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EXHIBIT 10.1
TWO PARKWAY CENTER
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), dated as of 11/8, 1990, made by and
between Two Park, Inc., having La Salle Partners Asset Management Limited, a
Delaware limited partnership, as its duly authorized Agent (the "Landlord") and
E3 Associates, Ltd. (the "Tenant").
W I T N E S S E T H:
I.
DEFINITIONS
Landlord and Tenant covenant and agree that for purposes of this Lease,
the following terms as indicated by the initial capitalization thereof, shall
have the meanings specified below for each:
1.1 Base Rental. The Base Rental to be paid by Tenant to Landlord
as annual rent during the Lease Term shall be the Amount specified in Special
Stipulations 1 and 2 subject to increase under Paragraph 4.2 hereof.
1.2 Commitment Deposit. [Intentionally Omitted].
1.3 Premises. Terms used in defining Premises are:
(a) The term "Building" shall mean 1800 Parkway Place located
in the City of Marietta, Cobb County, Georgia.
(b) The term "Premises" shall mean the portion of the Building
located on floor six, Suite 600 which is outlined on the floor plan(s) attached
hereto as Exhibit A.
1.4 Rentable Area of the Premises. The term "Rentable Area of the
Premises" shall mean 12,147 square feet.
1.5 Security Deposit. Twenty Two Thousand Two Hundred and Sixty
Nine and 50/100 Dollars ($22,269.50).
1.6 Tenant's Percentage Share of Increases In Operating Expenses.
Terms used in defining Tenant's Percentage Share of Increases in Operating
Expenses are:
(a) The Rentable Area of the Building is 227,003 square feet.
(b) The term "Tenant's Percentage Share" means 5.351 percent.
Landlord and Tenant acknowledge that Tenant's Percentage Share has been obtained
by dividing the Rentable Area of the Premises by the Rentable Area of the
Building, and multiplying such quotient by 100.
(c) The term "Base Year" shall mean 1990.
(d) The term "Operating Expenses" as used in this Lease shall
mean the following costs, expenses, and taxes:
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(i) Costs and expenses paid or incurred by
Landlord for the maintenance and repair of the Building and the personal
property used in-connection therewith, including but not limited to (A) the
heating, ventilating, and air conditioning equipment, (B) plumbing and
electrical systems and equipments, (C) light bulbs and broken glass, including
replacement thereof, and (D) elevators and escalators;
(ii) Cleaning and janitorial costs and expenses,
including window cleaning expenses, for the Building;
(iii) Landscaping and grounds maintenance costs
and expenses;
(iv) Utility costs and expenses including, but not
limited to, electricity, gas, steam, other fuels and forms of power or energy,
water charges, sewer and waste disposal;
(v) Costs and expenses of redecorating, painting,
and carpeting the common areas of the Building; provided, however, that, except
as specified in items (vi) and (x) hereof, the cost of structural changes to
the Building which should be capitalized in accordance with sound accounting
principles shall not be allocated or charged to the Premises;
(vi) Costs of all repairs, alterations, additions,
changes, replacements, and other items required by any law or governmental
regulation imposed after the date of this Lease, regardless of whether such
costs, when incurred, are classified as capital expenditures;
(vii) Cost of wages and salaries of all persons
engaged in the operation, maintenance and repair of the Building, and so-called
fringe benefits, including social security taxes, unemployment insurance taxes,
costs for providing coverage for disability benefits, cost of any pensions,
hospitalization, welfare or retirement plans, or any other similar or like
expense incurred under the provisions of any collective bargaining agreement,
costs of uniforms, and all other costs reasonable or expenses that the Landlord
pays to or on behalf of the employees engaged in the operation, maintenance and
repair of the Building;
(viii) Charges of any independent contractor who,
under contract with the Landlord or its manager or representative, does any of
the work of directly operating, maintaining or repairing the Building or of
providing any of the services and materials described in this Paragraph 1.6(d);
(ix) Reasonable Legal and accounting expenses,
including, but not limited to, such expenses as related to seeking or obtaining
reductions in and/or refunds of real estate taxes;
(x) Amortization, with interest, of capital
expenditures for capital improvements made by Landlord after completion of the
Building where such capital improvements are for the purpose of, or result in,
reducing Operating Expenses;
(xi) Landlord's reasonable insurance costs and
expenses for all types of insurance carried by Landlord with respect to the
Building;
(xii) Reasonable Security service costs and
expenses;
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(xiii) Reasonable Management fees and expenses;
(xiv) Such other reasonable expenses paid by
Landlord, from time to time, in connection with the operation and maintenance of
the Building as are typically incurred by an operator and manager of a building
comparable to the Building, except that all costs of special services rendered
to particular tenants of the Building, which are paid by such tenants, shall not
be included in Operating Expenses; and
(xv) The following taxes: (A) personal property taxes
(attributable to the year in which paid) imposed upon the furniture, fixtures,
machinery, equipment, apparatus, systems, and appurtenances used in connection
with the Building for the operation thereof, and (B) real estate taxes,
assessments, sewer rents, rates, and charges, transit taxes, taxes based upon
the receipt of rent and any other federal, state, or local governmental charge,
general, special, ordinary, or extraordinary (but not including income or
franchise taxes or any other taxes imposed upon or measured by Landlord's income
or profits, unless the same shall be imposed in lieu of real estate taxes) which
may now or hereafter be levied or assessed against the Building and the land
underlying the Building or the rents derived from the Building (in the case of
special taxes or assessments which may be payable in installments, only the
amount of 'each installment paid during a calendar year shall be included in the
taxes for that year).
(e) The term "Base Operating Expenses" shall mean the
Operating Expenses paid or incurred by Landlord in the Base Year. If the
Building was not ninety-five percent (95%) occupied throughout the Base Year,
then the Base Operating Expenses shall be an amount which fairly reflects what
the Operating Expenses would have been had the Building been ninety-five percent
(95%) occupied throughout the Base Year.
1.7 Lease Term. The Lease Term shall commence on December 1, 1990
(which shall be referred to herein as the "Commencement Date") and shall end at
midnight on November 30, 1995 (which shall be referred to herein as the
"Expiration Date").
1.8 Notice Addresses.
As to Landlord: With Copy to:
Two Park, Inc. LaSalle Partners Asset Management Limited
c/o LaSalle Advisors, Ltd. One Parkway Center
111 South LaSalle Street 1850 Parkway Place, Suite 327
Chicago Illinois 60603 Marietta, Georgia 30067
Attn: Portfolio Manager
As to Tenant:
E3 Associates, Ltd.
1800 Parkway Place, Suite 235
Marietta, Georgia 30067
ATTN: Chairman
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II.
TERM
2.1 Premises. Landlord, in consideration of the covenants and
agreements to be performed by Tenant, and upon and subject to the terms and
conditions of this Lease, does hereby rent and lease unto Tenant, and Tenant
does hereby rent and lease the Premises from Landlord for the Lease Term. This
Lease shall create the relationship of landlord and tenant between Landlord and
Tenant; no estate shall pass out of Landlord, and Tenant has only a usufruct
which is not subject to levy and sale.
2.2 Term. Tenant takes and accepts the Premises from Landlord in its
present condition and as suited for the use intended by Tenant, except for such
improvements as may be expressly provided for in the Tenant Improvement
Agreement, referenced in Paragraph 5.1 which is incorporated herein by this
reference. If, for any reason whatsoever the Premises are not substantially
completed by the Commencement Date or if Landlord, for any reason whatsoever,
cannot deliver possession of the Premises to Tenant by the Commencement Date,
this Lease shall not be void or voidable, nor shall Landlord be liable to Tenant
for any resulting loss or damages resulting therefrom. No delay in delivery of
possession or extension of the Commencement Date shall operate to extend the
Expiration Date or to relieve Tenant of Tenant's obligations to Landlord as
provided in this Lease. In the event the Premises are not completed on December
1, 1990 due solely to the fault of Landlord or it's agents, without any
contributing delays of Tenant, then both the Commencement Date and Expiration
Date shall be extended by the number of days occurring between December 1, 1990
and the date the Premises are completed and actually made available for Tenant's
occupancy.
2.3 Removal of Tenant's Personal Property. Before the termination of
this Lease, Tenant shall remove from the Premises all its personal property
located in the Premises which this Lease allows Tenant to remove and peaceably
surrender such Premises and the keys thereto to Landlord in the same condition
as at the beginning of this Lease, only natural wear and tear excepted. Tenant
shall have no right to remove any fixtures, improvements, or attached equipment
(except those installed by Tenant, and Tenant is required to repair any damage
resulting from any such removal) from the Premises at the termination of this
Lease, and said items shall be deemed the property of Landlord. Such property of
Tenant as it fails to remove either from the Premises or the Building after the
termination of this Lease shall be considered as abandoned by Tenant and may be
disposed of by Landlord in any manner whatsoever without accounting to Tenant
for same or being liable in any way to Tenant for such disposition.
2.4 Holding over. In no event shall there by any renewal of this Lease
by operation of law, and if Tenant remains in possession of the Premises after
the termination of this Lease and without a new lease executed by Landlord and
Tenant, Tenant shall be deemed to be occupying the Premises as a Tenant at
sufference at an amount equal to one hundred and fifty percent (150%) of the
Base Rental and additional rent provided for in this Lease and otherwise subject
to all the covenants and provisions of this Lease insofar as the same are
applicable to a month-to-month tenancy.
2.5 Tenant Acceptance Agreement. Within twenty (20) days after the
Premises have been substantially completed in accordance with the Tenant
Improvement Agreement, Tenant will execute and deliver to Landlord a Tenant
Acceptance Agreement in the form attached hereto as Exhibit "B". Tenant may
state in such Tenant Acceptance Agreement any defects in the Premises remaining
to be repaired or completed by Landlord, and Tenant, by such declaration, shall
preserve its objection to such listed
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defects. Tenant shall have waived objection to any defects not specifically
enumerated in a Tenant Acceptance Agreement delivered within said twenty (20)
day period, except for latent defects not discoverable by reasonable diligence
of Tenant.
III.
ASSIGNMENT AND SUBLETTING
3.1 Assignment and Subletting Procedures.
(a) The Tenant shall not, without the Landlord's prior written
consent, (i) assign, convey, mortgage, pledge, encumber, or otherwise transfer
(whether voluntarily, by operation of law, or otherwise) this Lease or any
interest under it; (ii) allow any transfer thereof or any lien upon Tenant's '
interest by operation of law; (iii) sublet the Premises or any part thereof; and
(iv) permit the use or occupancy of the Premises or any part thereof by anyone
other than Tenant, and any attempt to consummate any of the foregoing without
Landlord's consent shall be void.
(b) Notwithstanding anything herein to the contrary, if at any
time or from time to time during the Lease Term, Tenant desires to sublet the
Premises or assign the Lease with respect to all or part of the Premises, Tenant
shall notify Landlord in writing (hereinafter referred to in this Paragraph
3.1(b) as the "Notice") of the terms of the proposed subletting or assignment,
the identity of the proposed assignee or sublessee, the area proposed to be
sublet or covered by the assignment, and such other information as Landlord may
request, to evaluate Tenant's request to assign or sublet. Landlord shall then
have the option either (i) to sublet from Tenant such space (hereinafter
referred to as "Sublet Space") as provided in Paragraph 3.1(c) below; (ii) to
terminate this Lease as provided in Paragraph 3.1(d) below; or (iii) to review
such proposed assignment or sublease for approval as set forth below in
Paragraph 3.1(e) below. The option to sublet, to terminate, or to review, as the
case may be, shall be exercisable by Landlord in writing within a period of
thirty (30) calendar days after receipt of the Notice.
(c) In the event Landlord exercises the option to sublet the
Sublet Space provided under Paragraph 3.1(b)(i) above, then (i) Landlord shall
sublet the Sublet Space at the same Base Rental and additional rent as Tenant is
required to pay under this Lease for the same space; and (ii) the term of the
subletting from the Tenant to Landlord shall be the term set forth in the Notice
(which shall not be longer than the then current Lease Term unless Landlord
expressly agrees in writing that any extension or renewal option contained in
this Lease will apply to such Sublet Space) and shall be on such terms and
conditions as are contained in this Lease to the extent applicable, except that
the Landlord shall have the right to further sublet the Sublet Space.
(d) If Landlord elects to terminate this Lease under Paragraph
3.1(b)(ii) then, (i) if the Sublet Space constitutes the entire Premises, then
this Lease shall terminate on the date set forth in Landlord's notice to Tenant,
which shall be within thirty (30) to ninety (90) days after the date of such
notice; and (ii) if the Sublet Space does not constitute the entire Promises,
then this Lease shall terminate as to that portion of the Premises which is the
Sublet Space on the date set forth in Landlord's notice to Tenant (which date
shall be within thirty (30) to ninety (90) days after the date of such notice)
and as to that portion of the Premises which is not part of the Sublet Space,
this Lease shall remain in full force and effect except that the Base Rental and
additional rent shall be reduced proportionately based on the reduction in the
Rentable Area of the Premises remaining subject to the Lease.
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(e) If Landlord fails to exercise either its option to sublet
or its option to terminate the Lease as set forth above within the said thirty
(30) day period or elects to review the proposed assignment or sublease for
approval, Tenant shall submit to Landlord within twenty (20) calendar days after
said period a copy of the proposed assignment or sublease and such additional
information concerning the proposed assignee or sublessee, as may be reasonably
requested by Landlord for Landlord's review. If Landlord, in its sole
discretion, approves in writing the terms of the proposed assignment or sublease
and the proposed assignee or sublessee, but a fully executed counterpart of such
assignment or sublease is not delivered to Landlord within sixty (60) calendar
days after the date of Landlord's written approval, then Landlord's approval of
the proposed assignment or sublease shall be deemed null and void and Tenant
shall subsequently comply with all the conditions of this Paragraph 3.1 as if
the Notice and options hereinabove referred to had not been given and received.
(f) Notwithstanding the giving by Landlord of its consent to
any assignment or sublease with respect to the Premises, no assignee or
sublessee may exercise any expansion option, right of first refusal option, or
renewal option under this Lease except in accordance with a separate written
agreement entered into directly between such assignee or sublessee and Landlord.
(g) Tenant agrees to pay to Landlord, on demand, reasonable
costs incurred by Landlord not to exceed $500.00 in connection with any request
by Tenant for Landlord to consent to any assignment or subletting by Tenant.
(h) Any transfer after the date hereof, whether to one or more
persons or entities and whether at one or more different times, of a controlling
interest in Tenant (regardless whether Tenant is a corporation, partnership, or
other entity), whether voluntarily, by operation of law, or otherwise, shall
deemed an assignment of this Lease within the meaning of this Paragraph 3.1.
(i) If, with the consent of the Landlord, this Lease is
assigned or the Premises or any part thereof is sublet or occupied by anybody
other than Tenant, Landlord may, after default by Tenant, collect rent from the
assignee, subtenant or occupant, and apply the net amount collected to the Base
Rental and additional rent herein reserved, but no such assignment, subletting,
occupancy, or collection shall be deemed (i) a waiver of any of Tenant's
covenants contained in this Lease, (ii) the acceptance by Landlord of the
assignee, subtenant, or occupant as Tenant, or (iii) a release of Tenant from
further performance by Tenant of its covenants under this Lease.
IV.
RENT, RENT ADJUSTMENT, AND DEPOSITS
4.1 Base Rental. Tenant shall pay the Base Rental to Landlord as annual
rent during the Lease Term without prior demand or setoff. The Base Rental shall
be paid in equal monthly installments in advance on the first day of every
calendar month during the Lease Term. A prorated monthly installment, based on a
thirty (30) day month, shall be paid in advance (i) on the Commencement Date for
any fraction of a month if the Lease Term begins on any day other than the first
day of any month and (ii) on the first day of the final month of the Lease Term
for any fraction of a month if the Lease Term shall terminate on any day other
than the last day of any month.
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4.2 Base Rental Adjustment During the Lease Term.
(a) The amount of the Base Rental specified in Section 1.1 of
this Lease shall be increased at the end of each calendar year during the Lease
Term for the following calendar year effective January 1 of said year by an
amount equal to the product computed by multiplying the then in force Base
Rental times fifty percent (50%) of the percentage increase in the Index for the
month of December of the immediately preceding calendar year. As soon as
reasonably practicable after each December 31 during the Lease Term, Landlord
shall prepare a statement reflecting the computations outlined above and the
resulting new amount of Base Rental, which shall become effective with the next
due monthly installment of Base Rental and shall remain in effect until the next
adjustment pursuant to this Paragraph 4.2 is made. Within ten (10) days
following receipt of Landlord's statement, Tenant agrees to pay the increases in
Base Rental which accrued from January 1 during preparation of said statement.
In the event the Index for December of the year of proposed adjustment is less
than the Index for December of the immediately preceding calendar year, then
there shall be no adjustment to Base Rental for that calendar year, but Base
Rental (as previously adjusted) shall remain in effect until the following
December at which time (and at each subsequent December) this Paragraph 4.2
shall be applied to adjust Base Rental as set forth above.
(b) "Index" shall be the Consumer Price Index for all Urban
Consumers published by the Bureau of Labor Statistics of the U.S. Department of
Labor, U.S. City Average All Items (1982-84=100), or any successor or substitute
index designated by Landlord, appropriately adjusted.
(c) The amounts by which the Base Rental is increased pursuant
to this Paragraph shall be deemed to thereafter be a part of "Base Rental" for
all purposes whatsoever under this Lease and a part of the rent and
consideration for this Lease and to be payable in a like manner to the initial
Amount of Base Rental specified herein.
4.3 Reimbursement for Increases in Operating Expenses.
(a) For each calendar year during the Lease Term, commencing
with the first full calendar year during the Lease Term (each such calendar year
being hereinafter in this Paragraph 4.3 referred to as an "Adjustment Year"),
Tenant shall pay to Landlord, as additional rent, an amount equal to Tenant's
Percentage Share of the total dollar increase, if any, in Operating Expenses
paid or incurred by Landlord in such Adjustment Year over the Base Operating
Expenses.
(b) During December of the year prior to the Adjustment Year,
or as soon thereafter as practicable, Landlord shall give Tenant written notice
of its estimate of any amount payable by Tenant under this Paragraph 4.3 for the
Adjustment Year. On or before the first day of each month during the Adjustment
Year, Tenant shall pay to Landlord 1/12th of such estimated amount, provided
that if such notice is not given in December Tenant shall continue to pay the
monthly installment amount, if any, which was paid or payable in December until
the month after such notice is given, in which event the estimated amount shall
be paid in equal monthly installments over the remainder of the Adjustment Year.
If at any time or times it appears to Landlord that the amount payable by Tenant
under this Paragraph 4.3 for the Adjustment Year will vary from Landlord's
estimate by more than five percent (5%), Landlord may, by notice to Tenant,
revise its estimate for such year and subsequent payments by Tenant for such
year shall be based on such revised estimate; provided, however, the Landlord
shall have no obligation to revise its estimate during an Adjustment Year.
Within ninety (90) days after the close of each Adjustment Year or as soon after
such ninety (90) day period as practicable, Landlord shall deliver to Tenant a
statement of Tenant's actual share of the increase, if any, in Operating
Expenses for such
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Adjustment Year prepared by Landlord, and such statement shall be final and
binding upon Landlord and Tenant. If on the basis of such statement Tenant owes
an amount that is less than the estimated payments for such Adjustment Year
previously made by Tenant, Landlord shall apply such excess to the amounts of
Base Rental next coming due, without interest. If upon the basis of such
statement Tenant owes an amount that is more than the estimated payments for
such Adjustment Year previously made by Tenant, Tenant shall pay the deficiency
to Landlord within thirty (30) days after delivery of the statements. In order
to achieve a fair and equitable allocation of Operating Expenses under this
Paragraph 4.3, in the event less than ninety-five percent (95%) of the Rentable
Area of the Building shall have been occupied by tenants continuously throughout
an Adjustment Year of the Lease Term, then Operating Expenses for such
Adjustment Year shall be adjusted and be deemed to be the amount of operating
Expenses which would have been incurred if ninety-five percent (95%) of the
Building were so occupied during said Adjustment Year.
(c) in the event that this Lease terminates before the end of
a calendar year, then Landlord shall deliver to Tenant, within ninety (90) days
after the close of the Adjustment Year or as soon thereafter as practicable, a
statement of Tenant's Percentage Share of the increase, if any, in the actual
Operating Expenses (as prorated for said Adjustment Year based on the
termination date of the Lease) and such statement shall be final and binding
upon Landlord and Tenant. If, on the basis of such statement, Tenant owes an
amount that is less than the estimated payments for such partial Adjustment Year
previously made by Tenant after the Expiration Date, Landlord shall within
thirty (30) days refund such excess to Tenant, without interest. If on the basis
of such statement, Tenant owes an amount that is more than the estimated
payments for such partial Adjustment Year previously made by Tenant after the
Expiration Date, Tenant shall pay the deficiency to Landlord within thirty (30)
days after delivery of such statement. The termination of this Lease shall not
affect the obligations of Landlord and Tenant pursuant to this Paragraph 4.3 to
be performed after such termination and the failure to pay any additional rents
as provided under this Paragraph 4.3 shall entitle Landlord to all remedies
provided herein and at law or in equity on account of Tenant's failure to pay
rent.
4.4 [Omitted].
4.5 Security Deposit. Landlord acknowledges that it has received from
Tenant the Security Deposit, which amount shall be security for the full and
faithful performance and observance by Tenant of its covenants and obligations
under this Lease. No interest shall be payable on the Security Deposit, and it
is agreed and acknowledged by Tenant that the Security Deposit is not an advance
payment of rent or a measure of Landlord's damages in the case of default by
Tenant. Upon the occurrence of an event of default under this Lease, Landlord
may use, apply, or retain the whole or any part of the Security Deposit to the
extent required for the payment of any Base Rental and additional rent or any
other sums to which Tenant is in default or for the payment of any other damage,
injury, expense, or liability resulting from any event of default. Following any
such application of the Security Deposit, Tenant shall pay to Landlord on demand
the amount necessary to restore the Security Deposit to its original amount. In
the event that Tenant shall fully and faithfully comply with all of its
covenants and obligations under this Lease, the Security Deposit shall be
returned to Tenant within thirty (30) days after the Expiration Date (or any
permitted extensions thereof) and after delivery of possession of the Premises
to Landlord in accordance with the terms hereof. In the event of a sale of the
Building or a lease of the Building, subject to this Lease, Landlord shall be
released from all liability for the return of the Security Deposit and Tenant
shall look to the new landlord for the return of the Security Deposit. This
provision shall apply to every transfer or assignment made of the Security
Deposit to a new landlord.
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4.6 Payments. Tenant shall pay to Landlord all Base Rent, additional
rent, and all other charges due and owing by Tenant under this Lease without
deduction or setoff, in legal tender, and at Landlord's address or as otherwise
directed from time to time by Landlord's notice.
V.
PREPARATION, MAINTENANCE, AND REPAIR OF PREMISES
5.1 Preparation of the Premises.
(a) Landlord shall construct or install in the Premises the
Tenant Improvements, as defined in and to be constructed or installed pursuant
to the provisions of the Tenant Improvement Agreement which is attached hereto
as Exhibit "C". Tenant agrees to comply with all of the terms and provisions of
the Tenant Improvement Agreement, including, without limitation, the obligation
to pay, as additional rent, all amounts due Landlord under Section 3 thereof
according to the payment procedures contained in said section 3.
(b) Tenant shall be responsible for and shall pay from time to
time, as additional rent, any increase in ad valorem taxes against the Building
caused by any improvements to the Premises in excess of the Base Building
Condition and Landlord's Allowance for Tenant Improvement Costs.
5.2 Repairs by Tenant. Tenant shall at its own expense keep the
Premises in good repair and condition and tenantable condition and indemnify
Landlord against any loss, damage, or expense arising by reason of any failure
of Tenant to keep the Premises in good repair and tenantable condition or due to
any act or neglect of Tenant, its agents, employees, contractors, invitees,
licensees, tenants, or assignees. The maintenance and repair obligations of
Tenant hereunder shall include, not by way of limitation, but by way of
illustration, all glass windows excluding ordinary interior cleaning and
partitions, ceilings, floor and wall coverings, and electrical and plumbing
facilities. If Tenant fails to perform, or cause to be performed, such
maintenance and repairs, then at the option of Landlord, in its sole discretion,
any such maintenance or repair may be performed or caused to be performed by
Landlord and the cost and expense thereof charged to Tenant, and Tenant shall
pay the amount thereof to Landlord on demand as additional rent.
5.3 Transfer of Tenants. Landlord hereby reserves the right, at its
sole option and upon giving at least sixty (60) calendar days advance written
notice to Tenant, to transfer and remove Tenant, at any time, from the Premises
(or any other space to which Tenant was relocated pursuant to this Paragraph
5.3) to any other available space in the Building of substantially equal area.
Landlord hereby agrees to bear the expense of such transfer and removal, as well
as the expense of any renovations or alterations which are necessary to make the
new space conform substantially in appointment with the Premises. If Landlord
moves Tenant to such new space, every term and condition of this Lease shall
remain in full force and effect, except the Base Rental, which shall be adjusted
pro rata to reflect any change in the Rentable Area of the new Premises, and
such new space shall thereafter be deemed to be the Premises as though Tenant
had entered into an express written amendment of this Lease with respect
thereto. Failure of Tenant to cooperate with Landlord pursuant to this provision
and to remove itself from the Promises shall permit Landlord (i) to enter the
Premises and to remove Tenant and its property therefrom, by force if necessary,
and to relocate Tenant and its property in the new space provided by Landlord
pursuant to this provision, all without being liable to Tenant in any manner
whatsoever for such acts except for the expenses which are provided in this
Paragraph 5.3 to be paid by Landlord, or (ii) to
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cancel and terminate this Lease effective ninety (90) days from the date of
original notification by Landlord.
5.4 Repairs by Landlord. Landlord shall have no duty to Tenant to make
any repairs or improvements to the Premises except structural repairs necessary
for safety and tenantability, and then only if not brought about by an act or
neglect of Tenant, its agents, employees, contractors, invitees, licensees,
tenants or assignees.
5.5 Alterations by Tenant. Tenant shall make no alterations or
additions of any kind in or to the Premises without first obtaining Landlord's
written consent. All such work, including additions, fixtures (except those
fixtures placed by Tenant) and leasehold improvements (but excluding moveable
office furniture and equipment and other personal property of Tenant) made or
placed in or upon the Premises by either Tenant or Landlord shall be and become
the Landlord's property at the termination of this Lease by lapse of time or
otherwise, all without compensation or payment to Tenant, and shall remain upon
and in the Premises; but said property shall be and remain the Tenant's property
during the Lease Term.
5.6 Discharge of Liens. Tenant shall discharge of record by bond or
otherwise within ten (10) days following the filing thereof any mechanic's or
similar lien filed against the Premises or the Building for work or materials
claimed to have been furnished to or for the benefit of Tenant and/or the
Premises; provided, however, that Tenant shall have no responsibility with
respect to any mechanic's or similar lien filed against the Premises or the
Building for work or materials furnished by or at Landlord's request pursuant to
the Tenant Improvement Agreement, if Tenant is current in the payment of all
obligations owed Landlord under the Tenant Improvement Agreement. If Tenant
shall fail to cause such lien or claim of lien to be so discharged or bonded
within such period, in addition to any other right or remedy it may have,
Landlord may, but shall not be obligated to, discharge the same by paying the
amount claimed to be due or by procuring the discharge or such lien or claim by
deposit in court or bonding, and in any such event, Landlord shall be entitled,
if Landlord so elects, to compel the prosecution of any action for the
foreclosure of such lien or claim by the lienor or claimant and to pay the
amount of the judgment, if any, in favor of the lienor, with interest, costs and
allowances. Tenant shall pay as additional rent on demand from time to time any
sum or sums so paid by Landlord and all costs and expenses incurred by Landlord,
including but not limited to, attorneys' fees in processing such discharge or in
defending any such action.
5.7 Damage and Destruction.
(a) If the Building or Premises are rendered partially or
wholly unfit for occupancy by fire, the elements, act of God or other casualty,
and if such damage cannot, in Landlord's reasonable estimation, be materially
restored within ninety (90) days of such damage, then Landlord may, at its sole
option, terminate this Lease as of the date of such fire or casualty and the
Lease Term shall end on such date as if that date had been originally fixed in
this Lease for the expiration of the Lease Term. Landlord shall exercise its
option provided herein by written notice to Tenant within sixty (60) days of
such fire or other casualty. For purposes hereof, the Building or Premises shall
be deemed "materially restored" if they are in such condition as would not
prevent or materially interfere with Tenant's use of the Premises for the
purpose for which it was then being used.
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(b) If this Lease is not terminated pursuant to subparagraph
(a) above, then Landlord shall proceed with all due diligence to repair and
restore the Building or Premises, as the case may be (except that Landlord may
elect not to rebuild, and thus terminate this Lease, if such damage occurs
during the last two (2) years of the Lease Term (unless Tenant extends the Lease
Term for an additional two (2) year period) exclusive of any option which is
unexercised at the date of such damage). In the event that Landlord shall fail
to complete such repairs and material restoration within one hundred fifty (150)
days after Landlord notifies Tenant of its election to repair and restore the
Premises as provided in this Paragraph, Tenant may, at its option and as its
sole remedy, terminate this Lease by delivering written notice to Landlord,
whereupon this Lease shall end on the date of such fire or casualty as if the
date of such notice were the date originally fixed in this Lease for the
expiration of the term hereof; provided, however, that if construction is
delayed because of changes, deletions, or additions in construction requested by
Tenant, or because of strikes, lockouts, casualties, acts of God or intervention
of other supernatural forces, war, material or labor shortages, governmental
regulation or control, or other causes beyond the reasonable control of
Landlord, the period for restoration, repair or rebuilding shall be extended for
the amount of time Landlord is so delayed. In no event shall Landlord be
required to rebuild, repair, or replace any part of the partitions, fixtures,
additions, or other property and improvements which may have been placed in or
about the Premises by Tenant.
(c) If this Lease shall not be terminated by Landlord pursuant
to this Paragraph 5.7 and if the Premises are unfit for occupancy in whole or in
part following such damage, the rent payable during the period in which the
Premises are unfit for occupancy shall abate in proportion to the number of
square feet of Rentable Area of the Premises rendered unusable by such damage;
provided, however, that no such abatement shall be made under the provisions of
this Subparagraph (c) in the event such damage shall have been caused through
the negligence or willful misconduct of Tenant, its agents, employees,
contractors, invitees, licensees, tenants, or assignees.
(d) In the event of any damage or destruction to the Building
or the Premises, Tenant shall, upon notice from Landlord, remove forthwith, at
its sole cost and expense, such portion or all of the property belonging to
Tenant (other than partitions, fixtures, additions, and similar improvements)
from such portion or all of the Building or the Premises as Landlord shall
request, and Tenant hereby indemnifies and holds Landlord harmless from any
loss, liability, costs, and expenses, including attorneys' fees arising out of
any claim of damage or injury as a result of any alleged failure properly to
secure the Premises prior to such removal and/or such removal.
(e) Any insurance which may be carried by Landlord or Tenant
against loss or damage to the Building or Premises shall be for the sole benefit
of the party carrying such insurance and under its sole control except that
Landlord's insurance may be subject to control by the holder or holders of any
indebtedness secured by a mortgage or deed to secure debt covering any interest
of Landlord in the Premises or the Building.
(f) Notwithstanding anything herein to the contrary, in the
event the holder of any indebtedness secured by a mortgage or deed to secure
debt covering the Premises or Building requires that any insurance proceeds be
paid to it, 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 person, whereupon the Lease shall end
on the date of such damage as if the date of such damage were the date
originally fixed in this Lease for the expiration of the Lease Term.
(g) If any such casualty stated in this Paragraph 5.7 is not
the result of gross negligence or willful misconduct of Landlord, Landlord shall
not be liable to Tenant for inconvenience,
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annoyance, loss of profits, expenses, or any other type of injury or damage
resulting from the repair of any such damage, or from any repair, modification,
arranging, or rearranging of any portion of the Premises or any part or all of
the Building or for termination of this Lease as provided in this Paragraph 5.7.
5.8 Eminent Domain.
(a) If all or any substantial part of the Building or Premises
should be taken for any public or quasi-public use under governmental law,
ordinance, or regulation, or by right of eminent domain, or by private purchase
in lieu thereof, and the taking would prevent or materially interfere with the
use of the Premises for the purpose for which it is then being used, this Lease
shall terminate effective when the physical taking shall occur in the same
manner as if the date of such taking were the date originally fixed in this
Lease for the expiration of the Lease Term.
(b) If part of the Building or Premises is taken for any
public or quasi-public use under any governmental law, ordinance, or regulation,
or by right of eminent domain, or by private purchase in lieu thereof, and this
Lease is not terminated as provided in Subparagraph (a) above this Lease shall
not terminate but the Base Rental payable hereunder during the unexpired portion
of this Lease shall be reduced to such extent, if any, as may be fair and
reasonable under all of the circumstances, and Landlord shall undertake to
restore the Building and Premises to a condition suitable for Tenant's use, as
near to the condition thereof immediately prior to such taking as is reasonably
feasible under all circumstances.
(c) All compensation awarded or paid upon a total or partial
taking of the Premises or the Building shall belong to and be the Property of
Landlord without participation by Tenant. Nothing herein shall be construed to
preclude Tenant from prosecuting and claim directly against the condemning
authority solely for loss of business, damage to, and cost of removal of trade
fixtures, furniture and other personal property belonging to Tenant; provided,
however, that no such claim shall diminish or adversely affect Landlord's award.
(d) Notwithstanding anything to the contrary contained in this
Paragraph 5.8, if during the Lease Term the use or occupancy of any part of the
Building or Premises shall be taken or appropriated temporarily for any public
or quasi-public use under any governmental law, ordinance, or regulation, or by
right of eminent domain, this Lease shall be and remain unaffected by such
taking or appropriation, and Tenant shall continue to pay in full all rent
payable hereunder by Tenant during the term of this Lease; in the event of any
such temporary appropriation or taking, Tenant shall be entitled to receive that
portion of any award which represents compensation for the loss of use or
occupancy of the Premises during the term of this Lease, and Landlord shall be
entitled to receive that portion of any award which represents the cost of
restoration and compensation for the loss of use or occupancy of the Premises
after the end of the term of this Lease and of the Building.
5.9 Reports of Defects. Tenant shall report to Landlord immediately, in
writing, any damage to or defective condition in or about the Building or
Premises known to Tenant.
5.10 Landlord's Right to Enter Premises. Tenant shall not change the
locks on any entrance to the Premises. Upon Tenant's written request to
Landlord, Landlord will make a reasonable change of locks on behalf of Tenant
and at Tenant's sole cost and expenses. In the event Tenant places additional
locks on the entrance doors to the Premises, Tenant shall provide to Landlord at
least one (1) copy of the key or the master combination. Tenant shall, in no
event, place an additional or replacement lock on the
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primary entry door. Landlord and its agents, employees, and contractors shall
have the right to enter the Premises at such times as Landlord deems reasonably
necessary to make necessary repairs, additions, alterations, and improvements to
the Building, including, without limitation, the erection, use, and maintenance
of pipes and conduits and to show the Premises to prospective tenants and
purchasers of the Building with prior notice, except in the case of a bona-fide
emergency. Landlord shall also be allowed to take into and through the Premises
any and all needed materials that may be required to make such repairs,
additions, alterations, and improvements, all without being liable to Tenant in
any manner whatsoever. During such time as work is being carried on in or about
the Premises, provided such work is carried out in a manner so as not to
interfere unreasonably with the conduct of Tenant's business therein, the rent
provided herein shall in no way abate, and Tenant waives any claim and cause of
action against Landlord for damages by reason of loss or interruption to
tenant's business and profits therefrom because of the prosecution of any such
work or any part thereof. In the event of emergency, or if otherwise necessary
to prevent injury to persons or damage to property, such entry to the Premises
may be made by force without any liability whatsoever on the part of Landlord
for damage resulting from such forcible entry.
VI.
USE AND SERVICES
6.1 Use. Tenant shall use the Premises for general office purposes and
no other purpose. Tenant shall not use the Premises for any illegal purpose, nor
violate any statute, regulation, rule, or order of any governmental body in its
use thereof, nor create or allow to exist any nuisances or trespasses, nor do
any act in or about the Premises or bring anything except computers onto or into
the Premises which will in any way increase the rate of insurance on the
Premises, nor deface or injure the Premises or overload the floor of the
Premises.
6.2 Services. Provided Tenant shall not be in default under this Lease,
Landlord agrees to provide to Tenant, as Landlord deems reasonably necessary,
the following services:
(a) General cleaning and janitorial service required as a
result of normal, prudent use of the Premises and only on Mondays through
Fridays, inclusive, with New Year's Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, Christmas Day, and any other recognized bank holiday
(herein collectively called the "Holidays") excepted;
(b) Heating and air-conditioning service daily on Mondays
through Fridays, inclusive, with Holidays excepted, from 8:00 a.m. to 6:00 p.m.
and on Saturdays, if not a Holiday, from 8:00 a.m. to 1:00 p.m. Landlord
reserves the right to prohibit the use of heat generating machines and equipment
unless and until arrangements are made by Tenant, acceptable to Landlord, to
obtain and install in the Premises, at Tenant's cost, supplementary
air-conditioning equipment, and the cost of operating and maintenance of such
equipment shall be paid by Tenant on the Base Rental payment dates at such rates
as are established from time to time by Landlord. Should Tenant desire either
heating or air conditioning at times when such services are not furnished by
Landlord under the terms of this Lease, Landlord may elect, entirely at its
option, to furnish such services as requested by Tenant upon not less than
forty-eight (48) hours notice from Tenant, at Tenant's expense and at such
hourly charge as is commensurate with any additional expense to Landlord, which
charges Tenant shall promptly pay on being billed by Landlord. Payments for such
additional services shall be deemed additional rent due from Tenant;
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(c) Elevator service daily on Mondays through Fridays,
inclusive, with Holidays excepted, from 8:00 a.m. to 6:00 p.m., and on
Saturdays, if not a Holiday, from 8:00 a.m. to 1:00 p.m. At least one elevator
shall be operative at all other hours;
(d) Electric current for lighting and reasonable facilities
for furnishing usual and normal electric power for office space. Tenant shall
not, without Landlord's prior written consent, use any equipment, including,
without limitation, electronic data processing machines, punch card machines,
duplicating machines, computers or any other machines which use electric current
in excess of 110 volts 20 amperes, or which will increase the amount of
electricity ordinarily furnished for the use of the Premises in accordance with
the standards for the Building as general office space or which requires
"dedicated" circuits or other special distribution circuits. If Tenant requires
such additional electric power or such special circuits and such power of
circuits are furnished by Landlord, Tenant shall pay, on demand, the cost of
installation and maintenance of the facilities required to provide such
additional electrical power or circuits and the cost of all such electric
current consumed plus any expense of Landlord in keeping accounts of such
electric current consumed, including the cost of installation of additional
meters. Payments for such additional electrical power shall be deemed additional
rent due from Tenant.
6.3 Telephone Service.
(a) Tenant acknowledges and agrees that securing and arranging
for telephone service to the Premises is the sole responsibility of Tenant and
that Landlord has no responsibility or obligation to provide or arrange such
telephone service, nor to permit installation of any facilities or equipment in
the Building outside the Premises except in normal or standard locations the
Building for such equipment, in connection with providing telephone service to
the Premises.
(b) Tenant acknowledges and agrees that Landlord has entered
into a "Management and Operation Agreement" (the "Fairchild Agreement") with
Fairchild Communication Services, Inc. ("Fairchild"), whereby Fairchild agrees
to provide a branch exchange, and associated common equipment and software for
the Building, which, at the option of the Tenant, may be utilized by Tenant
pursuant to separate agreement(s) between Fairchild and Tenant. Tenant
acknowledges and agrees that Landlord is in no way responsible for or liable for
the acts or omissions of Fairchild under or in connection with either the
Fairchild Agreement, any agreement(s) between Tenant and Fairchild, or
otherwise. Tenant acknowledges and agrees that any cessation or interruption of
services or breach of the Fairchild Agreement or of any agreement between
Fairchild and Tenant, or both, shall not constitute a default by Landlord under
this Lease nor a constructive eviction by Landlord, and Tenant shall not be
entitled to any abatement or reduction of payments due under this Lease to
Landlord by reason of any of such occurrences or for any other claim arising out
of or in connection with the Fairchild Agreement, the agreement(s) between
Tenant and Fairchild, or any acts or omissions of Fairchild. Tenant agrees that
it shall not be deemed a party nor a beneficiary of the Fairchild Agreement
between Landlord and Fairchild and accordingly, Landlord shall have the right,
at its option, to modify or terminate said Agreement. Any exercise by Landlord
of remedies against Fairchild for Fairchild's default under the Fairchild
Agreement shall be solely at Landlord's option and exercised only on behalf of
Landlord.
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VII.
COMPLIANCE WITH LAWS
7.1 Compliance with Laws. Tenant shall comply, at its own expense, with
all statutes, regulations, ordinances, and orders of any governmental body,
department or agency thereof which apply to or result from Tenant's use or
occupancy of the Premises and shall abide by and observe the Rules and
Regulations attached to this Lease as Exhibit "D" and also such other rules and
regulations for the use, occupancy, or operation of the Building as may
hereafter be established in writing by Landlord.
7.2 Rent Control. Tenant waives the benefit of all existing and future
rent control laws and similar governmental rules and regulations, whether in
time of war or not, to the full extent permitted by law.
7.3 Building Alterations. If, in order to maintain the Building as an
office building or otherwise, Landlord shall be required by any governmental
authority to repair, alter, remove, construct, reconstruct, or improve any part
or all of the Building or Premises, Tenant's obligations under this Lease will
not be affected and Tenant waives all claims for injury, damage or abatement of
rent because of such repair, alterations, removal, construction, reconstruction,
or improvement, or lack thereof; provided, however, that if such election by
Landlord shall render the Premises partially or wholly unfit for occupancy and
if, in Landlord's reasonable estimation, it cannot complete such acts within
ninety (90) days, then at the option of the Landlord to be exercised by giving
written notice to Tenant within sixty (60) days following the date of notice to
Landlord by such governmental authority, this Lease shall terminate on the date
of such election and Tenant shall immediately surrender the Premises to
Landlord. In such event, Tenant shall continue to owe and pay rent and other
charges up to but not beyond the time of such surrender. If Landlord shall elect
not to terminate this Lease as provided above, Landlord and Tenant shall have
the same respective rights and obligations as provided above in Paragraph 5.7(b)
and (c), and the provisions of Paragraph 5.7(g) shall apply regardless of
whether or not Landlord elects to terminate this Lease. Landlord reserves the
right at all times and from time to time during the Lease Term to redesign,
reconstruct and rearrange the appearance and location of all common areas,
passage ways, lobbies, entrances and access ways of and to the Building.
VIII.
INSURANCE, LIABILITY AND INDEMNIFICATION
8.1 Insurance.
(a) Tenant shall carry fire and extended coverage insurance
insuring Tenant's interest in its improvements and betterments to the Premises
and any and all furniture, equipment, supplies, and other property owned,
leased, held, or possessed by it and contained therein, such insurance coverage
to be in amount equal to the full replacement cost of such improvements and
property.
(b) Tenant also agrees to carry a policy or policies of
workers' compensation coverage in statutory limits with employer's liability of
not less than Five Hundred Thousand and No/100 Dollars ($500,000.00) and
comprehensive general liability insurance, including personal injury and
property damage, with contractual liability endorsement, in the amount of One
Million and No/100 Dollars ($1,000,000.00) combined sing1e limit per occurrence
for property damage, bodily injury or personal injuries or deaths of persons
occurring in or about the Premises. Said policies shall (i) name
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Landlord as an additional insured and insure Landlord's contingent liability
under this Lease (except for the workers' compensation policy, which shall
instead include waiver of subrogation endorsement in favor of Landlord); (ii) be
issued by a reputable insurance company and licensed to do business in the State
of Georgia; and (iii) provide that said insurance shall not be cancelled unless
thirty (30) days' prior written notice shall have been given to Landlord. Said
policy or policies, or certificate thereof, shall be delivered to Landlord by
Tenant upon commencement of the term of the Lease and upon each renewal and/or
modification of said insurance.
(c) Tenant shall reimburse Landlord within ten (10) days after
demand for the costs incurred by Landlord for additional insurance premiums as
to the Building containing the Leased Premises which is caused by the nature of
Tenant's use or occupancy of the Leased Premises or its manner of use or
occupancy of the Leased Premises or both.
8.2 Waiver of Subrogation. Landlord and Tenant each hereby releases the
other from any and all liability or responsibility to the other or anyone
claiming through or under them by way of subrogation or otherwise for any loss
or damage to property caused by fire or any other perils insured in policies of
insurance covering such property, even if such loss or damage shall have been
caused by the fault or negligence of the other party, or anyone for whom such
party may be responsible, including, without limitation, any other tenants or
occupants of the remainder of the Building; provided, however, that this release
shall be applicable and in force and effect only to the extent that such release
shall be lawful at that time and in any event only with respect to loss or
damage occurring during such time as the releasor's policies shall contain a
clause or endorsement to the effect that any such release shall not adversely
affect or impair said policies or prejudice the right of the releasor to recover
thereunder and then only to the extent of the insurance proceeds payable under
such policies. Landlord and Tenant each agrees that it will request its
insurance carriers to include in its policies such a clause of endorsement. If
extra cost shall be charged therefor, each party shall advise the other thereof
and of the amount of the extra cost, and the other party, at its election, may
pay the same, but shall not be obligated to do so. If such other party fails to
pay such extra costs, the release provisions of this Paragraph shall be
inoperative against such other party to the extent necessary to avoid
invalidation of such releasor's insurance.
8.3 Indemnity. Tenant indemnifies and shall hold Landlord harmless from
and defend Landlord against any and all claims or liability for any injury or
death to any person or damage to any property whatsoever:
(a) either (i) occurring in, on, or about the Premises, or
(ii) occurring in, on, or about any facilities (including, without limitation,
elevators, stairways, passageways or hallways) the use of which Tenant may have
in conjunction with other tenants of the Building, when such injury, death or
damage shall be caused in part or in whole by the act, neglect or fault of, or
omission of any duty with respect to the same by Tenant, its agents, employees,
contractors, invitees, licensees, tenants, or assignees;
(b) arising from any work or thing whatsoever done by or
benefiting the Tenant in or about the Premises or from transactions of the
Tenant concerning the Premises;
(c) arising from any breach or default on the part of the
Tenant in the performance of any covenant or agreement on the part of the Tenant
to be performed pursuant to the terms of this Lease; or
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(d) otherwise arising from any act or neglect of the Tenant,
or any of its agents, employees, contractors, invitees, licensees, tenants or
assignees; and
from and against all costs, expenses, counsel fees, and court costs incurred or
assessed in connection with any or all of the foregoing. Furthermore, in case
any action or proceeding be brought against Landlord by reason of any claims or
liability Tenant agrees to cause such action or proceeding to be defended at
Tenant's sole expense by counsel reasonably satisfactory to Landlord. The
provisions of this Lease with respect to any claims or liability occurring or
caused prior to any expiration or termination of this Lease shall survive such
expiration or termination.
8.4 Liability of Landlord. Excepting for the proven gross negligence of
Landlord, its successors, agents, employees and contractors acting within the
scope of their engagement by Landlord, Landlord shall not be liable to Tenant or
to any persons, firm, corporation, or other business association claiming by,
through, or under Tenant for failure to furnish or for delay in furnishing any
service provided for in this Lease, and no such failure or delay by Landlord
shall be an actual or constructive eviction of Tenant nor shall any such failure
or delay operate to relieve Tenant from the prompt and punctual performance of
each and all the covenants to be performed herein by Tenant; nor for any latent
defects in the Premises or Building; nor for defects in the cooling, heating,
electric, water, elevator, or other apparatus or systems or for water discharged
from sprinkler systems, if any, or from water pipes and plumbing facilities in
the Building; nor for the theft, mysterious disappearance, or loss of any
property of Tenant whether from the Premises or any part of the Building; and
nor from interference, disturbance, or acts to or omitted against Tenant by
third parties, including, without limitation other tenants of the Building and
any such occurrences shall not constitute an actual or constructive eviction of
Tenant.
8.5 Limitation of Liability. Landlord's obligations and liability with
respect to this Lease shall be limited solely to Landlord's interest in the
Building, as such interest is constituted from time to time, and neither
Landlord nor any officer, director, shareholder, or partner of Landlord, or of
any partner of Landlord, shall have any personal liability whatsoever with
respect to this Lease.
IX.
DEFAULT AND RELATED REQUIREMENTS
9.1 Default and Remedies.
(a) The occurrence of any of the following shall constitute
"events of default":
(i) The Base Rental (including any additional rent)
or any other sum of money payable under this Lease, or both, is not paid when
due;
(ii) The Premises are deserted, vacated, or not used
as would normally be expected for similar premises put to general office use,
even though the Tenant continues to pay the stipulated monthly Base Rental;
(iii) Tenant's interest in the Lease or the Premises
shall be subjected to any attachment, levy, or sale pursuant to any order or
decree entered against Tenant in any legal proceeding and such order or decree
shall not be vacated within fifteen (15) days of entry thereof; or
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(iv) Tenant breaches or fails to comply with any
term, provision, condition, or covenant of this Lease, other than the payment of
Base Rental and other charges, or with any of the Rules and Regulations now or
future reasonable Rules and Regulations established from time to time by
Landlord to govern the operation of the Building.
(b) Upon the occurrence of an event of default, Landlord shall
have the option to do and perform any one or more of the following in addition
to, and not in limitation of, any other remedy or right permitted it by law or
in equity or by this Lease:
(i) Landlord, with or without terminating this Lease,
may immediately or at any time thereafter reenter the Premises and correct or
repair any condition which shall constitute a failure on Tenant's part to keep,
observe, perform, satisfy, or abide by any term, condition, covenant, agreement,
or obligation of this Lease or of the Rules and Regulations now in effect or
future reasonable Rules or Regulations adopted or of any notice given Tenant by
Landlord pursuant to the terms of this Lease, and Tenant shall fully reimburse
and compensate Landlord on demand;
(ii) Landlord, with or without terminating this
Lease, may immediately or at any time thereafter demand in writing that Tenant
vacate the Premises and thereupon Tenant shall vacate the Premises and remove
therefrom all property thereon belonging to or placed on the Premises by, at the
direction of, or with consent of Tenant within ten (10) days of receipt by
Tenant of such notice from Landlord, whereupon Landlord shall have the right to
reenter and take possession of the Premises. Any such demand, reentry and taking
possession of the Premises by Landlord shall not of itself constitute an
acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant
and shall not of itself constitute a termination of this Lease by Landlord;
(iii) Landlord, with or without terminating this
Lease, may immediately or at any time thereafter reenter the Premises and remove
therefrom Tenant and all property belonging to or placed on the Premises by, at
the direction of, or with consent of Tenant. Any such reentry and removal by
Landlord shall not of itself constitute an acceptance by Landlord of a surrender
of this Lease or of the Premises by Tenant and shall not of itself constitute a
termination of this Lease by Landlord;
(iv) Landlord, with or without terminating this
Lease, may immediately or at any time thereafter relet the Premises or any part
thereof for such time or times, at such rental or rentals and upon such other
terms and conditions as Landlord in its sole discretion may deem advisable, and
Landlord may make any alterations or repairs to the Premises which it may
reasonably deem necessary or proper to facilitate such reletting; and Tenant
shall pay all reasonable costs of such reletting, including, but not limited to,
the cost of any such alterations and repairs to the Premises, attorneys' fees,
and brokerage commissions; and if this Lease shall not have been terminated,
Tenant shall continue to pay all rent and all other charges due under this Lease
up to and including the date of beginning of payment of rent by any subsequent
tenant of part or all of the Premises, and thereafter, Tenant shall pay monthly
during the remainder of the term of this Lease the difference, if any, between
the rent and other charges collected from any such subsequent tenant or tenants
and the rent and other charges reserved in this Lease, but Tenant shall not be
entitled to receive any excess of any such rents collected over the rents
reserved herein;
(v) Landlord may immediately or at any time
thereafter terminate this Lease, and this Lease shall be deemed to have been
terminated upon receipt by Tenant of written notice of such termination; upon
such termination Landlord shall recover from Tenant all damages Landlord may
suffer by reason of such termination, including, without limitation, unamortized
sums expended by
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Landlord for construction of Tenant Improvements, all arrearages in rentals,
costs, charges, additional rentals, and reimbursements, the cost (including
court costs and attorneys' fees) of recovering possession of the Premises, the
cost of any alteration of or repair to the Premises which is necessary or proper
to prepare the same for reletting and, in addition thereto, Landlord at its
election shall have and recover from Tenant either (1) an amount equal to the
excess, if any, of the total amount of all rents and other charges to be paid by
Tenant for the remainder of the term of this Lease over the then reasonable
rental value of the Premises for the remainder of the term of this Lease, or (2)
the rents and other charges which Landlord would be entitled to receive from
Tenant pursuant to the provisions of clause (iv) of this Subparagraph (b) above
if the Lease were not terminated. Such election shall be made by Landlord by
serving written notice upon Tenant of its choice of one of the two said
alternatives within thirty (30) days of the notice of termination.
(c) If Landlord reenters the Premises or terminates this Lease
pursuant to any of the provisions of this Lease, Tenant hereby waives all claims
for damages which may be caused by such reentry or termination by Landlord.
Tenant shall and does hereby indemnify and hold Landlord harmless from any loss,
costs (including court costs and attorneys' fees), or damages suffered by
Landlord by reason of such reentry or termination. No such reentry or
termination shall be considered or construed to be a forcible entry.
(d) No course of dealing between Landlord and Tenant or any
failure or delay on the part of Landlord in exercising any rights of Landlord
under this Paragraph 9.1 or under any other provisions of this Lease shall
operate as a waiver of any rights of Landlord hereunder or under any other
provisions of this Lease, nor shall any waiver of a default on one occasion
operate as a waiver of any subsequent default or of any other default. No
express waiver shall affect any condition, covenant, rule, or regulation other
than the one specific in such waiver and that one only for the time and in the
manner specifically stated.
(e) The exercise by Landlord of any one or more of the rights
and remedies provided in this Lease shall not prevent the subsequent exercise by
Landlord of any one or more of the other rights and remedies herein provided
unless precluded by operation of law. All remedies provided for in this Lease
are cumulative and may, at the election of Landlord be exercised alternatively,
successively, or in any other manner and are in addition to any other rights
provided for or allowed by law or in equity.
9.2 Insolvency or Bankruptcy. The appointment of a receiver to take
possession of all or substantially all of the assets of Tenant, or an assignment
of Tenant for the benefit of creditors, or any action taken or suffered by
Tenant under any insolvency, bankruptcy, or reorganization act, shall, at
Landlord's option, constitute a breach of this Lease by Tenant. Upon the
happening of any such event or at any time thereafter, this Lease shall
terminate five (5) days after written notice of termination from Landlord to
Tenant. In no event shall this Lease be assigned or assignable by operation of
law or by voluntary or involuntary bankruptcy proceedings or otherwise, and in
no event shall this Lease or any rights or privileges hereunder be an asset of
Tenant under any bankruptcy, insolvency, or reorganization proceedings.
9.3 Late Payments. Tenant shall pay, as a late charge in the event any
installment of Base Rental, additional rent, or other charge to be paid by
Tenant hereunder is not paid when due, the greater of One Hundred and No/100
($100.00) Dollars or an amount equal to five percent (5%) of the amount due for
each and every thirty (30)-day period that said amount remains unpaid (but in no
event shall the amount of such late charge exceed an amount based upon the
highest legally permissible rate chargeable
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at any time by Landlord under the circumstances). Should Tenant make a partial
payment of past due amounts, the amount of such partial payment shall be applied
first to reduce all accrued and unpaid late charges in inverse order of their
maturity, and then to reduce all other past due amounts in inverse order of
their maturity.
9.4 Attorneys' Fees. If any rent or other debt owing by Tenant to
Landlord hereunder is collected by or through an attorney-at-law Tenant agrees
to pay an additional amount equal to fifteen (15%) percent of the amount owing
under this Lease as attorneys' fees.
9.5 Waiver of Homestead. Tenant hereby waives and renounces all
homestead or exemption rights which Tenant may have under or by virtue of the
Constitutions and Laws of the United States, the State of Georgia, and any other
state as against any debt or sum Tenant may owe Landlord under this Lease and
hereby transfers, conveys, and assigns to Landlord all homestead or exemption
rights which may be set apart in any bankruptcy proceeding, to pay any debt or
sum owing by Tenant to Landlord hereunder.
9.6 No Waiver of Rights. No failure or delay of Landlord to exercise
any right or power given it herein or to insist upon strict compliance by Tenant
of any obligation imposed on it herein and no custom or practice of either party
hereto at variance with any term hereof shall constitute a waiver or a
modification of the terms hereof by Landlord or any right it has herein to
demand strict compliance with the terms hereof by Tenant. No person has or shall
have any authority to waive any provision of this Lease unless such waiver is
expressly made in writing and signed by an authorized officer of Landlord.
X.
MISCELLANEOUS PROVISIONS
10.1 Broker. Tenant represents and warrants to Landlord that (except
with respect to any broker identified for Landlord by Tenant in writing prior to
Landlord's execution of this Lease) no broker, agent, commissioned salesman, or
other person has represented Tenant in the negotiations for and procurement of
this Lease and of the Premises and that no commissions, fees, or compensation of
any kind are due and payable in connection herewith to any broker, agent,
commissioned salesman, or other person. With respect to the broker(s) or other
person(s) or firm(s) excluded above from Tenant's representation and warranty of
no broker, Landlord agrees to pay to such broker all commissions, fees, or
compensation of any kind which are due and payable to such broker. Tenant agrees
to indemnify and hold Landlord harmless from any and all claims, suits, or
judgments (including, without limitation, reasonable attorneys' fees and court
costs incurred in connection with any such claims, suits, or judgments) for any
fees, commissions or compensation or any kind which arise out of or are in any
way connected with any claimed agency relationship with Tenant.
10.2 Addresses and Notices.
(a) Except for legal process which may also be served as by
law provided or as provided below, all notices required or desired to be given
with respect to this Lease shall be in writing and shall be deemed to be given
to and received by the party intended to receive such notice when hand delivered
or three (3) days after such notices shall have been deposited, postage prepaid,
to the United States mail, certified, return receipt requested, properly
addressed to the addresses specified for Landlord
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and Tenant in Paragraph 1.8 hereof. In the event of a change of address by
either party, such party shall give written notice thereof in accordance with
the foregoing.
(b) To the extent permitted by law, Tenant hereby: (i)
appoints and designates the Premises as a proper place for service of process
upon Tenant, and agrees that service of process upon any person apparently
employed by Tenant upon the Premises or leaving process in a conspicuous place
within the Premises shall constitute personal service of such process upon
Tenant (provided, however, Landlord does not hereby waive the right to serve
Tenant with process by any other lawful means).
10.3 Entire Agreement and Exhibits. This Lease constitutes and contains
the sole and entire agreement of Landlord and Tenant and no prior or
contemporaneous oral or written representation or agreement between the parties
and affecting the Premises shall have legal effect. The content of each and
every exhibit which is referenced in this Lease as being attached hereto is
incorporated into this Lease as fully as if set forth in the body of this
Lease. Landlord hereby disclaims any warranties and representations as to the
Building or Premises, whether express or implied.
10.4 Subordination and Attornment.
(a) Except as provided in subparagraph (c) below with respect
to mortgage subordination, this Lease and all rights of Tenant hereunder are and
shall be subject and subordinate to the lien of any first mortgage, deed to
secure debt, deed of trust, or other instrument in the nature thereof which may
now or hereafter affect Landlord's interest in the Premises and to any other
instrument encumbering the Landlord's interest in the Premises and to any
modifications, renewals, consolidations, extensions, or replacements thereof.
(b) Subparagraph (a) above shall be self-operative, and no
further instrument of subordination shall be required by the holder of any such
instrument. In confirmation of such subordination, Tenant shall, upon demand, at
any time or times, execute, acknowledge, and deliver to Landlord or the holder
of any such mortgage, deed to secure debt, deed of trust, or other such
instrument, without expense, any and all instruments that may be requested by
such holder to evidence the subordination of this Lease and all rights hereunder
to the lien of any such mortgage, deed to secure debt, deed of trust, or other
instrument, and each such renewals, modification, consolidation, replacement,
and extension thereof, and if Tenant shall fail at any time, within ten (10)
days following the giving of written request therefor, to execute, acknowledge,
and deliver any such instrument, Landlord or such holder, in addition to any
other remedies available to it in consequence thereof, may execute, acknowledge,
and deliver the same as the attorney-in-fact of Tenant and in Tenant's name,
place, and stead, and Tenant hereby irrevocably makes, constitutes, and appoints
Landlord or such holder, and their respective successors and assigns, such
attorney-in-fact for that purpose.
(c) Tenant shall, upon demand, at any time or times, execute,
acknowledge, and deliver to Landlord or to the holder of any mortgage, deed to
secure debt, deed of trust, or other instrument affecting or encumbering the
Landlord's interest in the Premises, without expense, any and all instruments
that may be necessary to make this Lease superior to the lien of any such
mortgage, deed to secure debt, deed of trust or other instrument, and each
renewal, modification, consolidation, replacement, and extension thereof, and if
Tenant shall fail at any time, within ten (10) days following the giving of a
written request therefor, to execute, acknowledge, and deliver any such
instrument, Landlord or such holder, in addition to any other remedies available
to it in consequence thereof, may
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execute, acknowledge, and deliver the same as the attorney-in-fact of Tenant and
in Tenant's name, place, and stead, and Tenant hereby irrevocably makes,
constitutes, and appoints Landlord or such holder, and their respective
successors and assigns, such attorney-in-fact for that purpose.
(d) If the holder of any mortgage, deed to secure debt, deed
of trust or other instrument affecting or encumbering Landlord's interest in the
Premises, shall hereafter succeed to the rights of Landlord under this Lease,
whether through possession or foreclosure action or delivery of a new lease,
Tenant shall, at the option of such holder, attorn to and recognize such
successor as Tenant's landlord under this Lease and shall promptly execute and
deliver any instrument that may be necessary to evidence such attornment, and
Tenant hereby irrevocably appoints Landlord or such holder the attorney-in-fact
of Tenant to execute and deliver such instrument on behalf of Tenant should
Tenant refuse and fail to do so within ten (10) days after Landlord or such
holder shall have given notice to Tenant requesting the execution and delivery
of such instrument. Upon such attornment, this Lease shall continue in full
force and effect as a direct lease between such successor landlord and Tenant,
subject to all of the terms, covenants, and conditions of this Lease.
10.5 Estoppel Certificate. At any time and from time to time, Tenant,
on or before the date specified in a request therefor made by Landlord, which
date shall not be earlier than ten (10) days from the making of such request,
shall execute, acknowledge, and deliver to Landlord a certificate evidencing
whether or not (i) this Lease is in full force and effect, (ii) this Lease has
been amended in any way, (iii) there are any existing defaults on the part of
Landlord hereunder to the knowledge of Tenant and specifying the nature of such
defaults, if any, and (iv) the date to which rent, and other amounts due
hereunder, if any, have been paid. Each certificate delivered pursuant to this
Paragraph may be relied on by any prospective purchaser or transferee of
Landlord's interest hereunder or of any part of Landlord's property or by any
mortgagee of Landlord's interest hereunder or of any part of Landlord's property
or by an assignee of any such mortgage.
10.6 Severability. If any clause or provision of this Lease is or
becomes illegal, invalid, or unenforceable because of present or future laws or
any rule or regulation of any governmental body or entity, effective during its
term, the intention of the parties hereto is that the remaining parts of this
Lease shall not be affected thereby, unless such invalidity is, in the sole
reasonable determination of Landlord, essential to the rights of both parties in
which event Landlord has the right to terminate this Lease on written notice to
Tenant.
10.7 Captions. The captions used in this Lease are for convenience only
and do not in any way limit or amplify the terms and provisions hereof.
10.8 Successors and Assigns. The words "Landlord" and "Tenant" as used
herein shall include the respective contracting party, whether singular or
plural, and whether an individual, masculine or feminine, or a partnership,
joint venture, business trust, or corporation. The provisions of this Lease
shall inure to the benefit of and be binding upon Landlord and Tenant, and their
respective successors, heirs, legal representatives, and assigns, subject,
however, in the case of Tenant to the provisions of Paragraph 3.1 hereof. It is
understood and agreed that the term "Landlord", as used in this Lease means only
the owner(s), or the lessee(s), from time to time of the Building and/or the
land underlying the Building so that in the event of any sale or sales of the
Building and/or the land underlying the Building, or of any lease thereof, the
Landlord named herein shall be and hereby is entirely freed and relieved of all
covenants and obligations of Landlord hereunder accruing thereafter to the
extent of such sale or lease, and it shall be deemed without further agreement
that the purchaser, or the lessee, as the case may be, has assumed and agreed,
to the same extent, to carry out any and all covenants and obligations of
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Landlord hereunder during the period such party has possession of all or such
portion of the Building and/or the land underlying the Building which it has
purchased or leased. Should all of the land underlying the Building and the
entire Building be severed as to ownership by sale and/or lease, then, unless
the Tenant is otherwise notified to the contrary in writing, either the owner of
the entire Building or the lessee of the entire Building, as the case may be,
that has the right to lease space in the Building to tenants shall be deemed the
"Landlord". Tenant shall be bound to any succeeding landlord for all the terms,
covenants, and conditions hereof and shall execute any attornment agreement not
in conflict herewith at the request of any succeeding landlord.
10.9 Applicable Law. The laws of the State of Georgia shall govern the
interpretation, validity, performance, and enforcement of this Lease.
10.10 Time is of the Essence. Time if of the essence of this Lease;
provided, however, that failure of Landlord to provide Tenant with any
notification regarding adjustments to Base Rental or any other charges provided
for hereunder, within the time periods prescribed in this Lease shall not
relieve Tenant of its obligation to make such contributions. Unless specifically
provided otherwise, all references to terms of days or months shall be construed
as references to calendar days or months, respectively.
10.11 Execution. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original and any of which shall
be deemed to be complete in itself and may be introduced into evidence or used
for any purpose without the production of the other counterparts. No
modification or amendment of this Lease shall be binding upon the parties unless
such modification or amendment is in writing and signed by Landlord and Tenant.
10.12 Force Majeure. Landlord shall be excused for the period of any
delay and shall not be deemed in default with respect to the performance of any
of the terms, covenants, and conditions of this Lease when prevented from so
doing by a cause or causes beyond the Landlord's control, which shall include,
without limitation, all labor disputes, governmental regulations or controls,
fire or other casualty, inability to obtain any material or services, acts of
God or other supernatural forces, or any other cause not within the reasonable
control of the Landlord.
10.13 Multiple Tenants. If more than one individual or entity comprises
and constitutes Tenant, then all individuals and entities comprising Tenant are
and shall each be jointly and severally liable for the due and proper
performance of Tenant's duties and obligations arising under or in connection
with this Lease.
10.14 Authorized Signatory. If Tenant signs as a corporation, each of
the persons (of which there must be at least two) executing this Lease on behalf
of Tenant does hereby covenant and warrant that Tenant is a duly authorized and
existing corporation, that Tenant has and is qualified to do business in
Georgia, that the corporation has full right and authority to enter into this
Lease, that each and both of the persons executing this Lease on behalf of the
corporation are authorized to do so, and that such execution is fully binding on
the corporation. If Tenant signs as a partnership, joint venture, or sole
proprietorship (each being herein called "Entity") each of the persons executing
on behalf of Tenant does hereby covenant and warrant that Tenant is a duly
authorized and existing Entity, that Tenant has full right and authority to
enter into this Lease, that all persons executing this Lease on behalf of the
Entity are authorized to do so, and that such execution is fully binding on the
Entity and its partners, joint venturers, or principal, as the case may be.
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10.15 No Recordation of Lease. This Lease is not in recordable form,
and Tenant agrees not to record or permit the recording of this Lease.
10.16 Special Stipulations. The Special Stipulations, if any, attached
hereto and initialed and dated by Landlord and Tenant are hereby incorporated
herein and made a part hereof and in the event they conflict with any of the
foregoing provisions, the Special Stipulations shall control.
10.17 Acknowledgment. By execution of this Lease, Tenant agrees to
accept, honor, and be bound by all the terms, conditions, and agreements
contained herein.
10.18 Submission of Lease. The submission of this Lease for examination
does not constitute an offer to lease nor a reservation of space even if said
Lease is executed by Landlord, and this Lease shall be effective only upon
execution hereof by Landlord and Tenant and delivery of a counterpart hereof to
Landlord and Landlord's acceptance and final approval thereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument in duplicate, individually, or through their respective authorized
officers, agents, or attorneys-in-fact, as the case may be, causing their
respective seals to be affixed hereto, the day and year set forth to the left of
their respective executions, the latest of which is and shall be deemed to be
the date of this Lease.
"TENANT"
E3 Associates Ltd.
By: /s/ Anders H. Herlitz
-----------------------------------------
Title: Chairman
--------------------------------------
Attest: /s/ Daniel J. Craddock
-------------------------------------
Title: Vice President, Customer Relations
--------------------------------------
"LANDLORD"
Two Park, Inc.
By: LaSalle Partners Asset
Management Limited, Its
authorized agent
By: /s/ Bret E. Bunnett
-----------------------------------------
Title: Vice President
--------------------------------------
Date: 11/8/90
---------------------------------------
(Note: Under the Delaware Revised Uniform Limited Partnership Act, a
limited partnership may have officers and may, by and through those
officers, execute documents, including leases.)
*Note - If Tenant is a corporation, lease must be signed by an
authorized officer of the corporation and attested by a secretary or
assistant secretary of the corporation who must also affix, the
corporate seal.
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SPECIAL STIPULATIONS
TO LEASE
DATED ___________, 19____
BY AND BETWEEN
E3 ASSOCIATES, INC.
AS TENANT AND
TWO PARK, INC.
AS LANDLORD
S.S.1 FREE RENT INCENTIVE
Tenant shall receive a credit (the "Free Rent Incentive") against Base
Rental otherwise payable hereunder for the first twelve (12) months of
the Term of this Lease (the "Free Rent Period") in the amount of the
Base Rental which would otherwise be payable hereunder during such
period, and the Free Rent Incentive shall accrue on a monthly basis
during the Free Rent Period; provided, however, that if an event of
default under this Lease occurs within the Free Rent Period and remains
uncured after the expiration of any period provided hereunder for cure
thereof, the Free Rent Incentive shall cease to accrue upon notice of
Landlord to Tenant. In the event at any time this Lease is terminated
due to Tenant's default in accordance with the terms of this Lease,
Landlord, in addition to all other remedies provided in this Lease and
at law, shall be entitled to recover from Tenant the unamortized value
of the Free Rent Incentive, and Tenant shall pay same to Landlord
immediately upon demand.
S.S.2 BASE RENTAL
For purposes of Paragraphs 1.1 and 4.1 of the Lease, during the initial
twelve (12) months of the Lease Term, there shall be no Base Rental due
as specified in Paragraph S.S.1 herein, and thereafter Base Rental
shall be computed by multiplying the then Rentable Area of the Premises
times a dollar per square foot rate as follows: During the thirteenth
(13th) through the thirty-sixth (36th) month, inclusive of the Lease
Term, the square foot rate per rentable square foot of the Premises
shall be $17.00 per rentable square foot per year; during the
thirty-seventh (37th) through the sixtieth (60th) month inclusive of
the Lease Term, the square foot rate per rentable square foot of the
Premises shall be $22.00 per rentable square foot per year.
S.S.3 LEASE TERMINATION
Landlord and Tenant agree that the term of that certain lease entered
into between Landlord and Tenant dated October 24, 1986, as amended
(the "Old Lease"), with respect to certain space in known as Suite 110,
One Parkway Center, 1850 Parkway Place, Marietta, Georgia, shall cease
and terminate on the Commencement Date of this Lease, as if such date
were the date originally provided in the Old Lease for expiration of
the term thereof. All renewal and expansion rights of Tenant provided
for in the Old Lease shall be void and of no further effect as of the
date of this Lease.
S.S.4 MANDATORY-EXPANSION SPACE
A. Expansion Effective Date. The Premises shall be expanded to include
a space consisting of 3,076 rentable square feet adjacent to the
Premises on the sixth (6th) floor of the Building,
27
which area is designated as the "Mandatory Expansion Space" on Exhibit
"A" attached hereto on that date (the "Expansion Effective Date") which
is the earliest to occur of (i) the first day of the eighteenth (18th)
month of the Lease Term; (ii) sixty (60) days after the later to occur
of the date of the Early Expansion Notice, as hereinafter defined, and
the Plan Approval Date, as hereinafter defined; and (iii) the date
Tenant occupies the Mandatory Expansion Space for any purpose. The
Expansion Effective Date shall occur irrespective of whether the
Mandatory Expansion Space has been delivered to Tenant, which delivery
is regulated by Subsection D of this Special Stipulation 4.
B. Approved Plans. Tenant shall submit plans for tenant improvements in
the Mandatory Expansion Space to Landlord, which shall be subject to
Landlord's approval. In the event Landlord disapproves such plans, the
parties shall negotiate in good faith to resolve their differences with
respect to such plans. The date of final approval of such plans shall
be the "Plan Approval Date", and such final approved plans shall be
hereinafter called the "Approved Plans".
C. Early Expansion Notice. Tenant shall have the right at any time from
the Commencement Date until the last day of the fifteenth (15th) full
calendar month of the Lease Term to notify Landlord that it desires
early possession of the Mandatory Expansion Space (the "Early Expansion
Notice").
D. Construction of Tenant Improvements. Landlord shall complete
construction of tenant improvements in the mandatory Expansion space in
accordance with the Approved Plans and in accordance with the terms of
the Tenant Improvement Agreement labeled Exhibit "C", and deliver the
Mandatory Expansion Space to Tenant, on or before the later to occur of
(i) sixty days after the Plan Approval Date; and (ii) the earlier to
occur of the date of the Early Expansion Notice and the first day of
the eighteenth (18th) full calendar month of the term of this Lease.
Landlord shall pay all of the costs of such tenant improvements up to
an amount equal to $15.00 multiplied by the number of square feet of
rentable area in the Mandatory Expansion Space. Tenant shall, within
(30) days after the date of Landlord's statement therefor, reimburse
Landlord for all costs of such tenant improvements exceeding such
amount.
E. Rental and Tenant's Percentage Share. From and after the Expansion
Effective Date, the Premises shall be deemed increased in size by the
number of square feet of rentable area in the Mandatory Expansion
Space, and the Base Rent and Additional Rent payable under this Lease,
as well as Tenant's Percentage Share, shall be increased
proportionately. On or before the Expansion Effective Date, Landlord
and Tenant will enter into an amendment to this Lease reflecting the
addition of the Mandatory Expansion Space to the Premises, the
resulting increase in the Base Rent and Additional Rent, and the
resulting adjustment to Tenant's Percentage Share, and making any such
other amendments as are necessary to reflect the intent of this Special
Stipulation.
S.S.5 RIGHT OF FIRST OFFER
Provided Tenant has leased the Mandatory Expansion Space as stipulated
in Paragraph S.S.4 herein and so long as the Right of First Offer Space
(as hereinafter defined) remains unencumbered and available for lease,
and subordinate to any existing rights of other tenants to lease said
space which exists as of the date of this Lease, Tenant shall have the
right, upon written notice from Landlord to lease during the term of
this Lease, subject to the terms and conditions below, additional space
consisting of a maximum of 5,042 rentable square feet but no
28
less space than the demised available space so long as said space is
contiguous to the Premises (the "Right of First Offer Space") on the
sixth (6th) floor of the Building, as shown and designated on the
attached Exhibit "A", for a term coterminous with the expiration of the
initial term of this Lease and any renewal or extension thereof. The
Base Rental and the Tenant Improvement Allowance for the Right of First
Offer Space shall be set at the prevailing fair market value rates for
the Building then being charged by Landlord for comparable space to
third parties initially leasing in the Building.
Following the notice by Landlord to Tenant of this Right of First offer
at any time during the Lease Term, Tenant shall have ten (10) days in
which to respond in writing to exercise its right. This Right of First
Offer shall be cancelled and of no effect if Tenant fails to respond
within said ten (10) day period or if Tenant is in default of any
covenants under this Lease.
Within ten (10) days following the exercise of this Right of First
Offer, Landlord and Tenant shall enter into a written agreement
modifying and supplementing this Lease and specifying that the Right of
First Offer Space is part of the Leased Premises under this Lease and
containing other appropriate terms and conditions relating to the
addition of such areas to the Premises (including specifically any
increase, adjustment or augmentation of rent as a result of such
addition as aforesaid). Landlord will use its best efforts to make the
Right of First Offer Space available to Tenant within thirty (30) days
after Tenant's exercise of said Right of First Offer, but Landlord
shall not be liable for the failure to give possession of said Space to
Tenant within said thirty (30) day period by reason of the holding over
or retention of possession of any tenant, tenants or occupants, and
such failure shall not impair the validity of this Lease or extend the
term hereof, but the rent for the Right of First Offer Space shall be
abated until possession is delivered to Tenant, and such abatement
shall constitute full settlement of all claims that Tenant might
otherwise have against Landlord by reason of such failure to give
possession of the said Space to Tenant within thirty (30) days of
Tenant's exercise of this Right of First Offer. All rental obligations
of Tenant shall commence on the date such Space is made available to
Tenant.
S.S.6 PARKING
Parking in the parking deck for the Building for Tenant and Tenant's
employees and visitors shall be free of charge for the term of this
Lease and shall be available on an unassigned, first-come, first-served
basis. Three (3) of such parking spaces on the lower level of such
parking deck in a location determined by Landlord shall be marked as
spaces for the use of Tenant. Landlord shall have no responsibility for
the enforcement of Tenant's right to use any such parking spaces.
S.S.7 MOVING ALLOWANCE
Upon Tenant submitting to Landlord true and correct copies of invoices
for direct out-of-pocked expenses incurred by Tenant in moving from its
existing offices to the Premises, Landlord shall reimburse Tenant for
such amounts up to a maximum of $1.00 per rentable square foot of the
Premises up to 12,147 square feet of area. Landlord's obligation to pay
such amount to Tenant shall be subject to Tenant executing a Tenant
Acceptance Agreement (Exhibit "B") accepting the Premises. Landlord
shall have no liability for such moving and relocation cost in excess
of the Moving Allowance, and Landlord shall have no obligation to move
or have Tenant moved into the Premises.
29
"TENANT"
E3 ASSOCIATES, INC.
By: /s/ Anders H. Herlitz
-----------------------------------------
Title: Chairman
--------------------------------------
"LANDLORD"
Two Park, Inc.
By: LaSalle Partners Asset
Management Limited, its authorized
agent
By: /s/ Bret E. Bunnett
-----------------------------------------
Title: Vice President
--------------------------------------
30
EXHIBIT A
[E3 ASSOCIATES, LTD.
DIAGRAM OF PREMISES
TWO PARKWAY CENTER
SIXTH (6TH) FLOOR]
31
EXHIBIT A-1
[DIAGRAM OF OFFICE SPACE]
32
EXHIBIT B
TENANT ACCEPTANCE AGREEMENT
Agreement made this ___ day of ______________, 19, between
___________________________________________, a _______________________________
(hereinafter referred to as "Landlord") and
________________________________________, a _________________________________
(hereinafter referred to as "Tenant").
WHEREAS, Landlord and Tenant entered into a lease dated ____________,
19___ (hereinafter referred to as the "Lease") for ___________________ in the
building known as the _______________________ (hereinafter referred to as the
"Premises");
NOW, THEREFORE, pursuant to the provisions of Paragraph 2 of the Lease,
Landlord and Tenant mutually agree as follows:
1. The Commencement Date of the Lease Term is _______________, 19___.
The Expiration Date of the Lease Term is _________________, 19____.
2. Subject to its "Punch List", Tenant is in possession of, and has
accepted, the Premises demised by the Lease, and acknowledges that all the work
to be performed by the Landlord in the Premises as required by the terms of the
Lease has been satisfactorily completed. Subject to its "Punch List", Tenant
further certifies that all conditions of the Lease required of Landlord as of
this date have been fulfilled and there are no defenses or set-offs against the
enforcement of the Lease by Landlord.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Agreement, the ____ day of ______________, 19_____.
TENANT:
E3 Associates, Ltd.
By:__________________________________
Its:________________________________
LANDLORD:
Two Park, Inc.
By: LaSalle Partners Asset Management
Limited, its authorized agent
By:_________________________________
Title:________________________________
Date:________________________________
33
EXHIBIT C
TENANT IMPROVEMENT AGREEMENT
WHEREAS, the undersigned Landlord and Tenant have executed, sealed, and
delivered a certain Office Lease (the "Lease") to which this Agreement is
attached, and into which this Agreement is fully incorporated by reference, as
Exhibit C;
WHEREAS, said Lease provides for the letting of space (the "Premises)
within 1800 Parkway Place located at Parkway Center, Marietta, Georgia (the
"Building");
WHEREAS, the terms "Landlord" and "Tenant", "Premises", "Usable Area",
and "Building" as used herein shall have the same meanings ascribed thereto as
set forth in the Lease; and
WHEREAS, Landlord and Tenant desire to set forth herein their
respective agreements regarding the improvement of the Premises;
NOW THEREFORE, in consideration of the premises, the execution and
delivery of the Lease by the parties hereto, the mutual covenants contained
herein, and other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant, intending to be legally
bound, hereby agree as follows:
Section 1. Tenant Improvements.
Section 1.01 Definition.
The term "Tenant Improvements" shall mean all improvements
constructed or installed in or on the Premises in accordance with the Drawings
and specifications, as hereinafter defined.
Section 1.02 Base Building Condition.
The term "Base Building Condition" shall mean the condition of the
Premises prior to commencement of the work of constructing and installing the
Tenant Improvements, which condition is described on Exhibit A hereto.
Section 2. Drawings and Specifications.
Section 2.01 Definition.
The term "Drawings and Specifications" shall mean the final drawings,
specifications, and finish schedules for the Tenant Improvements which shall be
prepared and approved by Landlord and Tenant in accordance with the following
procedure:
(a) Simultaneous with the execution of this Tenant Improvement
Agreement, Landlord shall provide Tenant with drawings which reflect the Base
Building Condition of the Premises.
(b) As soon as reasonably possible after receiving the drawings
described in (a) above, but in no event later than ten (10) days thereafter,
Tenant shall either inform Landlord that Tenant desires to use Landlord's
Architect to prepare final working drawings, specifications, finish schedules,
and the
34
like necessary to commence construction of the Tenant Improvements or inform
Landlord of the identity of the architect or other design specialist whom Tenant
desires to use for such work. Landlord shall have the right of reasonable
approval over any architect or other design specialist selected by Tenant and
shall advise Tenant promptly of Landlord's decision either approving or
disapproving the person or firm selected by Tenant. As provided in Section
3.03(b) hereof, the cost of preparing the drawings, specifications, finish
schedules and the like as set forth in Sections 2.01(b) through (d) hereof shall
be a part of the Landlord's Allowance for Tenant Improvement costs.
(c) If Tenant elects to use Landlord's Architect as provided in
subparagraph (b) above, Tenant shall commence working with said Architect
promptly so that final working drawings and the like can be prepared for
Landlord's approval. If Tenant elects to use an independent architect or design
specialist and if the same in approved by Landlord, Tenant agrees to commence
working with such professional promptly. The architect selected by Tenant, and,
if necessary, approved by Landlord, shall hereinafter be referred to as the
"Tenant's Architect".
(d) As soon as reasonably possible, but no more than thirty (30)
days after making its election under subparagraph (c) above, Tenant shall
deliver to Landlord Tenant's proposed final working drawings, specifications,
finish schedules, and the like for the Tenant Improvements. Landlord shall
promptly review and resubmit the same to Tenant, either with Landlord's
approval, or with Landlord's disapproval. If Landlord fails to respond within
fifteen (15) days after receiving such proposed final drawings and the like,
Landlord shall be deemed to have given its full approval thereto. Tenant shall
resubmit any such drawings and the like which are returned by Landlord without
complete approval as promptly as possible, and such resubmitted drawings and the
like shall contain the information or changes required by Landlord. Once
Landlord then satisfies itself that such drawings, specifications, finish
schedules, and the like are acceptable, Landlord shall so notify Tenant and the
same shall constitute the "Drawings and Specifications" for purposes of this
Tenant Improvement Agreement.
(e) On or before the fifteenth (15th) day following receipt of the
Drawings and Specifications, Landlord shall obtain from Landlord's Contractor a
price schedule for the Tenant Improvements and shall submit the name to Tenant
for its approval. If Tenant disapproves such price schedule, Tenant agrees to
work promptly with Tenant's Architect and Landlord's Contractor to alter the
Drawings and Specifications as necessary to cause the price quotation based
thereon to be acceptable to Tenant. The aggregate cost for the Tenant
Improvements, once approved by Tenant, shall hereinafter be referred to as
"Tenant Improvement Costs". Upon determination of the Tenant Improvement Costs,
Tenant shall be deemed to have given final approval to the Drawings and
Specifications and Landlord shall be deemed to have been authorized to proceed,
through Landlord's Contractor, with the work of constructing and installing the
Tenant Improvements in accordance with the Drawings and Specifications.
Section 3. Payment of Costs.
Section 3.01. Landlord's Costs for Preliminary Drawings.
Landlord shall bear the cost of preparing the drawings,
specifications, and finish schedules in Section 2.01(a) above.
Section 3.02. Landlord's Allowance for Tenant Improvement Costs.
35
Landlord shall pay the Tenant Improvement Costs up to, but not
exceeding Landlord shall construct the space at the Landlord's cost according to
the plan attached, labeled Exhibit A-1. The cost of any additions or
modifications shall be the responsibility of the Tenant (the Landlord's
Allowance for Tenant Improvement Costs").
Section 3.03. Tenant's Costs.
The aggregate of all costs described in the following subparagraphs
(a) and (d) of this Section 3.03 are hereinafter referred to collectively as
"Tenants Costs".
(a) The Tenant Improvement Costs over and above the Landlord's
Allowance for Tenant Improvement Costs;
(b) The cost of preparing and finalizing all drawings,
specifications, finish schedules, and the like as set forth in Sections 2.01(b)
through (d) above shall be part of the Landlord's Allowance for Tenant
Improvement Costs.
(c) Fees for architects, engineers, interior designers, and other
professionals and design specialists incurred by Landlord or Tenant in
connection with the Tenant Improvements shall be part of the Landlord's
Allowance for Tenant Improvement Costs.
(d) The cost of making any and all changes in and to the Drawings and
Specifications and any and all increased costs in the Tenant Improvement Costs
resulting therefrom; and
In the event the aggregate of Tenant Costs, as defined above, exceeds Landlord's
Allowance for Tenant Improvement Costs, as specified in Section 3.02 above, then
Tenant shall promptly pay the excess to Landlord as additional rent, as set
forth in Section 3.04.
Section 3.04. Payment Schedule for Tenant's Costs.
Tenant shall pay to Landlord the Tenant's Costs as follows:
(a) Fifty percent (50%) of the amount of Tenant's Costs then known to
Landlord and Tenant shall be paid prior to the commencement of any work of
constructing and installing the Tenant Improvements;
(b) Forty percent (40%) of the amount of Tenant's Costs then known to
Landlord and Tenant shall be paid within thirty (30) calendar days after the
commencement of the work of constructing and installing the Tenant Improvements;
and
(c) The balance of Tenant's Costs shall be paid immediately upon
Landlord's notification to Tenant that the work of constructing and installing
the Tenant Improvements has been substantially completed.
Section 3.05. Changes in Drawings and Specifications.
If at any time after the Tenant Improvement Costs are determined
Tenant desires to make changes in the Drawings and Specifications, Tenant shall
submit to Landlord for approval working drawings, specifications, and finish
schedules for any and all such desired changes. The process of finalizing such
drawings and the like shall be as set forth in Section 2 above. Once any and all
changes
36
and modifications are approved, Landlord shall promptly submit the same to
Landlord's Contractor for pricing. The procedure for determining an approved
cost for such changes shall be as set forth in Section 2 above. Once a cost for
such changes has been approved, all references in this Agreement to "Drawings
and Specifications" shall be to the Drawings and Specifications adopted pursuant
to the procedures of Section 2 above, as changed and modified pursuant to this
Section 3.05, and all references to "Tenant Improvement Costs" shall be deemed
to include the aggregate approved cost for the changes as determined in this
Section 3.05. Once the changes and the costs therefore have been approved,
Tenant shall be deemed to have given full authorization to Landlord to proceed
with the work of constructing and installing the Tenant Improvements in
accordance with the Drawings and Specifications, as changed and modified.
Landlord, at its option, can require Tenant to pay in lump sum to Landlord any
and all increases in the Tenant Improvement Costs which result from approved
changes to the Drawings and Specifications. Any delays in completing the Tenant
Improvements which result from either changes in the Drawings and Specifications
made by Tenant or from the unavailability of materials specified by Tenant,
shall not operate to delay or extend the commencement date under the Lease nor
the payment of the base rental or other charges due under the Lease.
Section 3.06. Failure to Pay Tenant's Costs.
Failure by Tenant to pay Tenant's Costs in accordance with this
Section 3 will constitute a failure by Tenant to pay rent when due under the
Lease and shall therefore constitute an event of default by Tenant under the
Lease, and Landlord shall have all of the remedies available to it under this
Lease and at law or in equity for nonpayment of rent.
Section 3.07. Landlord's Disbursement Obligations.
Landlord agrees to disburse the Landlord's Allowance for Tenant
Improvement Costs and the Tenant's Costs (to the extent deposited by Tenant with
Landlord) to pay the Tenant Improvement Costs as and when the same become due
and payable. If exercising due diligence, Landlord shall be entitled to rely on
the accuracy of any and all invoices and fee statements for labor and materials
performed on or furnished to the Premises in connection with the Tenant
Improvements and to rely, to the extent submitted, on any and all certifications
as to Tenant Improvement Costs submitted by Landlord's Contractor and/or
Tenant's Architect. Tenant does hereby release and relieve Landlord from any
claims for damages and the like which may result from Landlord's paying an
inaccurate invoice, fee statement, or the like and does hereby indemnify and
agree to hold Landlord harmless and to defend Landlord from and against any and
all claims, damages, liability, or costs (including, without limitation,
attorneys' fees and court costs) which may arise or result from Landlord's
payment of Tenant Improvement Costs or the nonpayment thereof. Notwithstanding
the foregoing, the within release and indemnification of Landlord by Tenant
shall not release any other third parties, nor shall it waive any and all rights
which Tenant may have against other third parties in connection with the payment
or nonpayment of Tenant Improvement Costs.
Section 4. Finish Work in Addition to Tenant Improvements.
All work in or about the Premises which is not within the scope of the
work necessary to construct and install the Tenant Improvements, such as
delivering and installing furniture, telephone equipment, and wiring, and office
equipment, shall be furnished and installed by Tenant entirely at Tenant's
expense. Tenant shall adopt a schedule for performing such additional work
consistent with the schedule of Landlord's Contractor and shall see that such
work in conducted in such a manner an to maintain harmonious labor relations and
as not to interfere unreasonably with or to delay the work of
37
constructing or installing the Tenant Improvements. Landlord shall give access
and entry to the Premises to Tenant and its contract parties performing such
additional work and reasonable opportunity and time to enable Tenant and such
contract parties to perform and complete much work. All of such additional work
and Tenant's use (and the use by its contract parties) of the Premises for such
purposes shall be entirely in accordance with the Lease, including without
limitation this Agreement.
Section 5. Time is of the Essence.
Time is of the essence of this Agreement. Unless specifically
provided otherwise, all references to days or months shall be construed as
references to calendar days or months, respectively.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement in duplicate, individually or through their respective authorized
officers, partners, agents of attorneys-in-fact, as the case may be, and sealed
this Agreement or caused their respective seals to be affixed hereto, the day
and year set forth to the left of their respective executions, the latest of
which is and shall be deemed to be the date of this Agreement.
TENANT:
By: /s/ Anders H. Herlitz
-------------------------------------
Title: Chairman
----------------------------------
LANDLORD:
Two Park, Inc.
By: LaSalle Partners Asset Management
Limited, its authorized agent
By:/s/ Bret Bunnett
-------------------------------------
Title: Vice President
----------------------------------
Date: 11/8/90
----------------------------------
38
PARKWAY CENTER OFFICE BUILDING
EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, and public portions of the Building, such as
entrances, passages, courts, elevators, vestibules, stairways, corridors or
halls, and the streets, alleys or ways surrounding or in the vicinity of the
Building shall not be obstructed, even temporarily, or encumbered by Tenant or
used for any purpose other than ingress and egress to and from the Premises.
2. No awnings or other projections shall be attached to the outside
walls of the Building. 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, unless installed
by 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, or within 24 inches of the
surface of exterior windows. Signs on entrance door or doors shall conform to
building standard signs as established by Landlord. 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 by
Tenant, 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. Drapes may be installed by Tenant provided existing
blinds remain installed.
5. No show cases or other articles shall be put in front of or affixed
to any part of the exterior of the Building, nor placed in the public halls,
corridors, or vestibules without the prior written consent of Landlord.
6. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by Tenant.
7. Tenant shall not in any way deface any part of the Premises or the
Building. Tenant shall not 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.
8. No bicycles, vehicles, or animals of any kind shall be brought into
or kept in or about the Premises. No cooking shall be done or permitted by
Tenant on the Premises except in conformity to law and then only in the utility
kitchen, if any, as set forth in Tenant's layout, which is to be primarily used
by Tenant's employees for heating beverages and light snacks. Tenant shall not
cause or permit any unusual or objectionable odors to be produced upon or
permeate from the Premises.
39
9. No space in the Building shall be used for manufacturing,
distribution, or for the storage of merchandise or for the sale of merchandise,
goods, or property of any kind at auction.
10. 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 or premises or those having business with them, whether by
the use of any musical instrument, radio, talking machine, unmusical noise,
whistling, singing, or in any other way. Tenant shall not throw anything out of
the doors, windows or skylights or down the passageways.
11. Neither Tenant, nor nay of Tenant's servants, employees, agents,
visitors, or licensees, shall at any time bring or keep upon the Premises any
inflammable, combustible or explosive fluid, or chemical substance, other than
reasonable amounts of cleaning fluids or solvents required in the normal
operation of Tenant's business offices.
12. 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 of 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, 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.
13. Tenant shall not overload any floor. Tenant shall obtain Landlord's
consent before bringing any safes, freight, furniture, or bulky articles into
the Building and Landlord can specify to Tenant the location for the placement
of such articles. All removals, or the carrying in or out of any safes, freight,
furniture, or bulky matters of any description must take place during the hours
which Landlord or its agent may determine from time to time. 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 of which these Rules and Regulations are a part.
14. Tenant shall not occupy or permit any portion of the Premises to be
occupied, without Landlord's expressed prior written consent, as an office for a
public stenographer or typist, or for the possession, storage, manufacture or
sale of liquor, narcotics, dope, tobacco in any form, or as a barber or manicure
shop, or as a public employment bureau or agency, or for a pubic finance
(personal loan) business. Tenant shall not engage or pay any employees on the
Premises, except those actually working for Tenant on said premises, not
advertise for laborers giving an address at the Building.
15. Tenant agrees to employ such janitorial contractor as Landlord may
form time to time designate, for any waxing, polishing, and other maintenance
work of the Premises and of the Tenant's furniture, fixtures and equipment.
Tenant agrees that it shall not employ any other cleaning and maintenance
contractor, not any individual, firm or organization for such purpose without
Landlord's prior written consent.
16. Landlord shall have the right to prohibit any 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.
17. 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 tenants. Tenant shall be
40
responsible for all persons for whom it issues such pass and shall be liable to
Landlord for all acts of such persons.
18. At the option of Landlord, Tenant agrees to purchase from Landlord
or its agents all lamps and bulbs used in the Premises and to pay for the cost
of installation thereof.
19. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
20. The requirements of Tenant will be attended to only upon
application at the office of the Building. Building employees shall not perform
any work or do anything outside of their regular duties, unless under special
instructions from the office of Landlord.
21. Canvassing, soliciting, and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
22. There shall not be used in any space, or in the public halls of any
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 shall be used in passenger elevators.
23. In order to obtain maximum effectiveness of the cooling system,
Tenant shall lower and/or close the blinds or drapes when sun's rays fall
directly on windows of Premises. Tenant shall not remove the standard blinds
installed in the Premises.
24. All paneling or other wood products not considered furniture shall
be of fire-retardant materials. Before installation of any such materials,
certification of the materials, fire-retardant characteristics shall be
submitted to Landlord or its agents, in a manner satisfactory to Landlord.
25. Tenant shall not install any vending machines in the Building or
Premises without Landlord's consent.
26. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular Tenant or Tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other Tenant or Tenants, nor prevent Landlord from thereafter enforcing
any such Rules and Regulations against any or all Tenants of the Building.
27. Landlord reserves the right to make such other and reasonable rules
and regulations as in its judgment may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the preservation
of good order therein. Tenant agrees to abide by all such Rules and Regulations
hereinabove stated and any reasonable additional rules and regulations which are
adopted.
Whenever the above rules conflict with any of the rights or obligations
of Tenant pursuant to the provisions of the Paragraphs of this Lease, the
provisions of the Paragraphs shall govern.