
emergency, or any other cause whatsoever, whether similar or dissimilar to the
foregoing, beyond Landlord's reasonable control ("Unavoidable Delays"), provided
that Landlord diligently pursues making such repairs, additions, alterations,
improvements, or attempts to find alternative supplies.
(w) The Park complies with current applicable zoning and
environmental laws.
30. SIGNS.
(a) Building standard graphics will be placed at the entrance of the
Premises.
(b) Tenant shall be listed in the Building directory located in the
lobby in accordance with Building Standards.
(c) Provided that Tenant shall lease a minimum of 16,000 rentable
square feet in the Building, Landlord shall erect a monument sign with Tenant's
name, which monument shall be placed in front of the 6200 building occupied by
Tenant. All costs associated with the design, construction and installation of
the monument shall be borne by Tenant and shall be payable as Additional Rent
upon thirty (30) days demand by Landlord, except that if the monument sign is
used by more than one tenant, then Tenant shall pay its pro-rata share of the
costs associated with the monument sign.
31. OPTION TO RENEW.
(a) Provided that Tenant does not have a history of repeated
nonperformance of its monetary obligations and there shall not then be existing
an Event of Default under this Lease, Tenant shall have one option to extent the
Term of this Lease for the Renewal term of five (5) years (as set forth in
Subparagraph 1(q) commencing on the day after the Expiration Date. Such option
shall be exercisable by written notice (the "Renewal Notice") to Landlord given
not later than six (6) months prior to the Expiration Date. Notwithstanding the
preceding sentence, Landlord in its sole discretion, may waive any Event of
Default by Tenant and no such Event may be used by Tenant to negate the
effectiveness of Tenant's exercise of this option. The Renewal Term shall
constitute an extension of the initial Term of this Lease and shall be upon all
of the same terms and conditions as the initial Term, except that (i) there
shall be no further option to renew the Term of this Lease in the Renewal Term,
(ii) Landlord shall not be required to furnish any materials or perform any work
to prepare the Premises for Tenant's occupancy and Landlord shall not be
required to reimburse Tenant for any Alterations made or to be made by Tenant,
and (iii) the Base Rent for the Renewal Term shall be payable at a rate per
annum equal to the fair market rental value of the Premises as of the first day
of the Renewal Term. During the Renewal Term, all Additional Rent that Tenant is
obligated to pay under this Lease during the initial Term hereof shall continue
without interruption, it being the intention of the parties hereto that the
Renewal Term shall be deemed a part of and continuation of the initial Term of
this Lease.
35
(b) It is an express condition of the option granted to Tenant
pursuant to the terms of this Paragraph 31 that time is of the essence with
respect to Tenant's exercise of such option within the period above provided.
32. FIRST REFUSAL OPTION.
(a) Provided that Tenant shall have performed fully, faithfully and
in a timely manner all of its obligations (including the obligation to pay Base
Rent and Additional Rent) under this Lease and this Lease shall be in full force
and effect at all times in this Paragraph 32 mentioned and there shall not then
be existing an Event of Default under this Lease, if any of the First Refusal
Option Space as set forth in Subparagraph 1(r) is or hereafter becomes available
for rental except as to an existing tenant, free of any renewal, extension or
expansion option (such available space being hereinafter referred to as the
"Option Space") and if Landlord shall receive, during (but not after) the Term
of this Lease a bonafide offer acceptable to Landlord from a third party (other
than a then existing tenant in the Option Space) to rent the entire area of the
floor constituting the Option Space, Landlord shall notify Tenant of such offer,
specifying the rentable square footage of that floor of the Option Space, the
term contained in the offer, the rate of the Base Rent per rentable square foot
of such Option Space payable pursuant to the offer and the work or work
allowance, if any, to be provided by Landlord. Thereupon, Tenant shall have the
option exercisable within, but in no event later than, ten (10) Business Days
after the giving of such notice by Landlord to Tenant to elect by notice (the
"Option Notice") given to Landlord within said ten (10) Business Day period to
lease the entire space encompassed by the offer for a term equal to the term
contained in the offer at a rate of Base Rent per rentable square foot which
shall be equal to the greater of (i) the rate of the Base Rent per rentable
square foot payable pursuant to the offer (subject to the provisions of
Subparagraph 32(b)(i); or (ii) the then current Base Rent due under this Lease,
and otherwise on the terms contained in Subparagraph 32(b) below.
(b) If Tenant shall duly exercise its option within the time and in
the manner specified in Subparagraph 32(a), and there shall not then be existing
an Event of Default under this Lease, then automatically on the first Business
Day following the giving of the Option Notice, the floor of the Option Space as
to which Tenant has exercised its option (the "Option Space") shall
automatically be deemed and be added to and form a part of the Premises
hereunder upon all of the same terms and conditions as are contained in this
Lease except that:
(1) The Base Rent payable by Tenant under the Lease shall be
increased by the rental rate for the Option Space (as determined in
Subparagraph 32(a) with provision, if applicable, for further
increase as provided in the offer. If the term contained in the
offer extends beyond the Expiration Date, then notwithstanding the
provisions of Subparagraph 32(a), the Base Rent payable for the
Option Space shall be the average of the Base Rent provided in the
offer (if the offer contains an increase in the Base Rent during the
Term). Tenant shall pay to Landlord the first monthly installment of
Base Rent on account of the addition of the Option Space to the
Premises, which amount shall be paid by Tenant along with the Option
Notice.
(2) Tenant shall accept the Option Space in the condition specified
in the offer.
36
(3) The Term of this Lease with respect only to the Option Space
shall be equal to the term contained in the offer referred to in
Subparagraph 31(a).
(4) The Security Deposit, if any, shall be increased on account of
the addition of the Option Space to the Premises, which amount shall
be paid by Tenant to Landlord along with the Option Notice.
(5) Tenant's share shall be increased to reflect the addition of the
Option Space to the Premises.
(6) Landlord shall provide an Expansion Space Tenant Improvement
Allowance of up to $15.00 per rentable square foot, which amount
shall be prorated to reflect the balance of the Term remaining on
the Lease at the time this Right of First Refusal Option is
exercised pursuant to Subparagraph 32(a) above.
33. SATELLITE DISH.
(a) Tenant shall have the right to install, maintain and operate on
the available space on the roof of the Building, at Tenant's sole cost and
expense, a satellite dish and support equipment (collectively, the
"Installations"), subject to all of the terms, covenants and conditions of this
Lease and subject to Landlord's prior written approval, which will not be
unreasonably withheld based on any facts including, without limitation, the
size, weight, location, method of attachment and warranty on the roof.
Landlord's approval shall also be required for modification to, and the removal
of, the Installations. Landlord shall, in its sole discretion, designate the
available space on the roof of the Building for the location of the
Installations, and of all passageways required for access thereto for personnel.
In connection with Tenant's installations, maintenance and operation of its
Installations, Tenant shall comply with all requirements and shall procure,
maintain and pay for all permits and licenses required therefor, including all
renewals thereof. The parties agree that Tenant's use of the roof of the
Building is a non-exclusive use and Landlord may permit the use of any other
portion of the roof to any other person, firm or corporation for any use,
including the installation of other antennas, generators and/or communications
systems. Tenant shall ensure that its use of the roof does not impair such other
person's, firm's or corporation's data transmission and reception via their
respective antennas and support equipment, if any. Tenant, at its sole cost and
expense, shall install any screening device requested by Landlord at any time to
ensure that the Installations cannot be viewed or seen by the public and, if
such screening device is installed, it shall be deemed to be an Installation
under this clause.
(b) In no event shall the maximum level of emissions from the
Installations exceed a reasonable portion of the total emissions allowable for
the Building under applicable requirements, taking into account the number of
rooftop installations at the Building.
(c) Tenant shall pay for all electrical service required for
Tenant's use of the Installations as Additional Rent.
(d) Tenant, at Tenant's sole cost and expense, shall promptly repair
any and all damage to the roof of the Building and to any part of the Building
caused by or resulting from the
37
installation, maintenance and repair, operation or removal of the Installations
erected or installed by Tenant pursuant to the provisions of this Paragraph 33.
Tenant further covenants and agrees that the Installations and any related
equipment erected or installed by Tenant pursuant to the provisions of this
Paragraph 33 shall be erected, installed, repaired, maintained and operated by
Tenant at the sole cost and expense of Tenant and without charge, cost or
expense to Landlord.
(e) The Installations and related equipment installed by Tenant
pursuant to the provisions of this Paragraph 33 shall be Tenant's property, and,
upon the expiration or earlier termination of the Term of this Lease shall be
removed by Tenant, at Tenant's sole cost and expense and Tenant shall repair any
damage to the roof of the Building, or any other portion or portions of the
Building caused by or resulting from said removal.
34. CONTINGENCY. Notwithstanding anything to the contrary set forth or
described elsewhere in this Lease, Landlord and Tenant hereby acknowledge and
agree that this Lease shall not be deemed to become valid or effective, unless
Tenant and Peachtree Corners Park, Inc. terminate that certain Lease Agreement
dated the 19th day of January, 1999, as amended by that First Amendment of Lease
dated June 9, 1999 (collectively the "6200 Lease") and all conditions precedent
for the termination of the 6200 Lease to become effective are satisfied and the
termination of the 6200 Lease is, in fact, effective. If this contingency is not
satisfied on or before May 31, 2003, then this Lease shall be void ab initio.
{Signature Page Follows}
38
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
dates and year set forth below.
CORNERS REALTY CORPORATION, INC., as
Landlord
By:/s/ Stephen S. Schubert
---------------------------------
Name: Stephen S. Schubert
Title: Vice President
Date of Execution: March 24, 2003
HITACHI ELECTRONIC DEVICES (USA), INC., a
Delaware Corporation, as Tenant
By: [Unknown Signatory]
Name: [Unknown Signatory]
Title:[Unknown]
Date of Execution: [Unknown], 2003
39
EXHIBIT A
INTENTIONALLY DELETED
A-1
EXHIBIT B
FLOOR PLAN
(To be inserted later by the date on which the Landlord and Tenant approved
Floor Plan is available.)
B-1
EXHIBIT C
PLANS AND SPECIFICATIONS
(To be inserted later by the date on which the Landlord and Tenant approved
Plans and Specifications are available.)
C-1
EXHIBIT D
WORK AGREEMENT
(To be completed and executed when Plans and Specifications are final and
approved by Landlord and Tenant)
This Work Agreement ("Agreement") is made this ___ day of __________,
2003, by and between CORNERS REALTY CORPORATION, INC. ("Landlord") and HITACHI
ELECTRONIC DEVICES (USA), INC., a Delaware Corporation, as Tenant.
Landlord and Tenant hereby covenant and agree as follows (all capitalized
terms not otherwise defined herein shall have the meanings ascribed to such
terms in the Lease Agreement dated of even date herewith executed by Landlord
and Tenant):
1. Landlord shall perform or caused to be performed, at Landlord's sole
cost and expense, the work ("Landlord's Work") described in those certain Plans
and Specifications prepared for the Premises by Herring Troy Associates
("Architect") dated ________________ and attached hereto as "Exhibit 1".
Landlord shall cause the Premises to be delivered on the Commencement Date in
material conformance with the Plans. If Tenant requests any modification of or
change to the Plans or to Landlord's Work to be performed by Landlord pursuant
to such Plans then such request shall be subject to Landlord's prior review and
approval and the incremental, additional cost of such changed or additional work
shall paid for by Tenant at Tenant's sole cost and expense.
2. Landlord shall install the Landlord's Work according to the final
construction documents (the "Construction Documents") prepared by the Architect
in accordance with the Plans. Landlord shall cause Landlord's Work to be
completed by a general contractor selected by Landlord (the "Contractor")
pursuant to a construction contract with Landlord.
3. Landlord shall give Tenant five (5) Business Days prior written notice
of its anticipated date of "Substantial Completion" (i.e., the date upon which
Landlord's Work shall have been substantially completed, except for punch list
items, in accordance with the Construction Documents). Landlord shall obtain a
temporary Certificate of Occupancy, if necessary, and a permanent Certificate of
Occupancy for the Premises, if required, as promptly as possible. Items shown on
a punch list to be prepared by Tenant, Architect and Landlord at Substantial
Completion will thereafter be completed with reasonable promptness. and
4. Tenant agrees that it shall look solely to Architect with respect to
the adequacy, correctness or sufficiency of the Plans or compliance thereof with
any applicable laws, codes, regulations or ordinances of any applicable
governmental authority, or otherwise and that Landlord's review or approval of
the Plans shall not constitute a representation, guaranty or warranty with
respect to the Plans.
5. The Plans shall be filed by Architect or Contractor as shall be
required by law and approved by all governmental authorities having jurisdiction
thereof. Architect or Contractor shall procure any and all permits that may be
required. Tenant and Tenant's architect and
D-1
designers, if any, shall cooperate with Landlord, Architect and Contractor in
obtaining any such approvals and permits without delay.
6. Any changes required by any governmental authority, agency or
department affecting the construction of any Landlord's Work or any Additional
Work to be performed therein shall not be deemed to be a violation of Tenant's
Plans or any provision of this Work Agreement and shall be accepted and paid for
by Tenant.
7. Tenant shall receive an allowance (the "Tenant Improvement Allowance")
of up to $18.00 per rentable square foot to be used as provided in this
Agreement. Tenant shall bear the cost and expenses of the design and preparation
of the Plans and the performance of Landlord's Work in excess of the Tenant
Improvement Allowance.
8. All work shown in Tenant's Plans costing in excess of the Tenant
Improvement Allowance shall be deemed to be Additional Work ("Additional Work"),
and Tenant shall pay Landlord upon demand for the actual cost thereof. Should
any revisions or additions to the original Tenant's Plans result in a delay of
Substantial Completion (hereinafter defined) of the Premises, Tenant agrees that
such shall constitute a Tenant Delay (hereinafter defined).
9. Tenant shall pay Landlord's Construction Manager, Trammell Crow
Company, a supervisory fee equal to three (3% o) percent of the actual costs for
furnishing, installing and/or constructing the Tenant's Plans (as they may be
modified). If additional architectural or engineering fees are incurred as a
result of any changes in the Tenant's Plans prepared by the Architect and
Engineer, such fees shall constitute Additional Work if they exceed the Tenant
Improvement Allowance. A supervisory fee of three (3%) percent will be added for
any Change Orders (as hereinafter defined). Tenant shall pay such fee to
Landlord's Construction Manager upon demand. "Change Order(s)" shall mean any
alteration, substitution, addition or change to or in the Tenant's Plans or
Construction Documents requested by Tenant after the same has been consented to
by Landlord.
10. If any items of Additional Work shall entail the ordering and/or
purchase by Landlord of unusual or specialty materials or products involving, in
Landlord's sole judgment, material cost, Landlord may require Tenant to pay to
Landlord within five (5) days of Landlord's request therefor (which request may
be contained in Landlord's estimate of the cost thereof furnished to Tenant) a
deposit, on account of the cost of such Additional Work, as shall be determined
by Landlord in its sole discretion.
11. If, in Landlord's sole judgment, any items of Additional Work shall
involve ordering of materials or products which must be specially fabricated to
order and thus will materially delay the performance of Landlord's Work, then
Landlord may require Tenant to agree on a fixed Commencement Date of this Lease
(allowing a reasonable time for the performance of Landlord's Work in absence of
the necessity of performing the Additional Work occasioning such material
delay). If the parties cannot agree upon a fixed Commencement Date, then
Landlord shall have the right to decline to perform such Additional Work, and
Tenant shall be responsible for the performance thereof (subject to the terms of
this Lease) after the completion of Landlord's Work and any other Additional
Work not objected to by Landlord. Tenant shall pay fifty percent (50%) of the
cost- of the Additional Work to Landlord within ten
D-2
(10) days of Tenant's receipt from Landlord of an invoice for such costs prior
to commencement of construction, and the balance upon Substantial Completion of
the Premises. Failure by Tenant to pay such costs as and when due shall
constitute a default under the Lease.
12. The approval by Tenant of Tenant's Plans shall be deemed authorization
by Tenant for Landlord to proceed with the performance of Landlord's Work and
any Additional Work and shall be deemed approval by Tenant of Landlord's cost
estimate for the work. Any approvals required to be given by Tenant shall be
deemed given unless within five (5) days after request is made therefor, notice
of disapproval is given. Any architect or designer acting for or on behalf of
Tenant shall be deemed an agent of Tenant duly authorized to bind and act for
Tenant in all respects.
13. If there is a delay in the Substantial Completion of Landlord's Work,
or any portion thereof, due to any act or omission of Tenant, its contractors,
subcontractors, architects, space designers, movers, consultants, agents or
employees, including, without limitation, delays due to failure by Tenant, in a
timely manner, deliver Tenant's Plans, Tenant's making changes in Tenant's Plans
or in Landlord's Work, delays by Tenant in submission of information, approving
working drawings or cost estimates or giving authorizations or approvals, or
delays resulting from the fact that portions of Landlord's Work must be
scheduled after the completion of certain items of Tenant's Installations
(hereinafter defined) (any of the foregoing being called a "Tenant Delay"), then
the Premises, or such portion thereof, shall be deemed Substantially Completed
on the date the Premises or such portion thereof would have been available for
occupancy but for the duration of any such aforementioned Tenant Delay, even
though work to be done by Landlord has not been commenced or completed. The
parties recognize that a Tenant Delay may be aggravated or extended by a strike,
materials or labor shortage, or loss of time due to construction scheduling
changes occasioned by such Tenant Delay or other unavoidable delays, any or all
of which would not have adversely affected the timely completion of Landlord's
Work in the absence of such Tenant Delay, and agree that the duration of Tenant
Delay should include all delays resulting from such other causes,
notwithstanding that as a result thereof, the Tenant Delay in question may
substantially exceed, in duration, the length of time during which the act or
omission of Tenant or, its agents, employees or contractors, causing such
Tenant's Delay may have occurred or continued.
14. Substantial Completion shall have occurred upon the following: (i)
Landlord's Work shall have been completed in substantial compliance with the
Construction Documents, except for punch list items and Tenant's work, and
otherwise sufficient so that Architect can execute the most recently published
version of AIA form G704, titled "Certificate of Substantial Completion," or
(ii) Landlord shall have obtained a temporary certificate of occupancy or other
evidence reasonable satisfactory to Tenant that upon completion of the Tenant's
Work, a certificate of occupancy or temporary certificate of occupancy will be
issued, permitting the lawful use of the Premises; provided, however, that to
the extent compliance with the conditions set forth above would have occurred
but for Tenant Delay, then compliance with such conditions shall be deemed to
have occurred on the date it would have occurred but for the Tenant Delay.
15. Landlord hereby designates ROXANNE TIGUE to act as its authorized
representative on this Work
D-3
Agreement. Any response from such person under this Work Agreement shall be the
response of Landlord. Tenant hereby designates PEGGY PARKS to act as its
authorized representative on this Work Agreement. Any response from such person
under this Work Agreement shall be the response of Tenant.
IN WITNESS WHEREOF, this Work Agreement has been executed as of the day
and year first above written.
CORNERS REALTY CORPORATION, INC., as
Landlord
By:______________________________________
Name:___________________________________
Title:__________________________________
HITACHI ELECTRONIC DEVICES (USA) INC., as
Tenant
By.______________________________________
Name:_________________________________
Title:________________________________
D-4
EXHIBIT E
COMMENCEMENT DATE AGREEMENT
AGREEMENT made as of the_____ day of ______________, 2003, between CORNERS
REALTY CORPORATION, INC., a Delaware corporation, having an address at 522 Fifth
Avenue, New York, New York 10036, Attn: Mr. Stephen S. Schubert, as Landlord,
and HITACHI ELECTRONIC DEVICES (USA), INC., a _____________ corporation, having
an address at ____________________, as Tenant.
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated as
of March ____, 2003 (the "Lease"), pursuant to which Landlord leased to Tenant
certain space in the Building known as Suite 100, 6035 The Corners Parkway,
Norcross, Georgia 30092, as more fully described in the Lease; and
WHEREAS, pursuant to the provisions of the Lease, the parties agreed to
execute a written agreement confirming the Commencement Date and the Expiration
Date of the Lease.
NOW, THEREFORE, Landlord and Tenant confirm that the Term of the Lease
commenced on __________, 2003, and that such date constitutes the "Commencement
Date" of the Lease, and that the Term of the Lease will expire on _________,
_____, and that such date constitutes the "Expiration Date" as such quoted terms
are defined in the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively executed this
Commencement Date Agreement as of the day and year first above written.
CORNERS REALTY CORPORATION, INC., as Landlord
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
HITACHI ELECTRONIC DEVICES (USA), INC., as Tenant
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
E-1
EXHIBIT F
JANITORIAL SPECIFICATIONS
GENERAL
Clean all areas of the building interior including entrance lobby,
corridors, loading docks, stairwells, lavatories and elevators.
Employees assigned to the building shall be neat and clean in appearance
and properly identified.
Employees shall abide by all building rules and regulations and safety
rules.
Employees shall not eat, drink, or smoke on duty. They shall not disturb
paper on desks, open drawers or cabinets, use telephones, televisions or radios.
Competent supervisory personnel shall be employed, and they will, at a
minimum, have completed a supervisory training course.
Necessary appropriate tested and approved machinery and cleaning supplies
for the satisfactory performance of services will be provided.
All office cleaning, as possible, will be performed behind locked doors.
Upon completion of work, the Contractor will leave all slope sinks and
equipment storage areas in a neat and orderly condition; all unnecessary lights
out and doors locked.
The Landlord shall furnish janitor and cleaning service as described
below: ENTRANCE
LOBBY - DAILY
Entrance lobby will be thoroughly cleaned. Lobby glass and metal will be
cleaned and dusted. Directory glass will be damp cleaned and wiped. Lobby walls
will be dusted and kept free from fingermarks and smudges. Floors and entrances
are to be dust mopped and damp mopped as needed, and buffed and refinished as
necessary to maintain a clean and glossy appearance.
ELEVATORS - DAILY
All elevators will be vacuumed.
All stainless steel and metal will be cleaned.
All elevator tracts will be vacuumed.
F-1
Elevator button panels and elevator doors will be cleaned. Carpets will
be spotted periodically.
Ceilings, overhead plexiglass, and/or special light fixtures will be
cleaned periodically.
OFFICES - DAILY
Clean floor, empty trash and wipe counters in kitchen area.
In other office areas:
Sweep, dry mop or vacuum all floor areas of resilient tile, wood or
carpet, remove matter such as gum and tar which has adhered to the floor.
Empty, damp wipe and sanitize all ashtrays and waste baskets and removal
all trash.
Dust all horizontal surfaces with treated dust cloth, including furniture,
files, equipment, blinds and louvers that can be reached without a ladder.
Spot wash to remove smudges, marks and fingerprints from such areas as
walls, equipment, doors, partitions and light switches within reach.
Brush all fabric covered chairs with a lint brush.
Wash water fountains, chalkboards, lunch room tables and chairs.
Spot damp mop all non-resilient floors such as concrete, terrazzo and
ceramic tile. Sweep all steps, sidewalks and exterior landings to the building.
Clean and wash all restrooms.
Clean mirrors, soap dispensers, shelves, wash basins, exposed plumbing,
dispenser and disposal container exteriors using detergents, disinfectant and
water. Damp wipe all ledges, toilet stalls and doors, spot clean light switches,
doors and walls.
Clean toilets and urinals with detergent disinfectant, beginning with
seats and working down. Pour one ounce of bowl cleaner into urinal after
cleaning and do not flush.
Furnish and refill all soap, toilet, sanitary napkins and towel
dispensers.
Clean all baseboards.
Damp mop floors using detergent disinfectant.
F-2
OFFICES - WEEKLY
Spot clean carpet stains.
Wash glass in display windows, building directory, entrance doors and
frames and show windows, both sides.
Spot wash interior partition glass and door glass to remove smudge marks.
Sweep all stair areas.
OFFICES - MONTHLY
Clean and polish resilient floor areas using buffable non-slip typejloor
finish.
Vacuum all ceiling and wall air supply and exhaust diffusers or grills.
Wash all stairwell landings and treads.
OFFICES - QUARTERLY
High dust all horizontal and vertical surfaces not reached in nightly
cleaning, such as pipes, light fixtures, door frames, picture frames, ceilings,
moldings, ledges, etc. not reached in nightly cleaning.
Wash all interior glass, both sides.
Vacuum or dust all books in place.
Wash and polish vertical terrazzo or marble surfaces.
Damp wash diffusers, vents, grilles, and other such items, including
surrounding wall or ceiling areas that are soiled.
OFFICES - SEMI-ANNUALLY
Vacuum draperies, cornices and wall hangings.
Dust all storage areas, and damp mop floor areas.
Strip and refinish all resilient floor areas using buffable non-slip floor
finish.
OFFICES - ANNUALLY
Spot wash walls in corridors, lounges, classrooms, demonstration areas,
lunchroom and washrooms.
F-3
Clean, as needed, all vertical surfaces not attended to in nightly,
weekly, quarterly or semi-annual cleaning.
Wash all building exterior glass, both sides.
F-4
EXHIBIT G
RULES AND REGULATIONS
1. The sidewalks and public portions of the Building, such as entrances,
passages, courts, elevators, vestibules, stairways, corridors or halls, shall
not be obstructed or encumbered by Tenant or used for any purpose other than
ingress and egress to and from the Premises.
2. No curtains, blinds, shades, louvered openings or screens shall be
attached to or hung in, or used in connection with, any window or door of the
Premises without the prior written consent of Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
Premises or Building or on corridor walls. Signs on entrance door or doors shall
conform to Building standard signs, samples of which are on display in
Landlord's rental office. Signs on doors shall, at Tenant's expense, be
inscribed, painted or affixed for each tenant by sign makers approved by
Landlord. In the event of the violation of the foregoing, Landlord may remove
same without any liability and may charge the expense incurred by such removal
to Tenant.
4. The sashes, sash doors, skylights, windows, heating, ventilating and
air conditioning vents and doors that reflect or admit light and air into the
halls, passageways or other public places in the Building shall not be covered
or obstructed by Tenant.
5. Tenant shall not in any way deface any part of the Premises or the
Building. Tenant shall lay linoleum, or other similar floor covering, so that
the same shall come in direct contact with the floor of the Premises, and, if
linoleum or other similar floor covering is desired to be used, an interlining
of builder's deadening felt shall be first affixed to the floor by a paste or
other material, soluble in water, the use of cement or other similar adhesive
material being expressly prohibited.
6. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of the Building or neighboring
buildings.
7. Neither Tenant, nor any of Tenant's agents, employees, contractors,
licensees or invitees, shall at any time put up or operate fans or electrical
heaters, or bring or keep upon the Premises flammable, combustible or explosive
fluid, or chemical substance.
8. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant, nor shall any changes be made in existing locks
or the mechanism thereof, without the prior written approval of Landlord and
unless and until a duplicate key is delivered to Landlord. Tenant shall, upon
termination of its tenancy, restore to Landlord all keys of stores, offices and
toilet rooms, either furnished to, or otherwise procured by, Tenant, and in the
event of the loss of any keys so furnished, Tenant shall pay to Landlord the
cost thereof.
G-1
9. All moves in or out of the Premises, or the carrying in or out of any
safes, freight, furniture or bulky matter of any description, must take place
during the hours which Landlord or its agent may determine. Only the Building
freight elevator shall be used for such purposes. Tenant will ensure that movers
take necessary measures required by Landlord to protect the Building (e.g.,
windows, carpets, walls, doors and elevator cabs) from damage. Landlord reserves
the right to inspect all freight to be brought into the Building and to exclude
from the Building all freight which violates any of these Rules and Regulations
or the Lease.
10. Tenant shall not place any furniture, accessories or other materials
on any balconies located within or adjacent to the Premises without Landlord's
written approval in each instance.
11. Landlord shall have the right to prohibit advertising by Tenant which
in Landlord's opinion tends to impair the reputation of the Building or its
desirability as a building for offices, and upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
12. Landlord reserves the right to exclude from the Building at all times
other than business hours all persons who do not present a pass to the Building
signed by Tenant. Tenant shall be responsible for all persons to whom it issues
such a pass and shall be liable to Landlord for all acts of such persons.
13. The requirements of Tenant will be attended to only upon application
at the management office for the Building. Building employees shall not perform
any work or do anything outside of their regular duties, without the prior
written consent of Landlord.
14. Canvassing, soliciting and peddling in the Building are prohibited.
15. There shall not be used in any space, or in the public halls of the
Building, either by Tenant or by its jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards. No hand trucks, mail carts or mail bags shall be used in
passenger elevators.
16. All paneling or other wood products not considered furniture shall be
of fire retardant materials. Before installation of such materials,
certification of the materials' fire retardant characteristics shall be
submitted to Landlord for its written approval.
17. Tenant shall not employ any persons other than the janitors retained
by Landlord (who will be provided with pass-keys into the offices) for the
purpose of cleaning or taking charge of the Premises. It is understood and
agreed that Landlord shall not be responsible to any tenant for any loss of
property from rented premises, however occurring, or for any damage done to
furniture or other effects of any tenant by the janitor or any of its employees.
18. No painting shall be done, nor shall any alterations be made, to any
part of the Building by putting up or changing any partitions, doors or windows,
nor shall there be any nailing, boring or screwing into the woodwork or walls,
nor shall any connection be made to the electric wires or electric fixtures,
without the consent in writing on each occasion of Landlord. No sunscreen or
other films shall be applied to the interior surface of any window glass. All
G-2
glass, locks and trimmings in or upon the doors and windows of the Building
shall be kept whole, and when any part thereof shall be broken, the same shall
be immediately replaced or repaired and put in order at Tenant's expense under
the direction and to the satisfaction of Landlord, and shall be left whole and
in good repair.
19. Landlord will post on the Building directories at no charge one name
only for Tenant. All additional names which Tenant shall desire put upon said
directories must be submitted to Landlord, and if so approved, a charge to
Tenant will be made for each additional listing.
20. Landlord reserves all vending rights.
21. Landlord reserves the right to modify or delete any of the foregoing
Rules and Regulations and to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for the safety,
care and cleanliness of the Premises and Landlord's property and for the
preservation of good order therein. Landlord shall not be responsible to any
tenant for the non-observance, or violation, of any of these Rules and
Regulations by other tenants.
22. Parking facilities supplied by Landlord shall be used by vehicles that
may occupy a standard parking area only. Moreover, the use of such parking
facilities shall be limited to normal business parking and shall not be used for
a continuous parking of any vehicle regardless of size.
23. The smoking of any cigar, cigarette, pipe or other smoking equipment
is strictly prohibited within the building.
G-3
EXHIBIT H
FORM OF INSURANCE CERTIFICATE
THIS CERTIFICATE DOES NOT AMEND, EXTEND COMPANIES AFFORDING COVERAGES
OR ALTER THE COVERAGE AFFORDED BY THE
POLICIES LISTED BELOW:
NAME AND ADDRESS OF AGENCY:
COMPANY A
LETTER
FOR QUESTIONS ON THIS CERTIFICATE
CONTACT: COMPANY B
LETTER
NAME AND ADDRESS OF INSURED:
COMPANY C
LETTER
D
COMPANY D
LETTER
This is to certify that the insurance companies listed above have issued
policies of insurance, as described below and identified by a policy number, to
the insured named above, and to certify that such policies are n full force and
effect at this time. This certificate of insurance does not amend, extend or
alter the coverage afforded by the policies designated below.
COMPANY TYPE OF POLICY POLICY
LETTER INSURANCE NUMBER PERIOD LIMITS OF LIABILITY IN THOUSANDS (000)
H-1
SUBLEASE AGREEMENT
1. PARTIES
THIS SUBLEASE is entered into as of the 17th day of March, 2004, by and
between HITACHI ELECTRONIC DEVICES (USA), INC., Sublessor, and BIANCO
HOPKINS & ASSOCIATES, INC., Sublessee, as a Sublease under the Master
Lease dated March 27, 2003, entered into by CORNERS REALTY CORPORATION,
INC., as Lessor, and Sublessor under this Master Lease, as Lessee. A copy
of said Master Lease is attached hereto, marked Sublease Exhibit "B," and
incorporated herein by reference.
2. PROVISIONS CONSTITUTING SUBLEASE
This Sublease is subject to all of the terms and conditions of the
Sublease Agreement including those contained in the Special Stipulations
attached hereto marked as Sublease Exhibit "A." This Sublease also adopts
by reference all those provisions of the Lease Agreement attached hereto
as Sublease Exhibit "B" except where such provisions are directly in
conflict with the provisions of this Sublease Agreement. Accordingly,
Sublessee shall be obligated hereunder the same as Lessee under the Lease
Agreement.
3. PREMISES
Sublessor leases to Sublessee and Sublessee hires from said Sublessor the
following described Premises situated at 6025 Corners Parkway, Suite 100,
in the City of Norcross, County of Gwinnett, State of Georgia, 30092 (the
"Premises") and consisting of approximately 12,949 rentable square feet.
Sublessee leases the Premises in its "as-is" condition.
4. TERM
4.1 Term. The term of this Sublease shall be for a period commencing on
April 1, 2004 (Commencement Date) and ending on May 31, 2010,
subject to any required approval by Landlord per the Master Lease.
4.2 Delay in Commencement. Notwithstanding said Commencement Date, if
for any reason Sublessor cannot deliver possession of the Premises
to Sublessee on said date, Sublessor shall not be subject to any
liability therefore, nor shall such failure affect the validity of
this Lease or the obligations of Sublessee hereunder or extend the
term hereof, but in such case Sublessee shall not be obligated to
pay rent until possession of the Premises is tendered to Sublessee;
provided, however, that if Sublessor shall not have delivered
possession of the Premises within ninety (90) days from said
Commencement Date, Sublessee may, at Sublessee's option, by notice
in writing to Sublessor within ten (10) days thereafter, cancel this
Sublease. If this Sublease is canceled as herein provided, Sublessor
shall return
1
any monies previously deposited by Sublessee, and the parties shall
be discharged from all obligations hereunder.
4.3 Early Possession. In the event that Sublessor shall permit Sublessee
to occupy the Premises prior to the Commencement Date of the term,
such occupancy shall be subject to all of the provisions of this
Sublease, including the payment of rent. Said early possession shall
not advance the termination date of this Sublease.
5. RENT
Sublessee shall pay to Sublessor as rent for the Premises equal monthly
installments as shown on Sublease Exhibit "A", in advance, on the first
day of each month of the term hereof. Sublessee shall pay Sublessor, upon
the execution of this Sublease Agreement, the sum of Ten Thousand Seven
Hundred Ninety and 83/100 ($10,790.83) Dollars as rent for June 1, 2004.
Rent for any period during the term hereof which is for less than one (1)
month shall be a pro rata portion of the monthly installment. Rent shall
be payable without notice or demand and without any deduction, offset, or
abatement in lawful money of the United States of America to Sublessor at
the address stated herein or to such other persons or at such other places
as Sublessor may periodically designate in writing.
6. SECURITY DEPOSIT
Sublessee shall deposit with Sublessor upon execution hereof the sum of
Forty-Three Thousand One Hundred Sixty-Three and 33/100 ($43,163.33)
Dollars as security for Sublessee's faithful performance of Sublessee's
obligations hereunder. If Sublessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this
Sublease, Sublessor may use, apply, or retain all or any portion of said
deposit for the payment of any rent or other charge in default or for the
payment of any other sum to which Sublessor may become obligated by reason
of Sublessee's default, or to compensate Sublessor for any loss or damage
which Sublessor may suffer thereby. If Sublessor so uses or applies all or
any portion of said deposit, Sublessee shall within ten (10) days after
written demand therefore deposit cash with Sublessor in an amount
sufficient to restore said deposit to the full amount hereinabove stated,
and Sublessee's failure to do so shall be a breach of this Sublease, and
Sublessor may at his option terminate this Sublease. Sublessor shall not
be required to keep said deposit separate from its general accounts. If
Sublessee performs all of Sublessee's obligations hereunder, said deposit,
or so much thereof as had not theretofore been applied by Sublessor, shall
be returned, without payment of interest for its use, to Sublessee within
ten (10) days after the expiration of the Sublease term.
7. USE
The Premises shall be used and occupied only for general office and
administrative purposes. The Premises shall not be used for any illegal
purposes nor in any manner in which violates any regulation of any
governmental body.
2
8. BROKER
In this transaction, Sublessor has been represented by Carter (Broker) and
Sublessee has been represented by Benchmark Resources (Co-Broker). Both
Broker and Co-Broker shall be compensated by Sublessor under a separate
written commission agreement.
WITNESS: SUBLESSOR:
_________________________ HITACHI ELECTRONIC DEVICES
(USA), INC.
By: [Unknown Signatory]
-------------------------------
Title: [Unknown]
----------------------------
Mailing Address:
575 Mauldin Road
Greenville, SC 29602-2203
Attn: Mr. Bill Davis
WITNESS: SUBLESSEE:
___________________________ BIANCO HOPKINS & ASSOCIATES, INC.
By: /s/ Rosalie Hopkins
-------------------------------
Rosalie Hopkins
Title: President
Mailing Address:
4920 Avalon Ridge Parkway
Suite 600
Norcross, GA 30071
Attn: Ms. Rosalie Hopkins
3
SUBLEASE EXHIBIT "A"
Special Stipulations
1. BASE RENT SCHEDULE
Term Months Rent PSF Annualized Monthly Rent Total Rent
- ---------------- ------ -------- ----------- ------------ -----------
4/1/04 - 5/31/04 2 $ 0.00 $ 0.00 $ 0.00 $ 0.00
6/1/04 - 5/31/05 12 $10.00 $129,490.00 $10,790.83 $129,490.00
6/1/05 - 5/31/06 12 $10.30 $133,374.70 $11,114.56 $133,374.70
6/1/06 - 5/31/07 12 $10.61 $137,388.89 $11,449.07 $137,388.89
6/1/07 - 5/31/08 12 $10.93 $141,532.57 $11,794.38 $141,532.57
6/1/08 - 5/31/09 12 $11.26 $145,805.74 $12,150.48 $145,805.74
6/1/09 - 5/31/10 12 $11.60 $150,208.40 $12,517.37 $150,208.40
AGGREGRATE RENT: $837,800.30
2. SECURITY DEPOSIT
Providing Sublessee is not in default as outlined herein under Paragraph
6, security deposit shall be returned to Sublessee as outlined below:
Date Deposit Returned Remaining Deposit
- ----------------- ----------------- -----------------
June 1, 2005 1 Month's Deposit 3 Months
February 1, 2006 1 Month's Deposit 2 Months
September 1, 2006 1 Month's Deposit 1 Month
The last month's security deposit shall be held by Sublessor through the
duration of the Sublease term according to the provisions herein defined.
3. FURNITURE, FIXTURES & EQUIPMENT ("FF&E")
Providing Sublessee is not otherwise in default of this Sublease or the
Master Lease, Sublessee shall have the right to use the FF&E as described
on Exhibit "E". Sublessee agrees to return said FF&E to Sublessor in good
working order and condition, reasonable wear and tear excepted, at the
expiration of the Sublease term.
4. INSURANCE
Sublessee shall have same indemnity and insurance obligation as outlined
in Paragraph 12 of the Master Lease. Sublessee shall also be required to
submit a "Form of Insurance Certificate" as provided in Exhibit "H" of the
Master Lease.
5. OPTION TO RENEW
Sublessee hereby forgoes this right as defined in Paragraph 31 of the
Master Lease.
A-1
6. FIRST REFUSAL OPTION
Sublessee hereby forgoes this right as defined in Paragraph 32 of the
Master Lease.
7. OPERATING EXPENSES
Sublessee shall not be responsible for any increases in Operating Expenses
during the term of this Sublease.
8. DEFAULTS
Sublessee shall be obligated to Sublessor according to the same provisions
defined in Paragraph 15 of the Master Lease relating to an "Event of
Default."
9. ASSIGNMENT AND SUBLETTING
Sublessee must first obtain prior written approval to Sub-Sublease or
Assign this Sublease from both Sublessor and Lessor, which may be withheld
at Sublessor's sole discretion. Should Sub-Sublease result in "Sublease
Additional Rent" as defined in Paragraph 10(g) of the Master Lease,
Sublessee shall pay to Sublessor a sum of one hundred (100%) percent of
this amount. All other provisions of Paragraph 10 of the Master Lease
shall be applied to Sublessee's requirements in such an event.
10. SIGNAGE
Sublessee shall be responsible for all expenses incurred with establishing
signage on the building directory and at Sublessee's suite and shall deal
with Lessor directly on such matters.
A-2
SUBLEASE EXHIBIT "B"
Lease Agreement
B-1
SUBLEASE EXHIBIT "C"
Floor Plan
[Architectural Schematic of Floor Space]
C-1
SUBLEASE EXHIBIT "D"
FF&E Inventory*
1. RECEPTION AREA
Chairs
Reception Desk - Cube
2 Phones 1 Rec. 1 Guest Area Chair - Security System for Back Doors and
IS Room
2. ADMINISTRATION WORK AREA
Chair
File Cabinet/3 Drawer
3. EXECUTIVE OFFICE (HEISER)
Desk/Table - Chair (leather) - Phone
Credenza
Conference Table - 4 Chairs
Leather Loveseat - 2 Leather Chairs
Typing Table
Whiteboard with Doors
4. EXECUTIVE OFFICE (SCHMITT)
Desk/Table - Chair Leather - Phone
Credenza
Bookcase (wood)
2 Side Chairs
Conference Table - 4 Chairs
Typing Table
Whiteboard with Doors
5. CONFERENCE ROOM
Round Table
3 Chairs
Whiteboard with Doors
6. EXECUTIVE OFFICE (TEX)
Desk - Credenza with Top - Chair - Phone
File Cabinet (wood) with Bookshelf on Top
Wardrobe
Conference Table - 2 Chairs
2 Side Chairs
Whiteboard with Doors
D-1
7. BREAKROOM
Double Sink
Dishwasher
Refrigerator
Table - 14 Chairs
8. OFFICE (PEGGY)
Desk/Credenza (new) - Chair - Phone
Conference Table - 3 Chairs
9. OFFICE (BD)
Desk - Chair - Phone
Credenza with Bookcase Top
Bookcase
3 Side Chairs
Whiteboard with Doors
10. OFFICE
Desk - Chair - Phone
Conference Table - 4 chairs
Whiteboard with Doors
11. OFFICE
Desk/Table - Chair - Phone
Credenza
3 Chairs
Whiteboard with Doors
12. OFFICE (TOUCHBERRY)
Desk/Table - Chair - Phone
Credenza
Conference Table - 3 Chairs
Whiteboard with Doors
13. CONFERENCE ROOM (CORNER)
Glass Top Table
12 Chairs
Phone - Phone Table
Panel Board
14. OFFICE (LARRY)
Desk/Table - Chair - Phone
Conference Table - 3 Chairs
4 Drawer Lateral File
1 Side Chair
D-2
15. 12X12 CUBICLES
5 Workstations
Chair - Phone
Overhead Bins - 2 Large, 1 Small
1 Side Chair
16. 15X20 CUBICLES
3 Workstations
Chair - Phone
Conference Table - 3 Chairs
Overhead Bins - 1 Large, 1 Small
17. CABINETS IN CUBICLE AREA
(Phone) 6 Double Doors (Top) 4 Lower Double Door Bottom Cabinets
18. PHONE - COMPUTER ROOM
HC x 5000 Hitachi PBX System with Rack
Computer/Monitor
Table - 4 Chairs - 2 Phones
Steel Cabinet
19. SMALL BREAKROOM
Single Sink - Wall Phone
Cabinets - 3 Overhead Doors 9 Bottom Doors
20. MAILROOM
Table
Cabinets - 10 Overhead Doors 10 Bottom Doors
Mail Sorting Cubicles
21. LARGE CONFERENCE ROOM
Beamer Computer Projection Mounted in Ceiling
Oval Conference Table 14 Sections
31 Conference Chairs
Panel Board
Phone
* The above list has been compiled by Carter at the request of Sublessor.
Neither Carter nor Sublessor make any representations as to the accuracy of
this information.
D-3
SUBLEASE EXHIBIT "E"
Consent to Sublease
This Consent to Sublease ("Agreement") dated ____, 2004, is made by and
among CORNERS REALTY CORPORATION, INC. ("Landlord"), a Delaware corporation,
having an address at 522 Fifth Avenue, Ninth Floor, New York, New York 10036,
_______________________ ("Tenant"), a ______________ corporation, having an
address at ______________________ and ________________ ("Subtenant"), a
corporation, having an address at______________________________________.
RECITALS
A. Landlord and Tenant entered into a certain Lease Agreement dated
(the "Lease"), for premises known as Suite _____ (the "Premises") on
the floor of the building known as The Corners Parkway, Norcross,
Georgia 30092 (the "Building").
B. Tenant has requested Landlord's consent to the subletting by Tenant
to Subtenant of that portion of the Premises shown hatched on the
plan attached as Exhibit D to this Agreement (the "Sublet
Premises").
C. Landlord is willing to consent to the subletting of the Sublet
Premises by Tenant to Subtenant, subject to all of the terms and
provisions contained in this Agreement.
ACCORDINGLY, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. Landlord hereby consents to the subletting of the Sublet Premises by
Tenant to Subtenant pursuant the agreement of sublease (the
"Sublease") annexed hereto as Exhibit B, but subject to the terms
and provisions of this Agreement.
2. This consent shall not be deemed a consent to the assignment of the
Lease or the Sublease, the further subletting of the Premises or the
Sublet Premises, or the alteration of the Premises or the Sublet
Premises. The Sublease may not be assigned, modified, amended, or
extended and the Premises and the Sublet Premises may not be altered
or further sublet in whole or in part without the prior written
consent of Landlord in each instance.
3. This consent shall not be construed to waive, modify, amend, or
affect (a) any of the terms or provisions of the Lease, (b) any of
Tenant's obligations under the Lease, or (c) any rights or remedies
of Landlord under the Lease. The terms and provisions of the Lease
shall continue to apply to the Premises, the Sublet Premises, and
their occupants, as if the Sublease had not been made.
E-1
4. This consent shall not be deemed to enlarge or increase any of
Landlord's obligations or Tenant's rights under the Lease or to
waive, release, or discharge any existing or future breach, default,
or liability of Tenant under the Lease. Tenant shall remain liable
and responsible for the full performance and observance of all of
the terms and provisions of the Lease on Tenant's part to be
observed or performed. If Tenant shall default in the payment of any
rent under the Lease, Landlord may collect any rents due or accruing
from Subtenant and apply the net amounts collected to the rents
reserved under the Lease, but the receipt by Landlord of such amount
from Subtenant shall not be deemed to release Tenant from its
obligations or liability under the Lease or to constitute Landlord's
acceptance of Subtenant as a direct Tenant.
5. The Sublease is and shall be at all times subject and subordinate to
the Lease and to all matters to which the Lease is subject and
subordinate. The Sublease also is and shall be subject to all of the
terms, covenants, agreements, provisions, and conditions of the
Lease. In any conflict between the provisions of the Lease and the
provisions of the Sublease, the provisions of the Lease shall
prevail.
6. Landlord makes no representation or warranty concerning the Lease,
the Sublease, the Premises, the Sublet Premises, the Building or any
matter or thing related to them. This Agreement shall not constitute
Landlord's approval or ratification of any of the provisions of the
Sublease and Landlord shall not be bound or estopped by any of the
provisions of the Sublease in any way.
7. Upon the expiration or any earlier termination of the term of the
Lease, or in case Landlord accepts surrender of the Lease by Tenant,
except as provided in the next sentence, the Sublease and its term
shall expire and come to an end as of the effective date of such
expiration, termination, or surrender and Subtenant shall vacate the
Sublet Premises on or before such date. If the Lease shall expire or
terminate during the term of the Sublease for any reason other than
condemnation or destruction by fire or other cause, or if Tenant
shall surrender the Lease to Landlord during the term of the
Sublease, Landlord, in its sole discretion, upon written notice
given to Tenant and Subtenant on or before the effective date of
such expiration, termination or surrender, without any additional or
further agreement of any kind on the part of Subtenant, may elect to
continue the Sublease as a direct lease between Landlord and
Subtenant (provided that the terms and provisions of the Lease shall
be deemed incorporated in the Sublease to the same extent as if the
Lease had not expired or terminated). In that event, Subtenant shall
attorn to Landlord and Landlord and Subtenant shall have the same
rights, obligations and remedies under the Sublease as Tenant and
Subtenant, respectively, had thereunder prior to such effective
date, except that Landlord shall not be (1) liable for any act,
omission, or default of Tenant under the Sublease or for the return
of all or any part of any security deposit not actually received by
Landlord (and Subtenant shall have no claim against any security
deposited under the Lease), or (2) subject to any offsets, claims,
or defenses that Subtenant had or might have against Tenant, or (3)
bound by any rent or
E-2
additional rent or other payment paid by Subtenant to Tenant in
advance, or (4) bound by any modification, amendment, or abridgment
of the Sublease made without Landlord's prior written consent. Upon
expiration of the Sublease pursuant to the provisions of the first
sentence of this Paragraph 7, if Subtenant shall fail to vacate the
Sublet Premises as provided in the Lease, Landlord shall have
against Subtenant all of the rights and remedies available against
Tenant under the Lease as well as the rights and remedies available
generally to a Landlord against a tenant holding over after the
expiration of a term.
8. Both the Tenant and Subtenant at all times shall be liable for all
bills rendered by Landlord for charges incurred by or imposed upon
Subtenant for services rendered and materials supplied to the Sublet
Premises.
9. Tenant represents that, as of the date hereof, all of the
obligations of Landlord under the Lease have been complied with and
performed by Landlord and any payments required to be made by
Landlord to Tenant under the Lease have been made.
10. Tenant and Subtenant each represents and warrants to Landlord that
the information supplied to Landlord by each of Tenant and Subtenant
in connection with obtaining this Consent to Sublease (including,
but not limited to, all summaries, financial statements, notices,
and other documents) is true and complete and that no consideration
has been or will be paid by Subtenant for or in connection with the
Sublease or the sale of any furniture, furnishings, fixtures, or
improvements in the Sublet Premises that has not been disclosed in
the Sublease. Also, Tenant and Subtenant each represents and
warrants to Landlord that Exhibit B is a complete and correct copy
of the Sublease and that there are no other agreements between them
relating to the Sublease, or the use or occupancy of the Sublet
Premises or the furniture, furnishings, fixtures, or improvements
therein. The representations and warranties contained in this
Paragraph 10 shall be deemed incorporated in the Lease and the
inaccuracy of any of such representations and warranties shall
constitute a default under the Lease entitling Landlord to exercise
any or all the remedies for default provided in the Lease or
otherwise available at law or in equity.
11. Any notice, demand, consent, approval, disapproval, or statement
(collectively, "Notices") given under the Lease or under this
Agreement shall be given in accordance with the terms of the Lease,
except that such Notices, if given to Tenant, shall be addressed to
Tenant only at its address first above set forth in this Agreement
and, if given to Subtenant, shall be addressed to Subtenant at its
address first set forth in this Agreement until Subtenant is in
occupancy at the Sublet Premises, and thereafter shall be addressed
to Subtenant only at the Building. A copy of all Notices given to
Landlord under this Agreement or under the Lease shall be given to
the attention of Kim Adams, Vice President, with copies to Trammell
Crow Company, 6525 The Corners Parkway, Suite 112, Norcross, Georgia
30092, attn: Property Manager. Landlord and Tenant each
E-3
may designate a different address for Notices to it in a Notice
given to the other parties under this Paragraph 11. Nothing
contained in this Paragraph 11 shall be deemed to require Landlord
to give any Notices to Subtenant under the Lease.
12. This Agreement shall not be effective until executed by each of
Landlord, Tenant and Subtenant.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first written above.
CORNERS REALTY CORPORATION, INC. as
Landlord
By: __________________________________
Kim Adams
Vice President
____________________________, as Tenant
By:____________________________________
Name:_________________________________
Title:________________________________
_________________________, as Subtenant
By:____________________________________
Name:_________________________________
Title:________________________________
This Agreement shall be governed and construed in accordance with Georgia law
without regard to conflicts of law rules. .
E-4
SUBLEASE EXHIBIT "C"
Floor Plan
[Architectural Schematic of Floor Space]
C-1
SUBLEASE EXHIBIT "D"
FF&E Inventory*
1. RECEPTION AREA
Chairs
Reception Desk - Cube
2 Phones 1 Rec. 1 Guest Area Chair - Security System for Back Doors and IS
Room
2. ADMINISTRATION WORK AREA
Chair
File Cabinet/3 Drawer
3. EXECUTIVE OFFICE (HEISER)
Desk/Table - Chair (leather) - Phone
Credenza
Conference Table - 4 Chairs
Leather Loveseat - 2 Leather Chairs
Typing Table Whiteboard with Doors
4. EXECUTIVE OFFICE (SCHMITT)
Desk/Table - Chair Leather - Phone
Credenza
Bookcase (wood)
2 Side Chairs
Conference Table - 4 Chairs
Typing Table
Whiteboard with Doors
5. CONFERENCE ROOM
Round Table
3 Chairs
Whiteboard with Doors
6. EXECUTIVE OFFICE (TEX)
Desk - Credenza with Top - Chair - Phone
File Cabinet (wood) with Bookshelf on Top
Wardrobe
Conference Table - 2 Chairs
2 Side Chairs
Whiteboard with Doors
D-1
7. BREAKROOM
Double Sink
Dishwasher
Refrigerator
Table - 14 Chairs
8. OFFICE (PEGGY)
Desk/Credenza (new) - Chair - Phone
Conference Table - 3 Chairs
9. OFFICE (BD)
Desk - Chair - Phone
Credenza with Bookcase Top
Bookcase
3 Side Chairs
Whiteboard with Doors
10. OFFICE
Desk - Chair - Phone
Conference Table - 4 chairs
Whiteboard with Doors
11. OFFICE
Desk/Table - Chair - Phone
Credenza
3 Chairs
Whiteboard with Doors
12. OFFICE (TOUCHBERRY)
Desk/Table - Chair - Phone
Credenza
Conference Table - 3 Chairs
Whiteboard with Doors
13. CONFERENCE ROOM (CORNER)
Glass Top Table
12 Chairs
Phone - Phone Table
Panel Board
14. OFFICE (LARRY)
Desk/Table - Chair - Phone
Conference Table - 3 Chairs
4 Drawer Lateral File
1 Side Chair
D-2
15. 12X12 CUBICLES
5 Workstations
Chair - Phone
Overhead Bins - 2 Large, 1 Small
1 Side Chair
16. 15X20 CUBICLES
3 Workstations
Chair - Phone
Conference Table - 3 Chairs
Overhead Bins - 1 Large, 1 Small
17. CABINETS IN CUBICLE AREA
(Phone) 6 Double Doors (Top) 4 Lower Double Door Bottom Cabinets
18. PHONE - COMPUTER ROOM
Table - 4 Chairs - 2 Phones
Steel Cabinet
19. SMALL BREAKROOM
Single Sink - Wall Phone
Cabinets - 3 Overhead Doors 9 Bottom Doors
20. MAILROOM
Table
Cabinets - 10 Overhead Doors 10 Bottom Doors
Mail Sorting Cubicles
21. LARGE CONFERENCE ROOM
Beamer Computer Projection Mounted in Ceiling
Panel Board
Phone
D-3
BIANCO HOPKINS & ASSOCIATES FF&E
The following items will be left in Suite 100 of the Premise for an undetermined
period of time, but not beyond the earlier to expire of the term of this
Sublease, the term of the First Sublease or the Master Lease. At any time
throughout the duration of this Sublease Sublessor at its sole discretion will
have the right to remove any or all of these items in Suite 100 provided that
Sublessor gives Sublessee reasonable prior notice and conducts such removal at a
mutually agreeable time designed to avoid disruption of Sublessee's business.
ADMINISTRATIVE WORK AREA & HALL
Artwork P1-P3, P6-P8
F1 Four drawer file cabinet
F2 Bookshelf
F3 Two drawer file cabinet
F4 Credenza
F5 Executive desk
F6 Executive chair - gray
F7 Storage rack in closet
F8 Safe
EXECUTIVE OFFICE (MARKHAM)
Artwork P4-P5
F9 Lamp
F10-F11 Rolling racks (silver)
EXECUTIVE OFFICE (HOPKINS)
Artwork P9-P20
F12 Glass book case
F13 Coat rack
F14 Black Lamp
F15-F16 Book shelves
F17 Mini refrigerator
F18-F23 Conference table chairs
F24 Executive chair
F25 Glass conference table
HALL (OUTSIDE OF EXECUTIVE OFFICES)
Artwork P21-P31
EXECUTIVE OFFICE (PICKLESIMER)
F29 Round conference table
BREAKROOM
F30 Coffee machine
F31 Coffee canister
F32 Microwave
D-4
F33 Toaster
F34 Coffee canister
F35 Table
F36-F41 Chairs
F42 Large refrigerator
F43-F45 Chairs
F46 Water cooler/dispenser
F47 Ice machine
F48 Clock
F78 Trash can - gray
EXECUTIVE OFFICE (HAGOOD)
F49-F50, F52 Bookshelves
F51 Plant (tree)
GUEST 1 CUBICLE
F53 Two drawer file
F54 Air purifier
OPEN AREA (OUTSIDE OF GUEST CUBICLES)
F55-F60 Bookshelves
F61 Small serving table
F79 Conference table
F80-F86 Chairs - mauve
F88 Printer table
GUEST 2 CUBICLE
F62 Four drawer file
F63 Executive chair - gray
F64 Chair - black
GUEST 3 CUBICLE
F91-F93 Tables - gray
SUPPLY CLOSET
F94 Large supply cabinet
F95 Four drawer file cabinet
CUBICLE (ENG)
F87 Two drawer file cabinet
CUBICLE (BELDING)
F89 Two drawer file cabinet
CUBICLE (WHITMIRE)
F90 Two drawer file cabinet
D-5
EXECUTIVE OFFICE (CHODROW)
F65, F67-F68 Chairs - black
F66 Bookshelf
F69 Small round table
EXECUTIVE OFFICE (THROPP)
F70 Executive chair - gray
F71-F72 Chairs - mauve
EXECUTIVE OFFICE (FLY)
F73 Executive chair - gray
F74 Two drawer file cabinet
OPEN AREA (OUTSIDE OF JOHNSON CUBICLE)
F75-F76 Four drawer file cabinets
F77 Printer table
COPY/SUPPLY AREA
Artwork P32-P34
F96 Storage shelving
F97 Three drawer file cabinet
F98 Small bookshelf
F99-F101 Tables - gray
F102 Air purifier
CUBICLE (UNER)
F103 Small bookshelf
F104 Two drawer file cabinet
CUBICLE (VITI)
F105-F106 Two drawer file cabinets
CUBICLE (NOE)
F107 Round conference table
F108 Chair - black
F109 Chair - gray
F110-F111 Plants
CUBICLE (RICKARDS)
F112 Chair - black
CUBICLE (NIETO)
F113 Chair - black
F114 Bookshelf
F115-F116 Chair - black
D-6
CUBICLE (JOHNSON)
F117 Chair - gray
F118 two drawer file cabinet
F119 Air purifier
CUBICLE (ANDERSON)
F120 Two drawer file cabinet
CUBICLE (HEATH)
F121 Two drawer file cabinet
SERVER ROOM HALL
Artwork P35
TRAINING ROOM HALL
Artwork P36-P50
RECEPTION AREA
Artwork P51-P55
F122 Chair - Grey
EXECUTIVE RESTROOM
F123 White storage unit
MAIN CONFERENCE ROOM
Artwork P56
F26 Small serving table
F27 Sharp overhead projector
F28 Projection screen
COMPUTER ROOM
Intertel Phone System
Servers & computer equipment
All plastic chair mats
D-7
SUBLEASE EXHIBIT "E"
Consent to Sublease
This Consent to Sublease ("Agreement") dated April 20th 2005, is made by
and among CORNERS REALTY CORPORATION, INC. ("Corners Realty"), a Delaware
corporation, having an address at 522 Fifth Avenue, Ninth Floor, New York, New
York 10036, HITACHI ELECTRONIC DEVICES (USA), INC. ("Hitachi"), a South Carolina
corporation, having an address at 575 Mauldin Road, Greenville, SC, Internet
Commerce Corporation ("Sublessor"), a Delaware corporation, having an address at
6801 Governors Lake Pkwy., Suite 100, Atlanta, Georgia 30071, and Bianco Hopkins
& Associates ("Sublessee"), a Georgia corporation, having an address at 6025 The
Corners Parkway, Norcross, Georgia 30092.
RECITALS
A. Corners and Hitachi entered into a certain Lease Agreement dated
March 27, 2003 (the "Lease"), for premises known as Suite 100 (the
"Premises") on the floor of the building known as 6025 The Corners
Parkway, Norcross, Georgia 30092 (the "Building").
B. Hitachi and Sublessor subsequently entered into a certain Sublease
Agreement dated March 17, 2004 (the "First Sublease"), for the
Premises.
C. Sublessee and Sublessor subsequently entered into a certain Second
Sublease Agreement dated May 2nd, 2005 (the "Second Sublease"), for
the Premises.
D. Sublessor has requested Corners Realty's consent to the subletting
by Sublessor to Sublessee of that portion of the Premises shown
hatched on the plan attached as Exhibit A to this Agreement (the
"Sublet Premises").
E. Corners Realty and Hitachi are willing to consent to the subletting
of the Sublet Premises by Sublessor to Sublessee, subject to all of
the terms and provisions contained in this Agreement.
ACCORDINGLY, in consideration of the mutual covenants herein contained,
the parties agree as follows:
1. Corners Realty and Hitachi hereby consent to the subletting of the
Sublet Premises by Sublessor to Sublessee pursuant the agreement of
the Third Sublease Agreement (the "Sublease") annexed hereto as
Exhibit B, but subject to the terms and provisions of this
Agreement.
2. This consent shall not be deemed consent to the assignment of the
Lease, the First Sublease, the Second Sublease or the Sublease, the
further subletting of the
E-1
Premises or the Sublet Premises, or the alteration of the Premises
or the Sublet Premises.
3. This consent shall not be construed to waive, modify, amend, or
affect (a) any of the terms or provisions of the Lease, (b) any of
Hitachi's obligations under the Lease, or (c) any rights or remedies
of Corners Realty under the Lease. The terms and provisions of the
Lease shall continue to apply to the Premises, the Sublet Premises,
and their occupants, as if the Sublease had not been made.
4. This consent shall not be deemed to enlarge or increase any of
Corner Realty's obligations or Hitachi's rights under the Lease or
to waive, release, or discharge any existing or future breach,
default, or liability of Hitachi under the Lease. Hitachi shall
remain liable and responsible for the full performance and
observance of all of the terms and provisions of the Lease on
Hitachi's part to be observed or performed. If Hitachi shall default
in the payment of any rent under the Lease, Corners Realty may
collect any rents due or accruing from Sublessee and apply the net
amounts collected to the rents reserved under the Lease, but the
receipt by Corners Realty of such amount from Sublessee shall not be
deemed to release Hitachi from its obligations or liability under
the Lease or to constitute Corners Realty's acceptance of Sublessee
as a direct tenant.
5. The Sublease is and shall be at all times subject and subordinate to
the Lease and to all matters to which the Lease is subject and
subordinate. The Sublease also is and shall be subject to all of the
terms, covenants, agreements, provisions, and conditions of the
Lease. In any conflict between the provisions of the Lease and the
provisions of the Sublease, the provisions of the Lease shall
prevail.
6. Corners Realty makes no representation or warranty concerning the
Lease, the Sublease, the Premises, the Sublet Premises, the Building
or any matter or thing related to them other than that all payments
of rent now due under the Lease have been received by Corners
Realty. This Agreement shall not constitute Corners Realty's
approval or ratification of any of the provisions of the Sublease
and Corners Realty shall not be bound or estopped by any of the
provisions of the Sublease in any way.
7. Upon the expiration or any earlier termination of the term of the
Lease or the First Sublease, or in case Corners Realty accepts
surrender of the Lease by Hitachi or Hitachi accepts surrender of
the First Sublease by Bianco, except as provided in the next
sentence, the Sublease and its term shall expire and come to an end
as of the effective date of such expiration, termination, or
surrender and Sublessee shall vacate the Sublet Premises on or
before such date. If the Lease or the First Sublease shall expire or
terminate during the term of the Sublease for any reason other than
condemnation or destruction by fire or other cause, or if Hitachi
shall surrender the Lease to Corners Realty or Bianco shall
surrender of the First Sublease to Hitachi during the term of the
Sublease, Corners Realty or Hitachi, as applicable, in its sole
discretion, upon written notice given to Hitachi, Bianco and
E-2
Sublessee on or before the effective date of such expiration,
termination or surrender, without any additional or further
agreement of any kind on the part of Sublessee, may elect to
continue the Sublease as a direct lease between Corners Realty and
Sublessee or as a direct sublease between Hitachi and Sublessee, as
applicable (provided that the terms and provisions of the Lease and
the First Sublease shall be deemed incorporated in the Sublease to
the same extent as if the Lease or the First Sublease, as
applicable, had not expired or terminated). In that event, Sublessee
shall attorn to Corners Realty or Hitachi, as applicable, and
Corners Realty or Hitachi, as applicable, and Sublessee shall have
the same rights, obligations and remedies under the Sublease as
Hitachi or Sublessor, as applicable, and Sublessee, respectively,
had thereunder prior to such effective date, except that Corners
Realty or Hitachi, as applicable, shall not be (1) liable for any
act, omission, or default of Hitachi or Sublessor, as applicable,
under the Sublease or for the return of all or any part of any
security deposit not actually received by Corners Realty or Hitachi,
as applicable (and Sublessee shall have no claim against any
security deposited under the Lease), or (2) subject to any offsets,
claims, or defenses that Sublessee had or might have against Hitachi
or Sublessor, or (3) bound by any rent or additional rent or other
payment paid by Sublessee to Hitachi or Sublessor, as applicable, in
advance, or (4) bound by any modification, amendment, or abridgment
of the Sublease made without Corners Realty's prior written consent.
Upon expiration of the Sublease pursuant to the provisions of the
first sentence of this Paragraph 7, if Sublessee shall fail to
vacate the Sublet Premises as provided in the Lease, Corners Realty
shall have against Sublessee all of the rights and remedies
available against Hitachi under the Lease or against Sublessor under
the First Sublease as well as the rights and remedies available
generally to a Corners Realty against a tenant holding over after
the expiration of a term.
8. Each of Hitachi, Sublessor and Sublessee at all times shall be
liable for all bills rendered by Corners Realty for charges incurred
by or imposed upon Sublessee for services rendered and materials
supplied to the Sublet Premises.
9. Each of Hitachi and Sublessor represents that, as of the date
hereof, all of the obligations of Corners Realty under the Lease
have been complied with and performed by Corners Realty and any
payments required to be made by Corners Realty to Hitachi or
Sublessor or by Hitachi or Sublessor to Corners Realty or Hitachi
under the Lease have been made.
10. Hitachi, Sublessor and Sublessee each represents and warrants to
Corners Realty that the information supplied to Corners Realty by
each of Hitachi, Sublessor and Sublessee in connection with
obtaining this Consent to Sublease (including, but not limited to,
all summaries, financial statements, notices, and other documents)
is true and complete and that no consideration has been or will be
paid by Sublessee for or in connection with the Sublease or the sale
of any furniture, furnishings, fixtures, or improvements in the
Sublet Premises that has not been disclosed in the Sublease. Also,
Sublessor and Sublessee each represents and
E-3
warrants to Corners Realty that Exhibit B is a complete and correct
copy of the Sublease and that there are no other agreements between
them relating to the Sublease, or the use or occupancy of the Sublet
Premises or the furniture, furnishings, fixtures, or improvements
therein. The representations and warranties contained in this
Paragraph 10 shall be deemed incorporated in the Lease and the
inaccuracy of any of such representations and warranties shall
constitute a default under the Lease entitling Corners Realty to
exercise any or all the remedies for default provided in the Lease
or otherwise available at law or in equity.
11. Any notice, demand, consent, approval, disapproval, or statement
(collectively, "Notices") given under the Lease or under this
Agreement shall be given in accordance with the terms of the Lease,
except that such Notices, if given to Hitachi, shall be addressed to
Hitachi only at its address first above set forth in this Agreement
and, if given to Sublessee, shall be addressed to Sublessee at its
address first set forth in this Agreement until Sublessee is in
occupancy at the Sublet Premises, and thereafter shall be addressed
to Sublessee only at the Building. A copy of all Notices given to
Corners Realty under this Agreement or under the Lease shall be
given to the attention of Kim Adams, Vice President, with copies to
Trammell Crow Company, 6525 The Corners Parkway, Suite 112,
Norcross, Georgia 30092, attn: Property Manager. Corners Realty and
Hitachi each may designate a different address for Notices to it in
a Notice given to the other parties under this Paragraph 11. Nothing
contained in this Paragraph 11 shall be deemed to require Corners
Realty to give any Notices to Sublessee under the Lease.
12. This Agreement shall not be effective until executed by each of
Corners Realty, Hitachi, Sublessor and Sublessee.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and
year first written above.
CORNERS REALTY CORPORATION, INC.,
as Lessor
By: /s/ Kim Adams
---------------------------------
Kim Adams
Vice President
E-4
HITACHI ELECTRONIC DEVICES (USA),
INC. ("Hitachi"), as Tenant
By: /s/ Lawrence W. Davis, Jr.
-------------------------------
Name: Lawrence W. Davis, Jr.
Title: V.P, Gen. Mg. Corp. Officer
BIANCO HOPKINS & ASSOCIATES, as
Sublessor
By: /s/ Rosalie Hopkins
-------------------------------
Name: Rosalie Hopkins
Title: President
INTERNET COMMERCE CORPORATION, as
Sublessee
By: /s/ Glen E. Shipley
-------------------------------
Name: Glen E. Shipley
Title: Chief Financial Officer
This Agreement shall be governed and construed in accordance with Georgia law
without regard to conflicts of law rules.
E-5